Last year, the IFLS revived a feminist book club tradition at Osgoode. The group will continue this year, and we would like to invite those interested in taking part for the year to join. All are welcome, regardless of whether your research interests align with the IFLS. We try to meet about once a month to discuss a book, graphic novel, poetry anthology or some other form of the written word, from a feminist perspective. There are usually treats! If you’re interested or have any questions, please send an email to Dana at firstname.lastname@example.org. Looking forward to seeing faces old and new as the school year starts up again.
Ruthann Robson, if you do not already know her, is a wonderful feminist legal scholar, writer (in many genres), and teacher. You can find out more about her here, at her website, and here, in past IFLS posts about her (there’s video of a talk she gave at Osgoode, here).
She sent over the following recommendation for a paper written by one of her former students, AJ Wipfler (CUNY Law 16). Whether for the substantive subject matter or for the joy of thinking about the student/prof relationship and how it can be used to build scholarship and advocacy, or just to see an example of writing enthusiastically about someone else’s work, have a read:
un-sexing birth certificates
The controversial “bathroom statute” in North Carolina, HB2, regulates the proper use of sex-segregated facilities as consistent with one’s “biological sex,” defined as the “physical condition of being male or female, which is stated on a person’s birth certificate.” That the legal grounding of sex-determination should be one’s birth certificate is both predictable and shockingly naïve. It also begs the questions of why birth certificates and other government documents designate M(ale) or F(emale). Haven’t we moved beyond that? Shouldn’t we?
In Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents, a forthcoming article in Harvard Journal of Law and Gender, author Anna James (AJ) Neuman Wipfler explores the many issues surrounding sex designations on identity documents, in global and local contexts, highlighting the particularities of birth certificates. It’s such a sophisticated, nuanced, and informative article that I have difficulty believing its own birth was as a student paper for a Sexuality and Law course – – – full disclosure! – – – that I regularly teach at City University of New York (CUNY) School of Law.
Wipfler ultimately argues that the elimination of sex designations should be the goal, but recognizes that several types of “identity crises” merit attention before wholesale abandonment of sex designations.
The most vital “identity crisis” is that amongst the people most affected. Wipfler writes that there is a “tension within the trans rights movement between retaining sex identifiers for use in securing rights on the basis of gender identity and dismantling sex/gender as a legal identifier.” In part, this tension arises from strategic considerations: as long as law promulgates and enforces a binary sex designation regime, having “access to a government-issued identity document that correctly reflects one’s gender identity cannot be overstated.” But the tension also inheres in disagreements over whether abolition of sex/gender categories should be a goal of trans liberation, even as there is widespread agreement that the standards for determining sex designations, legal or otherwise, are incoherent and conflicting.
One solution might be what Wipfler terms “Definitional Expansionism,” which has as its primary grounding self-attestation and is reflected in one of the foundational documents of LGBT international human rights law, the Yogyakarta Principles (2007). Yet, as Wipfler argues, this may essentially re-entrench binary sex classifications even as it de-essentializes sex. Another solution is what Wipfler labels “Categorical Expansionism” and would recognize sex designations other than M(ale) and F(emale) on at least some identity documents. This approach is becoming increasingly popular amongst some (progressive?) governments – – – including Australia, Bangladesh, Denmark, France, Germany, India, Malta, Nepal, New Zealand, Pakistan, and Thailand — – all of which Wipfler’s articles discusses. The drawback of this solution, Wipfler contends, is that shifting from a binary to a tripartite is not necessarily an improvement, especially when the third – – -“other” – – – category might further entrench the normalcy of the binary. The best solution for Wipfler is gender abolition and Wipler discusses how “Categorical Expansionism” attempts can segue into abolition models on identity documents, detailing experiences in New York City and Canada.
The centerpiece of Wipfler’s article, however, is the birth certificate as the “starting place” for sex designation abolition, even as it comports with definitional and categorical expansion. Importantly, Wipfler maintains that “legal sex” determinations are “unnecessary for children.” Wipfler recognizes that in some instances, including those affecting the most vulnerable trans populations, gender-affirming documents will be necessary, but nevertheless contends that the at-birth sex designation will likely be more harmful than helpful. And even more importantly, Wipfler uncovers the reality of birth certificate documents as not only changeable, but “ever-changing.” Indeed, “the fields on the U.S. Standard Certificate of Live Birth,” which most states adopt, “have changed no fewer than twelve times since their inception in 1900.” Wipfler vividly illustrates these changes in the Appendices to the article reproducing various versions including the most recent 2003 revision. True, the changes have tended toward the inclusion of more information rather than less, but perhaps the most crucial addition was the 1949 line of demarcation, dividing document. Above the line is the portion that most of us think of as “the birth certificate.” The below-the-line portion is medical and statistical information that does not appear on the legal identification portion of the certificate. Migrating to this below- the-line position has been the mother’s marital status as well as the race of the parents. Wipfler suggests that sex information – – – or more accurately, “apparent genital status” – – – of the baby should similarly reside below-the-line. The government’s interest in “sex” thus becomes not an imposed personal identification marker, but a matter of government statistics. What would remain above the line would be child’s name, place and date of birth, as well as information about “mother” and “father,” which I must add, also requires a de-gendering to dismantle presumptions of heterosexual parenting pairs.
Wipfler ultimately contends that “as long as the state records gender identity, it will also police its boundaries,” even as there are “still too many dangers to remove gender markers from all identity documents in the United States all at once.” Birth certificates are not only a strategic starting point, but their legal importance is demonstrated by laws such as the North Carolina one which would have many of us, especially those who appear gender-non-conforming, carry our official birth certificate whenever we might have to use the toilet.
One of the first questions I had to confront when I started practising criminal defence law was whether or not I would defend cases of sexual assault and sexual abuse where the complainants are women or children. (Zilla Jones, Winnipeg Criminal Defence lawyer)
The Ghomeshi trial and outcome provoked a very broad national conversation on a range of topics, many asking about how law, lawyers and the justice system deal with claims of sexual assault. Comments, arguments, suggestions have appeared in the form of tweets, facebook comments, blog posts and in more traditional media (and in the comments on those articles). In time we should also be reading peer reviewed academic articles. In reading what i could of all this output (including, idiot that I am, some of the comment sections). I saw calls for forcing defendants to testify in criminal trials, and I saw calls for charging some or all of the complainants in this case with perjury (both, for me, seem out of the question, so I offer them as indications of opposite ends of the spectrum). I also saw anguish, anxiety and anger (for a selection, a limited selection, of @osgoodeifls tweets to post verdict commentary, some of which clearly take a position contrary to what you will read below, click here). My main wish for feminist conversations about what this case means is that we can engage in conversations about feminist advocacy and goals that remain nuanced and thoughtful, even across some differences. We all need to determine where we stand, to revisit and critically reexamine our positions, this is a lifelong process. I particularly want feminist law students to be able to access a range of feminist positions. After reading her brief and thoughtful post about Ghomeshi and criminal defence work via Facebook, I asked Winnipeg lawyer Zilla Jones if she wanted to write something for broader consumption and despite a ferociously busy schedule, she graciously agreed. Zilla's words follow, and her bio (more than just bare facts) is at the bottom of the page. - sonia.
One of the first questions I had to confront when I started practising criminal defence law was whether or not I would defend cases of sexual assault and sexual abuse where the complainants are women or children. For many female defence counsel, this has deeply personal implications. Given the prevalence of sexual assault, female defence counsel are just as likely as any other women to have been sexually assaulted themselves, to have witnessed a sexual assault, or to have helped friends or family through the aftermath of a sexual assault. I always wondered about those drunken post-exam parties in law school and whether any of my fellow students ever forgot what they had just written on the topic of consent.
I have been questioned by my own friends and family members before as to how I can defend sexual assault cases, but in the aftermath of the Ghomeshi trial, the conversation has gone national and people across the country are questioning the reasoning of any female defence counsel who defend in cases of sexual assault. While I am happy to see so many people engaging with the justice system, some troubling ideas seem to be a common discussion topic: we should develop special sexual assault courts that force the accused to testify, or we should consider lowering the standard of reasonable doubt in sexual assault cases, or we should re-consider how witness testimony is assessed in light of the trauma experienced by victims and not allow defence to cross-examine on the details of a sexual assault offence or the events surrounding it, or that Mr Ghomeshi’s lawyer, Marie Henein, was unethical or unfair in how she defended this case.
In a criminal trial, the person who should always be front of mind is the one with the most at stake, and that is, without exception, the accused. People who say that that high-profile accused such as O.J. Simpson or Jian Ghomeshi are “powerful” are misguided. No matter who the accused is, once they are the subject of a criminal investigation, the full might of the state is against them, which pales against the influence of any defence lawyer they can pay. The state has police officers, investigators, detectives, probation or parole officers, Crown attorneys and all the supports in their offices, all dedicated to imprisoning the accused and/or subjecting him or her to other conditions such as fines and strict probation conditions, and marking them with a permanent criminal record. The accused has one person to counter this. If wealthy accused are getting “designer defences”, they are getting the defence every accused deserves and we should expand access to such representation, not lessen it.
Because of the serious consequences of criminal convictions, which may include, besides imprisonment, job loss, damage to reputation and stigmatization and the loss of friends and family, we have developed a justice system that has as its foundation and its primary function the presumption of innocence until guilt is proven beyond a reasonable doubt. Lowering the burden of proof to assist victims should not take precedence over the need to prevent wrongful convictions. Something terrible may have happened to the complainant, but the accused faces prison, and we must never make it easier to imprison people.
The reaction to the Ghomeshi verdict that I find to be the most strange is that of some people who are otherwise progressive thinkers, who are critical of police violence, the overuse of incarceration to address social problems and the abuses to prisoners through things such as lengthy remand times and extended periods of solitary confinement. When such a person expresses disappointment that Mr Ghomeshi was not convicted and states that they would like to see more convictions entered in cases of sexual abuse, I wonder how they do not see the contradiction in supporting the idea that more people be incarcerated and that they are agreeing that incarceration is the appropriate way to deal with the larger social issue of sexual assault and the treatment of women and children. In the case of inmates facing sex-related charges, they are often subjected to violence in the institution and/or have to be placed in administrative segregation, or solitary confinement to protect them from such violence. In general, there is little evidence that the threat of incarceration changes behaviours, prevents offending or serves any rehabilitative purpose in most cases.
My experience has shown me there is a problem with the assumption that the only “victim” is the person sitting in the courtroom testifying against the accused. “Victims” and “offenders” do not fit into such neat boxes. Many of the accused I represent have also been victims of crime. In fact, many of them have scars attributable to the state that is now prosecuting them: they were physically and/or sexually abused while wards of the state, or after “aging” out of care and being consigned to the streets, or they have endured generations of dysfunction after their forebears were abused in residential schools. Some have been beaten or raped by police or by guards or other inmates while in the care of the state. When an accused person says that a police officer or prison guard beat or raped them, the courts don’t “believe the survivor” – they demand proof and allow the officers in question to defend themselves, often deferring to their authority and denials that the offence occurred, if the matter even gets that far. Many accused do not report such things for the exact reasons other sexual assault survivors don’t – they think they won’t be believed or worry that what they were doing at the time or their criminal records will be held against them or that the repercussions will be worse than the original offence.
I fully agree that courts don’t always respond to the social context of the witnesses before them, but this includes the accused or witnesses for the accused. An accused in a criminal case who complains that they were not afforded their legal rights or were racially profiled or otherwise discriminated against will likely need to use the Charter, and on a Charter application, the accused has the burden of proof against the might of the state, and police officers who are often considered credible just for being police officers.
I once represented a suspected gang member on a home invasion, and the Crown called his co-accused to testify against him. The co-accused was serving a sentence and was terrified of being attacked by inmates for being a “rat.” Because he was not cooperating, the Crown applied successfully to cross-examine him as an adverse witness and absolutely savaged this young man far beyond what was necessary to show he was being untruthful, throwing his personal tragedies in his face and so on, with all my objections being overruled. Several lawyers from the Crown’s office came especially to watch this young Aboriginal man be humiliated in a courtroom full of white eyes. Later when I commented to the Crown that he had gone further than he needed to, he blamed my client for exercising his right to a trial and said “he could have just plead out” and “that’s what you get when you’re in a gang.”
A young Aboriginal woman I represented told me that she, a previous survivor of sexual assault, was at a party when one of her friends said that a man had raped her in the bedroom and was trying to leave. Several women grabbed him and attacked him with kitchen utensils. She was charged with aggravated assault for helping them hold him down. When I tried to negotiate her bail, I was harangued about how she should have called the police to assist her friend. The Crown expressed skepticism that her own assault had happened, since she hadn’t called police about it either.
I have seen witnesses dragged to court under subpoena to testify against gang members, helping to secure convictions, and then taken back to the streets with no protection, and seemingly no concern about that because “that’s the life they signed up for.” I, as defence counsel, am usually the one expressing the most concern for these people, even though they contributed to my client potentially receiving a penitentiary term. I have even had witnesses I cross-examined call and ask me to be their lawyer the next time they morph from victim to accused. Or I have had to turn down cases because the complainant is someone I previously represented.
I have seen accused who testify subjected to Crown cross-examination that uses terminology they cannot possibly understand as a person with FASD, or that totally discounts why it is a problem when a police officer with a tall, thin Black suspect performs a “spot check” on a short, muscular Black suspect, or why someone living in a rough area of town would scratch the labels off their prescription drugs so as not to be jumped for them, rather than to traffick them. Sometimes, the refusal to believe their testimony gets them convicted, possibly wrongfully (even with the allowances that are supposed to be made for the testimony of accused persons.) Any changes to the assessment of witness testimony must take into account fairness to the accused.
Most of the people I represent don’t look like the complainants in Ghomeshi – white, educated, mature women, with at least Ms DeCoutere seeming to belong to the middle class. I don’t look like those women either; I am always aware that I look more like the majority of my clients than the majority of the judges I appear in front of. As a feminist, I am concerned that the greatest injustice in the justice system is that, even with the principles of the presumption of innocence and the requirement that the Crown prove its case beyond a reasonable doubt, we are still witnessing the mass incarceration of indigenous and Black people, the mentally ill and the poor, the non-citizens and the wards of the state, often on minor offences. This mass incarceration seems to so often go unchallenged although it does so little to prevent or deter crime or to rehabilitate offenders. While the vulnerability of women and girls to sexual assault, and the response of the justice system to such harm, is an important issue to address, we must not lose sight of the other inequalities in the justice system.
We also need to be careful when discussing the performance of Ms Henein, Jian Ghomeshi’s lawyer. She’s a woman of colour, an immigrant, excelling in a field which is still male-dominated and difficult for women to navigate. I don’t recall ever seeing a female defence lawyer get this kind of attention and this is fantastic for the profession. Some of the language used to describe her has been troubling, and highlights how women of colour are sometimes assumed to be tough and impervious to hurt (a legacy dating back to slavery) or not “real women.”
Some of the critique of defence counsel assumes that we do not do our part to challenge rape myths or reduce sexual assault. But most people only see what happens in court and not what happens in the lawyer’s office. I always discuss consent with people accused of sexual assault, as I recognize that most of them are in my office, innocent or not, because they don’t understand consent. Even if they are acquitted or the charges are dropped, we discuss consent “so there won’t be a next time.” Where there seems to be a strong case for the Crown, I discuss with them that if they plead guilty rather than going to trial, they get credit for sparing the woman the ordeal of coming to court. And where there is to be a trial, I meticulously plan my cross-examinations to avoid rape myths and my usual strategy is to be “nice” to the witness while exposing any potential flaws in her testimony. Sometimes, a witness’ testimony falls apart and sometimes she stands her ground and her testimony remains solid. In both cases, I have zealously advocated for my client and a just result is reached.
Sometimes, an accused will insist on testifying against my advice to explain why they “didn’t do it.” If they do, it usually becomes apparent to the court that they don’t understand consent and don’t respect women. If the complainant’s testimony is solid, they get convicted. I suppose that this is why some are upset that Ghomeshi didn’t testify. However, the right of silence for the accused is another fundamental principle. Given what I have said about the difficulties that many accused have explaining their life circumstances to the courts, it is often the safest course of action for an accused to remain silent and make the Crown prove its case. If we allow the violation of a centuries-old principle and force persons accused of sexual assault to testify, how long will it be before the state starts forcing other accused to do the same, including accused from poor or marginalized communities?
Finally, the times that we have to cross-examine a sexual assault complainant only make up a few incidents in the working life of most female defence attorneys, and it doesn’t make sense to define us and our professional choices by these moments, while obscuring others that might be equally, or more, relevant. Many of us are not particularly overjoyed at the task of cross-examining a woman who says something horrible happened to her and that she is traumatized by it, but we do our job and try not to make it more unpleasant or uncomfortable than it inherently is, while also making sure we provide our client with a full defence and explore all avenues open to us to challenge credibility. We also defend the poor, the marginalized, the racially profiled, the mentally ill, and the unfairly accused (some of whom, of course, are also sexual assault defendants.) We cross-examine police officers about their use of force or the assumptions they make about people. And of course we can and do support sexual assault survivors and advocate for them in different contexts outside of the courtroom. Or when those survivors become the accused a year or two or three later, or already are the accused, we are there for them.
Zilla Jones practices criminal defence and human rights/poverty law in Winnipeg, Manitoba. She graduated from the University of Manitoba Robson Hall school of law in 2011 and has her own law firm, Jones Law Office. She has appeared at all levels of court in Manitoba and a number of administrative tribunals. She is a member of the Canadian Association of Black Lawyers and Association des juristes d'expression française du Manitoba and is the President of the Equality Issues section of the Manitoba Bar Association. She also sits on the boards of the John Howard Society of Manitoba and the Manitoba Theatre for Young People. As an African-Canadian immigrant woman, she is very interested in issues of critical race theory and post-colonial theory and their application to the law. Zilla is the mother of two young sons who participate in sports and music. She is one of the instructors and founders of ANANSI, a performing arts group for children of Caribbean and African descent. Her undergraduate degree is in vocal performance and she still sings opera and jazz as time allows. Her other passion is literature, and she is currently working on her first novel. Some of her favourite authors are Toni Morrison, Zadie Smith and Isabel Allende. She recently read Indian Horse by Richard Wagamese and is now reading Birdie by Tracy Lindberg. She loves to travel and to visit her extended family scattered across the world. Her role models are her mother, her grandmother, her aunt Marion O'Callaghan, an anti-racism activist, writer and former UNESCO Director of Social Programmes. She also admires Harriet Tubman, Sojourner Truth, Nelba Marquez Greene, who lost her daughter in the Sandy Hook Massacre and lives each day with incredible grace and strength while advocating for gun control and greater social inclusion, and Marie Henein.
There’s been a bit of reporting and commentary on this topic lately, kicked off by the release in March 2016 of the Criminal Lawyer’s Association (Ontario) report, The Retention of Women in the
Private Practice of Criminal Law, prepared by post-doctoral researcher Natasha Madon and Anthony Doob.
An important addition to this discussion is offered over at the (Osgoode student newspaper) Obiter Dicta, by Andrea Anderson, a PhD student and criminal defence lawyer herself. She writes about female defence attorneys who are Black or Indigenous in her commentary entitled: The Retention of Women in Private Practice: The challenge is intersectional:
While not an exhaustive list, in my own experiences practicing criminal defence, I have often (too many times to count) been mistaken for the co-accused, the surety to the girlfriend of my male clients and in turn, prohibited from crossing over to sit at the counsel table or looking at the docket sheet from other members of the Bar—all instances that have included non-racialized female counsel. I have listened to male interviewers make inappropriate comments about my body type, questioning whether I am fit to practice criminal defence.
On the same set of issues, see Naomi Sayers (UOttawa law student, her blog is Kwe Today and she tweets as @kwetoday) and Sam Peters (also a U of O JD student, on twitter as @SamPetersTO) in the HuffPo, here:
Perhaps some of the reasons why racialized women are leaving the criminal profession are more complex than what is discussed in the report. Perhaps it is also because we do not get paid the same as white women, let alone white men. What about Black and Indigenous women in criminal law practice? We are often mistaken for the assistant in the courtroom, rather than the lawyer. And the most obvious, racialized lawyers in criminal law practice are often in solo practice. Maybe it is because we are not even hired as much.
Questions about the retention rates amongst women in criminal private practice are really important to ask, as are questions about how Black and indigenous women fare when they are on the Crown side. The highly gender and racialised nature of criminal justice in Canada means that these women are uniquely positioned – very differently to other lawyers – when they join the defence bar. How different is their experience? I’m glad that one of the results of the CLA report (bravo CLA for commissioning) are the questions that Andrea Anderson, Naomi Sayers and Samantha Peters are asking. Small scale study, anyone?