Tracy Robinson, University of the West Indies, Social Justice Education – Loving Laws
I and many others have been involved in strategic litigation in the English speaking Caribbean that challenges the constitutionality of laws criminalizing same-sex sex. Many of us rely heavily on reason, especially forms of legal reason, to question laws that criminalize same sex sexuality. Yet the historical rationalist critique that that nationalists in Africa, Asia and the Caribbean are defending laws that are the product of colonialism has remarkably little traction where these laws still exist. It tends to miss how ‘[s]entiment is the ground against which the figure of reason is measured and drawn’ (Stoler). The relationship of many Caribbeans to 19th century laws criminalizing same-sex sex is a deeply affective one—of loving laws—that is partly prefigured by knowledge practices of the Caribbean common law state. In this paper I want to explore how technologies of law, and especially of what I term ‘a Caribbean common law’, helped to establish an affinity to some laws as, to borrow from Amar Wahab, ‘a state of reason’. Sentiments about legal kinship and belonging have been used to forge community and identity in the Anglophone Caribbean and forge heteropatriarchy as a form of ‘indigenous’ culture. I am also interested in exploring how process of legal reification—codification and consolidation of criminal laws in the 19th century and the methodologies of ‘saving’ of these laws through Caribbean constitutions—as well as gendered and sexualized international legal rhetoric also contributed to loving laws.
About Tracy Robinson:
Tracy Robinson (Jamaica & Balliol 1992) is a lawyer and senior lecturer at the University of the West Indies, Mona, where she teaches gender and law, constitutional law and Commonwealth Caribbean human rights, among other subjects. She was the Chair of the Inter American Commission on Human Rights from 2014-2015, and currently serves as its Rapporteur for the rights of women and rights of LGBTI persons until the end of her term in December 2015. Tracy has served as a consultant to international agencies such as the United Nations Fund for Women (now UN Women) and UNICEF, and she has advised Caribbean governments on topics related to gender and children’s rights legislation. She holds a Master of Laws from Yale University, a Bachelor of Civil Law from the University of Oxford, and a Bachelor of Law from the University of the West Indies.
Centre for Refugee Studies seminar
Wednesday February 24, 2016, 11am-12:30pm
Room: 280N York Lanes
Envisioning LGBT Asylum in Canada: Is Canada a Safe Haven?
Presentation of findings based on the various themes which emerged from the research regarding the experiences of LGBT refugee and asylum seekers populations to Toronto. The research is based on qualitative interviews and focus groups with the mentioned populations as well as service providers working in the resettlement sector. Additionally, the presentation will include recommendations Envisioning is calling for to address the numerous issues and concerns presented.
The report is available on-line at: http://envisioninglgbt.blogspot.ca/p/publicationsresources.html
Speakers: Nancy Nicol, Principle Investigator – Envisioning Global LGBT Human Rights;
Nick Mulé, Chairperson, Canada Research Team for Envisioning Global LGBT Human Rights;
Kathleen Gamble, PhD Student;
Junic Wambya, former ED of Freedom and Roam Uganda, forced to flee Uganda due to persecution. She was accepted as a protected person in Canada in 2014.
Co-sponsored by the Centre for Feminist Research.
*Please note this event counts towards seminar requirements for GFWS students
As usual, the Osgoode Feminist Collective is up to awesome things. Here are two events not to miss next week!
‘Ackee & Saltfish’ is a short film, directed and written by Cecile Emeke, starring Michelle Tiwo as Olivia, and Vanessa Babirye as Rachel. The film is described as “connecting the scattered stories of the black diaspora”, and looks at gentrification in London through the conversations of two best friends.
‘Strolling’ is a short documentary film series also created by Cecile Emeke, where we take a stroll with people in various cities and countries around the world, having refreshingly raw and honest conversations about various issues at the forefront of their society. The film touches on everything from feminism, sexuality, gender, race and politics to philosophy, art, history, capitalism, war and poverty… and everything else you can think of.
Facebook event: https://www.facebook.com/events/186650391698161/
Join OUTLaws and Osgoode’s Feminist Collective for a conversation with the inspiring trans rights activist Rachel Lauren Clark. Rachel grew up in upstate New York, and was part of the marine corps for eight years. Leaving the military at the age of 25, Rachel eventually moved to Toronto in 2003, where she was working in information technology. In 2013, Rachel started living openly as a trans woman. She is now heavily involved in the LGBTQ community, serving on the board of Pride Toronto.
Facebook event: https://www.facebook.com/events/987552994613518/
Tamera Burnett is a student in Osgoode Hall Law School’s PhD program, where she is working on how to approach sentencing in sexual assault trials through an intersectional feminist lens. She’s been following the Jian Ghomeshi sexual assault trial and she’s generously offered us her thoughts on the topic.
Some Overarching Comments on the Ghomeshi Trial from a Feminist Perspective
For the past several weeks, mainstream and social media has been flooded with articles and conversation about the Ghomeshi sexual assault trial. For feminists, this trial has represented an opportunity to talk about the many discriminatory issues plaguing this area of law. On the other hand, the trial has also shown us just how much work remains to be done on this issue, both in the legal system and society at large.
In 2014, Jian Ghomeshi, formerly a household name for his musical, written, and radio show work, was accused of sexually assaulting 23 different people (mostly women) over a period of many years. Of those accusations, only a handful of charges were brought to court. The most recent trial involves the accusations of three of the victims.
One of the most discussed issues arising from this trial is defence counsel Marie Henein’s use of the “whacking the complainant” strategy. To whack a complainant is to conduct as an aggressive and emotionally trying cross examination as possible in order to destroy the credibility of the complainant. Though some argue that such vigorous questioning is necessary to ensure that the accused receive a fair trial, Amanda Dale, Joanna Birenbaum, and Pamela Cross point out that no defence should perpetuate inequality. Whacking the complainant often relies on discriminatory assumptions about how “proper” victims should act. Because Ghomeshi’s victims didn’t immediately break off all contact with him and go to the police, their claims of sexual assault are seen as untrue. Yet having conflicted feelings and taking time to accept what has happened is something that many sexual assault survivors experience. The focus of a sexual assault trial should be on the actions of the parties during the time period of the assault. To assume that questions about consent are answered by after-the-fact behaviour on the part of the victim disregards the way that Canadian criminal law is structured, and relies on harmful rape myths and stereotypes. As Lucy DeCoutere’s lawyer announced shortly after her client was cross examined:
“This is and remains a trial about Mr. Ghomeshi’s conduct. What Lucy did or how she felt in the aftermath does not change that essential fact…. Violence against women is not about the behaviour of the women; it is not about how they cope with an assault, or the details they commit to memory in the aftermath any more than it is about what they wore or how much they had to drink.”
Such aggressive cross examination also ignores how memory works. Not only do memories fade over time, a very relevant fact when dealing with assaults that took place over a decade ago, but trauma influences how events are committed to memory. That witnesses did not remember what make of car Ghomeshi drove, or whether or not they had hair extensions at the time of their assault is not a sign that their memories were false. Badgering witnesses about these extraneous details doesn’t tell the court anything about the assault in question, and credibility should not be accorded to only those with perfect recollection.
Furthermore, almost all of the attention in this trial was placed on the complainants while Ghomeshi remained silent about his behaviour. No accused can be forced to testify, but this means that Ghomeshi was not quizzed about his memories. His rationalisations were not demanded in a public forum, and his choices not systematically picked apart, despite the reasonable steps requirement of Canadian sexual assault law. Acknowledging this gap in the trial narrative is particularly important given that some of Ghomeshi’s behaviour appears to reflect the attitudes and actions of abusers. According to some victims, Ghomeshi made sure he had written documentation to show that his victims seemed to want to engage in sexual activities with him, and that any communications after sexual or violent contact remained flirtatious and friendly to support this claim. Accusations of inappropriate behaviour, therefore, could be countered with documentation suggesting that victims approved of what happened between them and Ghomeshi, a tactic used by abusers to justify and disguise their problematic behaviour. Additionally, other victims have come forward to state that he groomed them for violence, drawing in his victims with stories of vulnerability, and then emotionally manipulating them to create doubt that Ghomeshi could be at fault for any issues in the relationship. While none of these details were discussed at length in court, they can be seen over and over again in the stories of the victims who have come forward. Ghomeshi was never “whacked” on the stand, but bikini pictures of his victims were submitted as official evidence. Even if these disparities are required by the letter of the law, the spirit of justice is damaged when a trial incorporates so many unfair and irrelevant standards for complainants, while at the same time protects an accused from scrutiny into his behaviour.
Finally, the Ghomeshi trial highlights an important ethical conflict in criminal defence lawyering: when does a vigorous defence for an accused begin to undermine the administration of justice as a whole? Though the accused must be protected from the overwhelming power of the state, the actions of criminal defence lawyers should never directly harm society in order to protect their clients. After all, there is a substantial difference between protecting your clients’ rights and doing whatever possible to ensure that they are acquitted. David Tanovich argues that Canada needs a better standard for ethical defence lawyering in sexual assault trials. He and Elaine Craig state in a recent Globe and Mail article that while “[some] of the brutality of our adversarial system is inevitable[, it] is intolerable and shameful that our profession permits these unavoidable harms to be compounded by conduct that is neither ethically or legally permissible.” Using rape myths and stereotypes to imply that a complainant was not a victim because they didn’t report soon enough, didn’t respond in the right way, weren’t the right type of victim, or any other such discriminatory claim, makes it less likely that people will come forward to report sexual assaults, and undermines the administration of justice by allowing legal decisions to be influenced by untruthful, irrelevant, and misogynistic understandings of sexual assault. Defence lawyers must find a better balance between the needs of their clients and their obligations to the public.
Both Crown and defence made their closing statements in the Ghomeshi trial on February 11, 2016. The judge’s ruling is being held until March 24th when Canada will find out how strongly rape myths and discriminatory beliefs about sexual assault victims still unfairly influence our justice system.