Tag Archives: rape myths

Tamera Burnett: A Feminist Perspective on the Ghomeshi Trial

picture of TameraTamera 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.

 

 

 

Joanne Conaghan and Yvette Russell consider progressive legal strategizing through 'rape myths' controversy

Taking on Helen Reece’s mythologizing…..

New in Print: Joanne Conaghan and Yvette Russell Rape Myths, Law, and Feminist Research: ‘Myths About Myths?’. In: Feminist Legal Studies, Vol. 22, No. 1, 2014.  Feminist Legal Studies is available via Springer Link here.

Read the introduction here.

ABSTRACT: In an article recently published in the Oxford Journal of Legal Studies, the legal scholar Helen Reece argues that the prevalence and effects of rape myths have been overstated and the designation of certain beliefs and attitudes as myths is simply wrong. Feminist researchers, she argues, are engaged ‘in a process of creating myths about myths’ in a way that serves to close down and limit productive debate in this ‘vexed’ area. In this article we argue that Reece’s analysis is methodologically flawed, crudely reductionist and rhetorically unyielding. We locate Reece’s analysis within the wider theoretical field to show how her failure to engage with feminist literature on rape other than in the narrowest, most exclusionary terms, yields an approach which impedes rather than advances public understanding and panders to a kind of simplistic thinking which cannot begin to grapple with the complexity of the phenomenon that is rape. We conclude by emphasizing the continuing commitment of feminist researchers carefully to theorize and (re)map the fraught field of progressive legal strategizing in order to identify and counter the kinds of risks and shortcomings of political activism with which Reece is rightly concerned.

See also

Nov. 28 2013 Davina Cooper “Question Everything? Rape Law & Free Speech”  http://criticallegalthinking.com/2013/11/28/question-everything-rape-law-free-speech/

At one level, the con­flict con­cerns how crim­inal law and pro­cedure treat (and should treat) rape — whether “or­dinary” people have a series of be­liefs about rape that make them less sym­path­etic (than they should be) to women vic­tims. At an­other level, the con­flict is about speech — about what speech is, what it does, and our re­spons­ib­ility for its ef­fects. Helen poses the ques­tion, why is rape dif­ferent? But, in the face of “free speech” calls to de­fend aca­demic freedom and the right to ques­tion everything, I want to ask, why is speech dif­ferent? Is it priv­ileged simply be­cause ex­pres­sion and com­mu­nic­a­tion are priv­ileged, or be­cause it rep­res­ents an ex­cep­tional way of ex­pressing opinion or ques­tioning re­ceived norms?

Nov. 15 2013 Sarah Keenan and Yvette Russell “Rape is Different:  Academic Impact Sinks to New Lows” http://criticallegalthinking.com/2013/11/15/rape-different-academic-impact-sinks-new-lows/

The LSE is a pres­ti­gious in­sti­tu­tion of higher learning whose public de­bate series pur­ports ‘to po­s­i­tion LSEat the centre of de­bate in all areas of the so­cial sci­ences… [and] to en­hance the School’s repu­ta­tion for in­tel­lec­tual, chal­len­ging ideas and dis­cus­sion with a broader public audi­ence.’ But far from opening up a cut­ting edge de­bate, the so­cial media pro­mo­tion, public event and media cov­erage sur­rounding Reece’s art­icle in fact closes down and severely limits careful, con­sidered and evidenced-​based dis­cus­sion about rape and rape law, al­most all of which con­tra­dicts Reece’s and Hewson’s claimsThese claimsare not new or in any way path-​breaking.

Helen Reece  http://ifls.osgoode.yorku.ca/2013/06/myths/

 

Myths about Myths…about Myths?

Helen Reece, reader in law at LSE recently published “Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?” in the Oxford Journal of Legal Studies (H Reece, ‘Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?’ (2013) Oxford Journal of Legal Studies, online: <http://ojls.oxfordjournals.org/citmgr?gca=oxjlsj;gqt006v1> First published online: March 25, 2013.   Here the Guardian provided a summary of the arguments. Here is the abstract, but do click through for the article.

 

England and Wales have recently experienced wide-ranging rape law reform and a galloping rape reporting rate but no comparable increase in rape convictions, leading many erstwhile law reformers to turn attention to attitudes. In essence, their argument is that reform has proved relatively ineffective because a range of agents hold ‘rape myths’. Despite the broad consensus that this approach has attracted, I argue that the regressiveness of current public attitudes towards rape has been overstated. The claim that rape myths are widespread may be challenged on three grounds: first, some of the attitudes are not myths; secondly, not all the myths are about rape; thirdly, there is little evidence that the rape myths are widespread. To a troubling extent, we are in the process of creating myths about myths. This process functions to close down, not open up, the possibilities of a productive public conversation about important and at times vexed questions.

Over at Inherently Human (Critical Perspectives on Law, Gender & Sexuality), Dr. Nikki Godden of Newcastle has an interesting and highly critical response.  Here’s a tiny piece – you really should have a look at the whole thing:

Reece draws statistical comparisons to highlight high attrition and low conviction rates for some other serious offences, such as burglary, suggesting that there is no justification for a focus on rape (p 5). However, pointing to other crimes which have equally poor attrition and conviction rates does not mean that there is no problem to be addressed, although it does raise the question: why should time, energy, and resources be spent on attempting to improve the criminal justice response to rape in particular? While Reece anticipates and addresses answers to this question, she fails to adequately challenge the strongest and most significant reason for focusing on rape – the point that it is a gendered harm.

Inherently Human was created in 2010 by postgraduate students working in the research cluster Gender & Law at Durham (GLAD), located in the School of Law, Durham University, UK.

What Not to Wear [updated [again 17.02.2011]]

Update Thursday Feb. 17.2011

Things have moved along quite a bit since my last update. For one, the news media and blogosphere caught up.  Jezebel, Torontoist, CBC, the Toronto Star, Rabble and campus newspapers including the early off the mark Obiter Dicta and York’s Excalibur all reported on the story. The Star story has a quote from the amazing “Jane Doe“, a woman with the experience and expertise to put this in context.  Here’s what she told the Star:

Jane Doe, who won a landmark case against Toronto police in 1986 when a judge ruled she was used as bait to capture a serial rapist, said that unfortunately this was not the comment of “one bad apple.”

“In 2007, I was paid by the Toronto Police Services Board to monitor their sexual assault training for two weeks and the course is riddled with sexist and racist myths and attitudes about rape. I produced an assessment for them and it quickly disappeared.”

And now, in addition to the joys involved in reading the comments on all these sites, we have the apology.  The text is in the picture below.

ORIGINAL POST FOLLOWS

Safety on campus is a big issue at York University (and at many other schools too) and students frequently raise their concerns about it.  Here’s a recent safety audit of the campus, here is a news release from the York Federation of Students about a year ago after a violent sexual assault near campus, in which the YFS calls on the University to act on the audit, and here’s a map of Toronto using Statscan data to illustrate violent crime rates across the city [2006 census] (I offer this one in part to illustrate that although many of the neighbourhoods around the University have high violent crime rates, the areas in which most students tend to live (on campus and near campus) have lower violent crime rates.

Sometimes, the police and York Security Services do sessions for students on “Safety Tips”.  A few weeks ago, the law school held one.  And at that session, i’m informed, a uniformed member of the Toronto Police Service told the audience that -although he knew he shouldn’t say so –  one “safety tip” he could offer was the suggestion to avoid dressing like a “slut”.

[Let me be clear- I wasn’t present.  I heard that the officer used the word slut or sluts or slutty and that the association between safety and non “slutty” clothing was made.  I think my primary source is as good as they come]

Update: Osgoode’s Assistant Dean Ronda Bessner was present at the session.  She was shocked and appalled to hear the comments and immediately afterwards she spoke to an equally shocked York Security rep (who had arranged for the Toronto Police Service to be there) to discuss how to respond.  AD Bessner phoned the senior constable at the TPS repeatedly, and when he called back, he admitted that he knew why she was calling.  AD Bessner (backed by an equally appalled Associate Dean Shelley Gavigan), has asked for written apology & explanation for the comments.  More information when it’s available.

When I discussed the comments with colleagues & students, everyone was shocked and angry.  But I think that we’re shocked at the unprofessional nature of the comments rather than the revelation that some people think these things (which makes us angry).  Is this kind of comment actually a distraction? Or is it an illustration of the pervasiveness of these beliefs, a hint at how challenging the larger goal will be to attain, an invitation to take on these kinds of beliefs (again!) directly? I’m inclined to think that there are important ways in which this is a distraction, even if it is an illustration.  It is the kind of situation which can easily be converted to a “bad apple” argument, and/or an argument about the police, and both of those seem far too narrow.  Sometimes I feel I’m being baited into losing my focus, baited into returning to arguments that have been made again and again, and I feel determined to keep moving forward.  But I can see that this approach isn’t always going to work.  When to turn back and do road repair work?

In other news, I’m brushing up on my arguments about why women deserve the vote.

I searched and searched for a picture of an outfit with which to illustrate this post (see past angst over the illustration issue), but every single one turned out to be totally begging for it. The overalls, the muumuu, the suit, the judicial robes, the lululemon pants and TNA parka, the classic librarian look, the flightsuit, the short shorts,  the trenchcoat, the slanket – when I really looked at these, it became obvious that all were totally inappropriate for wear by any woman who wants to be safe, since all have been sexualised one way or another.  I wonder if there’s anything at all which a woman can wear to prove that she really does not want to be assaulted?
I’ll update this post re: institutional responses (Osgoode’s and the Toronto Police Service’s). In the meantime, here are a few suggestions for reading – please put yours in the comments – along with your comments, of course.
  • Duncan Kennedy’s Sexual Abuse, Sexy Dressing and the Eroticization of Domination
  • Is Clothing Probative of Attitude or Intent – Implications for Rape and Sexual Harassment Cases; Lennon, Theresa L.; Lennon, Sharron J.; Johnson, Kim K.P. 11 Law & Ineq. 391 (1992-1993)
  • Undressing the Victim: The Intersection of Evidentiary and Semiotic Meanings of Women’s Clothing in Rape Trials; Sterling, Alinor C.  7 Yale J.L. & Feminism 87 (1995)
  • The Canadian Journal of Women and the Law recently published a volume honouring the 10 year anniversary of the Jane Doe case. Click here for more information and links.
If you would like something less academic, perhaps you will enjoy Amanda Hess (@thesexist) on short skirts etc. She doesn’t pull punches.
The next generation of potential rapists will have to receive their social cues by eavesdropping on the advice we’re providing to the next generation of potential victims. This is what they’re hearing: If she’s wearing a short skirt, it’s not your fault when you rape her.
Which is a bit of a zinger, but also terribly depressing, because it is written in 2011 and not 1981.