Tag Archives: rape

Kim Buchanan at Osgoode Mon Feb 23 – Rape by Fraud: Coercion, not Deception

Monday February 23 2015
Rape by Fraud:  Coercion, not Deception

Chair: Prof. Benjamin Berger
Abstract:  In four recent cases, the Supreme Court of Canada sought to protect gender equality, sexual autonomy and other Charter values by expanding the scope of s.265(3)(c) of the Criminal Code: sexual assault by “fraud”. Although the Court invokes “significant risk of serious bodily harm” to limit the scope of consent-vitiating deception (or nondisclosure), its
application of this standard has been justly criticized for inconsistency, and for diverging from the scientific consensus about transmission risk.
Feb23KimSBThis Article offers a principled way to distinguish criminal from noncriminal sex by deception. Rape-by-fraud should be defined in accordance with the core values protected by sexual assault law: moral retribution, harm, gender equality, and sexual autonomy. On all these counts, sex by deception is distinct from sex by coercion, and it is less serious. Voluntary-but-deceived sex is not sexual assault. Deceptions that lead to sex should be punished as rape only if they are coercive: that is, they led the victim to believe s/he had to have sex. We do not need a fraud provision to capture such deceptions: they are largely prohibited by other sexual assault provisions that prohibit sex by threats, fear, and abuse of trust, power or authority. Moreover, we do not need a fraud provision to capture the two deceptions that constituted rape at common law: fraud as to identity and fraud as to the “nature and quality of the act”. Both these situations involve no consent: agreement to nonsexual touching is not consent to sex, and agreement to sex with one person is not consent to sex with another.
Monday February 23
1230 to 2 in FCR (Osgoode Hall 2027)
Light refreshments
Please RSVP to LGonsalves@osgoode.yorku.ca
Email as above if you would like a copy of Prof. Buchanan’s draft paper.

Link to PDF poster for sharing/printing

Fresh Tweets

king/blackbirds (blackbird pie)

 

Next week at York!

Dr. Sally Engle Merry  “The Seductions of Quantification: Human Rights, Trafficking, and the Rise of Indicator Culture”. Dec2  yorku 2:30(Senate Chamber N Ross 9thfl)

Read/Learn

  • “Rethinking  Rape  Law  Reform Colloquium: Critical, conceptual & comparative perspectives” [Dec 6: program here]  RMIT Aus h/t @AsherFlynn {with Lise Gotell and Sharon Cowan!}
  • ‏@kmcneilly01:   Critical Legal Thinking have just posted a series of short pieces on Angela Davis – have a look http://criticallegalthinking.com/ 
  • @feministsatlaw: our response to @LSELaw’s recent ‘Is Rape Different?’ Debate Http://journals.kent.ac.uk/index.php/feministsatlaw/article/view/80/212 …

Revenge Porn (so called)

‏@globeandmail: Editorial: Much of Ottawa’s cyberbullying bill had nothing to do with the subject. Stop the legislative acrobatics http://tgam.ca/Dwpk 

@MichaelPlaxton: G&M op-ed on  revengeporn bill We need cultural shift abt sex & women, not just  criminal offence. http://bit.ly/1jvRNdL 

[i went to read.  Interesting! And here’s a paragraph near the end that was really helpful to me:

There is more going on. Another time I commented on how a conference involved only white male speakers. I should add that this conference took place at Goldsmiths and these kinds of “only white male” or “only but one” events happen regularly here, I suspect because of the kinds of bodies that tend to be organised under the rubric of “critical theory.” Someone replies that they thought I sounded “very 1980s,” and that they thought we had “got over” identity politics. Not only might we want to challenge the use of identity politics here as a form of political caricature, but we might want to think of this “over.” What does it mean to assume we have “got over” something? This claim participates in a genre of argumentation I call “overing.” In assuming we are over certain kinds of critique, they create the impression we are over what is being critiqued. Feminist and anti-racist critique are heard as old-fashioned, as based on identity categories that we are assumed to be over.   

 

Memoriam

In Memory of Sunila Abeysekera  SriLanka  feminist  activist IGLHRC: Int’l Gay & Lesbian Human Rights Cmsn http://bit.ly/18KKiL2 

‏@ArmineYalnizyan Doris Lessing dies aged 94 http://gu.com/p/3keed/tw  via @guardian

For Fun

Disturbing Google Searches For Feminism, Re-Imagined by Inspiring Feminists – awesome thanks @feministabulous http://bit.ly/1hLVu3C 

Cases

Calgary  mother used herbal meds facing charges 7yo son died of treatable bacterial infection http://bit.ly/1aPdRhO from @DebraParkes

Robson ‏@RobsonConLaw  Circumstantial evidence of loitering for sexwork doesn’t include skinny jeans and peacoat DOLL IN SKINNY JEANS & PEA COAT

@cearta: Mann Singh wins turban case in Geneva ( UNHRC) after losing in Strasbourg (before the ECHR) http://feedly.com/e/-oEBb0q5 

 

Resources

Films for the  Feminist  Classroom online, open access, hosted at Signs Journal Rutgers http://bit.ly/18KLtdu 

amazing resources here for lawyers/communities. neat model too. Equal Rights Trust bit.ly/18G3tJu h/t Joanna Birenbaum

#feministlawnerding for fun & solidarity

 

Melissa Castan ‏@MsCastan Some #lawnerds might enjoy Cambridge Eminent Law Scholars Archive: http://www.squire.law.cam.ac.uk/eminent_scholars/ …

@MsCastan w/ Australia’s Jane Stapleton as lone Eminent woman… A neat idea, though, the archive.

Fiona de Londras ‏@fdelond  @MsCastan ah, look at all those women….oh, hold on

@MsCastan sure listen, women + eminent = system failure. right?

Melissa Castan ‏@OsgoodeIFLS we could encourage them…

 @MsCastan let’s talk methods! not much of any kind of diversity in the list of Eminents, really. I would like to look at area of law too.

[so, Melissa Castan made an effort to call out Cambridge Law for their approach to eminence]

Melissa Castan ‏@MsCastan  @fdelond @OsgoodeIFLS perhaps @CamLibGroup or @cambridgelaw might have a look for some more Eminent Women to include in their archive.

[and i felt better, truly]

@MsCastan @fdelond i feel better about the whole thing now that there are allies out there and we can poke fun. Next: actual change!

 

 

 

 

 

More talkback: METRAC to Wente

I was blissfully unaware of this helpful Margaret Wente column published recently: Rape on Campus: is it an epidemic?

until I saw a response on the METRAC (Metropolitan Action Committee on Public Violence Against Women and Children) blog (Megaphone Diaries) written by Legal Director Tamar Witelson:

METRAC has been conducting our United Nations’ endorsed Safety Audit on Canadian campuses for nearly 25 years, and has identified many reasons why sexual assault is endemic in the campus environment. These include:

      1. there is a high number of women in an identified community, and they are most often targeted for assault;
      2. there is a disproportionately high number of people under the age of 25 in that community and young people, especially young women, are at higher risk of experiencing assault;
      3. a significant number of people make campuses their home and sexual assault happens in “home settings” in high rates;
      4. excessive alcohol and chemical substance use are common features of campus life and that can add to abuse dynamics; and
      5. student life lends itself to study and social activities late at night and campuses often have many unmonitored, deserted, poorly lit areas ill-designed for safety, especially safety for women and other groups at high risk of abuse.

more

I can pretty much guarantee more on the blog on similar topics in the near future, so stay tuned.