Category Archives: Reblogged

any post that’s almost all links

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/

 

Contraception & Consent: Hutchinson v. The Queen comes out this Friday

The SCC is set to release Hutchinson this Friday, so here’s a brief note + some links.   Hutchinson was committed for trial by Justice Derrick in the NSPC  R. v. Hutchinson, 2008 NSPC 79 (CanLII) The case was heard in 2009 by the NSSC R. v. Hutchinson, 2009 NSSC 51 (CanLII). That  decision was appealed and heard by the NSCA, R. v. Hutchinson, 2010 NSCA 3 (CanLII), which sent it back for a new trial.   Unfortunately I cannot find the report of the second trial (email me please if you have it) but Osgoode graduating 3L Meredith Bacal has a great piece from 2012,  here at theCourt.ca,  which describes the decision of Justice Coughlan – from which another appeal resulted.  This second appeal was heard in 2013 by the NSCA, R. v. Hutchinson, 2013 NSCA 1 (CanLII).  The 2013 decision was appealed to the Supreme Court.

here is the SCC summary of the case:

Mr. Hutchinson was charged with aggravated sexual assault for poking holes in the condoms he used with his partner, knowing she did not want to get pregnant. At his first trial, he was acquitted on a directed verdict, but the Court of Appeal reversed that decision and ordered a new trial. At retrial, Mr. Hutchinson was convicted of sexual assault because the trial judge found that while the complainant may have consented to the sexual intercourse, she did not consent to unprotected sexual intercourse. Mr. Hutchinson appealed his conviction, arguing that the complainant freely and voluntarily consented to having sexual intercourse with him and that his deception over the condoms, however reprehensible, was not enough to vitiate that consent. The majority of the Court of Appeal dismissed the appeal. Farrar J.A. would have allowed the appeal and ordered a new trial on the basis that the trial judge erred in finding that there was no consent under s. 273.1(1) of the Criminal Code, and that the proper approach would have been to determine whether consent was vitiated by fraud under s. 265(3)(c). (source)

The Supreme Court of Canada heard the appeal in November of 2013 (webcast here) with the bench consisting of the Chief Justice and Justices Abella,  Rothstein, Cromwell, Moldaver, Karakatsanis, and Wagner.

…..and it’s coming out on Friday.   The only intervener was Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario, although their Factum does not appear to be online either with the court or at either website (here, here). 

Other sources?  R v Mabior and R v DC: SEX, LIES, AND HIV: MABIOR AND THE CONCEPT OF SEXUAL FRAUD Martha Shaffer (Summer, 2013) 63 Univ. of Toronto L.J. 466 (mentions Hutchinson FN 6, and canvasses the surrounding legal context)

'what it says on the tin': Feminism Then and Now

this+is+what+feminism+looks+likeh/t to Sarah Keenan (former IFLS visitor now on Faculty at SOAS) for the text of Camille Kumar’s talk and Sarah’s brief and pointed introduction.  In the digital “pages” of Feminists@Law.  A short read worth your time.

For feminism to be what it says on the tin, it must be continually evolving, shifting and diversifying; where patriarchy seeks to enforce authority, feminism seeks to declare privilege; where patriarchy seeks to create a single ‘rationalised’ truth and repress all else, feminism seeks to simultaneously hold many truths and be the witness bearer to secrets; and where patriarchy seeks to divide, subjugate and conquer, feminism seeks connection, equality and collective struggle.

 

via Feminism Then and Now | Kumar | feminists@law.

question everything?: rape law/free speech | davina cooper

colourful speech bubblesQUESTION EVERYTHING?: RAPE LAW/ FREE SPEECH | davina cooper.
Do read this.  I found it really helpful and i wonder what others will think.

Davina Cooper (Kent Law School) includes links which explain the context for this particular intervention.  But the discussion she offers has broad relevance – for me, it had me thinking about the challenge in the classroom.

Plus I long to write lines like this:

 Helen’s opponent is flabby un-interrogated knowledge, vulnerable to flaying from the sharp sword of reason. 

 

Saudi women's resistance to driving bans

twitter avatar of @october26drivingThis October 26 will be another day of protest for Saudi women pressing for the right to drive.

The history of these protests goes back to at least 1990 (see wikipedia’s  roundup here).  This article sets up this year’s protests with interviews with the women who participated in and were punished for the 1990 protests.

There is no specific law to prevent women from driving in the kingdom, but they cannot apply for driving licences and have previously been arrested on charges relating to public order or political protest after getting behind the wheel. (see here)

The protests include a variety of social media moves – posting videos of women driving (see also here) a website (apparently blocked in Saudi after more than 12000 supported it) and twitter.

Here is the mission statement from the website:

 The October 26th movement is a grass-root campaign by the women and men of Saudi Arabia. Its aim is to revive the demand to lift the ban on women driving. The campaign has no anti-Islamic or political agenda for neither Islam nor the official laws of Saudi prohibit women from driving. Islam and the Basic Law of Saudi Arabia both ensure that all, regardless of gender, have the right to freedom of movement. King Abdullah has also stated that the ban is only societal.

Hence this campaign was started to urge the government to issue an official decree lifting the ban.

In addition, three female members of the Shoura Council (aka Shura council, Majles al-Shura) requested that the consultative, appointed-by-the-King body consider the question of women driving – but the Council was too busy for such trivia (see one response to that, here).

The issue is politically quite complicated – a complication not always well represented in the Western press.  If you were amused by the Saudi cleric who declared the ban necessary to prevent ovarian damage, consider what Dr. Madawi Al-Rasheed (now visiting at the Middle East Centre at LSE has to say about it:

The image of the reformist old king has so far rested comfortably with that of the conservative bearded cleric. This duality unfolds best in gender matters and serves to perpetuate the myth about progressive royalty against backward Wahhabi-Salafist clerics,

Yet, this myth may not hold for long despite all efforts to keep it intact. Neither the reformist king nor the conservative cleric is truly concerned with changing the status quo in fundamental ways that empower women as equal citizens. In fact, both work in ways that perpetuate masculine domination. Both the king and the clerics endeavor to free women from private patriarchy within the family only to place them under the public authority of the religious scholars and state institutions.


Read more: http://www.al-monitor.com/pulse/originals/2013/09/saudi-women-drive-viral-video-cleric.html#ixzz2iNu9pauU 

 Dr. Al-Rasheed recently published  A Most Masculine State: Gender, Politics and Religion in Saudi Arabia (CUP) and you can hear her discussing the book here via LSE’s podcast system.

In another context, she has written:;

Like other women in the Arab and Muslim world, Saudi women remain weak in Saudi Arabia. They bargain with a patriarchal system that continues to marginalise them. Some call upon the state to protect them, very much like the Nail Polish Girl, who reminded the Haya agents of the king’s orders not to harass people in the streets. Similarly, cosmopolitan, educated and connected women appeal to the state to implement international treaties on gender equality. A third group of women find refuge in the Islamic tradition as a framework for defining their rights and responsibilities.

As long as Saudi women remain unorganised and pushed by an authoritarian state to isolate their struggle for gender equality from other national struggles calling for democratisation, political participation and civil and political rights, we will see individual cases of defiance that are sporadic, uncoordinated and counter-productive. A time will come when women realize that their demand for more rights are part and parcel of a general need for a shake-up of the Saudi regime. The shake-up needs to be grounded in demands for both personal freedoms and political and civil rights for men and women. Until then, Saudis and the rest of the world will continue to watch YouTube clips of futile disconnected incidents, grounded in sensationalism and imagined heroism.


Read more: http://www.al-monitor.com/pulse/originals/2012/al-monitor/imagined-heroism-of-the-saudi-na.html#ixzz2iODN5Jpi

Still:

In the spirit of not taking things for granted, and honouring women who do take risks to fight for rights – happy October 26th, everyone.

http://en.wikipedia.org/wiki/Women_to_drive_movement