Tag Archives: reference

Three Critical Feminist Takes on #metoo:  Further reading, references and questions

Thanks to the crowd who came out for this IFLS panel on Thursday November 22. As promised, I have collected references from the three presenters here, and have also tried to set out the questions that the audience raised at the end of the panel.

Prof. Brenda Cossman

The paper on which the talk was based is available: #MeToo, Sex Wars 2.0 and the Power of Law (September 2018). Asian Yearbook of Human Rights and Humanitarian Law (Forthcoming) . Available at SSRN: https://ssrn.com/abstract=3257862

ABSTRACT: In this essay, I explore these contestations between and among feminists within the #MeToo movement. Some feminists have expressed discomfort and disagreement with elements of the #MeToo. This critique was quickly framed as a generational one, with media reports focusing on the conflict between millennials and second wave feminists. I argue that it is more productive to situation the disagreements and contestations of #MeToo within the context of what I refer to as Sex Wars 2.0 – that is, the return of the feminist sex wars of the 1970s and 1980s.I also explore the controversies around role of law in the #MeToo movement. #MeToo critiques, including some feminist voices, have denounced the absence of the rule of law, with individual men losing their livelihoods without the due process of law. I argue that this critique is itself symptomatic of the broader role of law in the legal regulation of sexual violence. Law has long been the arbiter of sexual violence, both defining and harms and deciding whether that harm has occurred. Even in its apparent absence, law is I argue deeply present. It is this power of law that casts a long shadow over #MeToo and helps explain the due process critiques and some of the feminist contestations around the overreach of law.

REFERENCES FROM PROF. MATTHEWS

Heidi Matthews, Why the Kavanaugh hearings were a show trial gone bad at The Conversation  https://theconversation.com/why-the-kavanaugh-hearings-were-a-show-trial-gone-bad-102025.

Heidi Matthews, How do we understand sexual pleasure in this age of ‘consent’?in Aeon https://aeon.co/ideas/how-do-we-understand-sexual-pleasure-in-this-age-of-consent.

Prof. Matthews also suggested Janet Halley’s “The Move to Affirmative Consent”, (4 November 2015), online: Signs: Journal of Women in Culture and Society <http://signsjournal.org/currents-affirmative-consent/halley/>.

REFERENCES FROM PROF. PARMAR

Nivedita Menon, Is Feminism about ‘Women’?: A Critical View on Intersectionality from India, Economic & Political Weekly. (Apr. 25, 2015)

I do not think this one is available open access.  Here is the abstract: Feminism requires us to recognise that “women” is neither a stable nor a homogeneous category. Does intersectionality as a universal framework help us to capture this complexity? This paper argues that it does not. It addresses this question through the intricacies of the terrain that feminist politics must negotiate, using the Indian experience to set up conversations with feminist debates and experiences globally. Feminism is heterogeneous and internally differentiated. We need to pay attention to challenges to the stability of given identities– including those of “individual” and “woman.” These challenges constitute the radically subversive moments that are likely to be most productive for feminism in the 21st century.

Woolley, Alice and Darling, Elysa, Nasty Women and the Rule of Law (January 21, 2017). 51 USF Law Rev 507, 2016-2017. Available open access at SSRN: https://ssrn.com/abstract=2903214.

Abstract: Lawyer bashing is a robust and accepted social tradition. But recent events create the impression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed and adversarialism that typify anti-lawyer criticisms. Criticisms and attacks on women lawyers are personal and gendered, as well as being intense and hostile, in a way that differs from the generic, often humorous, and impersonal nature of traditional antipathy to the legal profession. And even when women lawyers are viewed positively, commentary focuses on their looks, clothes and families, in a way that is not the case for men. This paper identifies the reasons for and consequences of how we talk about women lawyers.

Amitav Ghosh, The Great Derangement (2018) https://www.press.uchicago.edu/ucp/books/book/chicago/G/bo22265507.html

“Are we deranged? The acclaimed Indian novelist Amitav Ghosh argues that future generations may well think so. How else to explain our imaginative failure in the face of global warming? In his first major book of nonfiction since In an Antique Land, Ghosh examines our inability—at the level of literature, history, and politics—to grasp the scale and violence of climate change.

The extreme nature of today’s climate events, Ghosh asserts, make them peculiarly resistant to contemporary modes of thinking and imagining. This is particularly true of serious literary fiction: hundred-year storms and freakish tornadoes simply feel too improbable for the novel; they are automatically consigned to other genres. In the writing of history, too, the climate crisis has sometimes led to gross simplifications; Ghosh shows that the history of the carbon economy is a tangled global story with many contradictory and counterintuitive elements.

Ghosh ends by suggesting that politics, much like literature, has become a matter of personal moral reckoning rather than an arena of collective action. But to limit fiction and politics to individual moral adventure comes at a great cost. The climate crisis asks us to imagine other forms of human existence—a task to which fiction, Ghosh argues, is the best suited of all cultural forms. His book serves as a great writer’s summons to confront the most urgent task of our time.”

Jacobowitz, Jan L., Lawyers Beware: You are What You Post! The Case for Integrating Cultural Competence, Legal Ethics and Social Media (October 24, 2014). SMU Journal of Science & Technology Law Review (Forthcoming). Available open access at SSRN: https://ssrn.com/abstract=2514678

Abstract: First learn the meaning of what you say, and then speak. –Epictetus

Words used carelessly, as if they… do… not matter in any serious way, often allow… otherwise well-guarded truths to seep through. –Douglas Adams

Happy Mother’s Day to all the crack hoes out there. It’s never too late to tie your tubes, clean up your life and make difference to someone out there that deserves a better mother. –Assistant State Attorney in Orange County, Florida

No thought left unspoken…social media networking — ubiquitous in our society — provides the opportunity for individuals to share their moment-to-moment thoughts and actions. Social media has created communities and its own culture. Social networking communities have empowered individuals to join together to stage uprisings, support charitable causes, launch entrepreneurial ventures, and generally share the accomplishments and defeats of their daily lives.

Many lawyers have joined social media networks and are actively participating in both their professional and personal lives. Some lawyers have found social media networks to be beneficial in marketing their practices and in obtaining information and evidence to more effectively represent their clients.

Unfortunately, other lawyers have found themselves caught in a quagmire of ethical and professional missteps resulting in disciplinary problems and loss of employment. These lawyers often fail to appreciate the application of the legal ethics rules and standards of professionalism to the use of social media. Moreover, like many other individuals engaged in social media, these lawyers generally seem to lack cultural awareness and perspective on the far-reaching impact that a social media communication may have upon the audience and ultimately upon the communicator.

This article explores the importance of cultural competence both as a critical component of effective and ethical legal practice and as it pertains to a lawyer’s participation in social media networking. The article will first define cultural competence and its significance for the legal profession. Next, the article will discuss the culture of the legal profession as it is reflected in social science research, popular culture, and scholarly works. Then, the article will examine the culture of social media and the legal profession’s participation in this culture. Finally, the article will explore the interrelationships of cultural competence, the legal profession, and social media with the goal of providing insight and guidance for lawyers to professionally and ethically engage in social networking.

References from Prof. Lawrence

I spoke briefly about the #USTOO initiatives being developed at the Barbra Schlifer Commemorative Clinic in Toronto under Legal Director Deepa Mattoo.  You can find the clinic here: https://schliferclinic.com/ although nothing references USTOO on the website.

I pointed to the fact that the hashtag was originally created by a Black woman in the U.S., Tarana Burke, but more importantly, as I understood it, Tarana Burke’s inspiration was realising how few services were available in majority-minority neighbourhoods, services open to and welcoming Black and brown girls who had experienced sexual assault and abuse. Her work was about imagining, funding, and creating those services and spaces. The space between this project, and the the white, celebrity driven rebirth of #metoo as a hashtag for shared stories of assault and harassment on social media is instructive in a number of ways about what kind of work is bring done by #metoo.

I noted that there is a long history of feminist work which actively problematizes the criminal law and state engagements.  I highly recommend the work of the activists and scholar-activists who comprise INCITE! A good introduction is available here.

“Gender Violence & Race”, (31 July 2018), online: INCITE! <https://incite-national.org/gender-violence-race/> .

See also Critical Resistance and Incite!, “Critical Resistance-Incite! Statement on Gender Violence And the Prison-Industrial Complex” (2003) 30:3 (93) Social Justice 141, online: <https://www.jstor.org/stable/29768215>.  You could also consider the arguments in Osgoode Prof. Dianne Martin’s “Retribution Revisited: A Reconsideration of Feminist Criminal Law Reform Strategies.” Osgoode Hall Law Journal 36.1 (1998) : 151-188. https://digitalcommons.osgoode.yorku.ca/ohlj/vol36/iss1/4.  There are more recent treatments, but my point is, much of this material is well over a decade old. There’s more before that.

Concern about what happens when state punishment is understood to be the solution to violence against women is not new.

I also referenced extensively BU Law Dean Angela Onwuachi-Willig’s piece in the Yale Law Journal Forum:

Angela Onwuachi-Willig, “What About #UsToo?: The Invisibility of Race in the #MeToo Movement” (2018) 128 Yale Law Journal Forum 16 June 2018, online, https://www.yalelawjournal.org/forum/what-about-ustoo.

ABSTRACT. Women involved in the most recent wave of the #MeToo movement have rightly received praise for breaking long-held silences about harassment in the workplace. The movement, however, has also rightly received criticism for both initially ignoring the role that a woman of color played in founding the movement ten years earlier and in failing to recognize the unique forms of harassment and the heightened vulnerability to harassment that women of color frequently face in the workplace. This Essay highlights and analyzes critical points at which the contributions and experiences of women of color, particularly black women, were ignored in the moments preceding and following #MeToo’s resurgence. Ultimately, this Essay argues that the persistent racial biases reflected in the #MeToo movement illustrate precisely why sexual harassment doctrine must employ a reasonable person standard that accounts for complainants’ different intersectional and multidimensional identities.

AUDIENCE QUESTIONS

We took some excellent questions from the Audience without trying to answer them – I’ve set them out here in a general way and my apologies for damage I have done to the ideas as originally expressed:

  • Questions about the ways that critiques from women of colour have approached #metoo, especially in the context of Islamophobia, and state securitization. This question specifically referenced the Toronto murders allegedly committed by Alex Minassian, and calls from some prominent feminists (see e.g. here)  to call these and other misogynistic attacks ‘terrorism’, a position that ignores the significant harm that has been visited on Muslim communities post 9-11 through laws that focus on terrorism, and the weight of critique generated in scholarly and public circles by scholars, including feminist scholars, who have focused on post 9-11 state surveillance and narratives about terrorism.  Heidi Matthews has a comment on the question of the “terrorism” label here in The Conversation.
  • There was a question that focused on another form of law, beyond the criminal, which has been significantly engaged in these #metoo conversations, the law of defamation. Professor Matthews referenced this issue in her discussion of the “Shitty Media Men List” and Stephen Elliot’s defamation lawsuit against Moira Donegan.  How does, perhaps in particular, Prof. Cossmans’ analysis of the role that law is playing in our understandings of sexual harms position this form of legal regulation?
  • Another question focused on the distinction between de facto and de jure wrong, that is things that are wrong because law says they are wrong, but might not otherwise be recognized socially or morally as wrong, and things that are de facto wrongs – that are understood to be morally wrong regardless of what law says about them.  The significance of consent in laws about sexual harassment and assault may tend to blur this dichotomy.   Can this distinction help us understand what work is being done by the various positions feminists and others have taken in this debate.
  • One question raised Ghomeshi – this was from Osgoode PhD Candidate Dana Phillips, author of this “Let’s Talk About Sexual Assault: Survivor Stories and the Law in the Jian Ghomeshi Media Discourse.” Osgoode Hall Law Journal 54.4 (2017) : 1133-1180. https://digitalcommons.osgoode.yorku.ca/ohlj/vol54/iss4/9, who referenced the rehabilitation narratives of men named in high profile #metoo cases, asking what we can learn from these reflections on the work that #metoo is doing (this is NOT doing justice to what Dana said, and I’m particularly concerned about that because I’ve named her! So Dana, if you correct me, or want to expand on this just let me know.
  • Another question asked how we could or should talk about both #metoo and the underlying issues, given how many people, especially men, seem scared to talk about it.  This question pointed the challenge of how to engage towards the cultural change that all interventions suggested was more likely to help resolve the harms that #metoo has (re)surfaced, than a thickly applied layer of criminal law.
  • Professor Ena Dua, a colleague at York, had to leave before putting her questions on the table, so I followed up with her and she came back with four!  (1) How do we understand the role of the media in these processes? “It seems that the media has taken on the role of an investigation – and the prosecutor’s role. The public takes on the role of the judge. How does that make affect our thinking about the limited possibilities of the law that two of the speakers talked about?”. (2) Relatedly, about the reporting of these events, and the inclusion of “intimate and graphic sexual details – including descriptions of folks bodies”.  How do Marxist or sex radical approaches analyse this somewhat secondary aspect, in particular where the complainant has not agreed or been interviewed.  (3) Thirdly, Ena wanted to talk about not criminal law, but labour and employment law and the ways these position the responsibility of the employer where the employer is not the person engaging in the complained of behaviour. (4) My favourite question from Ena ties the three talks together by referencing Ena’s perception that from the beginning of #metoo Indian feminists have been both vocal and divided on its potential.  Having heard similar from folks in South Africa and Somalia, Ena wanted to ask whether feminists in the global south have a different relationship to the possibilities of the law than those in the West. For me this also raised the question of a matrix of divisions, noting political commitments, location and positionality, and, frankly, lawyer/legal scholar, or not.

Women, the Constitution & the Senate: via LEAF

embattled conservative senator pamela wallin

This is about more than just Pamela Wallin’s taxi expenses!  Canada’s LEAF (Women’s Legal Education  & Action Fund) requested intervention in the upcoming (November 13-15_) Senate Reference (see Maclean’s mag background information here) but they report that the compressed timelines due to the fast tracking of this reference led to LEAF needing to request late filing, a request which was denied by LeBel J. on 2013-06-14.

Here is a link to LEAF’s memorandum of argument in the intervention request, and here is a little snippet:

4. Inclusion and equality, including equality of women and men, are fundamental principles of our democracy. 

5. Given these fundamental organizing principles, Canadian women have an expectation that electoral and appointment processes will include appropriate measures based on current knowledge and analysis to ensure equality of access and result. Such processes must promote the substantive equality of Charter rights-holders, recognizing the importance of reflecting the diversity of Canadian society and achieving overall gender balance in the composition of the Senate. Senate reform must avoid processes that will result in the underrepresentation of women and minority groups. 

6. LEAF seeks to intervene in this reference in order to assert the necessity of taking the rights of women and minority groups into account in all constitutional processes and changes touching upon Canada’s democratic institutions given the important role they fulfill with respect to law and public policy. 

This is from LEAF’s  Open Letter to the First Ministers of Canada which demands that women be consulted on Senate Reform:

The outcome of this Referencewill affect the manner in which Senators are chosen in the future. Any new selection and/or election processes must address the historic underrepresentation of women, minorities and Aboriginal peoples in Parliament. Over almost a century from women’s first right to hold office, and almost half a century from the Royal Commission on the Status of Women, women do not yet even approach gender parity by population, let alone attaining, as a matter of course, the level of participation historically accorded to men. (2)

The undersigned do not take a position with respect to the division of powers aspects of the Reference, nor do we take a position on the preferred route to reform of the Senate.  We rather urge that all governments ensure that whatever process is undertaken, the mistakes of past constitutional amendment processes will not be repeated.  Any such process must take into account the established principles of constitutional law.  Women in Canada and other Charter rights-holders have a right to be included in any Senate reform process and any Senate reform process must promote substantive equality for women and minority groups.

h/t Mary Jane Mossman

The Polygamy Reference: "Controversial interpretations" aired

CBC News – British Columbia – Polygamy laws aimed at men, court told.

Wondering what’s going on with this reference? For a helpful backgrounder, go to www.equalityrightscentral.com.

And here’s the CBC….

“Craig Jones [for the BC Government]  told court the law was intended to only prohibit men from marrying multiple women. Jones offered his admittedly “controversial” interpretation — one that stands at odds with even the federal government — at a constitutional reference case in Vancouver examining whether Canada’s anti-polygamy laws violate the Charter of Rights and Freedoms.  ….

Jones said the harms associated with polygamy — including child brides and the discrimination against women — are specific to the most common form of polygamy known as polygyny, which involves men having multiple wives and is the form of polygamy practiced in Bountiful.  Instances of women with multiple husbands, known as polyandry, are incredibly rare, said Jones, and neither polyandry nor same-sex, multi-partner relationships bring about the same harms to the people involved and society as a whole.

“It is arguable that Parliament could not criminalize polyandry and same-sex, multipartner conjugality even if it wished to,” said Jones.   “Polyandry does carry some risk of harms that might be associated with it, but evidence for these is speculative and weak…. The fact is that the overwhelming majority of polygamy in practice is traditional, usually religious, patriarchal polygyny.”

Jones made the point as he rejected a criticism made by some opponents of the law: that the crime of polygamy sweeps in relationships that aren’t harmful.

Read more: http://www.cbc.ca/canada/british-columbia/story/2010/11/23/bc-polygamy-hearing.html#ixzz16CtunNdB

or more recently, here: http://www.cbc.ca/canada/british-columbia/story/2010/11/25/bc-polygamy-constitutionality-hearing.html

My colleague Susan Drummond has written on “Polygamy’s Inscrutable Secular Mischief” here (this is an SSRN link).  She argues that the section is unconstitutional:

The relevance of formal conjugality – triggered by marriage, extinguished by divorce, and shielded in-between by privacy – has been turned inside/out by the sociological and legal significance of functional conjugality. For the latter construct the content of intimate and familial relationships has become a substitute focus of legal scrutiny. Meanwhile, the contemporary range of normalized sexual and familial diversity has voided functional conjugality of the bright line coherence of its antecedent. Conjugality itself appears to be collapsing into uncertainty and incoherence in its most familiar domain: family law. These parallel developments in the socio-legal conception of family and intimacy have outpaced a polygamy offense that has sat virtually unused since the first Criminal Code of 1892. As a result, the polygamy offense itself has collapsed into the disintegrating concept of conjugality, rendering the harm that it targets all the more inscrutable. ….

Zoe Duff’s situation might be a good example of Drummond’s argument that formal conjugality doesn’t make sense as a focus anymore, and the kind of polyamorous relationship she has is certainly part of Jones’ arguments above.  See  B.C. woman with 2 partners decries polygamy law .  On Duff’s account, at least in these two articles, what’s important isn’t the gender of the people in the relationship, but the values on which the relationship is built.  See here:

Polyamory is different from polygamy because all partners are consenting, said Duff. The hallmarks of the lifestyle are respect, integrity and communication.

Duff has a Blogger page,, but it’s marked adult content and although I kind of suspect it’s not NSFW, I’m actually worried of the consequences of trying to open it here.  Her tweets here.  At any rate, I think that it’s no easy case to decide, given that you have the Bountiful folk, Zoe Duff, and all the other forms of underground polygamy (polgamy without bigamy)

floating around. Still, if you want to play judge, the Polyamory Advocacy Association has created a great resource for those interested in this case: almost every single document filed in this case, by all parties.

Oral arguments are beginning. We’re celebrating the first live action by opening up our internal archive of court documents. This includes practically everything filed by every party to the case.