Tag Archives: sexual assault

Talking back on race, space and sexual assault

Last post, I promised more talk on sexual assault on campus and media.  Here it is.  photo of Toronto Life October 2013 edition in store magazine rack

The October 2013 edition of Toronto Life Magazine includes, amongst the stories about new artisanal foods, how the tiny clutch is ruling the runways, rock star businessmen and exotic pets, a story by Katherine Laidlaw entitled: “Fortress York: York University spends millions on safety measures but female students are still afraid of who lurks in the bushes.  How a campus becomes a hunting ground for sexual predators“.  The cover of the magazine includes the line “Why so many rapes at York University?”

This sounds bad right?  But what kind of bad?  It isn’t exactly clear from the headline is it?  Let me tell you.  This is bad journalism, rather than a report about a bad university.  As of this date, the article appears not to be available online which in a way is a shame because nothing can illustrate how outrageously this article relies on fearmongering and racism to make fact free points like reading the article itself. I will pin it to my office door for those local and curious, and maybe it will show up online soon.

I have spent a few days now in a rage over the way that this article disciplines women into fear, misrepresents the reality of  sexual assault, and casually treats a low income racialised neighbourhood near my school as a breeding ground for rapists.  Colleagues have pointed out to me that this is hardly the first time and it won’t be the last – these tropes about sexual assault, race and space in our city are pretty deeply embedded and the article in many ways reflects rather than creates the associations.  I have written about the narrative around sexual assault on campus on the blog before, for instance here and here.  But that makes it no less enraging.  University President Shoukri has already distributed a response to the article, which in its attempt to describe York as safe compared to other Toronto schools seems to me to miss the point.   Some colleagues and I prepared a response trying to reflect an anti racist feminist analysis.  We’ve sent it to Toronto Life.  And walking the narrow line left between dismissal of sexual assault as a problem on campus (see the last post) and sensational, racist, and disciplining accounts like the Toronto Life article, is not easy. I hope we managed in our response below.  You can support and comment in the comments here (they are moderated, so there will be a delay) or by email to LTEtoronto@gmail.com.  Write to Toronto Life at letters@torontolife.com.  A clean PDF of the text/signatories only is available here.

 


It was an unpleasant surprise to open the October 2013 Toronto Life issue to find an article sensationalizing and misrepresenting sexual violence, sexual assault and rape on the York University campus.  To us – feminist scholars, struggling to work with questions of gendered and racialized violence both empirically and critically – the article was little more than a caricature of reality. That it could represent the dominant view in this city is even more upsetting.  Let’s get real.
First, yes.  There is assault and sexual assault on the York campus.  In fact, across Canada, women experience sexual assault, at levels which ought to shock, but which are treated as either secret or banal. The article’s attempt to put this problem on York alone is wrong.  York has a number of initiatives to counter sexual assault, because improving safety on campus is an ongoing goal.  But the idea that York is a haven for rapists is one that requires more work to unpack, because it relies on and perpetuates some harmful myths that contribute to the problem of violence against women, rather than helping anyone.
Second, and in short, the article uses racialized and racist geographies to paint York as uniquely struck by an epidemic of sexual assault.  York is in the same neighbourhood as  Jane and Finch. The blanket  association of this entire community with crime, and the media’s complicity in demonizing our neighbourhood and its inhabitants  have long been protested by residents and others.  The article contains almost no evidence at all to suggest not just that York students are frightened by the proximity of Jane and Finch, but that they should be.  The strength of this racist narrative about the source of the “problem at York” creates problems of its own.  It is tempting to believe that increasing the number of security personnel will increase safety, but that may not be entirely true.  It might also mean more concerns about racist targeting of students of colour, in the name of enhancing safety.  And, it turns attention away from the fact that safety measures must concern everyone, and that it is a harmful false assumption that only “outsiders” and “strangers” commit sexual assault.
Third the article illustrates the variety of ways women are encouraged to govern their lives according to the fear of sexual assault.  Some of these reflect reality.  The campus is just another place among many in which women are required to be vigilant.    Another reason that women accept some fear and take measures to protect themselves is because if they don’t, they are blamed by our toxic culture, if in fact they are attacked. Questions such as, “Where was she?  What was she wearing?  Was she drunk?” continue to be too common in the discourse about sexual assault and its causes.  Toronto Life plays on age old tropes about young respectable women from good families menaced by dark and criminal strangers when they venture out of safe zones.  It is unfortunate that this evidence-free narrative still sells magazines.   At York and on other campuses, many reports involve students, faculty or staff as both victim and accused.  In many cases, victim and perpetrator are not strangers to each other.  Assertions that strangers and outsiders are responsible for these assaults are part of the problem we all face in truly addressing them.  We – not “they” – have significant responsibility for a culture in which sexual assault is celebrated online and in frosh week chants, and where women are blamed for sexual assaults in ways which minimize the role of the perpetrator.   And in Canada at large, it is our families and intimate partners – not strangers – who are most likely to cause us serious harm.
The article, in recounting a dramatic, lurid story, where predators lurk in bushes and the campus is a hunting ground, provides no useful service to anyone.  Instead, it advances a dangerous falsehood that women will be safe if we stay close to home (as long as that home is in a particular zone of the city), or avoid various denigrated “others”.  It manages to both exaggerate and minimize the significance of sexual assault on university campuses and elsewhere.  It relies on racist tropes about the dangers of Jane and Finch, sexist ignorance of the true nature of women’s vulnerability to sexual assault and elitist disregard for everything outside the zones of the 1%.
York University is taking concrete steps to deal with violence against women on campus.  Our community is trying to create a space, activities, discussions and material changes to stop this violence and discrimination.  We do not want to shy away from owning the ways in which we are responsible for this problem and for solutions.  Suggesting, falsely, that this problem is only York’s problem, a problem women and girls can leave behind by leaving York, helps no one. Universities are about research and critical thinking.  Toronto Life’s article would fail on both.
Barbara Crow, Professor, York University
Sonia Lawrence, Assoc Professor, Osgoode Hall Law School, York University, Director, Institute for Feminist Legal Studies
Professor Lisa Philipps, Osgoode Hall Law School

[list of signatories/supporters updated September 22, 1150PM]

Amanda Glasbeek, Graduate Program Director, Socio-Legal Studies, York University

Anne Bunting, Interim Director of The Harriet Tubman Institute , Associate Professor of Law & Society, Graduate Program in Socio-Legal Studies, York University

Tania Das Gupta, Professor, Department of Equity Studies, York University

Enakshi Dua, Associate Professor  Department of Equity Studies/School of Gender, Sexuality and Women’s Studies, York University

Shelley A.M. Gavigan, Professor, Osgoode Hall Law School, York University

Haideh Moghissi,Professor, Equity Studies, York University

Janet Mosher, Associate Professor, Osgoode Hall Law School, York University

Mary Jane Mossman, University Professor, York University

Carmela Murdocca, Associate Professor, Department of Sociology/Socio-Legal Studies, York University

Roxanne Mykitiuk, Associate Professor of Law, Co-Director of the Disability Law Intensive Program, Osgoode Hall Law School, York University

Nalini Persram, Associate Professor, Department of Social Science, Centre for International & Security Studies, York University

Dr. Narda Razack, Associate Professor, Faculty of Liberal Arts and Professional Studies, York University

Dayna Scott, Associate Professor, Osgoode Hall Law School/Faculty of Environmental Studies, York University

Kate Sutherland, Associate Professor, Osgoode Hall Law School, York University

Susan Vail, Associate Professor, Faculty of Health, York University

Sandra Whitworth, Professor, Political Science, York University

 

 

Susan Boyd, F.R.S.C, Professor, Faculty of Law, UBC

Maneesha Deckha, Associate Professor, Faculty of Law, University of Victoria

Isabel Grant, Professor, Faculty of Law, UBC

Rebecca Johnson, Professor, Faculty of Law, University of Victoria

Audrey Macklin Professor & Chair in Human Rights Law, Faculty of Law, University of Toronto

Vrinda Narain, Assistant Professor, Faculty of Law; Institute for Gender, Sexuality and Feminist Studies, McGill University

Sanda Rodgers, Professor Emeritas, Faculty of Law, University of Ottawa

Elizabeth Sheehy, Professor of Law, University of Ottawa, Faculty of Law

Marie-Eve Sylvestre, Associate Professor, Faculty of Law, University of Ottawa

 

To support or comment on this letter, please email us at lteToronto@gmail.com

or write to Toronto Life at letters@torontolife.com

 

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.

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.

NS: Veiled Rejection [a very cursory roundup]

NS Finally came out today, as you probably know. The Supreme Court cases considered how law should deal with the claim of a niqab (don’t know what that is? check here)  wearing woman who was to testify as a complainant in a sexual assault trial that wearing the niqab was a religious right – when the accused claimed the wearing of the veil contravened his fair trial rights.

Here is a little roundup.
First, the decision (my nutshell: N.S. Majority: Balancing. LeBel & Rothstein: Niqab is incompatible w fair trial. Abella dissents: No need to remove. )

Second, commentary. There’s not much deep commentary today, but there are quick thoughts and helpful summaries.

My colleague Ben Berger on CTV notes Abella’s foregrounding of #gendered #violence.

My colleage Faisal Bhabha, who appeared for one of the interveners who supported N.S., here in the Globe and Mail.

The court made it very clear that people are not required to park their religion at the door, so to speak,” said Mr. Bhabha…

Poli Sci Prof Emmett Macfarlane in Macleans here.

Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane…

So long as the decision to wear the niqab is made freely, it ought to be respected from a rights perspective. And in weighing so heavily the risks to a fair trial over not just the latitude given to religious freedom, but also the deleterious and societal effects of providing insufficient protection for them, the majority has handed trial courts a messy confluence of rules likely to do more harm than good.

Ruthann Robson of CUNY law putting Canadians to shame with her quick off the mark blog post here.

“From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court’s opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.”

There is much quick commentary available – especially on Twitter – all very canadian and clean.

From the Abella reasons:

[94]                          This has the effect of forcing a witness to choose between her religious beliefs and her ability to participate in the justice system: Natasha Bakht, “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms”, in Ralph Grillo et al., eds., Legal Practice and Cultural Diversity (2009), 115, at p. 128.  As a result, as the majority notes, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’s trial.  It is worth pointing out as well that where the witness is the accused, she will be unable to give evidence in her own defence.  To those affected, this is like hanging a sign over the courtroom door saying “Religious minorities not welcome”.

[95]                          The order requiring a witness to remove her niqab must also be understood in the context of a complainant alleging sexual assault.  As this Court stated in R. v. Mills, [1999] 3 S.C.R. 668, “an assessment of the fairness of the trial process must be made ‘from the point of view of fairness in the eyes of the community and the complainant’ and not just the accused” (para. 72): see also R. v. O’Connor, [1995] 4 S.C.R. 411, per McLachlin J., at para. 193.  Creating a judicial environment where victims are further inhibited by being asked to choose between their religious rights and their right to seek justice, undermines the public perception of fairness not only of the trial, but of the justice system itself.

those thoughts are also behind this tweet from @blberger

@blberger LeBel J (concur) in NS: no niqab b/c it “removes the witness” from acts of communication. Worry is literal “removal” of complainants, no?

Second last word

last word:

Your links and thoughts welcome in the comments or on FB

Birth Control Sabotage

Was interested to hear on CBC radio’s The Current this morning about the appeal in this Nova Scotia case, now on reserve at the NSCA.  R v. Hutchinson, 2011 NSSC 361 involved a man who deliberately and secretly damaged condoms because he wanted his girlfriend to get pregnant, and she did not want to have a child.  There are some complexities in the case (like a finding of fact that she did not in fact become pregnant through the damaged condoms, but because a false positive home pregnancy test prompted the couple to give up on birth control altogether).  In any case, Mr. Hutchinson is appealing his conviction on sexual assault (he was charged with aggravated sexual assault).

One of the things that is really bothering me about the commentary (both on the radio and in the article below from the Halifax news) is that some people are assuming that if the charge/conviction are appropriate that they would be equally appropriate in the case of a woman who sabotaged or lied about birth control and had sex with a man.  I don’t deny that this could be seen as the same thing.  But surely we understand the difference between the consequence to a man (genetic connection to child, possible liability for child support, etc) and to a woman (sperm in her body which could lead to conception and pregnancy,  plus the consequence of being a parent).  Again, I’m not arguing that these couldn’t or shouldn’t be treated the same way in law, but could we please acknowledge the differences between becoming pregnant though this kind of sabotage and making someone pregnant due to sabotage?

Appeal has social policy implications | The Chronicle Herald.

Anyway, I don’t feel ready to comment on the merits of the claim that lying about birth control (because you deliberately sabotaged it) on the part of the man vitiates consent to sexual activity or amounts to aggravated sexual assault.   But I did come across a comment, Birth Control Sabotage as Domestic Violence: A Legal Response, today, on SSRN.  That whole transit of Venus thing must have lined up some coincidences in the world.  And other madness like Americans (other than Ruthann Robson) writing about Canadian law!

Written by a law student at Berkeley, the article argues in favour of criminalizing birth control sabotage, but not, it appears, through existing [US] provisions.  It closely considers the first trial and appeal in the Hutchinson case (starting at p27).   For clarification about the progress of the Hutchinson case, the Chronicle Herald’s Clare Mellor, June 5 (from the article linked above):

The case, which has been before the courts for several years, has involved two trials. In 2009, a Nova Scotia Supreme Court judge found Hutchinson not guilty of aggravated sexual assault, but the Nova Scotia Court of Appeal overturned that decision and ordered a new trial.

In 2011, Hutchinson was found not guilty of aggravated sexual assault but guilty of the lesser offence of sexual assault.

While the woman did not consent to sexual intercourse with damaged condoms, the Crown failed to prove that her pregnancy was a result of having had sex using those condoms, the trial judge said at the time.

On Monday, the case was heard by a special five-member appeal court panel headed by Chief Justice Michael MacDonald, instead of the usual three-member panel.

 

 

Shane Trawick University of California, Berkeley – School of Law

Abstract:
This Comment responds to a series of recent studies linking domestic violence to birth control sabotage — a phenomenon where male partners destroy or manipulate contraceptive devices to force pregnancy, attempting to hold their female partners captive in a violent relationship. Birth control sabotage can take many forms, including the destruction of birth control, the piercing of condoms, or the forceful removal of contraceptive vaginal rings or intrauterine devices. Its existence begs two questions: what legal remedies are available to victims of birth control sabotage, and what policy steps should be taken to limit its occurrence? The absence of legal scholarship resolving these questions is glaring, and virtually no legal scholarship addresses the intersection of birth control sabotage and domestic violence. This Comment contends, first, that the recent studies linking birth control sabotage and domestic violence provide a sufficient justification for labeling sabotage as an intentional, fraudulent misrepresentation tort claim. Second, this Comment normatively argues that state legislatures ought to act quickly to criminalize birth control sabotage. As sabotage can now be understood as an act of violence in continuing domestic violence, criminalization and incarceration are crucial in preventing further abuse. While legal remedies for birth control sabotage have been severely limited in the past, creative attorneys and motivated legislators should address this important issue to improve the lives of survivors and their families.

 

Of course there are also links to other cases about the context of sexual activity and how it might or might not vitiate consent, such as Mabior and DC (french only) in which appeals to the SCC have been heard and decisions are reserved.  Both are cases in which HIV+ people did not disclose their status to sexual partners.