My colleague and IFLS member, Prof. Susan Drummond, might be late to the twitter game but she knows how to write a hashtag (see @susangdrummond ). More to the point, look what she can do with more than 140 characters.
The Supreme Adjudicators of Pornographic Taste
Professor Susan G. Drummond, Osgoode Hall Law School
As I reflect back on the marketplace of chatter before social media, I’m not really sure how we used to do it: pick up cultural tropes without the assistance of twitter trends. But there used to be a thing in the air about Playboy versus Hustler. The presentation of naked women in the former was at one point socially adjudicated as “tasteful”. Images printed in the latter (and by inference the women who were represented) were not. I think the dividing line was pussy shots, full-on snatches of cunts, beavershots. Is that lingo even used any more in the age of porn-induced erectile dysfunction? Can one even access a print copy of Playboy or Hustler anymore to get a graphic feel for the nuances of the debate?
Somewhere around, say, the 1980s, there was a sense that three-dimensional women (i.e., women who had agency despite the dissemination of their nakedness in the two dimensions of print) might actually be allowed to wander about the corridors of power and possibly “advance” notwithstanding the naked sexual bodies under their clothes. The two dimensional “tasteless” women with displayed cunts would not. The market being what it is, Playboy eventually had to capitulate to the pussy-shot escalation and the “tasteful” line got moved. There was even a scandal in the last ten years about a three-dimensional articling student at one of Canada’s big law firms who had appeared in a “Girls of Canada” issue of Playboy and an (of course) anonymous masturbator had carpet-bombed the photos to the legal community by email. “I wish I could decide who gets to see the pictures and who doesn’t,” she told the National Post.
That plaintive nostalgia for women’s choice has been a lone woman’s excruciating wail over the last four years of the Canadian Judicial Council’s Inquiry into whether photographs of a naked judge “out there” in the digital universe were inconsistent with the appearance of law. There is not a single person in Canada, the judged judge included, who would deny that there are naked photographs of Associate Chief Justice Lori Douglas “out there”. Her husband, without her consent, distributed the photos on the internet in a limited distribution. A man immediately apprehended their value. He threatened to carpet bomb the copies in his possession through the corridors of power she was somehow managing to walk, rather miraculously given how many female judges the common law has seen in its 900 year history.
He set them in a human rights frame of sexual and racialized harassment (by her!). He then agreed to destroy the photos in exchange for a legal settlement of $25,000. As is common in cases where compromising photos are allegedly destroyed for cash, with money in sweaty hand he re-assessed the $25,000 consideration as a pittance, given the various frames of law he might place them within. With the CBC’s help, he renewed the carpet-bomb campaign and the photos moved out of limited distribution onto the wide-open internet.
Sure enough, his quest to distance the photos from his own swollen agency found a home in law. With the CJC’s assistance, he fashioned a new frame: were the photos themselves “inherently contrary to the image and concept of integrity” of the judiciary? Did their very existence “out there” undermine public confidence in the justice system.
Astonishingly to some of us, the Canadian Judicial Council made a judgement call that, of the 15,000 complaints against judges since its inception in 1971, the test case for their new model of openness and transparency in judging judges would be a case involving a naked female judge. The Council, chaired by no less than the Chief Justice of the Supreme Court of Canada, thereby inevitably positioned itself as the arbitrator of sexual taste.
The CJC painted itself squarely into its perverse corner in the final days of its inquisition. The four weeks between October 26, 2014 and November 27, 2014 induced whiplash on the topic of sexual taste and consent.
- On October 26, Jian Ghomeshi exposed himself on Facebook with his spin that despite the multiple accounts we were about to hear from women claiming he had assaulted them, the CBC – generally of the SCC/CJC generation – was firing him because he was into BDSM. The state, he argued, was not the arbitrator of sexual taste. Many joined a tidal wave of support for this reasonable proposition: Canadians are free to play badminton or more extreme sports with their sexual bodies and none of us should lose our jobs as a result.
- By November 2, Canadians were riding a tidal wave in the other direction and concluded Ghomeshi was opportunistically conflating kink with his failure to secure consent. The “tasteful” line had shifted and the few Canadians under 80 who had never put their minds to it before were prepared to use their judgment to discern a difference between consensual BDSM and assault.
- On November 25, Jian Ghomeshi was shoved and squeezed through one of them most spectacular perp walks Canadians have ever seen. That high watermark of Canadian consensus that “without consent, all sex is assault” will no doubt buoy us and the complainants for a pregnant pause before the brilliant and fearless “shark” defense counsel Ghomeshi hired, Marie Henein, will do all that she can to directly or indirectly expose the complainants’ sexual bodies and histories as inherently contrary to the image and concept female credibility. She will flatten every kink in their past into the two-dimensional digital equivalent of the analogue era’s beavershot.
- In the exact same time frame, ACJ Douglas’ lawyer, Sheila Block, engaged in an epic battle with the CJC’s independent counsel, Suzanne Côté. Everyone knew there were naked photos out there. Who didn’t know that they were representations of consensual kinky sex? Côté insisted that Douglas’ colleagues on the CJC had to see the photos for themselves in order to adjudicate whether their very existence was “inherently contrary to the image and concept of integrity of the judiciary.” Block succeeded in stalling that argument, but Côté was simultaneously plundering defense counsel’s playbook for sexual assault trials – here with the victim herself on trial. Côté made an application to access the clinical notes of Douglas’ therapist. One day before Ghomeshi’s perp walk through the court of public opinion, ACJ Douglas resigned from the courts of law.
- Three days later on November 27, Stephen Harper appointed Côté to the Supreme Court of Canada without allowing us a moment’s pause to absorb what had just happened. The corridors of power opened to one more woman while a huge swathe of the next generation of Canada’s female jurists were just flattened into those of us who can never be judges.
As most frequently happens in law, the Douglas inquiry “settled”. The court did not hand down a precedent. All we have are ways that the argument would be framed by law, and a trail of statements of claim, motions and interim orders that provide us with a sense of where the courts might have gone.
We also have a definitive precedent for what the CJC thinks is a proper legal “issue” to be asked vis a vis naked photographs of women: is the very existence “out there” of sexualized photographs of women contrary to the integrity and appearance of justice as embodied in the judicial role? Certainly Independent Counsel Côté thought that was a legitimate question, if not the central question in front of the CJC. “The main dispute,” Ms. Côté argued in support of her position that the photos must be seen, “is about the effect of these pictures.”
ACJ Douglas was humiliated relentlessly by the CJC until she folded. She did what, god knows, close to each and every one of us would have done: she quit. I don’t, myself, know how she managed to test her courage in that crucible for as long as she did. She is heroic to me.
With dizzying speed, Prime Minister Harper appointed the jurist who embodied Lori Douglas’ lead inquisitor, Independent Counsel Côté, to the highest court in the land immediately after her relentless insistence that the CJC needed to see Douglas’ naked sexual body in order to decide whether her sexualized nakedness comported with the appearance and integrity of justice. First year law students have enough training in reading the common law to grasp the precedent that has just been set for women. In fact Canadian citizens with no training in law at all can discern the precedent perfectly well.
What a perfectly bizarre precedent it is. As Sheila Block argued, “There’s no issue these are graphic pictures. These are pictures of people having sex. They’re highly prejudicial. They’re not necessary for the determination of this issue.” There was never a question raised about whether the sex the people were having was consensual. We can all take judicial notice that they were.
Côté’s argument was that there is a question of substance to be decided based on the content of the photographs. That they existed was not an issue. All parties to the CJC Inquiry had that undisputed fact in front of them. What was in the photos was the issue. That means that it was open for the CJC to determine substantively on the merits that the content comported, or did not, with the integrity of justice and the judicial role. The idea that there was a substantive question at issue leads inevitably to the scenario of the CJC collectively or in the shadowy privacy of their separate chambers pouring over the photos and (perhaps literally) coming to the judicial conclusion: “Oh, OK, well these photos are consistent with the integrity of justice after all”. Or “Actually, we find that this particular photo is quite tasteful, but this one falls significantly below our threshold”; then publishing the new test in the now digital gazettes and reporters of law.
We have just been put on notice by the entire upper echelon of those who rule the corridors of power that the SCC has become the arbitrator of the analogue era’s Playboy/Hustler quibble.
The Douglas Inquiry settled. As first year law students know, it’s not a formal precedent until judicial judgment is passed. And the court of appeal trumps superior courts under the doctrine of stare decicis. A Supreme Court decision trumps all and becomes the law of the land. In the meantime as the next naked photo case winds its way up to the SCC, jostled alongside all of the sexual taste and consent cases (Ghomeshi’s quite possibly one of them) that the Honorable Madame Justice Côté may now have to recuse herself from, law professors get to nudge and shape the law with their scholarship as they advocate for their understanding of the most rational approach to questions of law.
So let me be naked: I have a photograph “out there” that someone close to me threatened to send to my employer, Osgoode Hall Law School. As someone post-CJC, who can never, and will never, be a judge in Canada, I would like to use my position as a law professor and legal scholar to propose the new test that should determine who, in Canada, can and cannot be a judge, or a lawyer, or occupy any other three-dimensional place in Canada. The test should not be: Do you have a naked photograph “out there”? It should be “Have you ever masturbated to a naked photograph of a woman whose consent you did not first secure to gaze upon her naked sexual body?”
Can we start to implement our test with the current bench and, a la CJC, launch ex post facto inquisitions of them all? We’ve lost a provincial Associate Chief Justice to the exercise of prurience with no precedent being set. Can we settle the question quickly by a Supreme Court Reference?