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CRM402 (Criminal Justice and Inequality) - Chapter 8 Law, Homophobia

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CRM 402
Christina Hollingshead

CRM402-701E- Week 9: Law, Homophobia, and Violence: Legislating against Hate Overview  Hate legislation in Canada and how these provisions have been implemented  The author gives many examples of assaults and murders that occurred after 1995, when the sentencing provisions came into effect  Theoretical approaches to understanding homophobia in society and more specifically, within the CJS  The recurring theme of how violence against sexual minorities is ignored, perpetuated and treated with general indifference  The way homophobia is reproduced in law On History  Homophobia is reproduced in legal practices that minimize, rationalize, and negate homophobic violence  The author argues that at least in some instances (in procedural or administrative legal errors) this may be “unintentional”  Still, these “errors” have led to gay persons being killed, and killers that have gone free or had their charges reduced  “Hate crime” as relatively new social construct  But it frames an age-old problem  According to Jenness “hate crime legislation develops through a process whereby victim status is assigned to certain groups and not to others”  Which social actors “speak for” gay victims, and which discourses are used to frame issues and develop policy positions [WHO BENEFITS?] Legislation  There has been much American hate-crime legislation and academic research  However, the Canadian debate has remained mainly limited to questions about hate crime sentencing provisions *s.718.2(a)(i) allows for judges’ discretion+ and hate crime propaganda  Much of the research suggests that the provisions have been largely ineffective  Janoff states that in his research he has found “almost no reports confirming that judges have increased sentences for queer-bashers”  He agrees with Shaffer’s position that a separate hate-crime statute is needed in Canada  As well as the establishment of a national organization that would assist victims stand up against queer-bashers – and specifically the laws, policies, and institutions that fail to protect them Law and Homophobia  So how does the law reproduce homophobia?  Janoff begins his work by stating that it is essentially bad enough that gays person must deal with negative, hateful thoughts by society, not to mention violence perpetrated physically against them…  But indeed the “real horror” lies in legal practices that tend to downplay or excuse this violence  He argues that homophobia “saturates” the legal system  And that the system is “limited” in its ability to address homophobic violence  Janoff also describes many, many instances of violence committed against members of the queer community that he uses as case studies  And the judicial outcome of these cases – ranging from the police refuse to charge the offenders, suspended sentences, to manslaughter Legal Scholarship on Homosexuality  Homophobic violence can be exposed on many fronts:  The actual physical violence inflicted on queer victims  The secondary victimization doled out by the CJS  The symbolic violence suffered by the entire community when such acts appear to go unpunished  Legal Scholarship on Homosexuality  Ryder “the legal construction of heterosexual privilege”  “Law is mainly silent on gay and lesbian existences, except when gay men are presented as powerful victimizers, deserving weak victims, or as the perpetrators of unmentionable indecent acts”  Ryder “this silencing normalizes heterosexuality and discourages queers from expecting recognition and support”  Stychin argues that “students of common law are routinely taught to slot legal problems within specific, essentialized categories – however, queer theory underscores the contingency and contestability of categories – that there is nothing natural about them”  Legal Scholarship on Homosexuality  Janoff discusses how by 2003 lesbians and gay men were celebrating their recently won legal right to marry  However, many were unaware of the (still remaining) multitude of Canadian statutes that regulate homosexuality (s.
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