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Lecture #14 Monday, January 14, 2013.docx

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York University
ANTH 4340
Douglas Kong

AP HUMA1825 Lecture #14 Monday, January 14, 2013 CLASS WRITINGASSIGNEMNT NEXT WEEK: - Minow and Lavallée, and your opinion on this case - QUESTION ONASSIGNMENT: Whether you think this case, (which is known only by initials R vs. NS,) engenders” justice and whether it serves the cause of gender equity. In your answer, first consider the three different opinions in the case and explain which opinion, if any, you prefer. o ** The word engender has several meanings o Put your mind to the issue and think about what you think is the correct way to proceed in this case o Simply asks you for the substance of your thoughts o Maybe yes maybe no, and depends on the different factors (Majority)  How are we going to administer these factors? Newly added case (on Moodle – found online on the supreme court of Canada website) - Concerns many issues that are pressing for all of us - Concerns a woman who wears habitually a face veil called a niqab o Acovering of the face that allows a person to see only her eyes and nothing else - She accused 2 men \of sexually assaulting her o These men are her uncle and cousin o She alleges that they sexually assaulted her repeatedly when she was a young woman o The men were charged with sexual assault (aka rape) - When it came to trial, she insisted on wearing her face veil in court o She apparently was willing to take it off when she had a photo taken for her driver’s license o She was also willing to remove it when she travelled and had to go through security/customs o She was not willing to take it off in court - She alleges, under section 2A of the CAF, she has freedom of conscience and religion o Section 2Aof the CAF guarantees each and everyone of us freedom of conscience and religion - The men accused argued that they have to be able to make full answer and defense (Stock and phrase) o They have to have the ability to make full answer and defense to the charges against them (very serious charges) o In order to make full answer and defense, they have to be able to assess her credibility when she testifies o **If you can convince a judge and jury that you are credible, and what you are saying is credible, you win. If you can’t convince a judge and jury that AP HUMA1825 Lecture #14 Monday, January 14, 2013 what you are saying is credible, you lose. It hinges most cases without exception, hinge on the issue of credibility o In order to assess credibility, it is mostly an art (i.e. looking and just knowing) (i.e. face, body language, expression)  Lawyers are saying they need to see her face when she testifies and when they cross-examine her in order for credibility o She appealed the decision to remove the niqab - ***Read the decision o 3 different judgments o Appeal was denied but the case has been sent back to the trial judge to determine yes or no, whether she will be able to wear a face veil while testifying in court. - This raises all kinds of issues of what difference difference makes - She alleges her freedom of religion is in play (although the wearing of the veil is more cultural than it is religious) Next week’s reading: Legal moralism - Asks the question: When is the state/government authorized to use the criminal law to criminalize certain behaviors that lets say, a majority of people, find immoral or morally reprehensible? When can the court legislate morality? R. v. Lavallée [1990] 1 S.C.R. 852 – Battered woman syndrome About domestic abuse and domestic violence Whether this case helps or hinders gender equity and gender injustice - This case is an illustration of Minow’s analysis - Whether we address the difference between men and women - Battered women who kill their batterers and then plea self-defense and charged with murder - Whether the battered woman syndrome serves to overcome myths and stereotypes of women What Minow herself says about battered women syndrome: - See again, Minow at p. 217 on Battered Woman Syndrome (“BWS”): BWS sought to challenge unstated societal norms that conceived of justifiable self- defense by reference to men’s experiences. Yet by deploying psychological expertise to challenge these norms, the lawyers and their clients confronted another set of societal norms denigrating women with mental instabilities. Women have traditionally been AP HUMA1825 Lecture #14 Monday, January 14, 2013 branded with the label of mental instability, and the battered women’s syndrome stimulated this latent image. - What picture of women are you left with when the court seeks to decide whether the woman is guilty of murder or whether what she did is justifiable as self- defense - Described over and over again as a victim (helpless, trapped, victimized, vulnerable etc.) o Does this picture of her really help her cause or hinder it? - Citation of a SCC case: date is always put in square brackets o Indicates it is a supreme court case - R : redeemer (crown) - State: one of the parties in a criminal case - Accused: the other party - Therefore R V Lavallee (The state against Lavallee) - Issue from the case (evidential) o About evidence o The substantive subject matter of battered woman syndrome is a huge part of the case o The issues concern 2 matters related to evidence:  1) The admissibility of expert evidence • Strictly speaking and evidentiary question • Governed by the evidence act and the hearsay rule  2) The trial judges instructions to the jury • Whether those instructions were adequate with respect to the evidence of Dr. Shane - Judgment written by Wilson J., first woman appointed to the SCC in 1982; speech at Osgoode Hall Law School, 1990: “Will Women Judges Really Make a Difference?” A distinctly male perspective is clearly discernible and has resulted in legal principles that are not fundamentally sound and should be revisited as and when the opportunity presents itself. Canadian feminist scholarship has, in my view, done an excellent job of identifying those areas and making suggestions for reform. Some aspects of the criminal law in particular cry out for change since they are based on presuppositions about the nature of women and women’s sexuality that in this day and age are little short of ludicrous. - the importance of the Lavallee case accepted that the difference of men and women and was is reasonable for self-defense= AP HUMA1825 Lecture #14 Monday, January 14, 2013 - Lyn Lavalee was acquitted at the trial level – did not testify – many witnesses testified (doctors, police, neighbors and fiends, among them Dr. Shane) - The crown appealed the decision on the two matters relating to evidence - The case was heard at the Manitoba Court ofAppeal o Two judges overturned the acquittal and should be retired but on the charge of manslaughter not murder. Third judge decided that the acquittal should be upheld - Lavalee appealed to the Supreme Court of Canada and her acquittal was restored ***NOTE: Battered women syndrome is not a defense to murder, the syndrome is used to show the reasonableness of her actions. Facts of the Case - Young 22 year old living with this man – Kevin Rust (aka rooster) for 3-4 years - Their relationship is described by the court as volatile o They would argue for weeks on end, were fighting for most of the time o For the weeks and months leading up to Kevin’s death, it is clear from the judgment that the two had been getting along very badly (sleeping in separate bedrooms, no sexual relations, tension was escalating) - Between 1983 and 1986, Rust beat this woman so severely that at least on 8 documented occasions, she went to the emergency room for treatment o Her injuries on these occasions are described as extensive (bruises, split lip, black eyes, broken nose, etc.) - He said she would scream “like a pig being butchered” - No one believed her excuses, they knew it wasn’t an accident - The beatings did nto stop - On a hotAugust day, there was a party, there were arguments, Rust chased her and allegedly said he would kill her when the friends left - According to the testimony of a neighbor there was a gu
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