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Lecture

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Department
Social Science
Course
SOSC 1350
Professor
Julie Dowsett
Semester
Winter

Description
The Organization of Courts -legislative powers are split into federal and provincial -4 levels of court 1. Provincial Court: criminal offences, family law, traffic violations, provincial offences, private disputes, inquiries for trial 2. Provincial Superior Court: highest provincial court, all civil and criminal cases 3. Appellate Courts: hear appeals of a decision in provincial superior court, constitutional questions 4. Federal Courts: matters in federal statutes, federal-provincial or interprovincial disputes, citizenship appeals, Crown corporation or government cases (also specialized federal courts, similar to appellate) 5. Supreme Court of Canada: highest court of law, jurisdiction over all areas of law, last resort, must be granted permission, legality of bills submitted by gov’t, guardian of constitutional rights -federal gov’t and provincial gov’t can’t rule on laws in opposite jurisdictions Legislature -a group of people that can make laws for a province or country, authorize jurisdiction of courts, qualify their members, oversee bureaucratic activities -conflict and integrative functions: -conflict-management: management instead of resolution, deliberate without a decision -integrative functions: support for executive and judicial systems -Cabinet responsible for House of Commons, H.of C. responsible for people in elections Aboriginal People -pass legislation with respect to Aboriginal people and lands reserved for them -Aboriginal rights are constitutionally protected, absolute in Canadian law -gov’t wanted to assimilate Aboriginals through: creation of reservations, band councils instead of tribal gov’t, rules on how Indians are classified -goal was to assimilate Aboriginals into general population -Indians didn’t have right to vote until 1960, loss of status to Indians with a university degree or non- Indian spouse -Indian Act- only legislation in the world targeted to a specific racial group -in 1969, fed gov’t rejected special status for aboriginals, proposed repeal of Indian Act and abolition of all treaties -1973, supreme court recognized that Aboriginals can still claim their own land with proof -fed gov’t established an office to deal with land claims: comprehensive (ancestral rights) and specific (grievances and non-fulfillment of treaties) -Constitution Act 1982 section 35 = Aboriginal Rights -complete restructuring of relationship between Aboriginal and non-Aboriginal people: new set of ethics, development of Aboriginal gov’t, reps to advise parliament, independent justice system -common law recognizes title based on occupancy and use of the land -Canada has bad reputation with U.N. for slow cooperation with Aboriginals Theorizing Law -gender, race and class are neither static things nor finished products -social structures: routine forms of interaction over time that shape behavior -the capacity to exercise power is a reflection of ones social position -law: impartial, neutral and objective system for resolving social conflict -everyone including rulers are subject to law, ppl accused of crime are entitled to trial before judge, law treats everyone the same (procedural requirements, due process) -Crown Attorney: lays charges, decides to prosecute or not, establishes guilt beyond a reasonable doubt, proves that the accused’s intent was not influenced by mental or intoxication factors, supports w/ evidence connected to offence, discloses to accused evidence that they will rely on -Defense Counsel: assures ppl are not convicted improperly, ensures Charter of Rights & Freedoms is not overlooked, informs client of available options, puts forward defenses at trial, challenges reliability of witnesses, raises reasonable doubt -Judge: recognizes relevant facts to find the truth, treats all ppl unbiased, relies on previous cases -lower courts obey higher court rulings -Preliminary Hearing: where a judge determines whether theres enough evidence to proceed to trial, no ruling on guilt -Pre-Trial Conference: defense counsel, Crown and trial judge meet to promote a fair hearing, mandatory for jury trial -Plea Bargaining: narrowing issues at trial that create unnecessary litigation, exchange for more lenient sentence, reduction of charge, promise by Crown not to mention certain circumstances about offence -Criminal Trial: preserve social standards of conduct in legislation, provincial or superior court judge (and jury) -legal process is made up of 2 sides putting together a version of what happened relating to the criminal charge -produce certain claims of truth -knowledge is not objective but political, has to do w/ power (productive of each other) law is a form of knowledge and therefore a form of power -gender strategy = mechanism for fixing gender differences (women represent dualism) -racism is constructed reproduced and reinforced in society, ideologies rooted in wider society -violence and drunkenness are viewed as naturally occurring in Aboriginal communities -race, gender, class play large roles in law -neo-liberalism: values individualism, freedom of choice, family and individual responsibility, enhancing economic efficiency and market security, risk management -neo-conservatism: hierarchal, authoritarian view of society, individual responsibility, tightly- controlled society, -crime control: -neo-liberalism: offenders are dangerous to society, need control for protection of public -neo-conservatism: zero-tolerance, ensure success in prosecution, compulsory criminalization -Crown attorneys and defense counsel get empowered with norm definitions of race, class and gender, present themselves in court as neutral, establish social distance bet’n themselves and clients -lawyer should make main decision affecting case, through persuasion and negotiation -normal crime- the trend of social characteristics around a crime (type of victim, typical manner, anticipate tactics in court), special explanation req’d for cases that fall outside the norm Sept 18 2013: LECTURE -Origins of Canadian law: British common law system -civil law more predominant than common law -common law: law developed by custom before written laws (judicial precedent), relies on precedence set by judges, developed by English in middle ages, used mostly in British empire (i.e. U.K, Canada, Ireland, U.S., India, Pakistan, Sri Lanka, South Africa, Singapore, Hong Kong, Australia, New Zealand) -civil law: relies on detailed code, legal certainty is ensured, developed by Roman empire, spread through colonialism of France and other European states (most of Europe, most of South & Central America, most of Africa, most of Asia, new nations, Quebec only provincially, Louisiana only state- level) -sources of Canadian Law, how law is made (politicians and judges): -statute law (from legislature) -House of Commons (MP)> voted on > Senate > approved by Queens rep (Governor General) in Canada (lieutenant governor in provincial) -federal (MPs, senators, queen, governor general), deals w/ immigration, Aboriginals -provincial (MPPs/MLA, lieutenant governor), education, health care, transportation -municipal (councilors), by-laws, utilities, road repair (not highways, which is provincial) -all can pass laws under their own jurisdictions -case law (from judiciary/judge-made) -should only apply law, not make law -in applying the law, they interpret the law, therefore making it -precedent = prior decisions by judges bind w/ current and future judges (stand by decided case, deemed not appropriate) -once one court has made a decision, another court won’t alter it -“words in passing”, root of decision is precedent setting -disadvantages of precedence: how rigid the law is, little room for courts to maneuver and make decisions, very slow to adapt to social change -Aboriginal self-gov’t -Constitution Act 1867 s. 91 = gives fed gov’t jurisdiction over Aboriginal people (no such thing as self gov’t) -Charlottetown Accord 1992 = proposed constitution amendment, allows recognition to Aboriginal self gov’t, referendum caused failure of idea -Role of Canadian Charter of Rights and Freedoms: -prevention of discrimination by gender, race, ethnicity, etc. -relationship to constitution, has supremacy over other laws -relationship to Canadian Bill of Rights (1960), predecessor -**Sections 15 (Sex Equality) & 28 (Notwithstanding Declaration of Male & Female Equality) -Official Version of the Law: the way the law sees itself -the way law represents itself as working, not written anywhere officially -neutral and unbiased, dispassionate, no favoritism -blindfolded woman with scales of justice: represents problematic style, all that is ‘good and glorious’, represents the state, impartial manner in which laws are administered, blind to all consideration except the facts, does not see difference -Justitia- Roman goddess of justice, represents moral force of justice system -why feminists are critical of official version: difference can influence making decisions based on circumstance, law should make decisions not only on what was done but who they are, promotes appearance of equality in society in which there’s massive social inequality, 2 very different understandings of the law -gender: term used to distinguish bet’n biological aspects of being female or male and the cultural expectations of femininity and masculinity, socially constructed -women are considered the other/outside the norm, men are considered universal norms -sex roles rather than gender show significant continuity -strict gender stereotyping causes suffering for men and women -parents are always in the world’s critical eye, therefore they adapt to the social norms and so do their kids -different nation states, a means of demarcating diff grps on the basis of phenotypic characteristics (skin color) -hierarchal relationships: intelligence, industriousness, criminality, pure and biologically determined -term became part of common-sense understandings, demarcating grps of people on the basis of features such as skin color, culture, religion, language -social construction: meanings attached to groups of people -racialization: differentiating people on basis of race -stereotyping and attachment of negative meanings promotes racism -racism is connected to power, people who are racially privileged are a form of power, whites are mostly predominant, perpetuates power structures -women are disadvantaged, men have unearned advantage over them -men must be the central important sex because they have done most of what is important or distinctive in life -obliviousness of power can make a person or group irritating to be with -racial group was being made confident, comfortable and oblivious other groups were likely being made unconfident and alienated -unearned entitlement and advantage for them -advantage by age, ethnicity, physical ability, nationality, religion, sexual orientation -advantages associated w/ different categories are not the same, members of the dominant grp can’t see their benefits -these problems cannot end -mythical norm: white, thin male, young, heterosexual, Christian, financially secure, contain trappings of power in society -unearned advantages: reinforce systems of power, earned advantages: gained by effort and work -racial minorities are limited in social, political and economic power -ghetto: social process by which minorities are marginalized -power is guarded by imposition of restrictions on citizenship and its correspondent rights -slavery: denying humanity and eligibility for citizenship for black ppl, limited in voice and position, viewed as property instead of personhood, limited empowerment -deculturate: recreate a population in the image of the dominant white culture -gendered division of labor: wage differences, job segregation, reproductive labor -“leisure gap” for women at home, housework is always a woman’s job, men refrain from housework as a threat to masculinity -white privilege is not the same for people w/ white-looking skin, Europeans were considered non- White, perceived w/ negativity -hierarchy of masculinity, some men are subordinated to others (white over black men, hetero over homo, capitalists over working-class) -white men can be perceived as a risk of victimization -most crime is intraracial, victims are victimized by their own race, black Canadians are at greatest risk of hate crime -typical crime offender: dark skin, dark hair, reinforced by media -real crime offenders are young white male according to statistics (2/3 inmates) -white men are mostly involved in corporate crime (economic relations of power) and hate crime (sociocultural relations of power) -hate crime is used to keep power w/ dominant grp, recreate masculinity and reinforce gender identities -domestic violence proves that the man is in control -women of color are highly vulnerable to violence -law was made for white middle class men -law has the power to exclude certain groups’ participation -distinctions among and bet’n white men’s position and status, dependent on such factors as ethnicity, class and sexuality -occupy positions of power economically, politically and socially, white males are dominant as service providers -self-determination, self-image -eradicating gender stereotypes, society imposing norms, historical influence on norms Sept 25 2013: LECTURE -feminist approach to socio-legal studies -claims to be neutral and unbiased, criminalizes people that are already oppressed in society -feminists are critical of the official version of the law, since it’s not entirely true -feminism can be paired with other points of view (Black Feminism, feminism and anti-racism, etc.) -race and other forms of oppression must be used to assist in justice -Canadian law and society remains sexist -feminist approaches in socio-legal studies (diverse, not coherent) -liberal feminism: least radical, think we need reform instead of revolution, interested in working within the law (feminist organization), focus on gender to be exclusion of all other forms of oppression (race, class, ethnicity), mostly White middle-class straight women which reflects interests of this population, see official version of law as a blindfold to stop us from seeing what’s going on, uses law as tool for social change -anti-racist feminism: more radical and critical, interested in how race and sex intersect, against racial profiling -socialist feminism: more radical and critical, interested in how class and sex intersect, came out of activism from communist organizations, see official version of law as a blindfold to stop us from seeing what’s going on, concerned w/ labor that women have predominantly done, how families are organized in respect to gender roles -socialist & anti-racist feminists have an official critique of the law, more radical position -postmodern feminism -social construction of gender: -traditional feminists understandings of “sex” vs. “gender” -sex = biological aspect of a person (male & female) -gender = social/cultural meanings assigned to a person (masculinities & femininities) -child assumes appropriate gender roles from birth to adapt to their expected gender -women: better at caregiving, children and babies, worrying about their bodies (babies, kitchens, princesses, Barbie dolls), job is to please men -men: better at mathematics & science, building things -one is not born, but rather becomes a woman -biological determinism: biology is destiny; the assumption that since women can give birth it makes them responsible for all labor associated w/ children (cooking, cleaning, nurturing) -begin to socialize kids into their proper gender roles right from birth, continues throughout life -sex can also be socially constructed, feminists say there’s a natural difference that divides humanity in half, male/female division with no middle ground is problematic -problematic for intersexed people: doesn’t fit male or female categories, develops near puberty, why someone is infertile, can live without knowing for sure -cisgendered vs. transgendered people: -cisgendered: gender identity roughly corresponds to their anatomy (woman acts like woman) -transgendered: gender identity doesn’t correspond to their anatomy (man acts like woman) -social construction of race -race as socially constructed: something that is continually produced and reproduced, project racialized assumptions by society (racial stereotyping), who is considered a certain race -race and racialization as a process: continually being given cultural and social meaning -racism, sexism and classism may be separable in theory but not separable in fact -“multiple jeopardy” and “interlocking systems of oppression”, privilege is invisible to those who have it, (white privilege, male privilege, heterosexual privilege) -ideas are taught, people of privilege are taught to recognize that their privilege doesn’t exist -Band-Aids suggest that white skin color or white people are normal -socialization: the process of people adapting to their norms in society -in post-war years, young people were the target for sex education, sexual norms were reinforced -material factors (media, money) allow certain discourses to become more powerful than others -“heterosexuality is not normal, just common” (more universal and natural) -fight between straight and gay is most profound social division in present day -sexuality is relational, there can’t be homosexuality without heterosexuality -before 20 century, criteria for sexual behaviours switched from reproductive to erotic possibilities (pleasure over reproduction) -normal heterosexual is counterposed to abnormal homosexual (sexuality hierarchy) -men began being labeled as “queers” if they couldn’t conform to masculinity (gender over sex) -widespread fear of effeminacy, and homosexuality, heterosexuality is now mandatory for demo of manliness -denying sexual urges made marriage less stable, women felt this diminished female power, withdrawing from sex was a threat to marriage -sexual desire is central to personality and identity -normal is whats usual or typical and is used as a deviance mechanism -moral regulation: the social project of rendering natural the perspectives of dominant interests , not only legit but desirable -people fear of confessing their sexual desires out of fear of punishment -the way we understand our purpose in this world is both due to conscious and unconscious aspects, these ideas are produced not given -to be marked as sexually “abnormal” is to question someone’s status as an adult or responsible citizen, normal sexuality is an “achievement” -moral and physical capacities are determined in the teen years usually -3 Stages of Law Reform: 1. Decriminalization- homo used to be punishable by death as an “offence against morality, decriminalized to only be allowed between 2 consenting adults in private (Bill C150), lifted stigma 2. Equality- 1970s was when homos began protesting against gay discrimination, slowly provinces began allowing homosexual protection (1 was Quebec), gay went from crime to mere minority, Supreme Court forced provinces to include sexuality in human rights 3. Relationship Recognition- more reform instead of liberation, 1999 was when Bill 5 created new category called “same sex partner”, increasing benefits and rights, 2000 Bill C23 increathd rights and benefits -Canada is 4 country in the world to legalize gay marriage, still maintains heterosexual marriage as the norm, biggest legal battle regarding freedom in Canadian history -1985= changes to censorship laws to adapt to freedom of expression rights, began seizure of indecent materials because 20% of cops were homophobic -age of consent is 16, anal intercourse illegal under 18 -there is unjustified discrimination against gays, homosexuality is still a human rights issue -gays are represented as innately respectable -Canada is an international leader in human rights -same sex marriage is a struggle for justice, seen as a threat to the country’s stability -less ethnic, higher class = more normal Oct 2 2013: LECTURE -racism puts some people at disadvantage, but puts others at an advantage -heterosexual people don’t see their sexuality as something that grants them privilege -whiteness is constructed as normal, neutral and universal, other ethnic identities are ‘abnormal’ -social construction of “normal” -white, male, straight, Christian, cisgendered, able-bodied, middle class -Canadian society treats the mythical norm better -many sports teams use Aboriginal names, takes place in countries settled by white Europeans, most names are racist and offensive, dehumanizing (most teams are named after animals) -fighting “whites”: we wanted to do something to show the other side of being a mascot -social construction of normal requires the social construction of deviance (White can only be labeled normal if Black is labeled as deviance) -straight is labeled normal because queer is labeled deviant -heteronormativity: a system of social relations in which heterosexuality is institutionally and ideologically privileged at the expense of queers, heterosexuality is assumed to be normal and natural, important to take apart the center as well as the periphery, queerness thought of as a ‘problem’ -to be queer is to somehow be mentally ill or not socially adjusted -heterosexuality used to be compulsory instead of just natural, impossible to adopt children as a gay couple, never interrogated since it’s considered to be the norm -terms homo and hetero are recent inventions, coined in 1868 by Karl Maria Kertbeny, sexual behavior associated w/ these terms has existed forever, became dichotomous terms (completely separate) -some cultures contain more than 2 genders (up to 4 w/ Aboriginals) -homosexuality/anal sex used to be criminal (punishable by death) -changed in 1892 by removing death penalty and referred to as “offence against morality” -1948, gays were referred to as ‘criminal sexual psychopath’ -1961, referred to as ‘dangerous sex offender’ -lesbian sex was never criminalized or mentioned, gay men were criminalized more -RCMP collected names of gays and lesbians in public service, added up to 6000 in Ottawa alone, queers were fired for being gay in public service because homosexual secrets could be used as a blackmail -1969, sodomy laws were lifted -1978, gays and lesbians were allowed immigration to Canada, benefits for gays still absent -Mossop vs. Canada -father of his partner died, wanted to take bereavement leave but was denied, lost the case due to bad legal advice, “understanding of family in Canadian law needs to be rethought, too heteronormative” -Egan vs. Canada -partners together for 42 yrs, applied for old age security at 65 yo as well as partner, request denied because there was no relationship in the eyes of the gov’t, took 9 years to get to Supreme Court, ended up writing sexual orientation into the charter -Vriend vs. Alberta -fired from job because he was gay, thn the case, can’t be fired for being gay -Civil Marriage Act 2005, made Canada 4 country in the world to legalize same-sex marriage, many court decisions decided refusing gay marriage was unconstitutional Oct 16 2013: LECTURE -masculinity is new in feminist theory and feminist sociolegal studies -girls are punished more regularly and severely for acting rough, unlike boys who are allowed to act aggressive -gender is performative, it is only to impress others, involves everything we do, gender acts as a disguise towards others -teenage boys need to constantly demonstrate their heterosexuality to others, specifically male peers -talking about gender as performativity obscures the fact that gender is a very large characteristic of our identities -more than one form of masculinity -hegemonic masculinity: idea that there’s 1 type of masculinity (tough, emotionless, homophobic, subordination of women, etc), if you don’t conform then you’re not a man -society consents to these dominant representations of masculinity (hegemonic) -violence and aggression are associated with “doing masculinity”, women who are violent and aggression are regarded as betraying their gender, most violent charges are against men -defense lawyers usually build cases on the grounds of “boys will be boys”, young men fighting is supposed to be natural, it would only be a crime if the violence was “unreasonable” -when men act “too violent”, men of color are racialized and white men treated as mentally ill or sick, masculinity remains unquestioned always and continues to be ignored in crime -Black men are always under suspicion of crime (racial profiling) -male masculinity is neither natural nor inevitable Oct 23 2013: LECTURE Women’s Movement and Equality Rights in Canada -the only group of women that had real influence on the law has been White, middle-class women (minimal minorities involved) -A Vindication of the Rights of Woman (1972): broad agreement with Liberal democratic slogan of French revolution (liberty, equality and fraternity), -objection to Thomas Paine was that he was defending only men not men and women together, -agreed that masculinity and femininity are socially constructed -disagreed with idea of men receiving education in math science and literature and women learning the art of pleasing men -laws and prejudice excluded women from participating in the public world -women are capable in participating in public, but weren’t given opportunity to prove it -intellects of the highest class -women couldn’t go to university, grad school, couldn’t own property or vote -problems in equality perspective/analysis: -political reform was achieved but the women workforce still remains problematic -political equality doesn’t lead to other forms of equality (social, economic, etc) -opinions were concerned mostly with higher class (classist view on feminism) -the privileged should have a gender-neutral education -race doesn’t matter in their opinion, slavery -didn’t consider obstacles posed by pregnancy, childbirth and child care to achieve economic independence -Three-Wave Approach: (wave = intense activism and social change involving feminism) -late 1800s: basic political and legal rights for women, very conservative and racist, privileging white middle-class motherhood, idea that women are more moral and pure than men and could clean up public world, racist against immigration, got rid of unity doctrine (right where married women belonged to their husbands) through Married Women’s Property Act 1884, suffrage ended in 1918, right to sit in Canadian Senate (BNA Act 1867), women of color were only women allowed to work outside of home -60s to 80s: battle for political rights had been won, women wanted employment and pay equity, reproductive rights (birth control), abortion rights, domestic violence and rape laws, maternity leave, wanted women rights in the new Charter of Rights & Freedoms 1982 (S. 28), laws of rape changed to sexual assault (other sexual violations, not just penetration), sexual assault became a gender neutral crime (boys can be assaulted too) -90s to present: anti-racist feminism including Aboriginal feminism comes about, women of color began to participate in feminist activism, not as influential as other waves, beginning of hostility towards feminism, more inclusive feminism, paternity leave, same-sex marriage -problems: only privileges a certain type of women (white, middle-class), type of Liberal feminism Nov 13 & 20 2013: LECTURE -get 2 term course kit, assignment 2 due in lecture Dec 4 th -mythical norm: dominant group is rarely put in the position to examine their category since they are considered normal -focus usually shifts from the perpetrator to the victim, victim blaming (i.e. John beat Mary -> Mary was beaten by John) -why Canadian law blames women victims of sexual violence by men: -uncontrollable sexuality of men, required to be masculine, “doing gender” through sexual assault -STATS: approx. 460,000 sexual assaults in Canada -21,821 reported to police, 8279 charged w/ sexual assault, 1994 prosecutions, 840 convictions -“if you are a sex offender in BC now, you have a 98.5% chance of getting away with it” –Const. Logan, RCMP -reasons for underreporting of sexual assaults: -fear of not being taken seriously by police, credibility questioned, not investigated properly, higher burden of proof in criminal law (doesn’t prove innocence but reasonable doubt), further the deviation from the norm the less sexual value she is perceived to have -Aboriginal women believe the police will not provide the protection they require -women who are immigrants w/out citizenship feared deportation -if permanent residents report sexual violence, you can’t be deported, if not permanent resident, you get deported, dependent on family status to stay in country, family could be the perpetrator -women with disabilities usually get assaulted by those they are depending on for care (family, caregiver) -rape myths: play a large role in women’s reluctance in reporting sexual assault and difficulty in obtaining convictions, ways of delegitimizing sexual assault cases -rape is impossible: women can’t be forced into sex -rapists are always “creepy strangers” with weapons: description of alleged perpetrator doesn’t match -women “ask” to be raped, they want: if they engage in behaviors away from norms they can be blamed -intoxicated, wearing revealing clothes, flirting, making out, walking alone, not vigilant about safety, living w/ man, married or in relationship with the man -women and children cannot be trusted: make up false stories, inconsistent stories in court can create the assumption that the victim is lying -rape is a sexual act: about power and dominance instead of sexual attraction, proves masculinity, if men are raised with the idea of hegemonic masculinities then rape shouldn’t be a surprise -no means yes: if a man forces himself on a women she will eventually enjoy it, considered a romantic act -no is not enough: a woman has to use more strength and physical acts to get away, physical evidence of a struggle is needed to prove sexual assault, women who don’t fight back get blamed -women must be on guard against rape: should be more vigilant -if yes to one, yes to all: more sexual consent before means she must consent to everyone -if yes once, yes always: if she consents once to a person, she consents to that person always -rape doesn’t really hurt women: unless visible physical violence -the more a man corresponds to the norm, the less likely he is thought to be a rapist -the more a woman corresponds to the norm, the less “rapeable” she is -poor women are seen as having less morality than white women, Whiteness is associated with purity and sexual constraint, Blackness is more out-of-control sexuality Rape myths · Suggesting that under Canadian rape myths are under two assumptions Women are lyers Women somehow asks for or invite in sexual violence · All tho these myths have limited foundation in reality, they are actually fixtures in rape trials § Note that these have been influential in legal doctorine writing about law and strategies used by lawyers in court · Look at a brief history of law concerning rape and sexual assault Rape Acts of Britina 1275 · These early rape laws were enacted to protect men's property rights of men · Used by upper class or wealthy men o Rape threatened the property rights of fathers and brothers as well as husbands of raped women · Fathers and brothers § Women who were known to be sexually assaulted were considered to be un marriable, if they did not married, women are economically dependent on their father or brother so rape was seen as a way having a daughter or a sister life burden upon you · Raped women who are already married § It was important to ensure that other men did not rape your wife and she got pregnant, property distribution for upper class men will be a problem o These laws remained the same as property claims for many years · Rape laws haven't been concerned with women at all, rather it was concerned with property · Families did not want to announce the rape cases because it was seen ashamed Canada Criminal Code Rape laws · The first Criminal code in 1892 code · Defined rape as a man having knowledge who was not his wife, either without consent or consent being coerced; threat or force o This was good or more progressive but at the same time it codified spousal immunity · The idea that you can be raped by your husband was not the idea of Canadian Law · The idea that if you consent to marry someone then you consent to sex for anytime for the rest of your life § Ties into number 10, if yes once then yes always · This remained in placed until 1983 · Corroboration Requirement o Unless there was evidence, other evidence not just your words such as cuts and bruises that support your testimony then it was not enough evidence for the police to press charges · Ties into myth number 4 that women and children cannot be trusted § Doctrine of recent complaint · Assume that a women who complaint immediately was assumed to be presumed more credible than women who complaint sometime after · Defence lawyers were permitted to ask questions about past sexual activities prior to 1983 · Rape trials were trails of the women rather than the offender · Bill C-127 o Came out in 1983 o Women's movement really affected the law and this law was legislated o The term rape was abandoned for sexual assault · Three new categories added § Sexual assault (Section 246) § Sexual assuault with a weapon, threats to a third body and bodily harm § Aggravated sexual assault, endangering the life of the victim o Under this new legislation, both women and men can be charged with sexual assault and husbands can be charged with sexual assault o Vaginal penetration is no longer an element to sexual assault o Many rape myths are removed from the Canadian law o Rape shield provision (section 276) · Placed limitations on the ability of defence lawyers to ask questions about the sexual history of the women (how many men have you slept with) and restricted the disclosure of the identity of the victims · From humiliating experience and the aim of this section is to reduce the trauma experienced by the victim in the trial · This will hopefully increase the reporting rates of rape victims · Further amendments in 1985 o Power balances between adult and children, putting in place mechanisms so they will no longer be living in the same house as the person who sexually assaulted them o To protect child complaints, address power imbalances between adult and children · Criticism o In particular to the rape shield provision as infringing on section 7 and 11 of the Charter, someone accused of a crime the right to fair trial and a defence to full defence · This became subject to a consitutitonal challenge by two cases, Seaboyer and Hayme (1991) o The defence should use evidence any records containing; which helps prove that the victim have consented o Section 276 was struck down as a result and making it possible for defence lawyers to bring up past sexual history · A huge debate and public pressure and feminist lobbying lead the federal department of justice to intro Bill C-49 in 1992 o Tried to introduce a weaker rape shield law · Left it up to the judge to decide if a complainant's past sexual history is necessary, if it is relevant or not § Gave a test for judges to see and attempted to refocus the trial away from the victim to the accused · It assumes judges are progressive thinkers, assume that they don’t hold rape myths · Bill C-49 o Tried to access records of the sexual assault complainants, if you went into clinic or counselling, if you talked to a teacher etc. o People who are sexually assaulted might seek help, you would assume its confidential but defence lawyers try to get those records and get the therapist to say something to suggest that the woman was lying Connor Case (1995) · Access to records · Lawyers have been able to use what women tell their therapist their trauma against them o Took what they think as private conversations against them · Bill C-46 tried to ensure disclosure request are subject to more scrutiny Ever since the 1983 changes to the criminal code, there is this back and forth parliament and defence lawyers, they try to introduce anything to discredit complainants to discredit the victim, and parliament tried to put in place a replacement of rape shield and now we have a much stronger shield than history to protect the victim Rape myths how they continue to exist in Canadian society · This assumption that past sexual history are relavant or second guessing yourself is relevant and tied up to the persistent of rape myths · This is what is underpining lawyers to find information to discredit victims o This also applies to police, the types of reasoning made by judges in a variety of ways · Ewanchuck o Ewanchuck had been convicted of another count of sexual assault o Important and precedent setting case o Convictions are very difficult to obtain, the vast majority of women who are 97 percent of women will never see a conviction, despite the difficulties o The complainant was 17 years old and she met Ewanchuck in a parking lot in Edmonton for a job interview and the interview took place in Ewanchuck's van and described the interview as a very professional setting, o Attached to the truck was a trailer and she went into the trailer with him because he was going to show his wood working to her o She starts to become a little bit frighten as he locked the door behind him o She was sexually assaulted as she repeatedly said no o She was found by a trial judge saying she implicitly consented and was acquitted in Edmonton o The crown appealed this decision and went to the court of appeal and upheld the court's decision · Two judges John McClung and Peter Foisy § Upheld the court's decision and dismissed the appeal but there was one dissent, Katherine Fraiser but they were the majority · The complainant neither gave consent or implied · McClung wrote the decision for the majority · Implied a women like her was incapable to say no to sexual activities · She was judged by what she was worn · The women was not lost on her way home from a nunnery · She has had sex before, she is not a virgin · Had a child out of wedlock · SCC § Did not view this case like the Alberta court did § Convicted Ewanchuck, there was no such thing as implied consent in Canadian law, even if you wear shorts § Justice specifically references rape myth, the idea of implied consent is attached to rape myth, there was this unprecedented fight between McClung and Dube SlutWalk Movement and other contemporary developments: -Rehtaeh Parsons’ suicide (2013): gang rape circulated through text message, called a ‘slut’
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