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Women's Studies
WS 206
Tina Davidson

WS 206/LS201 ALL LECTURES TH SEPT 11 2012 Women and the Law Elemental concepts and definitions for the study of women and the law SEX: • A biological/scientific term referring to the physical, reproductive, hormonal and chromosomal differences between male and female • Physical (genitalia): clearly reproductive genitalia are central to the correct assignment of sex. However, many individuals are born with indeterminate, absent, or both sets of genitalia. • Chromosomes: the presence of two x or an x and y chromosome. Yet there are chromosomal abnormalities. • Hormones: are also often considered significant in determining sex. Yet hormone levels vary across different geographical areas, history, and throughout the life cycle. GENDER: • A more sociological term referring to the behavioural, attitudinal, psychological and emotional differences between male (masculine) and female (feminine) • Often attributed to natural differences in sex, gender roles tend to be understood as dichotomous (two opposite sides) in our society, although this can vary in other societies. Some societies have reverse gender roles, different determinants of gender (like wealth), reassign gender roles, or more than two genders GENDER STEREOTYPES • The characteristics and traits that are deemed culturally appropriate for masculinity (men and boys) and femininity (women and girls) • Can vary across individuals, communities, cultures, countries, history, but there is generally a social consensus on what the central/hegemonic ideals are GENDERED ORGANIZATIONS • Are organizations, groups and institutions in which the distinction between masculinity and femininity is essential to maintaining power hierarchies and control, the identity of members of that organization, and even the meaning of the organization. • The gendered nature of an organization is demonstrated through allowed behaviours, the allocation and style of office space, ways of dressing within the organization, the sex of major power holders, styles of interaction and conversation between workers, the understanding and labelling of technical skills, etc. PATRIARCHIES: • From Greek: patria = father; arché = rule, occurs in the practice of males being the heads of households, ruling classes, government or institutions of power and authority, or the idea that powers in societies are largely controlled by men. • Most social scientists define patriarchy as a "human universal“ • Women’s studies has adopted a definition of patriarchy in reference to a social organization marked by the supremacy of a male figure(s), , or men in general. It also usually includes the subordination of women, children, and others who defy traditional identity categories. • Internationally, patriarchies can support the victimization of women and girls in several ways. • However, patriarchy is only one variant among many that cause subordination and victimization CRIME  Activity that is prohibited by law, and is liable to punishment JUSTICE  • A fair approach to conflicts between people and between people and the state • Laws are not always just, and can unfairly criminalize particular behaviours CRIMINAL LAW: • Pertains to any conduct that is considered to be so damaging to individuals and/or society that it is prohibited, prosecuted and punished by the crown/state. • In North America, much of criminal law is originally based on English common law. CRIMINAL LEGAL SYSTEM: • Laws that define crime & criminal behaviour, as well as the agencies that enforce these laws • Laws that are laid down by human beings for regulating the behaviour of human beings • The formal processes of treating crime victims and offenders • The practices of those who work in the justice system COMMON LAW: • Essentially means “judge made law,” and is the foundation of much of our current legal system. Under common law systems, a problem arises , lawyers present precedents and legal arguments, judges make their most fair decision, and common law principles are born. While common law practice developed into a set of relatively stable laws to apply in given situations, common law is fluid and subject to change. • Common law dominates in Canada (except Quebec where they are governed by the federal laws but provincial decisions are still largely based on remnants of the “Code Civile” CIVIL LAW: • Rights of and conflicts between private citizens, usually through remuneration/reparation • At first, disputes were resolved by common law, which became statutes. In time, crimes were mostly covered by statutes; then family law; then contract law. • One area of law (civil) that still relies on judge's decisions, not statutes, is tort law TORT LAW: • A tort occurs when a person acts in an unacceptable way towards another, causing them harm or injury. • Tort law is not contract law. Contract law is about agreements between you and another person. But everyone has tort obligations, whether they have agreed to them or not. • Tort law is not the same as criminal law either though they can overlap. • Tort law holds people responsible for their actions, usually through compensation. Tort law usually focuses on: Intention to cause harm; libel (printed) and slander (spoken); Interference with your property; negligence • Most tort cases are about negligence. The reasonable person is the standard which the courts use to measure people's conduct to see if they exercised care. Sept 18 thLecture CANADIAN LAW • Both federal and provincial governments maintain their own two tier legal system: legislative and judicial. • Although the areas of jurisdiction of the federal and provincial governments have been carefully detailed in the British North America Act (1867), they are subject to change. Generally, areas such as taxes, criminal and marital law are federal, while education and family law are controlled by the provinces. • The most important law in Canada is the Constitution Act, 1982, which includes the Charter of Rights and Freedoms, and says explicitly that the Constitution is "the supreme law of Canada." The Charter gives judges the power to determine the meaning of the generalized rules of the constitution. • Federal and tax courts (federal) handle items that fall within the realm of the control of the federal government which includes immigration and human rights laws, military law, etc. localized provincial courts actually handle the vast majority of legal issues, including divorce, custody, property, etc. • We have three sources of law: The Constitution, Statutes, and Common law • The Constitution says which areas of law are federal and provincial responsibilities. • The federal and provincial governments both make statute law. Provincial governments in turn pass on some of their powers to local councils, who make bylaws. • In Canada today, in cases of conflict between statute and common law, statute law trumps! Legislatures can modify or override common law. But unless a statute changes common law, the common law still applies. • Statutes are laws in broad strokes of black and white. Case law explores the grey areas. International Law • International law is important in dealing with human rights. National and local laws must act in accordance with international obligations. • A fundamental part of international law since 1992 is the guarantee of rights without reference to or distinction based on sex. • People that experience victimization of their human rights can seek redress in local, state/provincial, federal, and finally United Nations courts. • The UN also has systems to enforce its rulings including CEDAW (Committee on the Elimination of Discrimination Against Women). • International law has been an important avenue for increasing women’s rights and legal protection around the world. • Supporters of international law argue that it offers simple global guidelines and enforcement procedures for ensuring basic human rights, while opponents argue that the UN has very little real power. • Us refuses to state in writing that war rape is illegitimate against international law. Why? US do not wish US soldiers to be put on trial by international law. They wish to punish their own soldiers. • International Law ensures basic human rights. • Has much bigger ramifications and creates precedents all over the world • Many however oppose international Law: Countries can’t really do anything to enforce it. • UN does not always act in women’s best interest Liberal democratic political theory • There is a basic desire to protect individual’s rights. • Law is understood as an intellectual, logical and objective system. This ideology is rooted in liberal political thinking. Law is understood to be seeking truth. • Liberal democracies support the rights of each individual and equal access to resources. • Liberal democracies are based in ideas of scientific rationality, of reason divided from emotion and passion, of objectivity as opposed to subjectivity, and of abstract as opposed to contextual thinking. • Legal systems under liberal democratic philosophies have thus been developed to adhere to rigid abstract thinking, intellectual rigour, rationality and objectivity, maintained through strict adherence to the established forms and procedures of the law. • Legal positivism is a strict adherence to and belief in the scientific method. Laws are understood to be laid down out of “true” principles, and lawyers and judges are only required to enforce and apply them. No context in the law. Simply black and white. • Efforts to expose the underlying subjectivity of the law are not new. In the 1920s and 30s, the Legal Realists argued that judges choose from among many precedents in making their judgements. Since there are many contradictory precedents, principles, and interpretations, judges are constantly making partially subjective decisions. • They argue that decisions are based on judge’s emotions. A personal approach into choosing which precedent to approach • Courts of appeals and dissenting opinions indicate there is subjectivity in the law. • More recently, Critical Legal Theorists argued that the law is prejudiced towards upholding the status quo, and maintaining existing power structures. • Legal realists and even judges themselves are occasionally beginning to argue that they are not entirely neutral, but instead are partial policy makers since their decisions are also based on community standards and their own common sense. • In other words, law is neither universal nor removed from the social context of the people involved in it, whether judges, lawyers, victims or defendants. FEMINISM AND LAW Discretion • Peoples’ experiences and understandings of the same law can vary depending on where they are located, not just as accused and victims, but also according to their experiences of power and identity • Laws can be applied differentially, so discretion permits the classification of similar actions as crimes or justifiable or not crimes at all. Idea that similar actions can be understood to be crimes or justifiable, or not even a crime at all. In other words, you can found not guilty of a criminal action even though you did what you are being accused for. • Discretion applies at all stages of engagement with the legal system, including police’, lawyers’, arrest rates, judges’, and juries’ responses • Equal treatment under the law does not always result in equality, although differential treatment does not always generate equality either. • Discretion has been central to feminist jurisprudence. Feminists have asked for discretion in the interpretation, enforcement and application of the law. Feminism • Women’s studies and feminist scholarship consider society and its institutions from a female-centred perspective, with careful attention to other intersecting identities. Women’s studies researchers counters an andocentric system of values by arguing that women’s ways of doing and knowing, women’s actions and contributions deserve equal attention. • Feminist approaches to the law argue that women are often overlooked and under-reported in studies of law and criminology: as victims, offenders, legal workers and professionals. The types of crimes that are most often experienced by females, the causes of girls’ and women’s criminal behaviours, and women’s struggles as legal professionals have often been dismissed or overlooked. • While most theories of criminology are written by men in reference to men, how men’s gender influences their positions as criminals, victims, and professionals is equally overlooked. Gender is most important factor if you are likely to commit a crime. • Men dominate the rights of criminals. • Today, it remains “possible to study criminal men scientifically without referring to their sex” in many mainstream western criminology texts and classes. (Naffine, 1996) Feminist Theory • Valid theory must offer at least some of the following: • Empirical evidence and contemporaneous research to support the theory • Considerations of situation/context • A consideration of intersectional identities. However, despite the differences between experiences of the intersections between race, ethnicity, religion, immigrant status, and socio-economic status, there are surprising similarities in the types of crimes experienced by women. • Agency (The human ability to make choices and the different access/resources people may have to enable freely made decisions. It is as erroneous to assume that women who engage in criminal activity did not have any choices, as it is to overlook real differences in the ability of different people to make free choices.) • Global awareness and the influence of the global media: Women’s rights, how Women’s should be treated, and how women are viewed globally. • Early theories looked at how victims or criminals were created by their own deficiencies. On a much larger scale: at the intermediate level, girls and women (and boys and men) are impacted by their families, neighbourhoods, and the institutions they find themselves in. At the macro level, behaviours are influenced by the economy, culture, and criminal justice and correctional policies. Liberal Feminism and the Law • Liberal feminism begins in 18th century Europe with Mary Wollstonecraft (A Vindication of the Rights of Women) and John Stuart Mill/Harriet Taylor Mill (The Subjection of Women) • Early feminists were concerned with women’s limited access to education, gainful employment, experiences and their socialization to domestic roles which caused their apparent inferiority • First wave feminist activism (approx. the Victorian era--1850s to 1930) in Canada concerned specifically with women’s access to higher education (and professional employment), suffrage (the vote), temperance (prohibition of alcohol), and holding Senate seats--legal personhood (the Famous Person’s Case) • Liberal feminism is about women’s equality in the law and education. Liberal feminists have argued that women’s exclusion from many professional careers, education, and a widespread lack of legal rights in terms of property ownership, controls over their persons, and basic aspects of civil rights serve(d) to keep women at a disadvantage. These exclusions are created and maintained by interrelated systems of traditions and formal legal exclusions. • One of the biggest legal battles of liberal feminism was for the right to vote. • The decision to pursue the vote became a central part of liberal feminism in the USA at the Seneca Falls convention. The addition of "women" to the famous "all men are created equal" statement in the U.S. Constitution was essentially a challenge to the US constitution itself. The convention members’ concerns ranged from rights to own property to marital rights, to limited wages and occupations, to the surprising demand for sexual equality. The right to vote was tacked on at the last minute. • In the USA, the battle for the vote was spearheaded by Susan B Anthony, who decided to vote (illegally!) in the federal election in the 1870s. At her trial, Antony argued that the denial of the right to vote amounted to a denial of her right to representation as a taxpaying citizen. Moreover, she also rejected the validity of the trial itself as it did not provide her constitutional right to be tried by a jury of her peers (no jury member was a woman). Ultimately, Anthony lost her trial, and died some years before the right to vote in federal elections was granted to US women • Here in Canada, the right to vote was pursued based mainly on the idea that women’s desires to improve society, morals, prohibit alcohol, prevent domestic violence, and protect poor/working class women might be more easily realized if women were reinforced by a right to vote for candidates who supported their aims. Gender and Legal Language • A recent debate over gender and language is evidenced in the debate over the National Anthem • A central focus in first wave liberal feminism and continuing feminist jurisprudence, is the issue of gender in legal language, and in particular the meanings of gender-neutral terms like “person” or gender-implicit terms like “man” • In the 1950s, the Canadian Federal Interpretation Act ruled that statutes using male terms clearly enough included females (and organizations) • In 1975, this gender-excluding language was challenged. The contentious debate turned primarily on three basic arguments: • 1. it is more convenient for drafters of legislation to use male terms • 2. it is tradition • 3. women were not being discriminated against since the act specified that “male” included “females” as well • “convenience” and “because we always do it this way” should not be accepted as a legitimate argument for discrimination • Moreover, women are not automatically included since the Interpretation Act later specified that male terminology included females, “unless it is otherwise provided, or there be some thing in the context or other provisions thereof indicating a different meaning…” • This exception of context or intended meaning was continued through all the revisions of the Interpretation Act • For women of federal reliance on gender-specific language. There are some real consequences. Studies show that women are generally considered by courts to be included in male language for duties or obligations, but are excluded when rights or privileges are being considered. Sept 25 - Lecture Marxist (and socialist) feminism and the law • Marxist/Socialist feminism was inspired by the Industrial Revolutions (and Marx and Engels theories of capitalism). It became increasingly relevant in the1970s as more women worked and the legal and traditional exclusions of women from jobs and promotions, and unequal pay became more evident. • Although unionization, striking, and protests have been powerful tools, pursuing permanent, formal legal changes have been necessary to solidify these gains. • Notable successes for MS feminists include the end of formal marital bans, ending formal restrictions on women’s employment, pay equity, employment equity (the idea that women should have equal opportunities if they are qualified), changes in taxation (when they were married and they did work, their husbands were penalized in terms of income, started to not penalize their husbands) structures, parental leaves, etc. Most of these types of changes have been occurred through activist actions that resulted in changes to and/or the development of individual laws sponsoring women’s equality in each of these areas. • More general changes have resulted from broad changes to women’s legal status. Here in Canada, these have taken shape through the Royal Commission on the Status of Women (RCSW), and the Canadian Human Rights Acts (CHRA). • RCSW – a list of all of the various ways that they could see that women were experiencing inequality • CHRA – put in place to monitor changes. Dealt with specialized equity hearings, committees and watchdog groups. • Radical feminism and law • Ex sex crimes, sexual victimization have evolved from radical feminism Focuses on changes in the law regarding sexual issues. • Focuses on changing society from the root up - They believe that the legal system are so male dominated that you can’t really create effective change by working for existing systems. • Focuses on changing attitudes towards gender • Value feminine characteristics – nurturing, negotiation, parenting • Changes in the law around sexual issues ( • rape laws – enforced in ways that protected victims in being blamed for the rape • Changed abortion laws • Sexual harassment – did not exist until after radical feminism. Does not mean that they didn’t experience it. Suggesting that there is something wrong with this (is demanding sexual favours for jobs, income etc) • Explains women’s oppression through patriarchy which supports emotional, sexual, physical subordination of women. • Focuses on grassroots change, from the root up, of social attitudes toward gender, especially as regards sexuality, domesticity, the family and the state. • Values “feminine” characteristics and the application of these characteristics to social institutions like education, parenting, government, and of course, law. • Particularly relevant to changes in law regarding sexual issues including sexual harassment, reproductive freedom, and rape laws. Feminist Jurisprudence • Understands the law as a gendered institution • Rights of an individual is the same as the rights of a male • Goals are to create legal and social changes • Backlash against it is very common : • When you create a more friendly legal system, it is not a simple matter of increasing women’s rights. It is assumed that when women are given equal rights, men lose their rights. When you generate a more gendered equitable approach to the law, men tend to lose some of the privileges that they got used to. • Women friendly equipment • A feminist scholarly approach to jurisprudence sees the law as a gendered institution, one which understands the rights of the individual to be synonymous with the rights of the male individual, and which favours male ways of thinking and male priorities. • Feminist legal scholarship argues that the invisibility of women maintains continued masculine bias in law and legal institutions. Good feminist legal scholarship may focus on gender, but also considers intersectional experiences of diversity under the law. • Opposition to feminist approaches to the law assumes that a more woman-friendly legal system or even legal equality between the sexes will create unfairness to men. However, women are entitled to legal equality, and sometimes adopting a more woman-friendly approach to the law can benefit men too! • Feminist jurisprudence also argues that while a person is entitled to the best legal arguments in their favour that lawyers and judges still need to be held accountable for the types of arguments they are putting forward. • Feminist jurisprudence looks at how women are viewed at all levels of the law, including as professionals and practitioners. They argue for “substantive equality,” an equality of results rather than equality in the letter of the law. • Ideas about gender and justice are influenced by discourses (ways of thinking about and discussing issues) that are common among agencies of social control (police, courtrooms, lawyers, assistance programs), among experts (medical, legal, etc) and in larger political and public arenas Complementary forms of jurisprudence Anti-racist jurisprudence • Focuses on the numbers of racialized people in prisons, the harsher treatment of racialized criminals, and the impact of gender in combination with ethnicity argues that the experiences and treatment of racialized peoples is not equal. • Contends that historical racisms retain a strong influence on behaviour First Nations Jurisprudence • Doesn’t pay attention to the particular needs of Natives • Legal decisions are discriminating against Natives (Taking land, reserves, etc) • A specific anti-racist approach to the law • Looks at how unjust laws have been used historically to discriminate against natives • 1st Nations jurisprudence seeks to embed in the law an understanding of the different needs of Canadian Natives, and seeks compensation for loss of land rights, residential schools and other incidents of discrimination against natives in Canadian history. • Argue, that the law today is not an active legal protector of their rights Anti-homophobic jurisprudence • Homosexuals have faced discrimination at all levels of the law (police, juries, lawyers, judges, formal laws). • Lesbians experience this in addition to the discrimination they already face as women. • Until recently (in Canada) homosexuals are denied basic human rights like marriage and accompanying social and legal benefits, and are less likely to have their civil rights defended WOMEN’S VOICES IN LAW ENFORCEMENT (PART 1) Police and prison workers Historical overview • Term often used is correctional officer • Today most law enforcement jobs considered a male domain. • Women moved into policing in North America in the late 1800s, facilitated by the increase in female offenders, especially prostitutes • More early policewoman, were not considered to be policewoman. Called Police matrons – implies that they are mothering society. Should be patient and understanding. Irony because most of the women who went into these jobs were childless and husbandless, didn’t necessarily possess any of such skills. • Feminized jobs, as “police matrons” who worked with women or juvenile offenders. Most police and prison matrons were socially prominent, upper middle class, well-connected women of Eurocentric families, from a higher educational and class bracket than male recruits. • These early police women were primarily moral reformers and social workers rather than “police”. Because they were social workers, they had this moral duty to rescue, rehabilitate, rescue etc., they came from a high class. Eurocentric, British families. • For the first few decades, these women met a higher class and education standard than make recruits. • Women’s movement into law enforcement jobs is predicated on the idea that upper middle, well-bred women have a social and moral duty to spread their nurturing and superior civilization to the rest of society. • They have the right to interfere in the lives of natives, poor and have them conform to Eurocentric culture • Women gained access to policing at different times in different nations: • Germany (1903), the USA (1910), Canada (1913) and England (1915) were among the earliest nations to appoint their first police woman. • All of these police women tend to be highly specialized and worked in female appropriate areas. • Deviant sexuality assumptions/rumours Changing Status • Legal pressure helped expand women’s access to police and prison work. In Canada, the Canadian Human Rights Act (1971) (called Title 7 in the States) forbids employment discrimination on the basis of gender (and religion, ethnicity, ability, etc). Title VII in the USA (1972) provides the same rights and protection. • Ironies of the title 7, they only added sex at the last minute • There are some serious limitations to the effectiveness of this legislation: • it is costly (time, emotions, and money) to pursue a case under this legislation • these types of legislation contain some form of a “bona fide” clauses • it can decrease the protection of those who occupy more than one minority identity: • May have increased your right of protection based on gender and ethnicity but if you occupy both of these statuses simultaneously, it ends up discriminating against you. • it has served men’s interests with far more success than women’s. • it does not guarantee anything more than token status • women are still vulnerable to being “last hired/first fired”. • the CHRA and Title VII resulted in women moving into patrol jobs in policing and prison/jail guarding jobs in unprecedented numbers! ND LECTURE - Tuesday Oct 2 • Tokenism (Kanter, 1970) essentially argues that a person’s minority status is exacerbated in any social situation in which their minority status is obvious and new to that setting. Thus, in the early stages of integration of any minority group into any setting, discrimination may initially increase. • When a minority group moves into a work place, or when natives start in college/education or coloured students attending white schools in the US. There is an over emphasis on these minorities. • Ex. When women first entered the workplace they experienced higher degrees of discrimination based on their token status. Stronger experience of tokenism than that of men • Women lose power, prestige, and status and looked at as the cause of it in a male dominated environment • But those in female oriented jobs (nursing, etc) tend to gain status around other men. • major areas of difficulty for women working in male-dominated fields of the criminal legal processing system: • Glass ceiling  can only go so far in a profession and cannot go any further. Unlikely to become captains, or exec positions • vs. glass escalator effect for men, more likely to rise to positions of authority • chivalry and paternalism which “shields” them from the harder jobs, such as working in more dangerous areas of policing or with violent offender • the “glass fishbowl effect”  constantly being observed, supervised, watched • where they are subject to constant observation and are thus often expected to do better than their male colleague • Lack of access to male-dominated workplace networks, problems with fraternization, and lack of support from male supervisors who fear perceptions of favouritism or sexual harassment. If women do not fraternize with the men for fear of harassment, they are looked at as birches or lesbians. • However, this goes both ways. Some men will avoid women for fear of sexual harassment accusations or fear of favouritism to the women • Assigned sexually stereotyped job assignments, being restricted to working with young and female offenders • Many women tend to find jobs in male dominated workplaces are incompatible with their domestic and family care responsibilities. • Women often find themselves in a position of having to choose between their femininity and their occupational role. • Workplace personas are often adopted to accommodate both their job and their gender. • institutional role officers who are strict followers of rules and policies • modified role officers who happily accept female gendered job assignments. Become police/prison guards but work with less violent offenders. • inventive role officers which values perceived gender differences like communication and friendliness toward prisoners. Remain true to their feminity but their gender role become an important part in terms of how they act in the workplace **This becomes difficult as women’s actions can be taken any way. If they are confident, they may seem like a good woman, but not competent at their job. • Some research found that women either chose to be POLICEwomen (institutional role officers) or policeWOMEN (inventive role officers). Many female police do seem to believe they bring distinctive—but valuable— skills to policing including empathy, communication, and reduced reliance on use of force (negotiate rather than going straight to force). Interestingly, male colleagues did not appear to value either of these more than the other, viewing POLICE as strange women, and WOMEN as incompetent police. • REALITY  major studies have shown that women are as capable as men: • Most of these studies were biased towards men. Have shown that women tend to be much better at descalting to violating situations, are more creative problem solvers and have greater empathy for some criminals. • Important in community based policing. Aims at preventing/controlling crime. Oriented around less masculine policing skills More traditional and appropriate to femininity • However, just b/c women are accepted to have these skills, it does not mean that all women do. • Gendered organizations: policing, jail and prison workplaces remain largely gendered organizations, with male-oriented training, gendered job assignments, negative descriptions of gender differentiated approaches, etc, all of which helps confirm the belief that women cannot do things because they do not do them! • This gendered work environment can be experienced as degrees of harassment for women, as they can be ignored, assigned the worst job postings, reported for behaviours routinely permitted among male colleagues, overlooked for promotions. They can experience mild sexual harassment, unwanted touching and propositions, and more aggressive sexual attacks by male coworkers (Canada, 1999). • Many male co-workers feel they are justified in either direct/indirect ways of trying to get a woman fired. That the job requires physical and emotional strength that women do not possess. However on the other hand, if women are given “softer” jobs, men object to that as well, because they argue they are getting favourable treatment. • Most of these negative experiences come from their token status. What we are however experiencing/studying is that due to tokenism, as the numbers of women working in male prisons increases, the levels of hostility should drop. CURRENTLY… • Since the mid 1990s, the number of women on prison staff has increased from about 10% to about 25%. These numbers are even higher in public jails, and almost equal in private jails. • Numbers of female police in Canada has expanded from under 1% in the 1960s to over 15% today. • However, these stats do not consider their representations according to where they are located in the workforce (rank and roles). Nor are there any really reliable statistics on ethnic compositions of females working in incarceration facilities. WOMEN’S VOICES IN LAW ENFORCEMENT – PART 2 Lawyers, Judges, and Professors Legal Personhood • One of the last battles fought during the first wave of liberal feminism in Canada was the battle for full legal status for women. • English Common Law extended a general lack of legal representation. In any place where statutes mentioned man, it was understood to be a male- gendered man, and in places where statutes used the word person it was understood equally to mean male person. Women are NOT considered a person after marriage. Have no legal rights. • Legal personhood is a basic element in law, and the denial of this status to women meant that they existed only as property, and were explicitly excluded from many aspects of public life and social participation. • The lack of legal personhood was used to exclude women from many professions, including the law. Famous Person’s Case • The Famous Person’s Case began when Judge Emily Murphy’s name sought a Senate seat in the 1920s. She was denied based on the male- specific meaning of the word “person” (women excluded in this word) in the BNA (1867). Murphy and four other women (known as the “famous five”) challenged the exclusion in court in 1928. • The BNA sometimes used “person” to refer to both males and females. Argued that there is no specific language that says male. Moreover, “Brougham’s Act (A legal precedent stating that any law passed in the British Empire, male persons is still understood to include women) of 1850”, stated that all laws which referred explicitly to male persons were to be understood to include women as well. • In 1928, the Supreme Court decided that women may well have been persons, BUT they were not considered to have been “ fit and qualified” for Senate seats under Common Law • The women appealed in 1930,and this time women became eligible for Senate seats, and were persons under the law. • POINT  ironically enough; the judges are arguing that we are simply applying the law as it exists. Not commenting. When they are making these types of arguments, these judges are setting themselves as gate keepers; ensuring women remain subordinate in terms of the law. Putting themselves in a position of maintaining the maleness in the legal profession Women as Juror’s • In liberal democratic systems, rights are linked to the obligations of citizens. • Exclusion from jury duty has limited women’s rights to participate in the making and interpretation of laws, from contributing to the establishment of legal precedents that are relevant to women’s experiences and contexts, and offers no possibility of a fair trial by a jury of their peers. • Even more recently female potential jurors have been easily dismissed by sexist questions during jury selection (voir dire) such as her husbands’ views or occupation. • Ironically, there are many benefits to having women serve on juries. Recent studies indicate that jury deliberations are far more supportive and amicable when female jurors are present, and that male jurors are more prone to consider a lawyer’s language, aggression, and even attire while female jurors are more likely to consider only the evidence. TH LECTURE – OCT 9 Women as Lawyers • Historically, objections to women in legal education and careers focused on women’s ability to maintain lawyer-client privilege, their physical inability to handle heavy case loads, the damage to their morality by a “hard” profession like law, and that attractive female lawyers would unfairly influence judges, juries and even distract mal students during bar exams • From settlement through the mid 1800s, women were officially barred from law schools and the bar. Men could become lawyers either through education OR through experience clerking with an established lawyer, but women were denied BOTH of these avenues. • Women were allowed greater political and legal freedoms in the frontier areas, since the value and status of the legal profession was lower away from the more “civilized” East. • Prior to WWI, there were 7 female lawyers in Canada. By the 1980s, there were 10 000! • Women are still only 25% of lawyers, and approx 10% of partners. About 10% of law firms report no women partners and almost half report no lawyers of color! • Women are more likely to be found in the less prestigious (not private firm) jobs, and in family law. This is caused by many factors, including hiring and employment practices of major firms versus public sector jobs, domestic responsibilities, and gender ideals • Women lawyers tend to make approximately 90% of a male lawyer’s salary. • Women lawyers’ lack of access to social networking & mentoring reduces promotions. Clara Brett Martin: Canada’s first woman lawyer 1897 – Became a Lawyer • Faced incredible odds. One of the first female students to get admission o U of T. Immediately applied to law school after • Her application to law school was rejected based on the word “persons”. She appealed, based on the word persons. She won the right for upper law society of Canada to change their wording. • Finally admitted to law school in 1893, she was harassed throughout her three year degree, and then had to fight to sit the bar exam. The argument against allowing her to do it was about dress code for female lawyers • Wins the right to appear in court. Dies 20 years later b/c of a heart attack at the age of 49 • Racist – against Jews, MOVIE Women as judges • women’s access to judgeships was slower than their access to the profession of law • once women gained access to judgeships, they tended to be clustered in gender appropriate areas of the law, such as juvenile and divorce courts, lower (local) courts, and, of course, family law • More difficult to become judges than it was for lawyers. • There were very few judges anywhere in Canada before the 1920’s • Once they did become judges, they were clustered in dnder appropriate areas of the law. i.e. juvenile and divorce courts, lower (local courts) • Tokenism  one female supreme court judge at a time • tokenism is rampant among prestigious judgeships. The same rule holds true for appointments of other minority groups. • Don’t hire a lot of female judges • Not only for women, but for ppl of colour to gain a large enough representation in supreme court to have a significant impact • The presence of even one female judge does significantly increase the likelihood that the plaintiff will win their appeal. • A female judge may be more attentive to more women’s issues because she has more experiences • This doesn’t mean that they are more likely to approach the law with a specific perspective • The come through a system that educates them to take concern for such issues • More likely to win a case for gender/legal rights issues Women as Law Professors • Women are approximately half of all law students today • The numbers of female professors continues to be low inspite of the fact that women are at least half of law school grads. • Getting tenure remains difficult for female professors, especially if they practice, teach or specialize in feminist jurisprudence. If they are known feminists, it is harder to gain such positions. • Number of factors: They enter at lower ranks, teach at less prestigious schools and in less prestigious courses, and are undervalued by department heads, colleagues, academic presses and even students. Course evaluations on professor careers. The barriers are worse for racialized women. • Access to faculty law positions is a higher level of difficulty for women • The low number of female law professors is part of a hidden curriculum  socialized aspects. Suggests subconsciously that teaching is not a valuable course. Looks at the number of female professors, the lack of topics being taught, and an invisibility of support for feminist professors, jurisprudence and publications. • Culture of silence  Ignored the fact when these proffs are silenced. • Use of non-gendered language  Profs are referred to as “he”. Doesn’t raise questions, but when a proff is referred to as “she” all kinds of questions are raised WOMEN’S EXPERIENCES OF EQUALITY IN USING THE CRIMINAL JUSTICE SYSTEM - Gender and victimization • Rates of victimization are higher for men than for women, yet women fear crime far more than men. • Rates also vary by ethnicity, and tend to be highest in native communities. • Women face higher rates of victimization in and around the home, while men experience the highest rates of victimization in public. • Age is also a factor. Youth is the time of greatest vulnerability. • Women are far more likely to be victimized by someone they know than by a stranger (approx 80% knew their perpetrator). Ironically, we emphasize “stranger danger”. Male victims also generally know their attacker (approx 60%). • The vast majority of offenders are males (90%). Males are victimized by females less than 10% of the time. • Over the last quarter of the 20 century, women are more likely to be murdered by someone with whom they have had an intimate relationship with • Men are far more likely to be murdered by a casual acquaintance or even a stranger • Vast majority of criminal offenders are males. Makes are very rarely victimized by females Women and Fear of Crime Women fear crime more but experience less of it. • Women fear crime at higher rates than men, even though men experience higher rates of victimization. This gendered fear of crime affects how women live their lives on a daily basis • When women to experience victimization, there is always a tendency to ask what she id wrong to experience such victimization. This is called victim blaming. They are more likely to be victimized simply b/c of their gender/. • More seen as vulnerable . • However, women are more likely to be victimized simply because they are women. • Women of different socioeconomic, ethnic, age, sexual orientations, etc is more likely to be targeted for crimes because of these intersecting aspects of their identity. Deeply embedded in our culture and men do act upon them. • This permissive attitude also can affect experiences within that group as well • Rates of crime do not necessarily keep track of rates of incidence. For example, spousal homicide, stalking, or domestic abuse are reported for both genders. However, these types of crimes for women are usually preceded by a long history of escalating violence, whereas men tend more often to be victims of a single act of violence. Yet trials do not usually list, prosecute and punish each individual act of violence. • Women’s fear of crime may be more valid than we know. Women as victims: “only certain types of women become victims” • Until the 1970s, female victims of crime were relatively invisible. Sexual harassment, marital rape, date rape, and stalking did not exist as defined criminal acts. Suttee, dowry murders and honour killings, female infanticide and neglect of daughters, sex slavery, and female genital circumcision are among many other types of global sexual violence that affect predominantly women, and that are still struggling for attention on the international stage. • We live in a culture, mass media environment that encourages women to fear crime • Women tend to report these crimes at much lower rates than they are actually occurring. Even if reported, they are not being recorded. • Women tend to fear becoming victims of crimes more than men. Girls and women are socialized to be more passive, and therefore they provide better targets for crime and criminal violence. Victim Blaming • Women who experience crimes while they were disobeying the gender roles of society are blamed for their experience. A woman who is out at night by themselves, had a drink or two, revealing clothing, it says that she is to blame for her cultural victimization • Limits her right to protection under the criminal justice system. Limits your right to equality. They cant simply not go out and have fin as it is part of our culture • Women are monitored by others and are encouraged to monitor themselves for crime-inviting behaviours. • Victims of rape and battering are far more likely to be blamed for their experiences than are victims of any other crime. Sexual assault charges are the one crime in which the victim may be required to submit to a polygraph to see if the victim is telling the truth Rape Shield Law And Victim Blaming • A law put in place to limit a defendant’s ability to cross examine rape complainants about their past sexual behaviour. A woman cant be cross examined about her sexual history in a rape case b/c it is not relevant • Rape has been notoriously difficult to prove. The admission of “previous sexual history” makes it practically impossible for a woman to prove that she was raped by a man whom she had previously expressed interest in or even dated prior to the assault. • In the 1970s and 1980s, Canada introduced the ‘rape shield’ law, under which discussion of the victim’s sexual history as evidence is limited to protect victims’ credibility. • When sexual assault was a relatively new crime, and the definitions of what was admissible as evidence was in flux, one member of a prominent law firm publically advised defence lawyers in rape cases to take a good “whack” at complainants/victims in pre-trial inquiries. • Some opponents to the rape shield law argue that it forbids many questions which might be vital to the defendant, especially those regarding previous false allegations of rape. • Thus, women have greater fear of violent crime, under report crimes, and are overlooked by the criminal justice system largely because we live in a society in which women are not entitled to the same rights and freedoms that men are. • Rape shield law was amended in 1992 (Bill C-49). Bill C-49 stated that previous sexual activity was admissible as rebuttal and to explain why the defendant might reasonably believe he had consent. In effect this struck down the rape shield laws. 1991 R. v. Seaboyer, in which Seaboyer was convicted of raping a woman with whom he had been drinking in a bar. He appealed that he had mistakenly believed he had consent, but this defence required her previous sexual history had to be ruled admissible. • The concept of “mistaken” belief in consent influenced further changes. 1994-2000 R v Ewanchuk, in which Ewanchuk was convicted of sexual assault after having staged a job interview, during which he repeatedly pushed sexual advances despite the victim saying “NO.” He won an appeal on the basis that the victim had “implied consent.” The case garnered national media attention as the “no-means-no case”. Her lack of consent was not in question, but the appeals court determined that the accused had the right to interpret “no” as “keep trying” or “I really mean yes!” His acquittal was appealed all the way to the Supreme Court before it was overturned. Ironically, Ewanchuk had previous history as a convicted sexual offender! • An earlier Supreme Court case had resulted in more changes to the rape shield laws. 1995 R. v. O'Connor, O’Connor was a Catholic Bishop found guilty of sexually abusing two native women. He was sentenced only lightly. The case led to Bill C-46 in 1997, which allowed the victims’ medical/psychiatric records to be admitted if it could be proved (without admitting the records first) that they were relevant. • This bill withstood a Supreme Court challenge 2000 R v Darrach, in which Darrach was convicted of sexually assaulting his ex-girlfriend, and appealed, claiming that if he had been permitted to use their past sexual relationship, he would have been able to raise the fact that he mistakenly thought the incident was consensual. The court unanimously found that the rape shield laws were constitutional, and that forcing the victim/accuser to give evidence would invade her privacy and result in discouraging the reporting of sex crimes. Opponents to the ruling argued that if evidence from the past of the accuser can’t be used, then evidence from the accused person’s past should also not be allowed to be in question. Judicial reasoning against women based on their morality • Women’s experiences of law are affected by trial judges who are not always gender sensitive, and who can occasionally be offensive towards women in general. “Women don’t get much brains before they’re thirty” (Bewley, 1977) “The majority of rapes in the Northwest Territories occur when a woman is drunk and passed out. A man comes along and sees a pair of hips and helps himself. This contrasts sharply..[With] the dainty coed who gets jumped from behind” (Bourassa, 1989) “Rules are like women, they are meant to be violated.” (Dionne, 1989) Don’t try “to be a mother and a lawyer at the same time.” (Allen, 1989) • In 1995, Tracy Theberge was charged with murdering her husband. Judge Bienvenue sentenced her to life with eligibility for parole in 14 years, despite a much more lenient recommendation from the jury. During the trial, he had observed that “when women…decide to degrade themselves they sink to depths which even the vilest man on earth could not sink,” and claimed that “even the Nazis did not eliminate millions of Jews in a painful or bloody manner. They died in the gas chambers, without suffering.” Later, he also said that animals didn’t sink to the depths she had, implied that one of the jurors was a lesbian, and called the accused a “Negress”. He refused to apologize for his comments. Following a professional inquiry, he resigned, without apparently understanding what he had done wrong. Masculinity and crime: “only certain types of men commit crimes” • The maleness of crimes and of criminals holds true across most western countries. Yet the questions that arise from this difference in gendered crime rates are usually posed as “why are women so law abiding?”, rather than “why are men so over represented among criminals?” It might be more useful to inquire into social constructions of crime and of masculinity in attempting to understand gender and criminal behaviour. • Race is an important factor in conviction rates among men. For example, rapists are mostly white, and 90% of rapes occur within the same ethnic grouping, yet African descent men are disproportionately convicted of rape, especially of white women. Moreover, sentencing is disproportionately harsher when the victim is a white woman and the rapist is a racialized man. Changes In Victimization • The past 40 years (since 2nd wave feminism) have seen new statistics gathered, new laws passed, pre-existing laws changed, and new terms have been invented. Marital rape, date rape, sexual harassment, wife assault and battering, emotional abuse, intimate partner violence, and stalking have entered our lexicon and legal system, as have terms such as gender harassment, hate crime and sexual-orientation motivated crimes • Changes in laws have operated to decrease women’s experiences of crime as well. For example, in the USA, the Violence against Women Act (1990s) has created decreasing rates of violence and homicide. Increased resources, enhanced state powers to intervene, increased expectations of police, and clearer and more comprehensive legislation have all operated to lessen American women’s experiences of domestic violence crimes. WOMENS STUDIES LECTURE NOTES SECOND HALF - October 23 rd- WOMEN AND VICTIMIZATION [PART 1 – PRODUCTION AND REPRODUCTION] History of discrimination in women’s work and wages • Women have always worked for wages, and faced immense discrimination, especially in terms of unequal pay. Women’s labour was understood to hold less intrinsic value than the labour of a male. • The concept of the “family wage” helped ensure that wives stayed in the home, where their productive and reproductive labour was ignored. • In WWII some temporary legal concessions were made to encourage women to take on industrial jobs in support of the war effort. • 1970s, the Royal Commission on the Status of Women. Basic areas of concern in the 167 recommendations included women’s equality in employment outside the homes; shared parental responsibility for childcare; and governmental responsibility for pregnancy, childbirth and maternity. Although the report had many
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