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SOSC 1350 : Gender and The Law Final Exam Review

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Department
Social Science
Course
SOSC 1350
Professor
Julie Dowsett
Semester
Winter

Description
Gender and the Law Exam Review Act for the Gradual Civilization of the Indian Tribes (1857): • Obvious civilized/savagery discourse and dichotomy • Aboriginal customs started to be outlawed, religious practices • Attempt to assimilate them • Began a chain of paternalism and segregation of aboriginal persons • Enfranchising aboriginal people – right to vote and citizenship, and maybe some land to farm – had to prove he was civilized first • Had to demonstrate he could read, write and speak English or French • Had to choose surname that is approved by state • Had to prove he had no debt, of sound moral character, had to get priest or clergyman to attest to this • Behavior would be closely monitored for 3 years and then would be enfranchised Assisted Human Reproduction Act (AHRA): • Concern is being expressed over the idea that parents may choose to have a child with a disability, for example, deaf parents choosing to have a child that is also deaf • Assisted Human Reproduction laws carry the notion that “certain lives are not worth living”, may make it impossible to choose to have a child with a disability • AHR regulation being developed in numerous countries has a rapid and uniformly negative response to the possibility of selecting an embryo with a disability • Is it possible for society to include people with disabilities as fully equal and participating citizens while simultaneously preventing the selection of embryos that carry the possibility of disability? • Reproductive choice for women problematized from the perspective of women with disabilities, decides which kind of children welcome in society • AHRAin Canada, health and well being of children must be given priority • Promote human health, safety, dignity, health and well being of women • Human individuality and diversity must be preserved • First principle could be interpreted as providing ground for prohibition against selection for a disability • Based on the laws in other jurisdictions it seems reasonable to believe that a restriction such as this may be put in place in Canada Canadian Multiculturalism Act : • Bill C-93, 1988 • Recognizes importance of preserving and enhancing multicultural heritage in Canada • Provides equal rights, recognizes the rights of aboriginal persons • Multiculturalism used from 90s to present, government funded certain initiatives • However, multiculturalism reduces social justice by creating an illusion of multiculture when discrimination is still present • Government funds things like ethnic fairs etc but not social justice • Social justice is about distribution of resources and power, seeks change to make things more equitable • Government not addressing broader problems of structural racism Cathy and Ben: • About the devaluation of women’s work within the home • Cathy cooks, take care of children, cleaning, paying bills, considered “economically inept” considered “unoccupied” • Ben, member of US military, underground facility with two colleagues for hours at a time waiting to press a button to set off a nuclear missile if needed • Ben is in paid work, considered “economically active”, his work is valuable in society, considered productive Coat Hanger Symbol: • become a symbol of the desperation of millions of women who have risked death to end a pregnancy, when it was illegal women would insert knitting needles, coat hangers, swallow strong drugs and chemicals, douche with dangerous solutions like lye • Symbol of dangerous lengths women have previously gone to in order to illegally end a pregnancy Contemporary “Points” System: • Racist laws undermining Canada’s status in UN • Becoming a national embarrassment • No one wanted to leave Western Europe to come to Canada, Canada needed people from other parts of the world • “desirable” immigrants didn’t want to come here anymore • All these reasons factored in to decision to change Canadian immigration laws • Had to change them to allow more non-white people in • 1962 existing system was abandoned • 1967 point system came about, still in place • Represented an effort to employ non discriminatory criteria for immigration • Need a certain amount of points to immigrate, given for a variety of categories: occupation, education, skills, age • Supposed to be gender race neutral, however has racist and sexist setbacks • Points you get in skills and education tend to be jobs associated with men • Jobs associated with women are seen to have less skill • Men overwhelmingly have higher scores than women because of inherent sexism in how points are distributed • Most men tend to immigrate as independents • Most women immigrate as family class • Reinforces dependency of women on men • Single women far less likely to get number of points needed to immigrate • Has racist effects • Immigration offices, more in Britain thanAfrica, for example • Often not able to use education, racism in how credentials are recognized. Degrees from Britain recognized, countries consisting of people of color it is less likely to be recognized • Vast majority of Canada born citizens would not qualify for immigration under point system “Deserving” versus “Undeserving” Poor: • Poverty law only concerns unemployed o The Poor Law (England, 1601) • Interdependence between lord and peasants • Exchange of land for protection • Poor were taken care of • Cities started to grow, peasants became landless wage workers, poverty grew • 1563- poor put in different categories, those who would work but could not, those too old/ill/young to work, those who could work but would not • Deserving poor were those who would work but could not, those too ill/old/young also deserving, but called impotent, idle poor were those who would not work, undeserving, would be whipped in the streets, put in work houses • Law made a social problem into an individual problem, in differentiating between deserving and undeserving, it empowered the state to act as the moral police and make decisions as to who was deserving and who was not Genocide: • JeffreyAmherst and germ warfare against Mi’qmac • You will do well to try to inoculate the Indians by means of blankets, as well as every other method that can serve to extirpate this execrable race. —Amherst’s journal entry (1740s) • Small pox blankets • JohnA. Macdonald’s policy of deliberately starvingAboriginal peoples to make way for settlers in the west • Ethnic cleansing through denial of food • “Sixties Scoop” • Childcare officials took aboriginal children from their homes and put them in white homes • forced sterilization (often without consent or knowledge) ofAboriginal peoples in B.C. andAlberta until 1980s (discussed in “Reproductive Rights, Part 1”) • film clip: “Residential School Survivor’s Stories,” from Unrepetant: Kevin Annett and Canada’s Genocide • profiling United church and affiliation with residential school • Minister fired for trying to bring aboriginals in • Profiling aboriginal survivors of residential schools • Punished for speaking their language • Would be restrained to the bed • Throw snakes in tub while they were taking baths o residential school system (1870s-1996) • 15% death rate • Tuberculosis, much was known about it, they wouldn’t separate them from others purposefully • Denied treatment and first aid • About 250 000 -300 000 went through residential school system • Calls on gov’t to find bodies and give them proper burials Convention on the Prevention and Punishment of the Crime of Genocide (adopted by United Nations GeneralAssembly, 9 December 1948),Articles 1-4 of 8 Article 1. The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Article 2. In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Article 3. The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide. Article 4. Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. “Good Mother” versus “Good Father” • Different societal standards for a “good mother” versus a “good father” • more judgmental about women’s mothering than men’s fathering • Peverini – “As a father, I’m damned by excessive praise” – father applauded for simply being out in public with his children • Women do not receive this reaction, they are expected to give up their personal life and aspirations in order to raise children • Raises question: are certain types of work devalued because they are associated with women? • Women are looked at as selfish for returning to the world of work, not congratulated for balancing employment and motherhood • Double standard whereby women had to be chaste before marriage in order to be considered “good mother” men didn’t have to Ideology of Motherhood: • Reinforced by maternal feminism, reinforced women’s role as mothers • Mothers must be selfless, self-sacrificing for the family, keeper of heart and health • Lesbians could not be considered ideal mother • assumed to be timeless and universal • Many societies see child rearing as the responsibility of everyone in the community, this ideology sees it as the responsibility of the mother • Only by having a child can a woman actualize her own potential • Doesn’t understand mother’s work as actual labor • Whether women applied for custody, maintenance or mother’s allowances, they were routinely scrutinized for sexual purity and moral fitness • Women who breached the norms of good mother hood were routinely denied cstody of their children • This ideology impacted law • prior to the mid-late 1800s, father was sole legal guardian of the children • only way woman could be sole legal guardian was if the husband died and wrote up a legal document saying that the wife would be sole legal guardian • Power of father extends after death • “tender years doctrine” (late 19th century to 1980s) • Between birth and age 18, it was seen that they were best with their mother • federal DivorceAct (1985) • gender neutral language, looked on best interest of children rather than tender years doctrine • contemporary effects of the ideology of motherhood in custody battles o on fathers – fathers less likely to win custody battle, seen less capable of parenting o on mothers who do not fit the ideology – only seen as good mothers when they comply with this ideology, selfless, pure etc Importance of Shelters: • Refuge for women that are facing abuse • Gives them an opportunity to leave their abuser that would otherwise not be possible in many cases due to financial dependence, etc. Invisible “Glass Ceiling”: • Apolitical term used to describe "the unseen, yet unbreachable barrier that keeps minorities and women from rising to the upper rungs of the corporate ladder, regardless of their qualifications or achievements • Metaphor was applied by feminists in reference to barriers in the careers of high achieving women • Men more likely to be promoted and make more than women, even if they have achieved the same level of education Kimberly Rogers • Pregnant woman • Took OSAP and social assistance to get through school, convicted of welfare fraud for being on both, put under house arrest • Did not have air conditioning, apartment so hot that she died • Neoliberalism** Komagata Maru : • Indian British subjects were lead to Canada by a boat called Komagata Maru • film clip: “White Canada Forever,” Continuous Journey (Canada, 2004) • profiles Gurdit Singh, brought Indian immigrants to Canada – Komagatu Maru boat • Continuous Journey Stipulation – put in place to restrict immigration of Indians to Canada, in order to be able to immigrate to Canada, they had to make a continuous journey with no stops by boat, this was virtually impossible at the time • 1914 song called white Canada forever, popular song • Boat stayed parked in Vancouver where no one was allowed on or off • BC court ofAppeal said Canadian gov’t had ultimate authority to determine immigration law • Court rejected the claim that as British citizens Indians had right to enter Canada • Boat sent back, to Calcutta, Bangladesh • British imperial authorities were told they were all radical groups • Many were shot upon reaching land • Re-emergence of this same law – safe third country agreement applies to refugees, if they have stopped in any “safe countries” on the way then you cannot claim refugee status • Canada has excluded refugees coming from these so called “safe countries” Leilani Muir: • the first person to file a successful lawsuit against theAlberta government for wrongful sterilization under the Sexual SterilizationAct ofAlberta. • Her case led to the initiation of several other class action suits against the province for wrongful sterilization. • her mother sent an application for Muir to be institutionalised at the Provincial Training School for Mental Defectives • before her 11th birthday, Muir was admitted into the institution solely on the basis of information provided by her mother, without any diagnostic testing • Muir’s sterilization is part of a progression towards forced sterilization and eugenics that began in the 19th century. • It was believed that many mental and behavioral traits were passed down from parents to their children. People considered inferior or damaging to the human race included: “mental defectives”, lazy people, poor people, unwed mothers, immigrants, first nations etc • These "undesirables" were seen as unfit to have children and were bred out of the population through sterilization practices • Forced to take an IQ test, labelled as Mentally Defective which was grounds for sterilization • Later proven that Muir was of normal intelligence levels Moge v. Moge : • Married couple, eventually separated • Wife was a housewife throughout the marriage, got a job after separation • Her husband paid spousal support • After she lost her job she applied to have her spousal support increased • Her husband sought to have her support cut off • looked after children, she had to go back into labor force • Supreme Court of Canada recognized that it continues to be women who take primary responsibility for child rearing and household work and experience significant long term economic disadvantage on separation as a result of their role during and after marriage • First time women’s unpaid contributions within the private sphere were looked at and recognized, she did win spousal support, small amount Neoliberalism : • state should have very little influence in people’s lives, • should intervene as little as possible, • strong belief in the individual and individual rights. • Dismantle welfare state, • less influence on economy • idea of the tax payer rather than the citizen, shouldn’t have to pay taxes to help others, lower taxes, privatization, de-regularization • neoliberalism as reinforcing women’s dependence upon men, instead of state social support they seek support from spouses, former spouses etc Psychological and Economic Effects of Sexual Harassment: • two forms of sexual harassment • quid pro quo – something for something, trading item or service for something of equal value, person in position of authority demands sexual favor from a subordinate • hostile (work) environment – includes anything from jokes to sexual advances, unwanted sexual attention, touching etc. put downs, negative comments • Psychologically damaging, would lead to stress, anxiety depression • Economically damaging, may force people to quit their jobs out of anxiety due to the hostile environment created in the workplace R. v. Morgantaler : • Abortion rights fought for by Dr. Morgentaler • Strong supporter of women’s rights • Continually charged, arrested, put in jail for performing abortion • Originally put in jail in 1970 • Section 251 - Established with this law TherapeuticAbortion committees, if you wanted an abortion, you would have to sit in front of committee consisting of three doctors, they would decide if life or health was at risk • Supreme court struck down 251, it infringed upon s. 7 of the charter, life liberty and security of person • Morgentaler simply said section 251 was unconstitutional, sort of legalized abortion, not exactly legal, no right to an abortion, de facto legal because the law criminalizing it was struck down White Ribbon Campaign: • Organized by men working to end men’s violence against women • Bringing violence against women into the mainstream for men • Focusing on men’s silence, encouraging them to speak out and take action • Even men who have never used violence or never would still remain silent • Men in positions of power need to speak out about violence, or else they are allowing it to continue • Call to personal and social action asking men in unions, corporations etc to make this a priority issue, urging all levels of government to fund shelters for women, encourage men to financially contribute to women’s organizations • Not about taking leadership away from women, “listen to women, learn from women” 1. In his highly influential Commentaries on the Laws of England, William Blackstone wrote: “The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children, for whom the master or parent is also liable in some cases to answer.” Describe how the doctrine of coverture was adopted in Canadian law. Outline the historical evolution of the legal treatment of intimate partner violence, marriage and divorce. Finally, consider whether any of the maxims described by Blackstone remain true today, and specify why or why not. 1. Intimate Partner violence 2.Marriage , family and divorce (both parts) Concepts:  Moderate Correction  Rule of Thumb  White Ribbon Campaign  Neoliberalism Cases/Legislation:  Ontario Deserted Wives’MaintenanceAct  1892 Criminal Code  1909 Criminal CodeAmendment  1960 Criminal CodeAmendment  1983 Criminal Code Reforms Blackstone: • Aman has the power of correction to his wife, power to correct her, domestic violence was legal as long as it was a way of correcting one’s wife • Husband was lord or decision maker of marriage • How did this develop into unity doctrine? • “By marriage the husband and wife are one person in law…the very being or legal existence of woman is suspended during marriage, incorporated into her husband” • Husband bound to provide his wife with necessaries by law • If the wife is indebted before marriage, the husband is bound afterwards to pay for her debt • If wife elopes with other man, husband no longer responsible for her • Though they are considered one person, in some instants she is considered separate, and inferior Intimate Partner Violence • English common law sanctioned violence against women through a man’s “right” to chastise his wife • coverture and “moderate correction” • “rule of thumb” • wife murder vs. husband murder if a wife killed husband, it was called “petit treason” equitable to killing one’s master, one’s social superior, seen as a terrible crime, treason was killing the king. Killing one’s husband was punished more severely than killing one’s wife. • 1892 Criminal Code (Canada) o wife abuse could be prosecuted just like any other assault, in theory it was illegal • 1909 Criminal Code amendment o Indecent assault against wife put into criminal code, it wasn’t really taken seriously, in order to commit indescent assault there had to be obvious bodily harm, 2 years imprisonment, extremely low in relation to other assault charges that could be made, so many ways to get away with wife murder, defense of provocation (really important) charges could be reduced and be treated leniently. Infidelity, insubordination (not respecting his authority) and desertion were grounds for this defence • 1960 Criminal Code amendment o Defence of provocation, so many ways to get away with wife murder, defense of provocation (really important) charges could be reduced and be treated leniently. Infidelity, insubordination (not respecting his authority) and desertion were grounds for this defence • 1983 Criminal Code reforms o Review of sexual assault and assault o Intimate partner violence became entrenched in law o 3 levels of assault : “simple” assault – 5 yrs in prison, presence of a weapon or causing bodily harm, aggravated assault which results in wounding maiming, endangering victim’s life o Previously, unless there was a witness to assault there would be no prosecution if there was no physical evidence o This new law allowed police officers to remove accused offender right away and prevent further abuse • Presently: o 1 in 2 Canadian women have survived at least one incident of physical or sexual violence o over a quarter (29%) of Canadian women have been assaulted by a spouse o 4 out of 5 Canadians murdered by their spouses are women murdered by men o White Ribbon Campaign Marriage and Divorce • Ontario Deserted Wives’Maintenance Act (1888) o No longer possible to leave wife and children destitute, had to support them o Compelled to support children even if you were not married to woman o Very gendered, perpetuated idea that women did not and could not work to support their families • federal Marriage and DivorceAct (1925) *?? o replaced theAct of 1847 (a British statute) o Act of 1857, for divorce men had to claim their wife had committed adultery, for women, they had to claim their husband committed adultery and something else like sodomy • defining neoliberalism • “neoliberalism as water balloon” • Moge v. Moge (1992) – o Spousal support, lived with husband for many years o looked after children, she had to go back into labor force o First time women’s unpaid contributions within the private sphere were looked at and recognized, she did win spousal support, small amount • Bracklow v. Bracklow (1999) o woman too ill to work after marriage ended, she was granted spousal support, obligation to support a sick or disabled ex-spouse o during marriage she had contributed more than half to total income that they shared • Moge and Bracklow as double-edged sword • on one hand these are progressive decisions, however they reinforce women’s dependence on men and uphold neoliberalism rather than the welfare state which would help support women • neoliberalism as reinforcing women’s dependence upon men o neoliberalism: no state interference with lives/the economy o Privatization, deregulation, small government, individualism o Both case has women unable to support themselves, because of women’s financial dependence, women were not able to support themselves o Under welfare state, they would be supported o Rather than the state looking after them, individual units have to look at themselves o In cases of violence, it puts women in a vulnerable position o Law chains women to abusive ex-partner o institutionalizing women’s dependence on men 2. Identify some of the barriers women in Canada face in attaining economic security. Evaluate the effectiveness of legal and legislative efforts in the areas of employment and pay equity, sexual harassment and social assistance under contemporary neoliberalism. In your answer, consider whether Canadian law constrains or enables economic security for women, making sure to account for women’s diversity. 1. Paid and unpaid labour 2.Sexual and Racial harassment 3.The feminization & criminalization of poverty Concepts:  Gendered and racialized pay gap  Invisible glass ceiling  Pay equity and Employment Equity  Sexual/racial harassment  Psychological and economic effects of harassment  Deserving versus Undeserving Poor  Feminization of poverty Cases/legislation:  R. v. Howard  PSAC Case  Kimberly Rogers  “Spouse in the House” Law Employment
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