Tag Archives: gender

A Tale of Two Sex Crimes: Douglas, Ghomeshi, and Process in Sexual Assault

By Esther MendelsohnPrison Massacre

T’was the best of times for sexual predators, t’was the worst of times for the women upon which they prey.

A female judge faces removal from the bench for an incident involving nude photos which were shown and distributed online without her knowledge or consent. She has been the subject of a pernicious and protracted inquiry for over two and a half years. Meanwhile, in the Twitterverse, Jian Ghomeshi’s fans and supporters are decrying the supposed lack of due process in his termination from the CBC.

Court of Queen’s Bench Associate Chief Justice Lori Douglas has been at the centre of a nude photo scandal that has rocked the Manitoba judiciary for over four years. Her trespass? Allowing her husband to take nude photos of her. Her husband, Jack King, who was also a lawyer and has since passed away, then showed the photos, without her knowledge or consent, to a male client in a bid to entice him into having sex with his wife—again, unbeknownst to her. After Justice Douglas was appointed to the Manitoba bench, the client claimed Mr. King’s actions constituted sexual harassment and filed a $67 million law suit and a formal complaint with Canadian Judicial Council, but settled for $25, 000 with a promise to destroy and never distribute the photos. He then proceeded to distribute the photos.

Before the scandal broke, and leading up to her appointment, Justice Douglas duly disclosed the existence of the photos to the appointment committee. In fact, it was a well-known secret. She is now being accused of not disclosing this fact and of altering her personal diary when she learned of the inquiry.

The inquiry, set up by the CJC, has been plagued with accusations of bias and mass resignations. The new panel consists of three senior judges—all male. Delays and debates about costs have characterized the inquiry, and there seems to be no end in sight. Even though the panel has admitted that the allegations are weak, they insist on marching on.

Now the panel wants to see the photos. To show them again, even to the panel members alone, would be a gross infringement on her privacy, a fresh violation of her sexual integrity, and utterly irrelevant to the matter at hand. The main problem with her conduct, ostensibly at least, is that she allegedly tried to cover up the existence of the photos. (Even if she did, she did so in the context of a society which devalues women’s work, misunderstands and misrepresents women’s sexuality, and simultaneously sexualizes and objectifies women while demanding they remain chaste.) Seeing the pictures will not elucidate any proof of whether or not Justice Douglas disclosed their existence.

d94c413b2ec88423f558371620452b62   The chill effect is glaringly obvious. How are we supposed to have a representative bench (and bar) if a female judge is being lambasted for things she chooses to do in her private life which harm no one and have absolutely no bearing on her ability to adjudicate cases? 

Can we not trust a woman who takes nude photos? Why not? If the issue is framed as being whether the public believes this judge can decide a case impartially, we are essentially harnessing women’s success to their sexuality and our perception of their abilities to their personal choices. We are once again putting women’s lives and careers at the mercy of society which still has an overwhelmingly distorted view on women, their sexuality, their abilities, and their collective character (as though such a thing exists). 

Every day, brutal sexual assaults go unreported or under-punished, perpetrators often acquitted on technicalities or because of society’s distorted view of women. But when a female judge is linked to nude photos (leaving aside the troubling fact that she is the victim of cyber sexual harassment/assault), the system will leave no stone unturned in its pursuit of “justice”.

To be sure, the standards to which judges are held are higher than those to which media personalities are held, and that is just as it should be. It is also true that the type inquiry of which the still Honourable Justice Douglas has been the subject and the criminal proceedings which could face Ghomeshi are quite different. The point of comparison, however, is the extent to which processes are used and abused when the subject of the process is a sexual offence.

While the inquiry into Justice Douglas’s personal life has been marred by prejudice and driven by discriminatory beliefs, Ghomeshi has set the agenda even before any charges have been laid. Ghomeshi, in a show of keen media acumen, got everyone talking about BDSM. Only those  familiar with BDSM and those familiar with the issues surrounding sexual assault were able to see the Facebook diatribe for what it as—a distraction. He has also been using litigation to silence his victims and confuse and pressure the CBC into ignoring allegations against him.

Windsor Law’s Professor David Tanovich suggests in a piece published by The Globe and Mail that if lawyers suspect a lawsuit is frivolous or an abuse of process, they are precluded from taking it on, as per the Law Society’s Rules of Professional Conduct. Ghomeshi is represented by a union and any disputes with his employer must therefore go to arbitration, so money, restoring his good name, or being reinstated cannot possibly be his end game in filing suit. Rather, by suing the CBC, he is attempting to silence victims and any manager who dares to intervene in workplace sexual harassment. 

Much of the discussion surrounding the Ghomeshi scandal and the still-unfolding sexual harassment scandal emanating from the Hill, has coalesced around the question why don’t victims come forward

The question is predicated on the assumption that there is a process for redress and that this process is just. But the process can be manipulated. Despite decades of reform, the old tropes can still be found in judgments and in the media’s dissection of a case. Everything from the point of reporting communicates to victims that they should never have reported in the first place. The knowledge that the police will likely not believe you, the embarrassing examination in chief, the excruciating cross examination, the abysmal conviction rate, the farcical sentences, the demonization for being the person who ruined his career—there are plenty of reasons not to report. And if those reasons are not enough to dissuade victims from reporting, the fact that the process itself can be abused to suit the ends of the perpetrator probably will.

Society’s distorted view of women and sexuality allows people to use the system for ends utterly counter to our notions for justice. Ghomeshi using a lawsuit to silence victims and prevent intervention by managers, a blackmailer suing the victim of cyber sexual assault, a judicial inquiry conducting a witch-hunt against a victim and attempting to dictate the acceptable gamut for women’s private lives are just a few recent examples. There is certainly a process in sexual assault cases, but it seems to serve the perpetrators, not justice.

(Since this article was originally published, ACJ Douglas agreed to retire early in exchange for the CJC staying the inquiry. An open letter was written by the author of this article and was signed by hundreds of law students, professors, and lawyers across Canada and the US:

 https://docs.google.com/forms/d/1k4iXC46yKCK0ZeLord7pvWFCNsuT1wAIiZ-S8TgDg54/viewform?edit_requested=true

The CJC issued a response which can be found here:

https://www.cjc-ccm.gc.ca/cmslib/general/Douglas_Docs/CJC%20letter%20to%20Ms%20Mendelsohn%202014-12-10.pdf

This article was originally published in The Orbiter Dicta . Esther Mendelsohn is a second-year student at Osgoode Hall Law School.)



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(Dis)Ambiguation

by Mirra Kardonne

elephant inside a snake

If I could remove femininity from my gender performance, I would.

And come to think of it, I could.

While we’re on the topic, I’d like not to perform.

Finally, gender isn’t real.

I recently came across this quote by J.G.Ballard, English science-fiction (apocalyptic/post-apocalyptic) novelist: “But it held a deeper meaning for me, the sense that reality itself was a stage that could be dismantled at any moment, and that no matter how magnificent anything appeared, it could be swept aside into the debris of the past.”

We really are magnificent. Only something as tremendous and incalculable as the human brain could harness something as transient and enigmatic as the individual personality. That immaterial, ectoplasmic goo (as it were), that makes every person essentially different from the other.

What a privilege, to have a healthy body and mind, to be a feminist, and to thus be afforded the space and the inclination to chisel away at my ‘personality’. Disentangling myself from the parasitic ideas of gender imparted on me, breaking down those parts of my personality I didn’t agree to, while building up the parts I do. Whether it’s obvious to the world or not, I do this constantly.

And yet, here I am, having already done considerable work on stripping away old facades, painfully attempting to undo the familiar behaviours that create ‘woman’–not only because the burden of performativity is oppressive to females, but because it felt oppressive even as I unknowingly performed them– and I realize I’m nowhere near done. The victory of climbing up so many ladders only to fall down a snake’s throat and land halfway down the board. Sometimes, at this point I’d like to quit the game entirely. What do I really get, if I win?

Even with a raised consciousness, how much of my personality is truly mine?  What did I come with, what then was I conditioned to think? Is my body mine, or it a vehicle for performance? If it isn’t, how do I live with it?

Every time I speak, I think about my voice. Am I speaking from by belly, or my throat? Notice the difference in pitch, and what that difference communicates. Does the sound ring in my skull, or vibrate in my nose? one is shriller, the other more resonant. Is one coming more easily, one more laboured? When I think this hard about anything, the next move is always an unnatural one.

What about the words I’m saying? How saturated are my S’s and T’s, how round are my O’s? If there’s even a hint of twang on my vowels, that will make my manner sound affected. How utterly feminine.

Or, trying to decrypt the message of my walk. I’m trying to stand straight and tall, a powerful stance– except this means I lead with my breasts. Is it better to shrug? My hips swagger when I walk…is it natural? Should I move fast or slow? I hardly know. Now THAT is what I call performance! Scrutinizing the minutiae of simply speaking a phrase, or walking to work. I resent this labour. But then again, I already did this work once before (or maybe many times, unknowingly).

Society entrusted to my parents the endeavour of raising a newborn female. I learned to inhabit the identity of ‘girl’,  of ‘tween’, of ‘teenage girl’, of  ‘college girl’, to whomever I was before I became positively sick from the poison of performance, of patriarchal condescension and my subsequent relationship to and expectations from that system. Sick of participating with my peers in the contrivances of a society that renders a female into a contestant in a perpetual dog-and-pony show — unwittingly entered, vying for a prize that may never be truly enjoyed by the contestants (namely, safety and personhood), but by our countless handlers– in this case, the unchallenged perpetrators of patriarchy.


nail-polish-girlPlaying Soldier

Of course, it’s not ‘men’ that ‘women’ are expected to perform for, but for Society. The larger surveillance that everyone, males included, feel. And the goalposts are always moving: hit this target to be considered a real “Insert Gender Title”. Oops. It’s moved to the left. Try again. And whomever this is harder for– ‘men’ or ‘women’– it is the females who chiefly suffer. In this moment of popularized feminism, the subsequent backlash takes the form of patriarchy-sanctioned sexual violence made trendy by social media, the disturbing trend of females renouncing feminism as an unsexy, obsolete or (ironically) oppressive system; and each of these violent gestures could rightly be perceived as a warning to males to remember that they are Men and to Act Like It Or Else, and as a warning to females that with resistance comes devastating collateral damage that will not only endanger our bodies and minds, but will pit us against each other.

Poor us, we live in confusing times for those trying to construct a ungendered personality. Care about your weight! Don’t care about your weight! Care about your clothes! Don’t care about your clothes! Care about Global Warming! Don’t care about Veganism! Care about the Middle East! Don’t care about Feminism! Each will, overtly or subtly, determine where you land on that mythical ‘gender spectrum’, which is a spectrum between two extremes. In order to be deemed worthy of attention, or at least, not worthy of scorn, you must stay close enough to the fringe of your assigned side as to be identifiable; but far enough so that you can be empathetic to your Other, who should be equally as close/far to their side as you are to yours. The gap between you is the non-understanding that you each possess of your Other.  And the gap must remain, because crossing it would diminish those crucial boundaries that separate ‘men’ from ‘women’. In which case, our only essential difference would be our not-all-that-different different bodies. And where’s the dominance there?

Again, (and again), I embark on the confusing, disheartening work of undoing yet another layer of my own conditioning. I don’t know where to start. I think that underneath (and in even writing so, I acknowledge my hunch that there is an ‘underneath’ to my ‘surface’) I am– we all are — fundamentally magnificent. Under the burden of constant performance, of dancing to the music of a vicious system that seeks to control what we eat, how much we weigh, how much we spend, how we communicate, even the substance of your voices, our values;  Ballards quote is, to me, best expressed not as poetry, but as prayer:

“…reality itself was a stage that could be dismantled at any moment, and that no matter how magnificent anything appeared, it could be swept aside into the debris of the past.”

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