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Defending sexual assault as a feminist

Criminal law, precisely when it concerns male on female violence, benefits from feminist perspectives and voices.

Woman counsel and blind justice concept
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If you’re a criminal defence lawyer, you have likely been asked at least one of the following questions by relatives, friends, students, or anyone outside of the practice of law:

“What do you do when you know they are guilty?”
“Why would you want to keep criminals out of jail?”
“Do you have to be alone with them? Aren’t you scared of them?”
“How do you sleep at night?”

If you also endorse feminism or identify as female, you may have furthermore been asked: “How can you defend rapists if you are a feminist/woman?”  Casting judgment aside, this is a fair question, specifically in cases where the victim is a woman. The fact remains that sexual assault is a gendered offence as women are victimized at a much higher rate than men (37 incidents per 1000 women and five incidents per 1000 men as of April 2019).

Being a devout feminist, my friends and colleagues have been surprised that I take on clients who have been charged with sexual assault, and that I do not see that as compromising my feminism. Not surprisingly, inside the courtroom I have also felt the scorn from complainants’ eyes as they resentfully answer my cross-examination as though I have betrayed them and my gender.

The first step in reconciling these seemingly polarized identities is to abolish absolutisms.  Being feminist does not mean believing all women.  Similarly, being defence counsel does not mean believing that all complainants are liars.  Moreover, what I, as legal counsel, believe is of no consequence within a court of law in any event.

Secondly, it is necessary to take a giant step back to see a more fulsome picture of how various power structures in place, in which we all participate, work to enable oppressive male behaviour.  In the context of sexual assault, it is worth considering and examining that perhaps the crime isn’t born exclusively from an individual’s wrongdoing, but from an array of issues present in our society.

This is reflected in some recent high-profile instances of sexual assault allegations wherein several factors fed into the ultimate acts of sexual assault. These include class, power, desperation, allure, promises of advancement, and a plethora of other forms of hierarchy.  Sexual assault is a crime of significant complexity.  As law professor Elizabeth Schneider has detailed in a related context, feminism is not one dimensional but similarly complex and must reject simplistic narratives and dichotomies by “learn[ing] to accept contradiction, ambiguity, and ambivalence in women’s lives, and explore more ‘grays’ in our conceptions of women’s experience…”

Perhaps the greatest example of complex and nuanced criminal defence litigation in the context of rape, as it then was, which was highly influenced by the feminist perspective, is the amicus brief filed by a group of feminist organizations in the American case of Coker v Georgia. The 1977 ruling by the United States Supreme Court ultimately determined that the death penalty violates the Eighth Amendment of the U.S. Constitution in cases of rape. 

Ruth Bader Ginsburg, now a Justice on that very court, is the first listed author on the brief which articulated that rape prosecutions were racist, sexist, and that sentencing convicted rapists to death was intolerable. The brief went on to emphatically state that the destruction of men’s lives does not serve to protect and honour women. Ginsburg further explained that the crux of the brief was that rape had only been punishable by death because women were viewed as property of men and that property (i.e., a man’s daughter or wife) was taken or damaged through the act of rape. Standing firmly against the notion that women were the property of men, the brief successfully argued that capital punishment was not appropriate in instances of rape.

Thirdly, the feminist perspective is rooted in a long history of supporting and working alongside the marginalized and disadvantaged. The criminal justice system disproportionately affects disadvantaged individuals, including the poor and non-caucasian.  This is tremendously disturbing and unsettling for anyone concerned with equality, which is of course the foundational premise of feminism.  Considered in the broader context of the overall criminal justice regime, defending someone accused of sexual assault takes on an important feminist dimension.

Criminal law, precisely when it concerns male on female violence, needs and greatly benefits from feminist perspectives and voices.  I suggest that it is not an area from which feminists should retreat from simply because it does not align with their beliefs on the most basic and surface level.  Canadian criminal law has benefitted greatly from feminist perspectives in the past.  For example, former Supreme Court Justice Bertha Wilson radically refashioned the law of self-defence to take greater account of the gendered circumstances of battered women in R v Lavallee, for which she wrote the majority decision.  She also wrote a concurring decision in R v Morgentaler wherein she affirmed a woman’s right to decide whether or not to terminate an unwanted pregnancy, and struck down the provisions which made it a criminal offence to procure an abortion.  Justice Wilson’s concurring judgment emphasized the gendered distinctions involved in reproduction. It highlighted that the ethical and legal dimensions of making such a decision cannot be abstracted from the contextual realities of women’s lives.

Feminist voices in the courtroom, even those that do not have the power to evoke immediate legal changes, can benefit and enhance the area of criminal law, specifically in the context of sexual assault.  Although the Criminal Code limits the scope of cross- examination of sexual assault complainants, a feminist defence counsel who is well aware of the various myths, stereotypes, and tropes that pervade sexuality and are often invoked in sexual assault trials can only act as a positive foundation from which to question sexual assault complainants.

Feminism is most helpful to me as a criminal defence counsel in that it informs my thinking and problem-solving processes. It is critical, highly contextual and relational. What’s more, it recognizes that laws and socially accepted norms can perpetuate inequality, and it deconstructs issues and reconstructs them in a transformative and methodical manner.  I embrace my feminism and all that it provides, even when defending a client accused of actions that on the surface may appear incongruous with feminism.

In the words of Justice Wilson, “if women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision making process… perhaps they will succeed in infusing the law with an understanding of what it means to be fully human.”