- University of Alberta
chapter four
Engendering Violence
For more than 30 years, Canadian feminists have theorized, documented, pressured governments, and constructed independent responses to violence against women. Against the dominant understanding of gendered violence as a series of uncommon events perpetuated by deviant criminals, feminist analysts have illuminated its widespread incidence and structural nature. We have now reached a point in time where recognition of gendered violence has been incorporated into the mainstream. Yet, as the contributions in this section emphasize, political and public recognition has had complex and often negative consequences. In fact, many analysts suggest that the current period is one of backlash, in which feminist insights have been resisted and are increasingly displaced through decontextualized and depoliticized analytic and policy frameworks. The predominant construction of gendered violence as a problem of criminal law ignores the power relations producing violence, drawing us into a law-and-order agenda. Political responses to violence focused on criminalization and “victim services” have been accompanied by the incremental de-funding of grassroots and frontline feminist anti-violence work, silencing feminist knowledge and critique. At the same time, feminists have had to confront the limitations of the gender-focused models that framed earlier activism and scholarship. These essentialist frameworks, ignoring race, class, ability and sexuality, have revealed themselves as insufficient to explore the complex power relations through which violence is enacted and legitimized.
The articles in this section are engaged in the project of coming to terms with this complicated legacy and developing analyses with which to confront the persistence and complexities of gendered violence.
Remembering the Montreal Massacre
The Montreal Massacre functioned as a clarion call to action. From the societal denials that had impeded political responses for much of the 1970s and 1980s, the 1990s emerged as a time of reckoning with the pervasive and systemic nature of gendered violence. As Sharon Rosenberg argues (“Neither Forgotten nor Fully Remembered: Tracing an Ambivalent Public Memory on the Anniversary of the Montreal Massacre”), from anniversary vigils, to monuments, to gun control legislation, to the designation of December 6th as a National Day of Remembrance and Action on Violence Against Women, the murders of fourteen women engineering students have been widely narrated and commemorated. The Rosenberg article confronts the meaning and legacy of this sad and dramatic event, arguing that the public memory of the massacre, far from being settled, is charged with ambivalence. While the focus of the article is on the competing memorializing practices, it at the same time forges a complex and “third wave” analysis of gendered violence that is engaged with the present and looks to the future.
As Rosenberg describes, the Montreal Massacre produced an enormous debate about how to make sense of Marc Lepine and his actions. The initial and predominant mainstream response was to construct this violent act as both de-gendered and individualized—the work of a sick madman. Feminists quickly and forcefully challenged this abstracted and depoliticized construction with what Rosenberg labels an emblematic reading of the Massacre—in which this event comes to stand in for and symbolize mass systemic violence against women. While this production highlights the socio-political characters of the murders, Rosenberg argues that emblemization is a problematic strategy. As she insists we must simultaneously accept and refuse this strategy, as it depends upon an analysis that privileges gender at the expense of a complex analysis of the gendered, racialized, sexualized and class-based power relations framing women’s lives. Pointing to a third wave analysis of gendered violence engaging in the complexities of multiple systems of power, Rosenberg’s article is also concerned with how emblematic public memory effaces Lepine’s declaration that this was an anti-feminist slaying. In drawing attention to the contemporary context of backlash framing feminist anti-violence activism, Rosenberg asks us to consider what it might mean to construe these murders as “anti-feminist.”
Responding to “De-gendering”:
Wife Abuse and “Spousal Assault”
The trajectory of public response to feminist anti-violence work has moved from outright denial to recognition to backlash and “re-privatization.” One discursive strategy that has emerged in reaction to feminist power-sensitive analyses of violence is “de-gendering.” The emergence of de-gendered and power-neutral models of “wife abuse” is confronted by Yasmin Jiwani (“The 1999 General Social Survey on Spousal Abuse: An Analysis”). The focus of her critical analysis is the 1999 General Social Survey [GSS] on Spousal Violence and its “finding” that women have now achieved gender parity in intimate violence. The conclusion that men and women experience and enact similar rates of spousal abuse, as Jiwani insists, reflects the growing gap that exists between the realities of wife abuse that women and front-line workers know first hand and newly emergent popular myths about women’s aggression.
It was feminist front-line activism that politicized the problem of wife abuse, leading to the establishment of the first transition houses in the early 1970s. In 1981, when a parliamentary committee released a report documenting the prevalence of wife battering, many members of parliament responded with nervous laughter. Clouded by patriarchal constructions of the family as “haven,” the naming of intimate violence posed a serious challenge to the dominant, romanticized idea of the traditional nuclear family. We live in a society where quantification implies legitimacy and “Truth.” Consequently, breaking the silence surrounding gendered violence necessarily involves statistical documentation. Early feminist investigations underlined the paucity of empirical analyses, and indeed it was not until 1993 that the first national Statistics Canada study on violence against women was released (Violence Against Women Survey [VAWS], 1993). Jiwani contrasts both the methodology and the findings of the VAWS and the GSS. The far higher rates of wife abuse documented in the VAWS, she illustrates, are linked to the questions asked and the methodologies deployed. The near equivalence in the GSS’s rates of intimate violence between men and women rests on its erasure of emotional violence, its failure to explore severity of abuse and its neglect of context (for example, the failure to investigate the prevalence of self-defense as a reason for women’s violence). The decontextualized analysis of the GSS is worrying, not only because it obscures the complex realities of intimate violence, but also because it could be used as rationale for further reducing the resources available to crisis centres and shelters.
Criminal Law Reform as the Predominant Response to Rape and Intimate Violence
Since the 1970s, there have been important initiatives tightening legal definitions and creating practices to improve the treatment of those who have experienced violence. But many analysts now contend that criminal law reform as strategy needs to be carefully evaluated. Governmental efforts to address the complex problem of coercive sexuality and gender violence have occurred almost exclusively through the criminal justice system, at the same time avoiding concrete and empowering social policy responses. Canadian feminist activists have come to loggerheads with governments intent on dismantling the vestiges of the welfare state; yet criminal law initiatives designed to address the consequences of violence against women have proliferated during this very same period. While acknowledging the important objectives of these criminal law reforms, it is at the same time crucially important to pay attention to their form and underlying thrust. Feminist claims regarding the structural and systemic character of sexual violence have been filtered through a policy discourse emphasizing individualized criminal responsibility and punishment.
Both Sheila McIntyre (“Tracking and Resisting Backlash Against Equality: Gains in Sexual Offence Law”) and Elizabeth Sheehy (“Legal Responses to Violence against Women in Canada”) draw our attention to the shortcomings of criminal law reforms, to the manner in which they have been resisted through the practices of legal actors, and to the failure of governments to address the persistent inequalities enabling male violence. Sheehy provides an overview of legal responses to rape/sexual assault and wife assault (or intimate violence) since the 1970s, contrasting the formal equality emphasis of second wave feminist criminal law reform campaigns with the substantive equality focus of third wave feminist strategies. From mandatory charging policies in response to wife assault to the redefinition of rape (a gendered crime) as sexual assault (a gender-neutral crime), the thrust of second wave law reforms was to gain public recognition of the gender-neutral harms of violence against women. But Sheehy outlines the problems of these initiatives framed by a formal equality model. Criminal law intervention in the area of wife assault has sometimes resulted in charges laid against women who refuse to testify and intensified violence against those who do. The redefinition of rape as sexual assault has operated to obscure the gendered character of sexualized violence. More recent moves to enact law reforms reflecting substantive equality (for example, interventions that provide secure housing and monetary aid to women experiencing wife assault) are only sporadically emerging. At the same time, criminal law reforms enhancing substantive equality in the area of sexual assault have been undermined through the resistance of police, defence lawyers, prosecutors and judges.
The multifaceted resistance to feminist-inspired sexual assault law reforms is explored in detail by McIntyre. This critical article highlights the central feminist insight that sexual violation must be analyzed as both function and effect of social inequalities. McIntyre outlines several important changes to Criminal Code provisions on sexual assault—the most fundamental being the 1992 “no means no” amendments that explicitly define “consent” as voluntary agreement. Despite strongly worded legislation that is the envy of feminist law reformers in other countries, the incidence of sexual assault remains shockingly high (39%) and at the same time the least reported of any violent crime (6%) (Statistics Canada, VAWS, 1993). Law reforms may have succeeded in eliminating the overt expression of rape myths in the criminal justice system, yet McIntyre documents how a discriminatory logic continues to operate informally. Courts have struck down provisions aimed at improving the treatment of women complainants as infringements of the legal rights of accused persons. Moreover, crucial legal reforms designed to protect complainants through restricting the use of sexual history evidence and limiting access to personal records have been diluted through new defence strategies and through biased judicial interpretations.
Resistance to egalitarian change in criminal law highlights the fundamental feminist insight that without policies and programs directed at women’s social and material inequalities, gendered violence will persist. As Sheehy and McIntyre powerfully conclude, rather than feeding a law-and-order agenda that focuses on punishment and that constructs women as passive victims, effective political responses to violence should draw on the leadership of feminist anti-violence activism, provide funding for front-line work, and enact social policies challenging gendered power relations.
Confronting Gender Essentialist
Analyses of Violence
Most second-wave feminist anti-violence and activism was framed by a gender essentialist analysis of male violence. The claim that all women are potential victims of male violence operated as a powerful mobilizing call, one that firmly situated the pervasiveness of violence within a systemic and structural analysis of patriarchy. As many of the contributions in this section underline, feminist activists and scholars face a hostile political climate in which earlier feminist critiques have been silenced through de-gendered policy approaches and individualistic constructions. This is also a time in which feminist frameworks have been challenged for failing to account for the complexities and specificities of gender violence. Analyses of the causes and consequences of gendered violence cannot proceed without careful attention to the contextual intersections of race, gender, class and sexuality. Sherene Razack (“Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George”) forges a contextualized and critical analyses of gendered racialized violence that profoundly challenges earlier feminist claims.
Razack explores gendered racialized violence and the continued colonization of Aboriginal people through an analysis of the trial of two white university students for the murder of an Aboriginal woman who worked as a sex trade worker. She is specifically writing against a de-raced analysis of violence against Aboriginal women under the rubric of “patriarchal violence against women.” As she powerfully contends, while patriarchy produces men who gain identity through brutalizing women, both the murderers’ and the criminal justice system’s ability to dehumanize Pamela George was rooted in their understanding of her as a gendered racial Other whose degradation confirmed their own identities as white. In contextualizing the murder of George, Razack draws our attention to colonization of Aboriginal peoples and the manner in which sexual violence has operated as a technology of domination. Gendered racialized violence is related to the continued sway of the 19th century perception of the aboriginal woman as a dehumanized squaw, and the brutalization of Pamela George can been interpreted as an act of colonization, bringing her assailants together in a shared sense of whiteness and masculinity. Razack details the mechanisms through which George came to be seen as a rightful target for gendered violence, limiting the extent to which the violence done to her body could be recognized in law and the accused made accountable for it. Crucially, in telling the story of George, Razack is not simply arguing that we must analyze race in interrogating the extremely high rates of violence against Aboriginal women. Instead, as she insists, racialization is integral to feminist analyses of gendered violence.
At a time in which systemic and politicized feminist analyses of gendered violence are being silenced beneath gender-neutral policy discourses, it is tempting to forcefully proclaim the continued and dramatic reality of “violence against women.” Yet, as Razack reminds us, we cannot move ahead with analytic models and political platforms that obscure the complexities of gendered violence. Race and sexuality, along with ability and class, deepen our analyses of gendered violence and constitute bases for our strategies of resistance.
Neither Forgotten nor Fully Remembered: Tracing an Ambivalent Public Memory on the 10th Anniversary of the Montréal Massacre
Sharon Rosenberg
Sharon Rosenberg is a member of the theory/culture focus of the Department of Sociology at the University of Alberta, where she teaches courses in contemporary theory. Her research is primarily concerned with questions of trauma, cultural production and remembrance ethics.
In the early evening of 6 December 1989, a 25-year-old white man by the name of Marc Lépine, entered l’École polytechnique (the School of Engineering) at the University of Montréal in Quebec, Canada. Armed with a semi-automatic rifle, he walked into a fourth-year Mechanical Engineering class of 60 (Rathjen and Monpetit, 1999: 10), ordered the male students and two male professors to leave—which they did—and shot six women to death, screaming the accusation that they were a ‘bunch of feminists.’ He then walked through hallways and entered other classrooms, murdering eight more women. In addition to these dead, Lépine injured nine women and four men, men who were shot at, it is generally presumed, because they attempted to impede his rampage. At the end of this massacre he killed himself. In the three-page suicide note found on his body but not released into public circulation for a year, Lépine described the murders as a political act and blamed feminism for ruining his life. Key sentiments in this letter (in translation) read:
Would you note that if I commit suicide today 89–12–06 it is not for economic reasons . . . but for political reasons. Because I have decided to send the feminists, who have ruined my life, to their Maker . . . . Even if the Mad Killer epithet will be attributed to me by the media, I consider myself a rational erudite that only the arrival of the Grim Reaper has forced me to take extreme acts . . . . Being rather backward-looking by nature (except for science), the feminists have always enraged me. (in Malette and Chalouh, 1991: 180–1)
The text of the letter is followed by a ‘hit list’ of 19 prominent Québec women and a note, ‘[t]he lack of time (because I started too late) has allowed these radical feminists to live (in Malette and Chalouh, 1991: 181) . . . .
This article endeavours to make the massacre at the Poly . . . an ‘outrage to the present.’ Tracing the ways in which it has been publicly remembered through 10th anniversary commemoration, I argue that the event is far from settled (and hence a matter of ‘the past’); what remains is an ambivalence in memory that cannot be addressed without an opening of present-day frames and commitments . . . .
Shock, grief and early expressions of a legacy of loss
Named as the ‘deadliest single-day mass shooting in Canadian history’ (Grandmont, 1999), the massacre in Montréal registered widely in the social domain in a manner unprecedented in Canada. Such expressions of grief, shock and anger at the murders became impetus and form in Canada for a diversity of what I have come to think of as activist-memorial responses. From anniversary vigils to the design and production of monuments, to days of education, to the naming of 6 December as a National Day of Remembrance and Action on Violence Against Women, the Montréal murders were widely marked, narrated and commemorated in the years following their occurrence. Named on the list of the top 25 Canadian news events of the 20th century (Granatstein and Hillmer, 1999: 18–53), the massacre in Montréal has not been forgotten in the Canadian historical record, nor does there appear to be an immediate risk of this happening. This is in strong contrast with the US, where an initial attention in the immediate aftermath has long been replaced by other, more local, ‘school shootings,’ most notably, perhaps, such as those in Columbine almost a decade later. lndeed, for the last 10 years in Canada, the massacre has continued to be felt as a profound loss for many. In particular, for those close to the women murdered, the deaths linger as a constant reminder of what was and who no longer is . . . .
While it is of little surprise that family members, friends and lovers of the women murdered, along with fellow students, would continue to grapple with their deaths, what is less well known and publicly discussed are the lives of others who have been profoundly shaken by this mass murder . . . .
. . . [T]he 10th anniversary marked a watershed for coming to terms with these murders. However, it is the argument of this article that such coming to terms has been, and can only be, partially and insufficiently supported by the formation of the public memory that has sedimented over the past decade or more in Canada. While this memory is considerable, particularly when compared with the sparsity of memorial attention that is sustained for many other acts of violence (raising the ongoing question of what events are produced as ‘(un)worthy’ of remembrance and with what implication for people’s lives and deaths) I will argue here that this public memory has been fraught with ambivalences that circumscribe sustained encounters with the loss(es) of the massacre . . . .
Some theorists, myself included, have begun to argue for conceptualizing what is at stake here—that is, not only how public memories are produced but also how people differently attach to these memories—as questions of pedagogy . . . . Public remembrance practices can be understood, therefore, as practices of teaching and learning; attempts to prompt and engage people in the development of a historical consciousness that might affect their perceptions of, feelings about, identifications with, and the meanings they attribute to, the massacre. Moreover, these are communicative practices that intend, however obliquely, to bequeath a memorial legacy to those they address. As a memorial address, a public remembrance practice can be understood as attempting to bind the living in particular relation—not only to the dead, but also to each other. Such binding might be produced in any number of terms—for example, in regard to the massacre, practices of public memory have variously undertaken to bind the dead and the living as women, as feminists, as Montréalers, as citizens, and/or as Canadians . . . .
The ma(r)king of an event
Gun control legislation, efforts to increase the number of women in engineering programmes and the design of monuments can be readily understood as strategic remembrance practices, practices that tie the legacy of the massacre into contemporary political efforts for a redeemed future. Indeed, such practices are easiest to identify as having helped ‘us’ move on. As Peggy Curran puts it, commenting on the national campaign for stricter gun control that was initiated as a result of the massacre, ‘[this campaign is] without question, still the most significant memorial to the Montréal killings’ (Curran, 1999; added emphasis). However, I propose that strategic remembrance is not limited to specific political strategies per se, but is more widely constitutive of the prevailing public memory of the massacre. This is a memory that can be read as containing the motivation for the killings and, concomitantly, how to remember both the women murdered and Lépine.
I propose that one of the formative strategic remembrance practices has been the ma(r)king of the murders as an event in and for public memory. This is a practice that results in a deeply ambivalent memorial relation to the killings and their legacy. On the one hand, such demarcation renders the murders distinct and out-of-the-ordinary. On the other hand, the very character of this distinctness is a limit on interpreting what has occurred . . . . Such demarcation has been centrally fashioned through constituting the murders under a proper name: outside Montréal in Canada, the murders are known by the sign, the ‘Montréal massacre,’ within that locale, the ‘Polytechnique’ or, more starkly, ‘Poly.’ What is it that is made intelligible by these orderings? First, the term ‘massacre’ means ‘to kill indiscriminately or in large numbers.’ While this is a naming practice that brings to the fore the impersonal relation between the women killed and their killer, it makes inconspicuous the gendered nature of his act; for he did not kill indiscriminately, he targeted women whom he constituted as feminists and thus as his enemy . . . .
. . . While I am not suggesting that a different naming practice (such as the ‘anti-feminist massacre’ or the ‘mass killing of women in an engineering school’) would be all that is needed to address these rupturing effects, I suggest their explicit absence from memorial namings can be read as a trace of how the legacy of the massacre has been (and is being) constituted as a limited and limiting memorial event.
Emblematic memory
In the immediate aftermath of the killings and during the early anniversary years, there was enormous debate in the mainstream media on how to make sense of Lépine and his actions. The interpretation circulating widely in the media within hours of the killings constituted the murders as ‘incomprehensible’ (Lakeman, 1992: 94), one man’s act of madness (Nelson-McDermott, 1991: 125), in which ‘the victims just happened to be women’ (Schmidt, 1990: 7). This is a reading that individualized and pathologized Lépine and, if it worried about the women at all, refused them a gendered identification. A year later, on the first anniversary, this headline in the Globe and Mail, Canada’s national English-language daily newspaper, was illustrative of the tenor of the moment: ‘Remembering: the act of a madman or a tragedy sparked by society’s pervasive sexism? That is still the question being asked today . . . ’ (Poirier, 1990: A1). By the anniversary date the following year, the weight of that question had begun to ease, with the declaration by the Canadian federal government to mark 6 December as a national day of remembrance: to remember not only the women murdered on this date in Montréal, but also all women harmed by men’s violence. Thus, 1 December 1991 marked the opening of a discursive shift in memorialization, such that it has become quite common and ordinary now to hear the Montréal massacre referred to as a signifier for violence against women in Canada (although this is not without contestation: an issue to which I will return).
However, it needs to be remembered that this reading of the massacre was initiated by feminists in the urgency of contesting the individualizing of Lépine, noted above. In this reading, the massacre is produced, not as an aberrant act, but as ‘emblematic.’ By this I refer to a practice of producing a specific act (in this case, Lépine’s slaying of women) as standing for a range of other acts that are understood to be constituted on similar terms (such as battering, abuse, rape and other such practices that are marked by beliefs in the rights of men to women’s bodies, spaces, conduct, invisibility). As a family of resemblances, these acts are assumed to share certain characteristics and the remembrance of one hence gestures to the remembrance of all. The most dominant feature of the emblemization of the Massacre, thus, has been to read it as standing for, or symbolic of, mass systemic violence by men against women.
In this framing, therefore, public remembrance of the massacre is a call not singularly to remember the women murdered by Lépine on 6 December 1989, but also a gesture to remember all violences enacted on similarly gendered terms. One particularly emphasized dimension of emblemization is that it underscores an identity-based resemblance between the massacre and more daily violent acts against women; a memorial logic in which ‘men’ are aligned with Lépine, and ‘women’ with his victims . . . .
While a response that emphasizes the socio-political character of the murders has been absolutely necessary and continues to be so, emblemization is clearly not unproblematic . . . .
Emblemization and ‘difference’
While many feminists have put forward an emblematic reading of the massacre, other feminists have long argued that this is a reading that prioritizes identity politics and gendered power relations at the expense of recognizing complex identity formations and inseparable relations of power, such as ‘race,’ class and sexuality, which shape the meanings of gender for women (in life and in death). I recall, for example, Marusia Bociurkiw, who was writing before the emblemization of the massacre had settled into a stable practice, but anticipating even then the paradox of positioning these particular deaths as a ‘national tragedy.’ She observes:
Without diminishing the horror and waste of these women’s deaths, and the unimaginable grief inflicted upon their families, friends, and lovers, it is important to examine the dynamics of the response. The deaths of 14 white, relatively privileged young women was recognized as a national tragedy, while recent police shootings of Black people have been dismissed either as an accident or a necessary evil. Meanwhile, poverty, that insidious hired gunman of the state, stalks women daily. (Bociurkiw, 1990: 9)
Caffyn Kelley, writing some five years later in reference to a Vancouver-based monument project to memorialize the women murdered in Montréal, further complicates the issues of remembrance and identity. She writes,
. . . the names inscribed on the monument will not be the First Nations women of the neighbourhood who have been murdered in back alleys and beer parlours, left to die in garbage dumpsters or thrown out of hotel windows. In this neighbourhood where women are six times more likely to be murdered than in the city overall—10 to 20 times more likely if they are between the ages of 20 and 45—the monument will be inscribed with the names of fourteen, white, middle-class women from four thousand miles away (Kelley, 1995: 81) . . . .
[However, it is noteworthy] that critiques of emblemization by feminists and in regard to women’s lives, are largely absent in 10th anniversary coverage of the massacre in the popular media. I would argue that in the emblematic narrative binding of ‘fourteen women murdered by Lépine’ to ‘women subject to men’s violences,’ a reading of differences between women risks destabilizing emblemization and its memorial-pedagogical force. When emblemization (that, to recall, was initiated as a feminist response) has taken hold in public memory as a counter narrative to ‘Lépine as a madman,’ I suspect that to risk its reading on more complex terms may be regarded (at least by those invested in this narrative) as risking its complete undermining. Nonetheless, this is an issue that should, I propose, continue to draw feminist attention.
In contrast to this lack of attention in the mainstream media, questions of emblemization, identity and difference continue to be at the fore in 10th anniversary reporting in regard to the memorial positionings of Lépine and, concomitantly, ‘men.’ While an emblematic narrative normalizes Lépine as enacting a prevailing practice of men’s violences against women, albeit more drastically than is typical, such normalization is by no means secured in public memory. Upon studying the daily newspaper coverage of the 10th anniversary, I was surprised to read repeated phrasing that troubles, if not subverts, the apparent acceptance of the argument that Lépine did not act in a social vacuum. He is described, for example, as a ‘crazed young man’ (Globe and Mail, 1999), ‘wretchedly angry and broken’ (Goodden, 1999: A15) . . . .
. . . [W]hat I was alerted to and want to underscore is the continued ambivalence in an emblematic public memory regarding Lépine. On the one hand, his act of murdering 14 women in an engineering school is predominantly, now, remembered as connected to the daily and more insidious violences against women. On the other hand, Lépine as a person continues to be distanced from ‘normal men’ through deployment of a psychologizing vocabulary (deranged, crazy, disgruntled, loner, pathological). When there are no actual diagnoses of Lépine available, I am left to wonder at the adoption of such language and what it suggests about the admittedly profound difficulties of coming to terms with the legacy of the massacre as an act of violence supported by dominant relations of power that privilege the lives (desires, needs, rights . . . ) of men over those of women.
Such difficulties can be traced further in how men respond to the pedagogical address to remember the massacre as men, who, on those emblemized terms, are aligned as guilty by association. For some men, emblemization produces a corresponding position that ‘accepts’ this guilty charge; this stance is most commonly represented by those who take up subject positions offered through the discourse of the White Ribbon Campaign. This campaign represents a coalition of men, formed as a response to the massacre, who organize and speak against men’s violence against women . . . .
Anti-feminism as a difficult return
I want to turn again to the pedagogy of emblematic public memory, but this time through a different lens. Specifically, what I think warrants our further consideration is how anti-feminism is displaced by an emblematic narrative. What repeatedly occurs is a not inconsequential slippage in the naming of the dead from ‘feminists’ to ‘women,’ a discursive shift that, however inadvertently, turns memorial attention away from Lépine’s own declaration that this was an anti-feminist slaying. This is not simply a minor matter of one word choice over another. I suggest that emblematic memory partially constitutes this turn away from anti-feminism as a reading of the killings . . . .
In unhinging the categories ‘feminist’ and ‘women’ here I am not underscoring these comments to suggest that the murders were not an act of violence against women, nor from a particular interest. Rather, what concerns me is the absent presence of anti-feminism in the constitution of this public memory of the massacre . . . .
. . . [A]nti-feminism is rendered largely invisible—either as reasoning for the killings or as a force shaping counter-memory. What is striking is that anti-feminism does not disappear in this logic at all, but, rather, is a structuring presence that cannot be readily discerned; for it is only through this circuitous route that feminism can be blamed for the murders, when Lépine himself testified to anti-feminist motivations and gunned down 14 women whom he constituted as feminists.
While a lack of memorial attention to anti-feminism cannot be fully accounted for by the (now) wide appeal of an emblematic interpretation of the massacre, I maintain that the force of the emblematic narrative, with its concomitant constitution of anti-feminism as an absent presence, signals a particular ambivalence in regard to the memory of the massacre and its legacy. Far from questions of memory being settled by a broader social ‘acceptance’ of emblemization as the interpretation of the massacre, the repeated displacement of anti-feminism signals, to my mind, a set of deeper questions. What would it mean to bear these murders as anti-feminist, particularly for those of us for whom this naming—feminist—however fraught and complex, continues to compel our interest, commitment, energy and identification? Are current socio-historical conditions insufficient to ‘our’ bearing this loss? More specifically, if, following Butler, we understand ‘psychic and social domains [to be] produced in relation to each other’ (1997: 167), then might it be argued that feminist discourses of men’s violence against women have constituted a late 20th century social domain in North America that allows for a grieving of the women lost, but not of the targeted loss of those presumed to be feminists? . . .
Re-opening the question of memory: ambivalence and difficult returns
. . . I offer the notion that this proximity may instead be read as indicative of how difficult (emotionally, politically, socially, publicly . . . ) yet necessary it is to face Lépine’s accusatory hatred of feminists (feminism) as a reason for murder. Perhaps this is what the next decade of public remembrance practices might be oriented toward; not as a displacement of the memory of the victims, but as a layering of what constitutes the massacre’s legacy in Canada. What this means, I think, is beginning to come to terms with the massacre as the difficult return of a series of losses that include, but are not limited to, the lives of the women Lépine murdered. To remember publicly the massacre as a loss is to face its social wounds—to prevailing notions of Canadian civil humanity, feminism as a tolerated set of discourses, liberal claims of gender equality, universities as ‘safe places’ . . . to name only the most obvious . . . .
. . . I want to argue for ambivalence in the public memory of the Montréal massacre as a resource—that is, to attend to what is displaced by an emblematic reading (differences, the complexities of identification, anti-feminism, what it means to be bound to others through a trauma). To put forward such a claim is to call for a suspension of prevailing feminist investments in the pedagogy of memory as a strategic practice, with its socio-political accents and an emphasis on remembering to educate ‘others.’ This was an understandable reading of the late 1980s and early 1990s, constituted as it was by the urgency of contesting the ‘madman’ interpretation and the broader sociopolitical climate in which feminist concerns about ‘violences against women’ were barely registering. However, more than 12 years later, the stark and difficult reality is that an emblematic reading and strategic memorial practices such as gun control legislation and a federally declared day of memory, have neither secured a decrease in violent acts nor opened to scrutiny the precepts of moving on, healing, progress and so on, that diminish what might be learned from—and what needs to be faced in the memory of—the 1989 murders at the Poly . . . .
. . . While recognizing that we all stand in different and complex relation to the event of the massacre, and thus, anticipating multiple and nuanced responses, the question remains: How will I—you, we—live after the massacre? More than a decade later when, as Charles Foran writes, the massacre has ‘seemed frozen in meaning’ and ‘journalists [grant] that with each passing year the “story” [grows] tougher to write’ (1999: 78), that question has a particular urgency. For it holds the promise of re-opening ‘us’ to the inheritance of these killings and their public memory. Not, now as an effort to staunch the wound of the loss through strategic memorial pedagogies and practical-political responses. These have been important and necessary, but, I am arguing, are insufficient to another 10 years of feminist memorial-activism. We cannot bring these women back; but, we can and need to ask, when they died in ‘our’ name, what are the memorial responsibilities of feminism to the dead? What do these imply for my, your, our living, now? What practices and formations of public memory might help ready ‘us’ for these encounters—with the dead, and each other?
References
Bociurkiw, M. (1990) ‘Je me souviens: A Response to the Montreal Killings.’ Fuse 23(4): 6–10.
Brown. W. (2001) Politics Out of History. New Jersey: Princeton University Press.
Butler, J. (1997) The Psychic Life of Power. California: Stanford University Press.
Curran, P. (1999) ‘10 Years after the Massacre, a Memorial.’ Montréal Gazette. 4 December. Available at:
Foran, C. (1999) ‘1989 Revisited.’ Saturday Night. June: 74–9.
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The 1999 General Social Survey on Spousal Violence: An Analysis
Yasmin Jiwani
Yasmin Jiwani is a faculty member in the Department of Communications at Concordia University. Previously, she was the executive coordinator and principal researcher at the FREDA Centre for Research on Violence against Women and Children. Her research interests include an examination of the links between intimate and systemic forms of violence.
Against a backdrop of headline murders of women and children by their abusive partners, the unveiling of Statistics Canada’s 1999 General Social Survey on Spousal Violence has contributed to the growing gap between the realities of wife abuse that women and frontline workers know first-hand, and the popular myths that permeate society about women’s aggression and tendencies to violence. The General Social Survey (GSS) on Spousal Violence was released as part of Statistics Canada’s annual publication on Family Violence in Canada: A Statistical Profile, 2000. Already, journalists and men’s rights proponents are publicizing these results in support of their claims about women’s violence. The danger lies in policy-makers taking the survey results at face-value and using them as a rationale for further reducing the already scarce resources allocated to rape crisis centres, shelters, and services for battered women.
In a country where 3.4 wives are murdered for every one husband killed (Locke), and where previous statistics reveal that 98 per cent of sexual assaults and 86 per cent of violent crimes are committed by men (Johnson); where women constitute 98 per cent of spousal violence victims of sexual assault, kidnapping, or hostage taking (Fitzgerald); and where 80 per cent of victims of criminal harassment are women while 90 per cent of the accused are men (Kong), the GSS findings are startling. The GSS findings reveal that the rates of spousal violence experienced by men and women were only slightly different—eight per cent for women, and seven per cent for men in relationships five years prior, and four per cent for both women and men in their current relationships. At a superficial level, the findings suggest that women and men are equally violent, thus feeding the backlash against the experiences and observations of frontline workers, academics, and policy-makers who have long argued about the widespread prevalence of male violence.
Could it be that these findings reflect an accurate portrait of the declining levels of violence and/or that women have now achieved gender parity in violence when they have not been able to achieve this in other domains of social life? Or are we to completely negate everything we hear about the growing levels of violence—from road rage to stalking, date-rape, sexual harassment, workplace harassment and the murder of women in their homes and on the streets? Or are we to discount all the other statistics that Statistics Canada has published beginning with the decisive 1993 Violence Against Women Survey to the 1999 statistical profile on Family Violence in Canada? If violence is about power and dominance, have women become increasingly powerful and dominant?
The GSS survey results were derived from telephone interviews with a sample of 26,000 respondents aged 15 years and over located in ten provinces. The total number of respondents included 14,269 women and 11,607 men. Respondents were asked ten questions which were derived from the Violence Against Women Survey (VAWS), and subsequently modified. The questions focused on violence, ranging from threats to sexual assault, that had occurred in the 12-month or five-year period prior to the interview. The definition of violence used in the GSS was derived from acts of violence as defined and described in the Criminal Code.
. . . In fact, in comparing the 1993 GSS results with the findings of the 1993 VAWS, the GSS results captured approximately half the actual percentage of cases of wife assaults that were reported by women who participated in the Violence Against Women Survey (Johnson 54). Further, unlike the VAWS, the GSS does not take into consideration sexual harassment and emotional abuse in its reported rates of violence. Nor does it track the increase in violence directed against pregnant women, or women who are vulnerable because of their social class, disability, race, or sexual orientation. The GSS, unlike the VAWS, only focuses on experiences of violence within a confined time period (12 months and five years), and in the context of a spousal relationship, whereas previous surveys have focused on women’s experiences of violence from age 16 and up, and have considered numerous forms of violence.
Finally the GSS relies on self-reports by respondents. This in itself can limit how much women, who are in current or previous abusive relationships, may wish to reveal. There is still an aura of shame surrounding violence in intimate relationships, and for many women, self-disclosure may be influenced by feelings of guilt, embarrassment, sense of personal failure, and fear of trusting an interviewer, particularly one representing what is a government agency (i.e., Statistics Canada). Further, it can be a long time before a woman is able to disclose the violence she has experienced.
Violence is about power and control. Women who are in violent relationships tend to experience low self-esteem . . . and in the context of being isolated from support from others, the abuser and his perceptions become the referent. The low self-esteem itself is perpetuated by the abuser and enhanced by the social messages that women receive about their status as women and their powerlessness as victims of abuse . . . . Women tend to take on the responsibility for the relationship, and are often blamed for the failure of a relationship. Frontline workers are well aware of these dynamics but survey research tends not to capture these dynamics . . . .
Questions Asked
The GSS asked respondents the following questions about violence, which were defined according to the Criminal Code as constituting offences that could be reported to the police or elicit police intervention. The overall rates of spousal abuse reported in the GSS do not include emotional abuse although these are presented within the context of Statistics Canada’s profile on Family Violence in Canada.
The module of questions and the preamble that preceded them used in the GSS is presented below:
It is important to hear from people themselves if we are to understand the serious problem of violence in the home. I’m going to ask ten short questions and I’d like you to tell me whether, in the past 5 years, your spouse/partner has done any of the following to you. Your responses are important whether or not you have had any of these experiences. Remember that all information provided is strictly confidential.
During the past five years, has your partner:
1. Threatened to hit you with his/her fist or anything else that could have hurt you?
2. Thrown anything at you that could have hurt you?
3. Pushed, grabbed or shoved you in a way that could have hurt you?
4. Slapped you?
5. Kicked, bit, or hit you with his/her fist?
6. Hit you with something that could have hurt you?
7. Beaten you?
8. Choked you?
9. Used or threatened to use a gun or knife on you?
10. Forced you into any unwanted sexual activity by threatening you, holding you down, or hurting you in some way? (Canadian Centre for Justice Statistics 13)
On the surface, these questions appear to be commonsensical and direct in their focus. However, the crucial element that is missing is the context of the violent incident. There is no indication whether a respondent slapped, kicked, or bit her/his partner in retaliation or self-defence. It is known that women who have been abused are often forced to retaliate against the abuser in self-defence. The number of high profile cases of women who endured abuse and battering, and who have acted in self-defence is a well-known issue which Statistics Canada could have considered when composing the module of questions asked of respondents. There are no questions about the intent of the abuser, e.g., “Why did he hit or threaten you?” Similarly, there are no other forms of violence included, e.g., “Did he ever sit on you?” Although the questions asked make reference to the use of a gun or knife, there are many other weapons of violence such as a baseball bat that are used against women.
The GSS questions equalize all forms of violence. Not only are extreme forms ranked with less extreme acts of violence, but when decontextualized (i.e., without asking for a context or tapping into the power dynamics inherent in the situation), the questions imply that one form of violence is like another, and that the intent of an action equals the outcome. So a statement like (2) “thrown anything at you that could have hurt you” may elicit an answer that does not take the outcome of an action into consideration, i.e., “it could have hurt me” as opposed to the reality, which is that there was no injury involved, or none that merited medical attention. Within a framework which denies that women’s response to violence with violence is often predicated on self-defence, the above response would be meaningless at the least, and dangerous if taken at face-value. Throwing something at an abuser in order to impede his violent actions allows the abuser, if he is the respondent to these questions, to shift the responsibility of his actions and to claim that he could have been hurt. . . .
The findings
Even though the GSS results reveal a similar rate of spousal abuse among women and men, a closer reading divulges interesting and symbolic differences. For instance, women not only experience more severe forms of abuse, but the impact of the abuse is far greater on them as compared to men who report experiences of violence.
What is most clear from the data presented is that the severity of woman abuse outweighs the kinds of violence experienced by male spouses. If we focus on the responses to questions 7–10, the differences in results are dramatic. More than twice as many women as men reported being beaten, five times as many women as men reported being choked, almost twice as many women as men reported having a gun or knife used against them, and finally, more than six times as many women as men reported being sexually assaulted.
These findings are similar for women and men in their current relationships.
That women may end up using less severe forms of violence in retaliation or self-defence is evident in the kinds of violence reported by men. These included being slapped, having something thrown at them, or being kicked, bitten or hit by their spouses. Women tend to be smaller in size than men, have less physical strength, and tend to use violence for purposes of self-defence (Duffy and Momirov, 1997:36). This is not to imply that there are no violent women but that violence directed by women against men is very different in social meaning and outcome than the violence directed by men against women. This is especially significant when we take into consideration the unequal status of women and the historic entrenchment of gender-based discrimination . . . .
The GSS also reveals that women are victimized more frequently than men, and end up being physically injured as a result of the violence. The results underline the severity of violence experienced by women. Some 65 per cent of the women were assaulted more than once, and 26 per cent reported being assaulted more than ten times. Forty per cent of women compared to 13 per cent of men reported being physically injured as a result of the violence in the five years preceding the interview and women were five times more likely to require medical attention as a result of the violence (Canadian Centre for Justice Statistics 14). Four out of ten women are afraid for their lives, as compared to one out of ten men. Age is also a relevant factor indicating a heightened vulnerability to violence for women under 25 years, as compared to women who are 45 years and older.
Emotional Abuse
While the findings of the differential rates of emotional abuse experienced by both women and men were not included in the rates of spousal violence, the GSS measures of emotional abuse are again indicative of how women are more severely impacted by violence and rendered more vulnerable to violence as a result of the psychological abuse they experience.
Interestingly, the GSS results indicate that men and women are equally jealous and possessive. What this finding does not capture is how jealousy and possessiveness are part of the dynamics of abuse. More specifically, qualitative studies indicate that jealousy and possessiveness are often invoked in a violent relationship and stem from the isolation, control and coercion exercised by the dominant partner. In this regard, it is worth viewing the jealousy and possessiveness percentages in the context of the other kinds of emotional abuse that are measured by the GSS.
For instance, women reported a larger incidence of being isolated (in response to the question: “He/She tried to limit contact with family and friends”). Similarly women also reported a significantly higher rate of being called names and being put down. Four times as many women as men reported being threatened, harmed, or having someone close to them being threatened or harmed; more than twice as many women reported having their property damaged or their possessions destroyed as compared to men; and, four times as many women as men reported being denied access to family income.
All of these measures indicate a level of emotional abuse that far outweighs that experienced by men. They also indicate the deliberateness with which women are rendered dependent on men. This is especially the case with access to family income and hence financial independence . . . .
. . . The GSS results illustrate the extent to which these dynamics of abuse are still prevalent. What they do not capture is the range of violence that women experience—from the initial period in a relationship, to the violence they experience during pregnancy (21 per cent of women reported this in a previous survey, see, for example, Fitzgerald), to the escalation of violence upon leaving a relationship—an escalation that can assume stalking and other forms of criminal harassment. The GSS only captures the more overt forms of this. More than this, the GSS fails to underscore the reality and extent of male violence against women . . . .
Discussion
The high rates of violence reported by men in the GSS results may be indicative of the popularization of the issue of violence and its decontextualization as a phenomenon divorced from power and power imbalances. The similar levels of violence reported by both women and men would seem to suggest that men and women are equally violent. Without including questions about the contextual elements that may have precipitated the violence or how violence was used as an instrument of power and control, the GSS results do not tell us anything new . . . .
If the reported rates of violence against women are on the decline, it may be, as Holly Johnson suggests, a result of the successful struggles of frontline workers, advocates and policy-makers. On the other hand, the reported decline may be due to the normalization of violence, which the GSS tries to address through the specific formulation of its questions but may only be capturing in a limited way (as for example in the “equal” rates of violence reported for men and women). Alternatively, the decline may be due to what Johnson refers to as the different reference periods in which the 1993 VAW survey and the current GSS were conducted. Qualitative studies of women’s experiences of violence based on frontline workers’ perceptions (e.g., Chambers; Jiwani and Buhagiar) suggest that although official rates of violence reflect a decline, the numbers of women who are victimized by violence have not decreased significantly. Rather, women have learned not to rely on institutions to protect them and to use other ways and means of protecting themselves from violence.
The GSS on violence only captures a small section of the continuum of violence experienced by women every day. It does not take into consideration the socio-economic and political context in which women live—a context symbolized by the pervasive objectification, sexualization, and devaluation of women as it occurs in the media, within the labour force, and in the increasing numbers of women who are made poor. Neither does it capture the full range of violence meted out to those women who cross normative boundaries, or who are at the intersections of various kinds of oppressions. The GSS cannot erase the reality of male violence against women.
References
Bunge, Valerie Pottie. “Spousal Violence,” Family Violence in Canada: A Statistical Profile. Ottawa: Statistics Canada, 2000. 11–20.
Canadian Centre for Justice Statistics. Family Violence in Canada: A Statistical Profile, 2000. Ottawa: Statistics Canada, 2000.
Chambers, Susan. An Analysis of Trends Concerning Violence against Women: A Preliminary Case Study of Vancouver. Vancouver, BC: FREDA Centre for Research on Violence against Women and Children, 1998.
DeKeseredy, Walter S. and Linda MacLeod. Woman Abuse: A Sociological Story. Toronto: Harcourt Brace and Company, 1997.
Duffy, Ann and Julianne Momirov. Family Violence: A Canadian Introduction. Toronto: James Lorimer and Company, 1997.
Fitzgerald, Robin. Family Violence in Canada: A Statistical Profile. Ottawa: Statistics Canada, 1999.
Jiwani, Yasmin and Lawrence Buhagiar. Policing Violence against Women in Relationships: An Examination of Police Response to Violence against Women in British Columbia. Vancouver, BC: FREDA Centre for Research on Violence against Women and Children, 1997.
Johnson, Holly. Dangerous Domains: Violence against Women in Canada. Scarborough, ON: Nelson Canada, 1996.
Johnson, Holly. “Trends in Victim-Reported Wife Assault.” Family Violence in Canada: A Statistical Profile. Ottawa: Statistics Canada, 2000. 20–21.
Johnson, Holly and Vincent Sacco. “Researching Violence against Women: Statistics Canada’s National Survey.” Canadian Journal of Criminology 37 (3) (July 1995): 281–304.
Kong, Rebecca. “Criminal Harassment.” Juristat 16, 6. Canadian Centre for Justice Statistics. Ottawa: Statistics Canada, 1996.
Locke, Daisy. “Family Homicide.” Family Violence in Canada: A Statistical Profile, 2000. Statistics Canada. Ottawa: Statistics Canada, 2000. 39–44.
Marshall, Pat Freeman and Marthe Asselin Vaillancourt. Changing the Landscape: Ending Violence, Achieving Equality. Final Report of the Canadian Panel on Violence against Women. Ottawa: Minister of Supply and Services, 1993.
Roeher Institute. Harm’s Way: The Many Faces of Violence and Abuse against Persons with Disabilities. North York, ON: Roeher Institute, 1995.
Tracking and Resisting Backlash against Equality: Gains in Sexual Offence Law
Sheila McIntyre
Sheila McIntyre, a Professor in the Faculty of Law at the University of Ottawa, is the Director of the University’s Human Rights Research and Education Centre from 2003–2005. The application of equality law to sexual assault law and procedure has been a major focus of her research and legal activism.
. . . Feminist efforts to expose, challenge, and eliminate direct, indirect, and systemic inequality in the substantive, evidentiary, and procedural laws proscribing sexual offences and in the enforcement and application of those laws have not only been consistently resisted by police, lawyers, judges, and juries, but have consistently generated backlash against those responsible for and/or supportive of such egalitarian change. Actual and imagined social, economic, political, and legal equality gains by women as a class—however unevenly distributed—have triggered a variety of types of backlash, including an escalation in actual or threatened violence against women accompanied by new equality-resistant strains of legal doctrine that effectively offset or bypass earlier reforms . . . .
Feminist efforts to reform criminal law have represented only one branch of this multi-faceted and long-term anti-violence agenda. Many feminists hoped that elimination of sexist bias in the law and in its administration would deter violence primarily by reducing men’s reasonable expectation of immunity from sanction and women’s reasonable expectations of unjust treatment and unjust outcomes upon reporting. Effective criminal laws effectively enforced were then and still are considered a necessary incident and indicator of state, and ultimately societal, recognition of women’s full personhood and right to security of the person and to sexual autonomy.
As at the end of 1999, the sociopolitical context in which criminal law operates is one in which the sexual inequality which facilitates, institutionalizes, and rationalizes male sexual violence is worsening exponentially. An intensifying exploitation of women, women’s productive and reproductive labour, women’s bodies and women’s body parts are currently the state-supported private order. Simultaneously, the dismantling of equality-enabling or -advancing public benefits, services, and institutions is the global market-dictated public order. In this context, the full humanity, citizenship and fundamental right to self-determination of even the most privileged of women remains far from established. In this oppressive context, small wonder that so many individual men do not recognize or respect the personhood and the personal as well as sexual autonomy of women as a class, especially the autonomy of the most systemically dispossessed of women—Aboriginal women, women of colour, poor women, women with disabilities, lesbians, immigrant and refugee women. Small wonder . . . many (primarily, but not only, male) defence counsel equate the constitutional right to a fair trial with an accused rapist’s right to violate women’s constitutional rights to security of the person, privacy and equality. And small wonder courts continue to acquit men who would rather make the mistake of raping a nonconsenting woman than take reasonable steps to determine and abide by her sexual will.
Where we began
In 1970, a number of beliefs, assumptions, and presumptions were formally or informally encoded in sexual offence law, police charging, and prosecutorial screening practices, accredited in legal education, deployed by defence counsel in plea bargaining and at trial, invoked openly by judges in their evidentiary rulings and their reasons or jury instructions and at play in jury deliberations.
• A (good) woman cannot be raped against her will, and will mount fierce resistance before yielding her virtue. She should have injuries to corroborate her claims of having been forced.
• A (good) wife cannot be raped at all, because she does or should willingly yield her body to her husband on demand or because she is matrimonial property or because she willingly chose the marital contract’s exchange of sexual services for economic support.
• A bad woman is de facto rapeable because de jure unworthy of rape law’s protection: she has no reputation or virtue to lose and no value as marriageable property; she is a temptress, a tease, a homebreaker. Bad womanhood is associated with the “inferior” races, with mental “defectiveness,” with sexual inversion, with poverty. White, educated, mentally sound, heterosexual, middle class women possess a “natural” modesty.
• A (normal) woman will raise an immediate hue and cry after her rape; she will report her violation at the first reasonable opportunity and her distress, shame or terror will be plain to see.
• An unchaste woman is more likely to consent to sex with any and every man and to lie about it. Unchaste women, being sexually indiscriminate, may be presumed to be consenting no matter their efforts to contradict that presumption.
• Reports of sexual abuse by women and children are inherently suspect: easily made and hard to dispel. They are uniquely inclined to lie about rape and sexual abuse so should not be believed in the absence of independent corroboration. Their character and psychiatric makeup must be scrutinized for motives to fabricate rape charges or for signs of rape fantasies or delusions. They are uniquely suggestible, easy prey to disturbed or man-hating therapists.
• Absent overt resistance that is recognized as such by a sexual aggressor and by the trier of fact, silence can be taken as a yes; no may mean yes; drinking or dancing with, humouring, accepting a ride or working late with, faking sleep, rolling over in one’s sleep, wearing particular clothes or few clothes or sex-appropriate clothes, being unescorted by a man—all may mean yes if a man who wants sex wants it to mean yes or can persuade a judge or jury that there is some air of reality to the logic by which his wish becomes her desire . . . .
In face of so much continuing violence against women and children and in face of the laissez-faire posture of the state towards the violence and towards the systemically unequal conditions which generate, rationalize and perpetuate it, it is easy to discount some of the positive impacts of the public education and consciousness-raising effected by three decades of feminist struggle . . . . Women are more likely to claim the right to physical integrity, more likely to conceive of any and all sexual invasions whether committed by a date or a stranger, with or without penetration, as criminal. Women are prepared to charge more powerful and more high-ranking men; more likely to register and seek sanction against the double injury of sexual abuse enabled by abuse of trust, power or authority . . . .
The legal system itself has proved less responsive to three decades of feminist struggle. Unfortunately, it is testimony to the power of the powerful to name the world from their own point of view and in their own interest, that feminist efforts to decode the discriminatory logic and results of these rape myths and rationalizations, and to expunge them from criminal law and its application have, for the most part, failed. Whether based on principles of formal or substantive equality, the major feminist-inspired statutory forms of 1983, 1992, and 1997 have, at best, eliminated the formal expression of rape myths and rationalizations, not their informal operation and substantively discriminatory impact on the enforcement of sexual assault law. At worst, the substantive equality principles and constitutional equality entitlements underpinning these reforms have been outright ignored, or merely discounted by every level of court . . . .
Resistance to 1983 reforms
Virtually the entire package of sexual offence reforms codified in 1983 was premised on formal equality principles . . . . The reforms collapsed the gender specific crimes of “rape,” “indecent assault on a male” and “indecent assault on a female” under the gender neutral label “sexual assault”; eliminated the marital rape exemption; completely or significantly abrogated rules of evidence (recent complaint, corroboration and sexual history rules) that treated testimony by sexual offence complainants more suspiciously than that of other crime victims and that treated “good girls” differently from “bad girls” (the rule allowing admission of “evidence” of general sexual reputation). Proponents of the reforms hoped that by de-sexing the law’s language and reclassifying it as a crime of violence, not an offence against public morals and not a matter of uncontrolled lust, the sexual double standards embedded in the law would disappear . . . . Such idealism proved misplaced. Even at the time, many feminists opposed this strategy (see Cohen and Backhouse; Heald; Osborne).
Although sexual assault reporting rates significantly increased following the 1983 reforms, police founding and charging rates have remained unchanged (Roberts and Grossman; Clark and Hepworth) and charging practices minimize the injury done thereby enabling plea bargains or sentences which further diminish the gravity of the crime. Virtually all the evidentiary rules that were formally abrogated in 1983 (and that survived the Seaboyer decision), continue to operate informally in police and prosecutorial screening practices, at trial and, in the event of a conviction, in sentencing. In particular, evidence deemed corroborative (physical and/or genital injuries, a display of distress upon first reporting an assault, immediate complaint) significantly enhances the likelihood of a case being prosecuted and resulting in conviction . . . .
The 1983 reforms had outright prohibited the introduction of evidence of women’s sexual history with anyone other than the accused except in four narrow circumstances. This near-blanket exemption (s. 276) was struck down by a majority of the Supreme Court of Canada in the 1991 Seaboyer decision on the ground that in “rare” cases the exemption would deprive the defence of relevant evidence whose probative value outweighed its prejudicial effects. The consolation prize offered by the majority was their holding that sexual history evidence could no longer be admitted for the “irrational” and “illegitimate” purpose of invoking the “twin myths” that a sexually active woman is more likely to have consented to or to lie about the sexual activity subject to prosecution . . . .
Resistance to 1992 reforms
The Seaboyer decision, of course, spawned the second major overhaul of sexual offence law in a decade. Among other things, the 1992 reforms expressly codified the majority’s prohibition on admission of sexual history evidence to support twin myth inferences. In addition, it codified detailed guidelines enumerating eight factors judges must consider before admitting sexual history evidence judicially determined not to depend on twin myth logic. A 1997 review of the impacts of the reforms shows that judges are following the guidelines in form only, not in substance. In numerous cases, judges simply recite the eight factors in s. 276(3) without any sort of analysis before admitting sexual history evidence. Where judges purport to apply, rather than merely recite, the guidelines, some 25–50 per cent of sexual history evidence sought to be admitted goes in (Meredith et al.) . . . .
The internal contradictions in the reasoning of the Seaboyer majority have provided ample room for defence lawyers to use twin myth logic while purporting to foreswear it. Not surprisingly, defence counsel have been successful in applications to admit sexual history evidence to support an alleged motive to fabricate. Particularly disturbing have been counsels’ successes in securing admission of evidence of childhood sexual abuse or previous sexual assaults to discredit those reporting sexual violence by a later perpetrator . . . .
Defence counsel have also been successful in arguing that they seek to use a woman’s sexual history not to support a general inference that she is more likely to have consented to sex with the accused and/or to lie about that sex, but to support a more specific inference. Thus, sexual history evidence has been admitted into trial to rebut an unstated inference that a schoolgirl would never have consented to group sex in a school yard (where “consent” was the defence to the schoolyard gang rape of a young girl with mental disabilities); or to rebut an unstated inference that a child would neither know nor be capable of making up the particulars of the prosecuted sexual contact (where the child’s previous sexual abuse is used to support the defence of mistaken identity or mistaken incident) . . . .
Defence lawyers have achieved their most spectacular evasion of s. 276 with their expansive pursuit of pre-trial disclosure of complainants’ personal records. Substantively, this tactic secures everything prohibited by Seaboyer and Bill C-49 by formalist means. By attaching a different generic label (personal records not sexual history), the defence can pursue the same discrediting and/or intimidating effects, invoke twin myth reasoning, and even secure sexual history information embedded in other records without satisfying either s. 276(3) or the general threshold for the admissibility of evidence . . . .
Although Bill C-49 was a direct response to the Seaboyer decision, its attempted correctives went far beyond the codification of guidelines for the admission of sexual history evidence. The feminist strategy underlying the Bill was to amend the substantive law of sexual assault to define consent and non-consent so as to narrow the range of “evidence” legally capable of being “relevant” to the determination of innocence or guilt, and then to require judges to subject that narrowed residual pool of relevancy determinations to a broader range of constitutional considerations than had been applied by the Seaboyer majority . . . .
The Bill defines consent for the first time, and in a way that recognizes women as sexual agents, not as any man’s sexual property, far less as a male sexual projection. Defined as “voluntary agreement,” consent is something a woman does, and freely chooses to do, not something men fantasize or choose for her, far less unilaterally force on her. This approach should have eliminated any remaining vestige of the “resistance” standard of non-consent. Coupled with codification of a non-exhaustive list of circumstances in which law will deem no consent to exist, s. 273.1 was also intended to convert self-serving rape myths and rationalizations proffered as honest, but mistaken, beliefs in a woman’s consent, into errors of law. Given s. 273.1(2)(d), for example, an accused who thinks that “No” means “Yes” has made a mistake of law, not of fact . . . . The Bill also prohibits resort to the mistake defence by any accused who did not take “reasonable steps” to ascertain whether a sexual partner ever consented to sexual activity.
To date, Bill C-49 has survived constitutional challenge to its most innovative provisions (Darroch v. The Queen) . . . . Meanwhile, the impact of the reforms is largely a matter of judicial interpretation of the new consent/non-consent and mistake provisions. Here, the record is ambiguous.
The good news is that the Supreme Court appears to have rejected the resistance standard of consent, at least, in principle. The Court has clearly held that a failure to vigorously resist unwanted sexual touching is not required to prove that the sex in question was non-consensual. Where a teenage girl pretended to be asleep when abused by her stepfather (R. v. M.L.M.), and where another teenage girl clearly said “No” each of the three times a much older man touched her sexually (R. v. Ewanchuk), the Court has rejected defence arguments (and appellate court rulings) that consent was “implied” and/or that non-consent was not proved beyond a reasonable doubt.
. . . [B]oth judgments would appear to establish that—at least with conscious complainants—an absence of affirmatively communicated consent establishes non-consent in law . . . . The substantive importance of so elemental a legal acknowledgement of women’s personhood entirely depends on whether courts acquit accused men who (claim to) honestly believe silence, utter passivity, fearful acquiescence or explicit verbal rebuffs communicate consent. Both individual complainants and women as a class understand that their rights to autonomy and security of the person are empty when a court accepts they were non-consenting but acquits their rapist on the basis that a doubt exists about whether he honestly believed forced sex to be consensual . . . .
What is clear is that lower courts have taken an extremely lax approach to the mistake defence in circumstances where the complainant was drunk, asleep, had voluntarily consumed drugs or was involuntarily drugged by her assailant (Sheehy, 1999).
Whether the Supreme Court’s latest decision on sexual assault overrules these unconscious complainant decisions is not clear. In Ewanchuk, the Court unanimously affirmed that there is no defence of “implied consent” to sexual assault in Canadian law; that in order to rely on the defence of honest mistake, an accused must have believed that the complainant positively communicated consent to the sexual activity in question; that some mistakes such as the self-serving view that silence means consent amount to culpable mistakes of law not exculpatory mistakes of fact; and that continuing with sexual contact after someone has said no is, at a minimum, reckless conduct which is not excusable. On the facts of the case, the Court held there was no air of reality to the accused’s claim that he honestly believed the complainant consented despite her having said no each of the three times he touched her sexually . . . .
Some reckoning(s) with resistance
Viewed in their best light, the last 30 years of struggle against direct, indirect and systemic bias in the operation of criminal sexual assault laws do appear to have eliminated formal codification of women’s second class status. This struggle also appears to have reduced crude invocations by defence counsel and judges of prejudices against all women or against those women whose racial, economic, or social inequality renders them most vulnerable to the predations of more leveraged men. However, it must also be conceded that, at least within the four corners of criminal law, resistance to egalitarian change, indeed, resistance to the idea that constitutional equality rights have any bearing on the meaning of a fair trial, has been massive and relentless.
This disheartening history plainly affirms what feminists have known for some time in other contexts, but seem reluctant to concede on the subject of sexual violence: application of formal equality norms does not yield substantive egalitarian change. Mostly it yields rhetorical change not always for the better; or it yields technical evasions or new mechanisms to achieve the same substantive ends by different means . . . . De-sexing legal language and rules does not de-sex the context in which sexual violence occurs, is (infrequently) reported and is legally processed; nor does it de-sex the “common sense” or subjective premises underlying relevancy determinations. Finally, the (hetero)sexist, racist, ablist and classist biases and stereotypes about “women” as a class or about particular constituencies of women that distort the fact finding process are not “irrational” biases curable with a little education once exposed to light. They are the predictable outcomes of systemically institutionalized relations of domination which rationalize expropriations in a variety of forms, including sexual.
It is not plain that reforms driven by substantive equality principles are faring much better when Bill C-49 can be sidestepped by pre-trial disclosure requests wrapped in the same old stereotypes about women’s sexuality or complainants’ suspect dispositions, when sleeping women can still be found to have “voluntarily agreed” to sex, and courts have difficulty distinguishing errors of law from mistakes of fact. The difficult, if crucial, question is whether criminal law and (non-feminist) criminal law scholars and practitioners are distinctively resistant to change, or whether they simply reflect the intractability of rape myths and rationalizations in society at large.
Reckoning with criminal law
One possibility is that criminal law’s norms are fundamentally inconsistent with substantive equality principles and impervious to substantive understandings. Criminal law focuses on the individual and, for the most part, measures fault by subjective measures . . . . Unless the state proves beyond a shadow of a doubt that the individual accused knowingly or recklessly violated the sexual integrity of another, the presumption of innocence will not be displaced. In so quintessential a contest of credibility as a rape prosecution, it dictates a less openly acknowledged corollary: the presumption that the accuser is suspect—mistaken about identity, unreliable of memory, deluded or psychically brainwashed as to key events, wilfully lying or simply inherently shady of character and sexual disposition. Male supremacist, racist, heterosexist and classist ideologies about all women’s or some “types” of women’s mental (in)capacities and sexual proclivities dovetail neatly with these acknowledged and unacknowledged presumptions.
By contrast, much of the thrust of feminist activism and analysis of male sexual violence has been to de-privatize and de-individuate its genesis, its harms, its social causes and its social beneficiaries. Feminist analyses linking male violence, systemic inequality and biased codification and applications of law, therefore, render problematic the presumption of individual (male) innocence of sexual exploitation. While each sexual abuser may imagine he is operating alone, his power to abuse as well as its abuse are part of the social order keeping all women in our structurally debased place . . . . The individual rapist, batterer or woman-killer is supported by the hierarchies that allow him the extra power and status to exercise abusive or exploitive control over his unequals and to enforce his desires, by the same hierarchies that keep her vulnerable to attack because she is economically, politically and legally disempowered and socially devalued (Lakeman, 2000) . . . .
It may be that the individuated norms definitional to criminal law may yet be reconciled with the collectivized realities of systemic privilege and systemic dispossession that animate contemporary equality norms. This possibility is just highly improbable under conditions of worsening inequality. It may be, in other words, that we should consider pronouncing criminal law incorrigible under present conditions, and their counsel should resort to it, if at all, only under protest and for political ends that are realizable with or without securing a conviction . . . .
Reckoning with judicial bias
Periodically, the expression in sexual assault proceedings of overt judicial gender and/or race bias against complainants triggers complaints to judicial councils, typically by members of the public. The less overt but rather more routine operation of biased reasoning in judicial handling of records disclosure or sexual history applications, in failing to check abusive defence conduct toward complainant witnesses, or in jury instructions have been largely immune from open criticism or correction. While the Crown may appeal the verdict of an apparently biased judge, listing reasonable apprehension of bias as a ground for vacating an acquittal is an extreme rarity. In either event, a judicial or judicial council finding against the judge is almost unheard of. Each of former Justice Bertha Wilson, and current Justices McLachlin and L’Heureux-Dubé has been the subject of complaints to the Canadian Judicial Council by the anti-feminist organization, REAL Women for commenting on gender bias in Canadian legal doctrine or in judging. The first Black woman judge in Nova Scotia, Judge Corinne Sparks, faced retaliation from Crown counsel when she adverted to anti-Black racism by white police in acquitting a black teenager of assaulting a white, male police officer . . . .
When the Crown appealed the Ewanchuk decision to the Supreme Court, it did not argue that Justice McClung’s sexist reasons gave rise to a reasonable apprehension of bias. Nor did any of the men on the Supreme Court bench who had faulted Corinne Spark’s judicial conduct say a word against McClung’s explicit sexism. When Justice L’Heureux-Dubé did name and deplore his sexist stereotyping and the rape myths it invoked, McClung responded with a vicious personal attack to the applause of well-known defence counsel, Eddie Greenspan. REAL Women filed a complaint with the Canadian Judicial Council against Justice L’Heureux-Dubé. The CJC dismissed it as unfounded. Numerous people complained to the Alberta Judicial Council, which ultimately exonerated McClung.
It might be comforting to project that this evidence of double standards in application of the reasonable person test of bias will diminish as gender and race sensitivity training for judges takes effect. But some judges are challenging such initiatives as an incursion on judicial independence . . . . This challenge should be taken seriously . . . .
Reckoning with backlash
. . . In 1989, on the campus of Queens University, receipt of rape awareness literature in their residences moved several men to post huge posters in their windows blaring, for instance, “No means, down on your knees bitch” and “No means more beer.” At Queen’s law school, this backlash was for male eyes only: “No means fuck me ’til I bleed” sat undisturbed on the men’s washroom walls for two months until removed in the wake of the Montréal massacre . . . .
The tabling of Bill C-49 unleashed a frenzy of social and legal scaremongering by criminal defence counsel. “We’ll need breathalyzers and written contracts at our bedsides,” they warned the general public. “This law ignores the presumption of innocence,” they submitted to Department of Justice officials and the legislative committee reviewing the amendments. REAL women described Bill C-49 as the “Despise Men” amendment . . . . Notwithstanding the sky-is-falling hyperboles of defence lawyers prior to its enactment, little really changed on the ground. And, in any event, some defence counsel adopted a far more effective intimidation tactic, “[w]hacking” the complainant with so many or such invasive pre-trial disclosure requests that she drops charges.
The aggressive pursuit of complainants’ personal records appears to be a pointed retaliation for Bill C-49, even a show of legal force . . . .
This offensive strategy operates on three levels. Women who report their violation will now be forewarned by police or Crown lawyers or by rape crisis counsellors or therapists that all of their personal records may be subject to disclosure to the accused. Women seeking counselling from rape crisis centres, women’s centres, family physicians or therapists may be warned by those services that what they say could be subject to a disclosure order. Women attempting to provide counselling services may cease to take notes or risk professional sanctions for not taking or for shredding their notes, or may undermine a patient’s prosecution of her abuser by shredding their notes. In pursuit of all three goals, defence counsel . . . have gone after rape crisis centre records and the records of feminist therapists, with a vengeance.
In a related development, efforts by adult survivors of childhood sexual abuse are being defended by means of an aggressive and co-ordinated attack on therapists said to be implanting their clients with false memories of abuse. In an eerie twist on the mistake of fact defence, defendants (and some courts) argue that although the complainant honestly believes she was abused (and, hence, comes across as a credible witness), she is merely the suggestible pawn of an evil, man-hating, feminist therapist. Canadian defence counsel have enthusiastically embraced the pseudo science and neo mythmaking of the False Memory Syndrome Foundation while turning a blind eye to evidence of its flat out intimidation tactics and the number of charged and convicted abusers on its membership roster (Hoult; Salter) . . . .
Throughout the decade when such eruptions of backlash occurred, the state was not neutral. The Mulroney government boycotted the National Action Committee on the Status of Women (NAC) meetings, defunded women’s groups, and cut the Court Challenges program while throwing millions of dollars into useless research and feel-good policies aimed at strengthening families and healing family dysfunctions under the gender neutral rubric of the Family Violence Initiative. They insisted that women did not own the issue of male violence against women. They conditioned public funding for women’s services on partnerships with private corporations or on service delivery by credentialed professionals rather than feminists. Having divorced wife abuse from sexual violence by housing responses to each under different ministries, they then read women out of policies purporting to respond to “Crime,” gender neutral (Lakeman, 2000).
Instead of developing policies and programs to relieve women’s social and material inequality as the most effective approach to ending male violence, successive conservative and liberal policy-makers opted for three gender neutral diversions: the scapegoating of young offenders (rather than, say, more vigorously prosecuting adult men who abuse relations of trust, power, authority or, merely, intimacy); the promise of “Law and Order” through greater funding for policing and corrections while gutting funds for welfare, unemployment insurance, education, health services, and defying equal pay law, de-unionizing secure, well-paying women’s jobs in the public sector, reneging on affordable day care, and so on; and the prioritizing of victim’s rights in lieu of women’s or children’s equality rights . . . . Out-numbered, outranked, and out-resourced as we are and are likely to remain, it makes sense to redouble those initiatives that appear to hit a nerve centre in the forces used against us . . . .
Legal Responses to Violence against Women in Canada
Elizabeth A. Sheehy
Elizabeth Sheehy (LL.B., Osgoode, 1981; LL.M., Columbia, 1984) teaches Criminal Law and Procedure, Women and the Law, and Women and the Legal Profession at the University of Ottawa, Faculty of Law where she holds the Shirley Greenberg Professorship in Women and the Legal Profession.
Any history of the development and changes in the law as it relates to women and male violence is also a chronicle of the history of the women’s movement and its relationship to law.1 All of the legislation and policy that recognizes women’s rights to be free of male violence has been put in place because of the political strength and persistence of the women’s movement in our country. While this movement has always articulated women’s issues and rights in the context of equality, the repatriation of Canada’s constitution in 1982 from Great Britain (Constitution Act) and, specifically, the enshrinement of women’s equality rights in ss.15 and 28 of the Canadian Charter of Rights and Freedoms, for the first time created a specific legal tool by which to advance these claims.
In spite of our many legal advances, violence against women has not subsided in Canada because women’s vulnerability to male violence and our ability to harness law are inextricably linked to women’s social, economic, and political position in Canada, in relation to those who hold power. Thus, while law is an important tool in advancing women’s equality rights, law alone cannot end this violence until all women’s equality is fully realized . . . .
. . . [W]hen I speak of law, I am using the term broadly, to refer to the law as drafted by legislators, as interpreted by judges in the common law or by jurors as finders of fact in trials, and as implemented by those who enforce the law and wield a great deal of discretion, such as police and prosecutors. Thus the women’s movement has recognized that the achievement of reforms in statutes or even in constitutions does not guarantee that those laws will become a lived reality, for police can refuse to take reports or can discredit women’s accounts of violence; prosecutors can decide which cases to pursue, based on their perhaps discriminatory beliefs or on their prediction that the case will fail in court due to the discriminatory beliefs of others; judges can effectively nullify a law through narrow interpretations, through the creation of common law defences that uphold male supremacy,2 through the use of constitutional doctrines, through rulings on the evidence, and through instructions to the jury; and, even if a conviction is imposed, a judge can undermine its symbolism by imposing a sentence that makes a mockery of the conviction.3 Because of all of these ways that law works, women’s advocates must be prepared for a longterm process of both political struggle and legal engagement . . . .
Second-Wave Feminism
In 1970, when the Royal Commission on the Status of Women was appointed to inquire into the steps that should be taken by the federal government to ensure equal opportunities for women, violence against women was conceptualized as a formal equality issue. The Commission focused on the unfairness in the Criminal Code of limiting criminal responsibility for sexual offences to men as perpetrators, of not protecting boys and men from sexual offences, and of the different rules for rape depending on the female’s age, marital status, and moral character.
Although these criticisms were rendered deeper and more complicated by the work of the women’s movement in providing services for women who had been raped (crisis centres) and for women who were fleeing violent men (women’s shelters), the law reforms subsequently passed in 19824 essentially used the model of formal equality employed by the Royal Commission. The new offences were gender neutral such that assaults on boys and men are punishable, as are assaults committed by women upon males. Sexual assault became a three-tiered offence, with higher sentence ceilings as the offence involves more violence and/or injury. The structure parallels that used for non-sexual assault, implying the only difference is the sexual nature of the attack. The offence can be committed by a husband against a wife; it need not include penetration; and many of the evidentiary rules unique to rape were abolished in the Criminal Code. Finally, a number of specific reforms have also been legislated that create new evidentiary rules for the testimony of children and abolish some of the common law rules for dealing with their evidence (Boyle).
In the area of wife assault, while one of its earliest forms had been sex-specific, a similar pattern of second-wave feminism to law reform can be discerned. An undifferentiated offence of a common assault was in the Code from 1960 on, but it was usually dealt within the family rather than criminal law courts (Bonnycastle and Rigakos) and was often treated as a private matter, requiring the woman to initiate and carry the prosecution, rather than the public prosecutor. The women’s movement attempted to introduce formal equality by forcing police, prosecutors, and judges to deal with wife assault as they would any other life-threatening harm. However, the demands made by the women’s movement have tended to be translated by the state in punitive terms rather than as a way to protect women’s lives and safety (Currie).
For example, in 1982, the Attorney General for Ontario wrote to prosecutors urging them to encourage police to lay charges of assault rather than leaving the burden of prosecution to individual women. He also suggested that such assaults be considered more serious than stranger assaults because “the victims are in a captive position socially or economically and accordingly the likelihood of a recurrence is far more substantial.”
Some jurisdictions drafted guidelines requiring that charges be laid by police as a matter of course, to avoid discriminatory exercise of discretion (Ontario Provincial Police). Other jurisdictions adopted “no drop” guidelines for prosecutors, to curb their discretion such that they must continue with a prosecution and do not have the discretion to desist, even when the woman expresses a desire to withdraw the charges (Manitoba Department of Justice).5
At the same time, women in Canada became engaged in another political and legal struggle with respect to women’s equality. When the government proposed to repatriate (or bring home) Canada’s constitution and to attach a new bill of rights that would constitute the supreme law of the country permitting the courts to declare contrary legislation inoperative, women were not included in the negotiations over the terms of the new constitution, nor were their interests or analyses represented in the specific proposals. Women’s groups across the country fought successfully for a voice in the drafting process (Hosek) and worked hard to give as full a scope as was possible to a concept of substantive, not mere formal, equality in the language of the new Charter, now s. 5 and 28.
With the passage of the equality guarantees in the Charter, feminists inside and outside of law began to reconfigure their ideas about equality and to conceptualize violence as both an expression of women’s inequality and a barrier to substantive equality. That women’s struggle for equality and freedom from violence was a longterm one was painfully illustrated by a notorious exchange in the House of Commons in 1982 when women Parliamentarians attempted to put the issue and statistics of wife battering on the legislative agenda and the House erupted in prolonged laughter and general derision (Bonnycastle and Rigakos). Although the next two days in the House saw resolutions and apologies by the male members, the obstacles to simple law reform as a strategy to end violence against women were illuminated all too clearly.
Third-Wave Feminism
The achievements of the second wave of feminists and the guarantee of at least formal equality under the Charter have permitted the third wave of feminists to bring critical analysis and new understandings of equality to the issue of the legal treatment of violence against women.
. . . What kinds of new insights and legal strategies around violence against women has the third wave brought us in Canada? Again I will deal with sexual assault and wife assault in turn. Both areas of law reform have revealed to us the serious limitations of a formal equality model.
First, our experience with sexual assault indicates that the mere change in language has not shifted the underlying operative understandings of “rape.” For example, although the new laws are broader in terms of definitions of prohibited conduct and protected groups of women, those who enforce and interpret these laws may still hold and wield the same beliefs and values that more explicitly underpinned the old laws. Feminist researchers such as Lorenne Clark and Debra Lewis had previously demonstrated that although the former legislation did not explicitly endorse the notion that women should be protected under the law against rape only to the extent that they constituted the sexual property of individual fathers or husbands, this was in fact the way that the law was interpreted by police, by Crown attorneys, and by judges. Many feminists assert that the new reforms have not disrupted these beliefs or the practices in which they manifested. For example, even ten years after the reforms, crisis centre workers reported that the legislative restrictions on women’s sexual history were simply ignored by defence, Crown attorneys, and judges in sexual assault trials (Sheehy 1991). Feminist researchers found that the former understandings of “real rape” still underlay investigative and prosecutorial decisions, such that stereotypes continued to play a significant role (Muzychka) and the “unfounding” rate for sexual assault remains incongruously high (Roberts).
Second, the neutrality in the language describing the offence has been criticized, as it tends to hide the gendered nature of sexual assault, erroneously conveying the notion that “equality” has been achieved by suggesting that the law now recognizes that men can be raped too, and women can be sexually violent. Of course the gendered statistics have not changed in this regard,6 but we may have lost a critical and shared social understanding of the meaning of rape for women (Cohen and Backhouse). For example, in one case, the issue of whether touching a woman’s breast amounted to a sexual assault had to be litigated all the way to the highest court in the country, because lower court judges took the gender neutral approach literally, reasoning that breasts were secondary sex characteristics, like men’s beards, and that since touching a man’s beard was not a sexual assault, touching a woman’s breast was likewise not a sexual assault.7
Finally, women have discovered that the Charter, in the hands of the same judiciary, can be used once again to doggedly defend men’s rights at the expense of women’s security. Thus, using the Charter as a weapon, a significant feature of the law, a non-discretionary ban on women’s sexual history evidence in all but four fairly narrow situations, was declared unconstitutional by the Supreme Court because it allegedly violated men’s rights to fair trials (R. v. Seaboyer; R. v. Gayme). Women’s equality rights were barely mentioned by the judges, so irrelevant were they seen to be by the Supreme Court of Canada. This put women in Canada back by almost two decades and raised serious questions about whether the Charter would be used to roll back women’s democratic gains (see Sheehy 1991).
The response of the Canadian public, and of course the women’s movement, was one of disbelief and outrage with the decision of the Supreme Court. Such an outcry was raised that the Minister of Justice initiated a law reform process that ultimately was led by the women’s movement and its lawyers. Feminists determined that any new law needed to name women’s equality and women’s rights as the legal and constitutional basis for the reform; that women’s interests and perspectives needed to be incorporated into the law; that women’s experiences of racism, ableism, and lesbophobia needed to be recognized in crafting the law; that the law had to be drafted so [as] to specifically challenge the underlying beliefs about women and rape; and that mechanisms to check discretion had to be built into the law.8
The newest sexual assault law was passed in 1992 (An Act to Amend the Criminal Code 1992). The preamble to the law sets out women’s Charter rights as the impetus for the law and specifies the particular problems that it is meant to solve as an interpretive aid for the judiciary. The law now defines consent as “voluntary agreement to engage in the activity,” rather than leaving it to the judges, and specifies situations in which there can be no consent in law, such as where consent is expressed by a third party, where the woman was incapable of consenting, and where her agreement was achieved through reliance upon a position of trust or authority over the woman. It creates a new process and set of criteria by which to limit when sexual history evidence is admissible and sets out certain prohibited uses of this evidence. Finally, it imposes a new and significant limit on men’s defence of “mistaken belief” regarding consent, by requiring that men take “reasonable steps” to ascertain consent . . . .
The difficulties with the specific legal strategies around wife assault have been identified by both researchers and the women’s movement. First, gender neutral offences and policies have furthered the criminalization of women. Thus we see new practices of counter-charging women such that women who resist the violence of their mates or who fight back can be charged as well.9 By way of further example, our Criminal Code s.753 creates a process by which a prosecutor can apply to have an offender convicted of a “serious personal injury offence” declared a dangerous offender such that the sentence will be an indeterminate one. Although sex offenders have been incarcerated under this section, it had never, until 1996 (R. v. Currie), been used to deal with persistently violent men who threatened and terrorized their former mates. However, it had been used, on two notorious occasions, to declare young women who primarily posed a danger to themselves as “dangerous offenders.”10
Second, the resistance of police, prosecutors, and judges continues to shape women’s responses to criminal law (see Rigakos), and police failure to implement in any consistent fashion the various “zero tolerance” policies remains problematic. Third, mediation and diversion have been used to take these cases out of the criminal law system;11 while the women’s movement has not insisted on increased punitive sentencing in response to wife battering, it has viewed the adjudication of criminal responsibility to be critical. Finally, as long as women’s external realities of poverty and male violence persist, criminal law intervention may carry more risk than benefit for women. Thus, numbers of women have refused criminal justice intervention because the costs to women, and sometimes to their mates and children, have been too high (Martin and Mosher). For example, some prosecutors and judges have proceeded with contempt charges against women who refuse to testify; some women have experienced retaliatory violence from their mates; and others have experienced abuse from the state (Snider). New sentencing laws such as Bill C-4112 that require judges to consider specific aggravating factors such as abuse of a position of trust and responsibility and the fact that the offence was committed against the offender’s spouse or child, may do little to address these structural issues because sentencing is inherently focused on the individual.
One of the more controversial responses to violence against women is a new substantive criminal offence called criminal harassment, “stalking.” The impetus for this offence came not from the women’s movement but from the federal government, following the lead of many states in the United States, and conceptualizing, drafting, and passing the new law in a record time of eight months (Cairns Way). Women’s groups did not deny the significance and dangerousness of the behaviour of men, usually former partners, who terrorize women, but voiced many concerns: why create a new law when the old ones (assault, peace bonds) are not enforced? Women’s groups participated reluctantly, tentatively, and ultimately unsuccessfully in the reform, attempting to shape a law that at least would not increase women’s inequality. The problems with the law are many, including the imagery and examples that informed it, which were of the dangerous “stranger,” not the angry ex-husband or former boyfriend; the use of gender neutrality in its drafting, such that women who are trying to collect child support from their mates have been charged with stalking; and the use of traditional understandings of legal culpability such that only a man who consciously intends to create fear in the mind of the woman can the found guilty (Cairns Way).
In contrast, a substantive equality model, which would take account of the inequalities in which women currently find themselves and would be directed at ending the violence rather than reinforcing it, excusing it, or further isolating the woman, has been sought by the women’s movement. The subsequent interventions were more formal and directive. For example, some police departments created protocols for dealing with violence against women, to ensure professional, prompt, and safety-conscious responses by police to calls from women asking for emergency assistance (British Colombia Ministry of the Attorney General). In several provinces, new initiatives are underway that attempt to create altogether new ways of dealing with wife assault, de-emphasizing the criminal law approach and focusing on stopping male violence. In Manitoba a new family violence court has been created, which speeds the process of prosecuting these offences, but also has developed specialized sentencing practices that are arguably more attuned to ending violence (mandatory counselling for male batterers is a regular feature of over 50 per cent of the sentences) and to ensuring the safety of the woman (Ursel and Brickey). In Saskatchewan new legislation was proclaimed in 1995 that creates an interdisciplinary approach to wife assault (Turner): it provides for emergency intervention orders (EMOS), victim assistance orders (VAOS), and warrants of entry. EMOS can cover a range of actions including exclusive possession of the matrimonial home, removal of offender by police, and restraining orders. VAOS can provide monetary aid, temporary possession of property, restraining orders, and their breach can result in a criminal conviction.
The notion of substantive equality has also brought with it the idea that women need access to the resources of the state if they are to challenge violence perpetrated against them and to defend their equality rights. Thus, two Ontario legal clinics have created policies whereby they provide legal services to women only, in the context of cases involving wife assault, as a way of meeting women’s greatly underserved legal needs and avoiding conflicts of interests (Carey). This practice has been challenged by defence lawyers but ultimately was upheld by the body governing the practice of law in Ontario. In the context of legal aid, women have sometimes succeeded in seeking funding to hire their own lawyers in the criminal process, given that Crown attorneys cannot and do not always act as their advocates.
Finally, legal responses to violence against women have been created outside of criminal law as well. The women’s movement has created and sustained a support system of crisis centres and shelters, feminist models of counselling and support, and public education campaigns around the issues of male violence of women . . . .
The provinces have also created criminal injuries compensation legislation and boards, to provide some monetary compensation for those injured by the criminal acts of others. These schemes do not do much to address violence against women in a direct way, since the proceedings are not public, the decisions are not published, and the offender is not punished (the money comes out of an allocated fund) (see Sheehy 1994). However, since many women who do not pursue criminal prosecution may seek compensation, these claims can provide much more public information about the extent and consequences of male violence, for example, the sexual abuse of children. As many more women have sought compensation under these schemes, the response of the legal system has been to close this avenue down by: informing the alleged offender of his right to appear and contest the issue of whether a crime occurred; reducing compensation to the extent that the crime victim was at “fault” by invoking woman-blaming beliefs;13 imposing stricter proof requirements upon the claimants; and limiting the kinds of financial losses for which such women can claim.
In all provinces and territories, women can also sue their assailants in civil law for assault and battery; they can sue police in negligence for failing to enforce the law in a sex discriminatory way, in violation of women’s equality rights under the Charter (Jane Doe v. Metropolitan Toronto Police); and they can sue institutions that failed to protect them, such as Children’s Aid Societies (Sheehy 1994). In all of these cases, some benefits in combatting violence against women are possible through public education and resultant changes to institutional practices of law enforcement. Certain other law reforms need to be put in place, however, including longer time limits within which women can decide whether to pursue a civil suit, especially when childhood sexual abuse is the wrong, access to legal aid to pursue these cases, and judicial education, among other reforms . . . .
Conclusion
Violence against women must be conceptualized as an issue of substantive equality, and it will be crucially important to clarify and articulate that understanding as a long-term goal. Clarity about this goal should help steer away from legal responses that frame women as passive “victims,” or that feed the “law and order” agenda. A women’s movement that is vital and independent of government is critical to this task. Drawing upon the knowledge generated by the women’s movement, we must draft legislation that presumes women’s inequality, acknowledges context, and challenges power relations and beliefs, such that public debate and social change become possible.
A government committed to ending violence against women will take its leadership and advice from the women’s movement since that is where it will find the expertise and the political commitment to women’s equality. We must, simultaneously, de-emphasize law as the solution, and support the women’s movement; which continues to put the pressure on the state and thereby creates the political conditions for further engagement with law . . . .
Notes
1. For an overview and a specific discussion of feminist theorizing about rape law reform see Boyd and Sheehy.
2. A developing defence of “rage” used predominantly in femicide prosecutions is arguably one such example (see Côté).i/EN>
3. Ontario Judge Mercier disagreed with a jury’s verdict in convicting a man of sexual assault against his ex-girlfriend; he gave Bernard Albert a suspended sentence with one day of probation (“Man gets day’s probation in rape of ex-girlfriend”).
4. The Criminal Law Amendment Act. The reforms are thoroughly described in Boyle.
5. More generally see McLeod 1993.i/EN>
6. The fact that sexual assault remains a deeply gendered crime has even been acknowledged by the Supreme Court of Canada in R. v. Osolin (669).
7. R. v. Chase (1987), 37 C.C.C. (3d) 97 (S.C.C.) reversing (1984), 55 N.B.R. 97 (CA.). The lower court decision is analyzed in Dawson.
8. See Mclntyre for a detailed account of the consultation process as well as the women’s movement’s various drafts and strategies.
9. See, for example, R. v. O’Leary wherein Mrs. O’Leary refused to sign a bond requiring her to keep the peace in circumstances where her husband had pleaded guilty to assaulting her, counter-charges against her had been dismissed, yet she was willing to enter into a mutual bond on the condition that counselling be required of her husband.
10. The women were Marlene Moore, who committed suicide in the Prison for Women in 1988 at the age of 28 (see Kershaw and Lasovich) and Lisa Neve (see Renke).
11. There are conflicting views about whether this [is] a positive or negative response in terms of responding to wife assault. Compare, for example, Snider 1998 with Stubbs.
12. An Act to Amend the Criminal Code, S.C. 1995, c. 22.
13. See, in the area of sexual assault, Re Attorney General for Ontario and Criminal Injuries Compensation Board et al.; Re Jane Doe and Criminal Injuries Compensation Board reversing a decision of the Board. For a discussion of a woman’s claim for wife assault see Wiegers.
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Gendered Radical Violence and Spatialized Justice:
The Murder of Pamela George
Sherene H. Razack*
Sherene Razack is Professor Sociology and Equity Studies in Education at OISE, University of Toronto. Her research areas include critical race theory and gendered racism, with a current focus on the role of law in the violence enacted on racialized bodies in the new world order.
To unmap literally is to denaturalize geography, hence to undermine world views that rest upon it.
Richard Phillips1
*I would like to thank Mona Oikawa, Leslie Thielen-Wilson and, especially, Sheila Gill, for outstanding research assistance, insight and dedication, Barbara Buckman for her help in thinking through these ideas, the students of the OISE/UT Race and Space graduate course, and the works-in-progress group of the Western Law Professors of Colour Conference, Hawaii 2000 (especially Adrienne Davis and John Calmore) for useful critical feedback.
Introduction
On Easter weekend, April 17, 1995, Pamela George, a woman of the Saulteaux (Ojibway) nation and a mother of two young children, was brutally murdered in Regina, a small Canadian prairie city. Beyond the fact that Pamela George came from the Sakimay reserve on the outskirts of the city, and that she occasionally worked as a prostitute, something she was doing that Easter weekend, court records of the trial of the two white men accused of her murder and media coverage of the event reveal few details of her life or the life of her community. More is known about her two murderers, young white, middle-class men. Easter marked the first weekend since the end of their university exams. There was a week or so of freedom before summer jobs began. Nineteen-year-old university athletes Steven Kummerfield and Alex Ternowetsky set out to celebrate the end of term. They went out drinking in isolated areas under bridges and behind hockey arenas, and then cruised “the Stroll,” the city’s streets of prostitution. Eventually, after failing to persuade one Aboriginal woman working as a prostitute to join them in the car, one man hid in the trunk. Approaching her twice and being refused twice, they finally succeeded in persuading another Aboriginal woman, Pamela George, who was working as a prostitute that night, to enter the car. The two men drove George to an isolated area outside the city, a place littered with bullet casings and condoms. Following oral sex, they took turns brutally beating her and left her lying with her face in the mud. They then drove to a fast food restaurant and later to a cabin on Saskatchewan Beach which belonged to one of their grandfathers. The next morning, upon returning to town, they heard a radio report describing a body found outside the city. After both first confided their involvement in the murder to a number of friends and to one of their parents, one man left town to take up his summer job planting trees in the Northern forests of British Columbia. The other man flew to the mountain resort of Banff, Alberta, where he joined other white male university athletes celebrating the end of term. In early May, nearly one month after the murder, after following a tip and having exhausted the list of suspects who were mostly Aboriginal and/or of the “streets” of the Stroll, the Royal Canadian Mounted Police (RCMP) arrested both men for the murder of Pamela George. The arrest of two young, white, middle-class men for the murder of an Aboriginal woman working as a prostitute sent shock waves through the white population of this small prairie city.
At the trial two years later, the Defense at first tried to argue that Pamela George managed to walk away from the isolated field and was killed by someone else, an Aboriginal man. They also argued that since both men were highly intoxicated, they bore diminished responsibility for the beating. The boys did “pretty darn stupid things,”2 but they did not commit murder. Both the Crown and the Defense maintained that the fact that Pamela George was a prostitute was something to be considered in the case.3 The judge sparked a public furor when he instructed the jury to bear this in mind in their deliberations. The men were convicted of manslaughter and sentenced to six and a half years in prison, having already spent twenty months in prison. The objections of the Native community and some members of the white community stemmed from their belief that the crime was at the very least one of second degree murder and that the judge acted improperly in directing the jury to a finding of manslaughter.4
Why write about this trial as spatialized justice and this murder as gendered racial or colonial violence? Some readers of early versions of this article have commented that the prison sentences for manslaughter meted out to the two accused were not highly unusual and therefore not indicative of the court’s leniency. Others noted that a finding of murder would have required more evidence than was available. In agreement with this latter view, in 1998, the Saskatchewan Court of Appeal rejected an appeal by the Crown that the trial judge had failed to fairly present the Crown’s position that the two men had murdered Pamela George. The Appeal Court concluded that Mr. Justice Malone had made it clear to the jury that a finding of murder, whether first or second degree, would require evidence that the accused intended to commit murder or knew that their actions would result in Pamela George’s death . . . .
I propose to show that a number of factors contributed to masking the violence of the two accused and thus diminishing their culpability and legal responsibility for the death of Pamela George. Primarily, I claim that because Pamela George was considered to belong to a space in which violence routinely occurs, and to have a body that is routinely violated, while her killers were presumed to be far removed from this zone, the enormity of what was done to her remained largely unacknowledged. My argument is in the first instance an argument about race, space, and the law. I deliberately write against those who would agree that this case is about an injustice but who would de-race the violence and the law’s response to it and label it more generically as patriarchal violence against women, violence that the law routinely minimizes. While it is certainly patriarchy that produces men whose sense of identity is achieved through the brutalizing of a woman, the men’s and the court’s capacity to dehumanize Pamela George derived from their understanding of her as the (gendered) racial Other whose degradation confirmed their own identities as white—that is, as men entitled to the land and the full benefits of citizenship . . . .
[Natives represent] approximately eight percent of the population [of Regina].5 Regina is estimated to have a higher urban Aboriginal population per capita than all other major Canadian cities. The city’s Aboriginal population is also the youngest one in Canada with forty three percent of it 15 years old or younger.6 However, the presence of a significant Aboriginal population in an urban centre is a relatively recent historical development. Canada’s colonizing endeavours confined the majority of Aboriginal peoples to reserves by the second half of the 19th century, establishing in the process the geographical configuration of Regina today as a primarily white city in the midst of the reserves of the Qu’appelle Valley. This 19th century spatial containment of a subject population was never secure and often required brutal policing and settler violence. Fearful of Native rebellions, for example, in 1885 white settlers of Regina organized a home guard and pressed vigorously for the North West Mounted Police (NWMP) to police Natives and to hang Native leaders arrested after the Riel rebellion.7
Sexual violence towards Aboriginal women was an integral part of 19th century settler technologies of domination. In her research on the appearance during this time of captivity narratives (stories about the abduction of white women and children by Aboriginal peoples), Sarah Carter documents the important role that stereotypical representations of Aboriginal women played in maintaining the spatial and symbolic boundaries between settlers and natives. While prior to 1885 there had been relative co-existence between fur traders and Aboriginal peoples, the rebellion of the Metis and general Aboriginal resistance to their spatial confinement, as well as the increasing presence of white women on the prairies, led to powerful negative images of Aboriginal women. The negative images of these women, portrayed as licentious and bloodthirsty, helped to justify the increasing legal regulation of Aboriginal women’s movement and their confinement to reserves. As Carter demonstrates, “the squalid and immoral ‘squaw’” helped to deflect criticism away from the brutal behaviour of government officials and the NWMP, and it enabled government officials to claim that the dissolute character of Aboriginal women and the laziness of the men explained why reserve land was not used to capacity and were pockets of poverty . . . .
Newspaper records of the 19th century indicate that there was a near universal conflation of Aboriginal woman and prostitute and an accompanying belief that when they encountered violence, Aboriginal women simply got what they deserved. Police seldom intervened even when the victim’s cries could be clearly heard . . . . 8
[Such an attitude] continues to prevail. The Aboriginal Justice Inquiry’s discussion of the 1971 murder of Helen Betty Osborne in The Pas, Manitoba, elaborates on its prevalence. Brutally murdered by two white men, Osborne, an Aboriginal student who was walking down a downtown street, was picked up in town and driven to a more secluded spot where she was assaulted and killed. As the Commissioners of the Aboriginal Justice Inquiry concluded, Osborne’s attackers “seemed to be operating on the assumption that Aboriginal women were promiscuous and open to enticement through alcohol or violence. It is evident that the men who abducted Osborne believed that young Aboriginal women were objects with no human value beyond [their own] sexual gratification . . . ”9 Such assumptions often appear to be operating when the police fail to respond to the disappearance of Aboriginal women, citing their involvement in prostitution and their practices of moving from place to place. In the early 1990’s, John Crawford, a white man, was convicted of murdering three Aboriginal women, Calinda Waterhen, Shelley Napope, and Eva Taysup. In each case, Crawford and another white friend began by drinking and having sex with the woman in question who was possibly working as a prostitute. The women’s disappearance attracted little attention. When their families reported them missing, police appeared to assume that such women were simply transients on the move. As police sergeant Dave Kovach told a reporter, the police don’t look for transient adults because such individuals often go missing and often don’t want to be found.10 Crawford’s victims were indeed, as Denise McConney has written, “caught up in the ongoing displacement, relocation, and search for a safe place that is a consistent theme in the lives of most native women.”11 Ironically, it is their very dispossession that is held against them when Aboriginal women encounter violence on the streets.
The Making of White Men: The Two Accused
European empires and European masculinities were imagined in geographies of adventure.
Richard Phillips12
Alex Ternowetsky and Steven Kummerfield’s histories begin in the colonial practices described above. In their everyday life, they would have had almost no chance of encountering an Aboriginal person. Absent from the university, the ordered suburbs of their families, the chalets and cottages, spaces that come into existence through the violent dispossession of Aboriginal peoples, Aboriginal bodies must be sought out in those marginal spaces of the city. Why would white men seek out these bodies? Why would they leave their own spaces of privilege? How do young white men such as Alex Ternowetsky and Steven Kummerfield come to know themselves as beings for whom the definition of a good time is to travel to the parts of the city inhabited by poor and mostly Aboriginal peoples and there to purchase sexual services from an Aboriginal woman? In this section, I offer the argument that the subject who must cross the line between respectability and degeneracy and, significantly, return unscathed, is first and foremost a colonial subject seeking to establish that he is indeed in control and lives in a world where a solid line marks the boundary between himself and racial/gendered others. For this subject, violence establishes the boundary between who he is and who he is not. It is the surest indicator that he is a subject in control.
I have argued elsewhere13 that the spatial boundaries and transgressions that enable the white, middle-class male to gain mastery and self-possession, are generally evident in a man’s use of a woman in prostitution. When they purchase the right of access to the body of a prostitute, men, whether white and middle-class or not, have an opportunity to assert mastery and control, achieving in the process a subjectivity that is intrinsically colonial as well as patriarchal. Naturalized as necessary for men with excess sexual energy, prostitution is seldom considered to be a practice of domination that enables men to experience themselves as colonisers and patriarchs, that is, as men with the unquestioned right to go anywhere and to do anything to the bodies of women and subject populations they have conquered (or purchased). Instead, the liberal idea that we are autonomous individuals who contract with each other is used to annul the idea that prostitution is non-reciprocal sex and thus a violation of the personhood of the prostitute. The contract cancels the violence, although we readily recognize the violence of other financial transactions (such as Third World youth who sell their corneas to First World buyers). The space of prostitution, which Malek Alloula describes as “the very space of orgy: the one that the soldier and the coloniser obsessively dream of establishing on the territory of the colony,”14 is the space of license to do as one pleases, regardless of its impact on the personhood of others.
How did the two men enact their colonial histories? Race is not at first glance as evident as gender although neither exists independently . . . . Drawing on the work of scholars researching sports and masculinity, notably Peggy Reeves Sanday, Robinson suggests that sexual violence collectively enacted enables the men to get as close to each other as they can without endangering their sense of themselves as heterosexuals. To debase and degrade a woman in the presence of other men secures the masculinity that must be aggressive and that must disavow sexual feelings for other men . . . . 15 The players resorted to a variety of violent practices to “distance themselves from the feminine,” continually reminding one another what masculinity is.16 Donnelly and Young also note “the fragility of reputations” in sports sub-cultures, that is, the need to make and remake masculine identity and the constitutive role that violence plays in this cycle.17 Wenner describes the male adolescent for whom excessive public drinking (as well as buying the services of a prostitute) is a rite of passage into manhood, an exposure of oneself to a dangerous situation from which one emerges triumphant. Sport, Wenner suggests, works in a similar way, enabling men to establish their reputations with other men and to mark off the distinction between themselves and women.18 As I show below, such practices also enable men to mark themselves as different from and superior to racial Others.
Kummerfield and Ternowetsky inhabited a world in which the homo-social bonding, drinking, and aggression described by scholars of sports masculinities were important features . . . .
Of the dozen or so male friends of the accused who testified, all were white male athletes attending university. In this remarkably homogeneous shared world of young, white, athletic, middle-class men (some of whom even had the same first Christian names), drinking and socializing occurred in isolated spaces mainly outside of their respectable homes . . . .
The sense of identity which both accused gained from their activities with other men was premised on a shared whiteness. Their sports activities cement white settler identity in ways I do not explore here,19 but evidence of their shared whiteness is most apparent in their own and their friends’ and families’ responses to Pamela George and to the Stroll. The men told several of their friends about the events the night of the murder and received considerable support and advice. Alex Ternowetsky told at least four of his friends. One of these, Rodney McLeod[,] with whom he had been drinking at Massey Pool and . . . whose fleece jacket he was wearing the night of the murder reassured him that no one would find out.20 To another, Tyler Harlton, he confided that he had killed “an Indian hooker”.21 Ryan Leier, with whom Ternowetsky had been in trouble before and to whom he confided the full details of the night while both were in a hot tub at a chalet in Banff, reassured his friend with the advice “you shouldn’t assume you killed her.”22 Finally, Ternowetsky told his friend Eric Willrich, whose jeans he was wearing the night of the murder and at whose house he is alleged to have washed the blood stains off. Steven Kummerfield confided to his best friend Tyler Stuart, with whom he had once gone to the area of prostitution, that “we beat the shit out of an Indian hooker.”23 In Tyler Stuart’s account, Kummerfield also elaborated that he said to Pamela George “If you don’t give us head, we’re going to kill you.”24 Stuart, apparently mostly concerned about the transmission of disease to Kummerfield’s white girlfriend, advised his friend to break up with her if he hadn’t worn a condom the night of the murder.25 In none of these conversations was there any indication that the men acknowledged that a woman has been brutally murdered; her death seemed almost incidental and simply inconvenient. The men seemed to possess a collective understanding of Pamela George as a thing, an objectification that their exclusively white worlds would have given them little opportunity to disrupt . . . .
In addition to their own isolated spaces, the men also inhabited those of middle-class respectability. They inhabited the spaces of the university, which Carol Schick demonstrates to be so clearly white space on the Canadian prairies,26 and sports arenas, again white space as Laura Robinson demonstrates with respect to hockey . . . . 27
In this all-white masculine world of privilege, the Stroll, the area of prostitution described in the trial as encompassing St. John and Ottawa streets and involving a specific set of streets and hotels in between,28 represented the dangerous world of racial Others, a frontier on the edge of civilization. Police described the Stroll as a world of drugs and prostitution, and most of all, as a space of Aboriginality. Steven Kummerfield and his friends visited the Stroll “out of curiosity.”29 Alex Ternowetsky and his friends took their girlfriends on an adventure to the Stroll, “sort of seeing who was there,” as his lawyer put it.30 The young women hid under blankets while the young men negotiated for the services of an Aboriginal prostitute: a thrilling excursion to the slums that would have helped these young white people to know their own place in the world.
When young white men enter racialized urban spaces their skin-privilege clearly marks them as out of place. They are immediately read as johns, and as rich white men who have come “slumming.” In this respect, they experience an unfamiliar racial marking . . . . It is perhaps the men’s perception that they were marked and at risk on the Stroll that prompted them to drive Pamela George outside of the city to a borderland between the country and the city, a no-man’s-land that offers greater anonymity . . . . 31
It is difficult to avoid both the historical and contemporary racial and spatial parallels between the murders of Helen Betty Osborne and Pamela George. Equally, newspaper reports in 1999 calling attention to cases of Aboriginal men found frozen to death after Saskatoon police apparently dropped them outside the city limits in the dead of winter, outline the tremendous violence of the eviction of Aboriginal peoples from urban space.32 In each instance, white men forcibly and fatally removed Aboriginal bodies from the city space, a literal cleansing of the white zone. The violence is itself cleansing, enabling white men to triumph over their own internal fears that they may not be men in control. The evictions are to areas where white men are able to evade responsibility for their violent acts, areas where there are few witnesses and where, significantly, the norms of civility are suspended and violence by contract is known to occur . . . .
During the trial, the murder scene and the Stroll were described as spaces somehow innately given to illicit and sexual activity. The bodies of Charlene Rosebluff, Pamela George and a number of Aboriginal men were represented variously as bodies that naturally belonged to these spaces of prostitution, crime, sex and violence. This degenerate space, into which Kummerfield and Ternowetsky ventured temporarily, was juxtaposed to the spaces of respectability. Each space required a different legal response. In racialized space, I argue below, violence may occur with impunity. Bodies from respectable spaces may also violate with impunity, particularly if the violence takes place in the spaces of prostitution, racial spaces . . . .
. . . [D]uring the trial, Pamela George came to be seen as a rightful target of the gendered violence inflicted by Kummerfield and Ternowetsky. Put another way, her murder was characterized as a natural by-product of the space and thus of the social context in which it occurred, an event that is routine when the bodies in question are Aboriginal. This naturalizing of violence is sustained by the legal idea of contract, an agreement between consenting and autonomous individuals. Because she consented to provide sexual services, the violence became more permissible. The moment of violence is contained within the moment of the contract and there can be no history or context, for example the constraints on her choice and the historical conditions under which the bargain was made. Trapped in the moment in time of the contract, during the trial, Pamela George remained simply “the prostitute” or the “Indian.” In the absence of details about George’s life and critical scrutiny of the details of the lives of the accused, a number of subject positions remained uninterrogated. Thus, not only did George remain the “hooker” but Ternowetsky and Kummerfield remained boys who “did pretty darn stupid things”; their respective spaces, the places of white respectability and the Stroll[,] simply stood in opposition to each other, dehistoricized and decontextualized. If Pamela George was a victim of violence, it was simply because she was of the Stroll/reserve, Aboriginal, and engaging in prostitution. No one could then be really held accountable for her death, at least not to the extent that there would have been accountability had she been of spaces within the domain of justice . . . .
Apart from a few moments, such as when Charlene Rosebluff remembered her as a nice person and a mother with two children,33 and when her mother and sister recalled that she liked doing crafts, could cook anything and was a good mother to her ten and five-year-old, Pamela George never left the racially bounded space of prostitution and degeneracy during the trial, a space that marked her as a body to be violated. We never learn of the Sakimay reserve and the extensive familial networks of her life there, nor do we learn anything about why she resorted to prostitution a few times a month, and why she left the reserve in the first place. It is only in newspaper articles that we learn that she helped her father through his crisis with alcohol abuse, supporting him in his journey to become an addictions counselor.34
When details of her life emerged, such as the fact that Pamela George had a cousin in prison, and her father had himself been falsely accused of a crime,35 they only confirmed the equation of Aboriginality with violence, a state of affairs that remained unconnected to the violence of the colonisers. In place of details that might have given her personhood, there were a myriad of other details that instead reassured the Court of her belonging to spaces of violence. The needle marks on her arm,36 the tattoos on her body with the words “Ed” and “I love mom,”37 the stories of her ripping off clients (stories the police report they heard from Lenny Hall),38 the mention of her sister who was also a prostitute,39 and the detailed descriptions of how prostitutes conducted their business (but not how clients participate) leave a powerful image of degeneracy. This degeneracy was clearly racial . . . .
Ultimately, it was Pamela George’s status as a prostitute, hence not as a human being, and her belonging to spaces beyond universal justice, that limited the extent to which the violence done to her body could be recognized and the accused made accountable for it. Although it was central to the Defense to spatialize accountability in this way, neither the Crown attorney nor the judge contested these relations between space and justice. The Defense naturalised the violence by framing it as merely something that happens in prostitution and in those spaces. Describing the murder scene as a “quiet” rather than isolated location in which to have sex,40 Defense attorney Kovach suggested at sentencing: “They were out in the country doing what happens apparently on that road on a regular basis . . . . This is a fairly common area for that type of activity to be taking place . . . . She wasn’t stabbed forty times. There wasn’t a hammer used.”41 In perhaps the most convoluted but revealing of arguments that prostitution lies beyond the space of universal justice, the Defense lawyer for Alex Ternowetsky suggested that if the Court was going to ignore that Pamela George was working as a prostitute (and thus consider the beating and murder as one would any other), then the same consideration must be extended to his client:
But I think the same consideration has to apply when you look at the evidence as it applies to Alex Ternowetsky. Alex admits that he drank excessively, that he picked up a prostitute, that he hit her and he left her out in the country to walk back to the city on her own, and no one can blame you if you look at that and say that’s disgusting behaviour. But the issue that you have to consider is whether or not he’s guilty of murder . . . . 42
Although it is difficult to follow his logic, Defense lawyer Aaron Fox appeared here to be suggesting that if the court ignored that the violence occurred within the context of prostitution (and is thus a lesser violence), then it must also ignore that his client drove George to a place of prostitution and inflicted the violence that caused her death. The social meaning of places and bodies must all be studiously ignored even as the law depends on these meanings to evaluate the violence. Presumably, his client would then be guilty of disgusting behaviour but not of murder. A parallel was being made between [George’s] engaging in prostitution and his client’s drinking, both being examples of risky and ill-advised behaviour. Prostitution in particular “may not be pleasant but that’s the reality.”43 Further, Pamela’s alleged drug addiction can be equated to their client’s drunkenness.44 It was indeed central to the Defense’s arguments that the accused were simply young men who went out drinking . . . . For the Defense, if there was a problem to be named in this trial, it is “substance abuse,”45 and not racial or sexual violence that ended in murder . . . .
In his summation, after noting that Pamela George worked as a prostitute, the Crown attorney reminded the court that everyone was entitled to the protection of the law.46 He nevertheless concluded in his summary remarks, after sympathizing with the families of the accused, that “Pamela George obviously lived a lifestyle far removed, probably from yours and mine . . . The fact that she was a prostitute obviously is a fact, and you have to consider that as part of the case.”47 In his address to the jury, the judge directed the jury as follows:
Now, if you should find that Pamela George consented to the sexual activity of the two accused, notwithstanding Kummerfield’s remark about killing her if she did not give them head, or if you should have a reasonable doubt as to whether the accised [sic] consented or not, bearing in mind that the evidence indicates that she indeed was a prostitute, then the Crown has not made out its case with respect to first-degree murder occurring during a sexual assault, and you must find the accused not guilty of first-degree murder but guilty of second-degree murder.48
He then clarified that forcible confinement was a separate and distinct issue from confinement for sexual assault. For there to be forcible confinement, Pamela George would have to be shown to have been dragged to the car and held against her wishes; she cannot simply have been forced to have sex.49 He directed the jury to remember that George consented to perform sexual acts and that the accused were within their rights to hire her. Even Kummerfield’s remark that he would kill her if she did not perform the sexual acts had to be considered in light of the fact that he had in fact hired her to perform these acts.50 While George was to be judged for engaging in prostitution, the men were not to be judged for having purchased her services. Put more plainly, her activity was a crime which carried the risks of violence, while theirs was a contract. Taking her out to the country should then have no bearing on how the intentions of the accused were understood.51 Presumably, this was all within the purview of the contract Pamela George made to sell her sexual service and within the limits of her lifestyle.
I suggest that it was difficult for the Crown to disturb the argument of drunkenness and disorderly conduct (as opposed to murder), primarily because of an implicit spatial underpinning which was never challenged and was indeed shared by the Crown. While Pamela George remained stuck in the racial space of prostitution where violence is innate, the men were considered to be far removed from the spaces of violence. She was of the space where murders happen; they were not. They received support from several white people and were praised for their accomplishments. The RCMP reported that they got along well with the accused52 and a correctional officer conveyed that he related to Alex Ternowetsky like a father.53 Counsel received an anonymous note claiming that a juror flirted with the boys.54 Steven Kummerfield’s lawyer reminded the court at sentencing that Kummerfield had often been the most valuable player of the week and that his sports record “is some indication of who he is and more important who he is now and hopefully who he’ll be able to become after he pays his debt.”55 At the trial’s end, the judge defended his remarks to the jury by noting that the media did not report evidence that was favourable to the accused.56 As Robinson shows in her review of cases involving hockey players accused of sexual assault, such evidence need hardly be mentioned since white male judges and lawyers alike often share the view that the loss of the young men’s hockey career is a greater tragedy that the young women’s loss of her life . . . . 57
It is no small irony that racism, so rarely named during the trial, only emerged explicitly during sentencing. The Defense reported that Alex Ternowetsky had taken a course on native literature while in prison and had written a paper on Aboriginal/White relations that proved that he has “no clear motive of hatred towards someone of a particular racial origin.”58 Racelessness was pursued to the bitter end, however. When there were complaints made against him after the trial, Mr. Justice Malone confirmed (in a letter to Chief Justice Allan McEachern) that race overdetermined the trial, but noted that only a strategy of racelessness (ignoring everyone’s race) countered it:
I suspect the real basis for most of the complaints, including the two that I have dealt with, is the underlying feeling that because the two accused were white and the victim was a First Nations person they received special treatment and the jury’s verdict [of manslaughter and not murder] was based on racism. This was certainly the reaction of several First Nations spokesmen and extensive media coverage was given in [sic] their remarks in this regard. Furthermore, both accused came from financially secure homes and enjoyed the material benefits associated therewith. Their position in life was in striking contrast to the position of the victim. Every effort was made during the trial by counsel and myself to deal with the case strictly on the basis of relevant evidence and not on the financial and social positions of the accused and their victim or their race.60
Here, colour-blindness as a legal approach, the belief that justice can only be achieved by treating all individuals as though they were the same, held full sway.
Race, social position, and, I would add, gender, were indeed made to disappear during the trial and in sentencing. The social meaning of spaces and bodies was deliberately excluded as evidence that would contaminate the otherwise pure processes of law, evidence that was not relevant. It was not then possible to interrogate what white men thought they were doing in journeying to the Stroll to buy the services of an Aboriginal prostitute. It was also not possible to interrogate the meaning of consent and violence in the space of prostitution and between white and Aboriginal bodies. Since bodies had no race, class, or gender, the constructs that ruled the day, heavily inflected with these social relations, coded rather than revealed them explicitly. Thus, “prostitute,” and people of “the street” came to signify the racial Other and the spaces of violence . . . .
Endnotes
1. R. Phillips, Mapping Men and Empire: A Geography of Adventure (New York: Routledge, 1997) at 147 [hereinafter Phillips].
2. R. v. Kummerfield & Ternowetsky, “Transcript of 12–15, 18–22, 25–28 November, and 2–5, 9–12, and 17–20 December 1996” [1997] (Regina, Sask. Prov. Ct. [Crim. Div.]) at 3469 [hereinafter “Transcript”].
3. Ibid. at 4755.
4. B. Pacholik, “Relief, and Anger: Aboriginal Spokesman Demands Appeal” Regina Leader Post (21 December 1996) Al.
5. Canada, Profile of Census Tracts in Regina and Saskatoon (Ottawa: Statistics Canada, 1999). Regina’s total population for 1996 was 193,652. Of that total 14,565 persons identified as Aboriginal. Ibid. at 4–6. On the problems associated with Aboriginal census data, see J. Saku, “Aboriginal Census Data in Canada: A Research Note” (1999) 19:2 Can. J. Nat. Stud. 365. In coming years Saskatchewan is expected to have a greater proportion of population with Aboriginal identity: 13 percent by 2016. Statistics Canada and Population Projections Section, Demography Division, Projections of the Population with Aboriginal identity, Canada, 1991–2016 by M. J. Norris, D. Kerr & F. Nault (Ottawa: Statistics Canada, 1996).
6. D. Anaquod & V. Khaladkar, “Case Study: The First Nations Economy in the City of Regina,” CD-ROM: For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples (Ottawa: Libraxus, 1997) at 6 [hereinafter For Seven Generations].
7. J. W. Brennan, Regina, An Illustrated History (Toronto: Lorimer & Canadian Museum of Civilization with the Secretary of State, 1989) at 37; S. Carter, Capturing Women: The Manipulation of Cultural Imagery in Canada’s Prairie West (Montreal & Kingston: McGill-Queens’ Press, 1997) at 20–21. The brutality of the NWMP and the RCMP towards Aboriginal peoples, and their sexual brutality towards Aboriginal women is described in L. Brown & C. Brown, An Unauthorized History of the RCMP (Toronto: James Lewis & Samuel, 1973) at 143–181.
8. Carter, Ibid. at 181.
9. Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba: The Deaths of Helen Betty Osborne and John Joseph Harper, vol. 2 (Winnipeg: Queen’s Printer, 1991) at 52.
10. J. L. Sheane, “Life and Death on the Edge of Nowhere” [Saskatoon] Star Phoenix (8 June 1996) C3.
11. McConney, supra note 10 at 212.
12. Phillips, supra note 1 at 3.
13. Razack, supra note 7.
14. M. Alloula, The Colonial Harem, (Minneapolis: University of Minnesota Press, 1986) cited in R. Bishop and L. S. Robinson, Night Market: Sexual Cultures and the Thai Economic Miracle (New York & London: Routledge. 1998) at 151.
15. L. Robinson, Crossing the Line: Violence and Sexual Assault in Canada’s National Sport (Toronto: McClelland & Stewart, 1998) at 151–52.
16. S. P. Schacht. “Misogyny On and Off the ‘Pitch’: The Gendered World of Male Rugby Players” (1996) 10:5 Gender & Soc. at 557–558
17. P. Donnelly & K. Young, “The Construction and Confirmation of Identity in Sport Subcultures” (1988) 5 Soc. Sport J. 223 at 235.
18. L. A. Wenner, “In Search of the Sports Bar: Masculinity, Alcohol, Sports, and the Mediation of Public Space” in G. Rail, ed., Sport and Postmodern Times (Albany: SUNY Press, 1998) 301.
19. Although few scholars of sports masculinity discuss the role that race plays in the making of the white male athlete in the contemporary context, several scholars have noted the connections between sport masculinities and empire. See e.g. R. Morrell, “Forging a Ruling Race: Rugby and Masculinity in Colonial Natal, c. 1870–1910” in J. Navright & T. J. L. Chandler, eds., Making Men: Rugby and Masculine Identity (London: Frank Cass, 1996) 91; J. Rutherford, Forever England: Reflections on Masculinity and Empire (London: Lawrence & Wishart, 1997). Related Canadian work on sport and national identity has not been explicitly about race and the forging of identities in a white settler society. See e.g. K. B. Wamsley, “The Public Importance of Men and the Importance of Public Men” in P. White & K. Young, eds., Sport and Gender in Canada (Don Mills, ON: Oxford University Press, 1999) 24 at 34; A. Bélanger, “The Last Game? Hockey and the Experience of Masculinity in Quebec” in P. White & K. Young, eds., Sport and Gender in Canada (Don Mills, ON: Oxford University Press, 1999) 293–309.
20. “Transcript”, supra note 2 at 315–324.
21. Ibid. at 457.
22. Ibid. at 595–615.
23. Ibid. at 858.
24. Ibid. at 846–910.
25. Ibid. at 871.
26. Schick describes how white teacher-training candidates whom she interviewed about their responses to a mandatory course on Aboriginal issues, experienced the university as elite space, into which Aboriginal bodies entered as interlopers, contaminating the space by representing everything that was not rational. C. Schick, “Keeping the Ivory Tower White: Discourses of Racial Domination.”
27. Crossing the Line, supra note 15 at 226.
28. “Transcript,” supra note 2 at 2921.
29. Ibid. at 3760.
30. Ibid. at 892.
31. This interpretation was suggested to me by Carol Schick.
32. Following press coverage of this incident, the Assembly of First Nations for the prairie region received nearly 600 calls from Aboriginal men and women describing similar acts of violence towards them. M. O’Hanlon, “RCMP Investigate Deaths of Saskatoon Aboriginals” [Toronto] Star (17 February 2000) A3.
33. “Transcript,” supra note 2 at 811.
34. T. Sutter, “‘She Was My Baby’” [Regina] Leader Post (13 May 1995, Saturday Magazine) at 1.
35. Ibid.
36. “Transcript”, supra note 2 at 1113.
37. Ibid. at 33, 132.
38. Ibid. at 4248.
39. Ibid. at 2993.
40. “Transcript,” supra note 2 at 2139.
41. R v. Kummerfield & Ternowetsky, “Transcript of Sentencing 30 January 1997” [1997] (Regina, Sask. Prov. Ct. [Crim. Div.]) at 37.
42. “Transcript,” supra note 2 at 3480.
43. Ibid. at 4632.
44. Ibid. at 4633.
45. Ibid. at 4633.
46. “Transcript of Sentencing,” supra note 41 at 69.
47. “Transcript,” supra note 2 at 4755.
48. Ibid. at 4825.
49. Ibid. at 4344.
50. Ibid. at 4809, 4824.
51. Ibid at 4795.
52. Ibid. at 406.
53. Ibid. at 1409.
54. Ibid. at 3205.
55. “Transcript of Sentencing,” supra note 41 at 47.
56. Justice Malone, “Response to the Honourable Chief Justice Allan McEachern to Complaints by Ms. Sharon Ferguson-Hood and Ms. Ailsa Watkinson and Others, February 6, 1997” [1997] (Regina, Sask. Prov. Ct. [Crim. Div.]).
57. Crossing the Line. supra note 15 at 44.
58. “Transcript of Sentencing,” supra note 41 at 40.
59. Justice Malone, supra note 56 [emphasis added].
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