"The rape trial functions as a mechanism, of disciplinary power. The rape trial's degrading and humiliating qualities discourage victims from engaging with the criminal justice system… a form of social control extending its reach to more women… Rape trials today can be seen both operating as a warning and a way of restricting the activities of women through inciting fear of the public sphere, but also through punishing the victim for breaking the silence enforced by the emphasis on female respectability and chastity."
"A judicially constructed system of evidentiary rules relating to corroboration, cross examination as to character, recent complaint, and so on were all constructed to serve patriarchal values. The result has been that for women, the experience of rape trials has all too often been that of being the 'accused' rather than 'complainant-witness'. Similarly, when women are accused of crime, it is their gender-role that is at the heart of the treatment they receive. By understanding that rape law, and indeed the criminal trial process itself, are both designed to reinforce masculinist reality, feminists can begin to free their minds to examine and criticize not merely the particular statute or law, nor the individual or collective judicial response, but the very 'role' of judge and law together. It is perhaps contradictory to speculate on the possibility of 'feminist' judging before we enjoy the existence of law constructed out of women's experience and reflective of feminist reality....The reality of the trial process is in fact based on hidden agendas: namely, defendants should prove their innocence.... The myth of the 'passive' judge is equalled only by the myth of counsel as 'objective' in the presentation of cases. In reality the truly passive participants in the trial process are the defendant and the jury. The defendant is limited to a passive and silent role except for plea and testimony. The jury are silent observers whose role it is to sit mute until called upon to reach a 'secret decision' which can only be revealed publicly by the use of one, or at the most, two words."
"Against the pattern of feminist struggle to reform rape laws, I propose that the meanings of consent and definitions of rape should not be codified, but unfixed. Thereby rape trials become forums for unsettling dominant rape narratives, not fitting women into pre-existing scripts anticipating dominant relations. Rape uncodified would mean that each rape trial becomes an opportunity for women to tell their stories about how rape happened to them. In turn, men, bereft of legal narratives, like consent, mistaken belief, or presumption of reasonableness, are left struggling on terrain where they are less confident, and less assured of their a priori rational subject status. Of course, expecting that judges will be swayed by this cacophony of women's voices is naïve. But I am not concerned with punishing individual men; rather each rape trial's role in reconstituting dominant relations must be dismantled. The point is that, unfixed, judges cannot so easily invoke law, reproducing dominant discourse about rape. Obliged to hear a multiplicity of rape stories, the courts reluctantly become a resource for destabilizing and rewriting rape narratives and subject positions for women and men."
"But all of it, it seems is premised, at least as far as judicial decision-making is concerned, on two basic propositions: one, that women view the world and what goes on in it from a different perspective from men; and two, that women women judges, by bringing that perspective to bear on cases they hear, can play a major role in introducing judicial neutrality and impartiality into the justice system.... In some other areas of the law, however, a distinctly male perspective is clearly discernible. It has resulted in legal principlles that are not fundamentally sound and that should be revisited when the opportunity presents itself.... Some aspects of the criminal law in particular cry out for change; they are based on presuppositions about the nature of women and women's sexuality that, in this day and age, are little short of ludicrous.... One of the important conclusions emerging from the Council of Europe's Seminar on Equality between Men and Women held in Strasbourg last November [1989] is that the universalist doctrine of human rights must include a realistic concept of masculine and feminine humanity regarded as a whole, that human kind is dual and must be represented in its dual form if the trap of the asexual abstraction in which human being is always declined in the masculine is to be avoided. If women lawyers and women judges through their differeing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human."
"Trial by jury for women and these other groups meant trial by a jury not of peers, but instead composed of predominantly white middle-class males who shared the same values and privileges as the judge and council. The resistance to women as jurors occurred in both Canada and the United States. It was not until February 29,1952, that Manitoban women were allowed to sit as jurors.... The women of New Brunswick had to wait a further two years to obtain the right.... Quebec women had to wait until 1971 before they were considered fit to sit on juries. It the United States, women faced similar problems and it was not until 1968 that all state provisions disqualifying women from juries were repealed... The questions that have to be raised from a feminist viewpoint are: why was the presence of women on juries so strongly resisted? Why did this resistance continue even after women were permitted to practice as lawyers and sit as judges?... The jury nevertheless has the final power of decision-making and, although the power of judges and council to frame issues and decide what is legally relevant controls the jury, this control is not absolute. Juries can act subversively and refuse to be 'controlled'... If the role of juries has a potential for subversion, it is not difficult to see why women were excluded... If woman as a class, or racially identified groups, or working class people, were summoned as jurors in proportion to their numbers in society, the underlying value system of patriarchal law might be exposed."
"Rape and other acts of overt violence that black women have experienced, such as physical assault during slavery, domestic abuse, incest and sexual extortion, accompany black women's subordination in intersecting oppressions... Historically, this violence has garnered the backing and control of the state (James 1996) ....Rape was a weapon of domination, a weapon of repression, whose covert goal was to extinguish slave women's will to resist, and in the process, to demoralize their men."(A Davis 1981, 23)
"For centuries the black woman has served as the primary pornographic "outlet" for white men in Europe and America. We need only think of the black women used as breeders, raped for the pleasure and profit of their owners. "(Walker, 1981, 42) The treatment of black women's bodies in Nineteenth Century Europe and the United States may be the foundation upon which contemporary pornography as the representation of women's objectification, domination and control is based. As Alice Walker points out, "The more ancient roots of modern pornography are to be found in the almost always pornographic treatment of black women who, from the moment they entered slavery... were subjected to rape as the 'logical' convergence of sex and violence, conquest, in short." (Walker1981,42) Contemporary portrayals of black women in pornography represent the continuation of the historical treatment of their actual bodies (Forna 1992). African-American women are usually depicted in a situation of bondage and slavery, typically in a submissive posture, and often with two white men."
Black women continue to deal with this legacy of the sexual violence visited on African-Americans generally and with our history as collective rape victims. One effect lies in the treatment of rape victims. Such women are twice victimized, first by the actual rape, in this case the collective rape under slavery. But they are victimized again by family members, community residents, and social institutions such as criminal justice systems which somehow believe that rape victims are responsible for their own victimization. Even though current statistics indicate that black women are more likely to be victimized than White women, Black women are less likely to report their rapes, less likely to seek counseling and other support services."
"Notions of biological determinism claiming that people of African descent and women posses imutable biol ogical characteristics marking their inferiority to elite white men lies at the heart of both racism and sexim. (Halpin 1989; Faust-Sterling 1992). In pornography these racist and sexist beliefs are sexualized. Moreover, African-American women's pornographic treatment has not been timeless and universal but emerged in conjunction with European colonization and American slavery (Torgovnick 1990; McLintock 1995). The profitability of pornography thus serves the capitalistic class relations. This linking of views of the body, social constructions of race and gender, pornography's profitability, and conceptualizations of sexuality that inform Black women's treatment as pornographic objects promises to have significant implications for how we assess contemporary pornography. Pornography's significance as a site of intersecting oppressions promises new insights towrad understanding social justice.... Pornography is pivotal in mediating contradictions in changing society [McNall 1983]. It is no accident that racist biology, religious justification for slavery and women's subordination and other explanations for nineteenth-century racism and sexism arose during a period of profound political and economic change.... pornography as a 'habit of thinking' that replays relationships of dominance and submission."
And he said, "It's your choice babe, just remember- I don't think you'll be back in three day's time so you choose well."
(Sung in Hearings at the Rape Maze Performance by Llana Nakonechny, Visiting Professor Faculty of Law, Ottawa U)
"Law …has exalted one form of reasoning and called only this form ' reason'. Because the men of law have had the societal power not to have to worry too much about the competing terms and understandings of 'others'... ( L.Finley , "Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning. Notre Dame Law Review 1989).
They have been insulated from challenges to their language and have thus come to see it as neutral. It is debilitating to be in a centre of learning which sends out direct and indirect messages that the perspectives, feelings, values and actions of all different kinds of women are inferior, easily predictable, inconsequential and a waste of time..... undermined in such an environment.... Throughout law school,…I came to feel unsure of my own instincts and beliefs, since they were portrayed as being so extreme and unreasonable... The message conveyed is that…dispassionate interpretations and ways of reasoning are superior forms of expression and understanding. Being rendered inaudible and invisible is not only immoral but is also a function of inequality of power. It is 'not just that no one knows how to listen to you, although it is that; it is also silence of the deep kind, the silence of being prevented from having anything to say' (C.MacKinnon, Feminism Unmodified: Discourses on Life and Law 1987 )."
"The 'domestic' versus 'public' model has been, and remains, a very powerful one in social anthropology because it provides a way of linking the cultural valuations given to the category 'woman', to the organization of women's activities in society. The analytical and conceptual tools to hand actually prevent the anthropologist from hearing and / or understanding the views of women. It is not that women are silent, it is just that they can not be heard. Theory always informs the way in which we collect, interpret and present data, and as such it can never be neutral... the role of gender in structuring human socieites, histories, ideologies...."
"That so few cases of sex discrimination have been tested by the U.N.H.R.C. seems outrageous. In the context of these UN human rights instruments, the continuing substantive and conceptual neglect in the international community of human rights abuses against women is an unquestionable hypocrisy. Compare, for example, the actions of nation states against apartheid, of racial discrimination with the inactivity against gender discrimination and sexual segregation in many parts of the world. Compare the efforts to outlaw torture with the lack of emphasis on rape, gender-specific torture, sexual surgery and genital mutilation. Compare the efforts in the international community to outlaw and condemn slavery with the inattention to the practice of trafficking in women, forced prostitution, forced marriages or sex tourism. There is great advocacy for fair trials and due process for all "persons ", but where are the calls for a woman's right to appear before a court at all, to bear witness on a equal basis with men, or to be a complainant for equitable treatment?… At different times the US, the European Community and the Commonwealth have asked for curtailment of foreign aid or investment or military assistance to countries where there are gross violations of internationally recognized human rights. But where and when …have women's basic rights been considered as part of this picture? The excuses are the same old ones. First, they say these abuses are private, not public. It is the old split that once existed in law, in economics and in political philosophy, that women lead private lives and men lead public lives. Public lives are subject to scrutiny and legislation, not the abuses committed on women and children in the "security" of their homes. (Marilyn Waring Three Masquerades, 1996). The UN Declaration on Violence Against Women calls gender-based violence "A manifestation of historically unequal power relations between women and men." and "a means by which this inequality can be maintained, the use of violence to deny the rights of women while enforcing the prerogatives of men means that violence against women is really no different than political killing, 'disappearances' and other grave human rights abuses." But …(V)iolence against women is a global problem not because such violence is inevitable but because so many governments have failed in their obligation to defend women's rights.
"Samia Sarwar was murdered for trying to escape an abusive marriage. At the instigation of her own parents, the thirty six year old Pakistani woman was shot dead in her lawyer's office in Lahore, Pakistan on April 6, 1999. Although the circumstances of her death are well known, the police have yet to lay charges. Sixteen-year-old Lal Jamilla Mandokhel was raped in Pakistan in March 1999. An uncle notified the police and her assailant was caught. But a village council decided that Jamilla also had to be punished. At the council's orders, she was shot for dishonoring the community. Each year, hundreds of women and girls are murdered in Pakistan in the name of honour. For some, their crime is seeking a divorce. Others have been accused of adultery or promiscuity. Some are killed after reporting a rape… Honour killings and the related threats to women's rights activists, violently enforce the subjugation of women's freedom to the power of husbands and other male authorities. In Pakistan, honour killings are legitimized by specific local customs. But this form of violence is not limited to Pakistan. In other societies, other values are used to justify domestic violence, including the familiar notion that a man should enjoy absolute power in his home. "
"When Safiya Husaini was raped and became pregnant in the summer of 2000, she had no idea it would be a death sentence. But then the religious police came and Ms. Husaini, a desperately poor Moslem woman who lived in a mud hut in Northern Nigeria, was sentenced to be buried to her waist and stoned to death…Islamic Law (Sharia) prevailed in most of Nigeria's North throughout the 19th Century, until the British came. It was brought back in 2000, with the assistance of Saudi money."
"The specter of AIDS adds a new critical dimension to gender power relations and reproductive rights. So far most AIDS prevention programs have been based on three strategies: encouraging individuals to limit their number of partners, promoting condom use, and treating traditional S.T.D.s. But women's economic dependence on men and men's physical strength greatly limit women's ability to utilize these strategies for their own protection. Strategies based on 'negotiating' condom use, for example, assume an equity of power between women and men that simply doesn't exist in many relationships…Rape is undoubtedly the most direct breach of choice a woman can face. Sexual assault removes any semblance of control a woman has over when, where and with whom she will have sex. A country may have excellent reproductive health services and laws guaranteeing access to safe, legal abortion, but man still has the power to violate a woman's body and effectively abrogate her right to sexual self-determination. In effect, rape gives men the ability to 'undo', in a single act, all the reproductive freedom and autonomy women's rights activists have fought so hard to guarantee."
"In a wide range of cultures, significant forms of violence against women such as wife murder, battery, and rape are, through (for example) non prosecution or comparatively lower sentencing practices, treated less seriously than other violent crimes. One reason for the official toleration of violence against women world-wide is the both explicitly and implicitly held view that it is a 'private' matter, not within the proper scope of national criminal justice systems. And yet, if violence against women is understood not just as aberrant 'private' behavior but as part of the structure of the universal subordination of women, it can never be considered a purely 'private' issue: the distinction between 'public' and 'private' action in the context of violence against women is not a useful or meaningful one. Yet it is by no means clear that the traditional rules of state responsibility can be invoked to hold states internationally accountable for legal and social systems in which violence and discrimination against women are endemic and in which such actions are trivialized or discounted. The traditional construction of civil and political rights, then, obscures the most consistent harms done to women. While recent development s such as the United Nations Declaration on the Elimination of Violence Against Women indicate international concern on this issue, they do not directly challenge the inability of human rights law generally to respond to injuries sustained constantly by women world wide. Apart form a brief preambular reference, the Declaration does not define violence against women as a human rights violation, but presents it implicitly as a discrete category of harm, on a different (and lesser) plane than serious human right violations."
"If the trier of fact accepts the complainant's testimony that she did not consent, no matter how strongly her behaviour may contradict that claim, the absence of consent is established and the third component of the of sexual assault is proven. No defense of implied consent to sexual assault exists in Canadian law. Here, the trial judge accepted the complainant's testimony that she did not want the accused to touch her but then treated her conduct as raising a reasonable doubt about consent, described by him as 'implied consent'. This conclusion was an error. This case is not about consent, since none was given. It is about myths and stereotypes. The trial judge believed the complainant and accepted her testimony that she was afraid and he acknowledged her unwillingness to engage in any sexual activity. However, he gave no legal effect to his conclusion that the complainant submitted to sexual activity out of fear that the accused would apply force to her. As irrational as a complainant's motives might, if she subjectively felt fear, it must lead to a legal finding of absence of consent. The question of implied consent should not have arisen. The trial judge's conclusion that the complainant implicitly consented and that the Crown failed to prove lack of consent was a fundamental error given that he found the complainant credible, and accepted her evidence that she said, "No!" on three occasions, and was afraid. The error does not derive from the findings of fact but from mythical assumptions. It denies women's sexual autonomy and implies that women are in a state of constant consent to sexual activity." (R. v. Ewanchuk) - "No Means No! No Means No! No Means No! The Supreme Court of Canada says so. So do Canadian women!!"
(Parts voiced during the Hearings at the Rape Maze performance piece, by Bonnie Diamond, Executive Director, National Association of Women and the Law, 3/7/02)
"Restricting one's attention to codified instances of sexist language misses many instances of discriminatory practices… early nonsexist reform efforts also failed to consider the social process by which linguistic forms, including non-sexist linguistic innovations, are endowed with meaning….Simply introducing non-sexist terms…or terms with feminist- influenced meanings (e.g., sexual harassment, date rape) into a language says nothing about how such terms will be used once they circulate within the wider speech community, especially given the sexist and androcentric values that pervade this larger community. ...expressions' intended meanings were routinely modified and reconstructed…meanings are often lost, depoliticized or reversed as the terms become invested with dominant (sexist) values and attitudes.... 'Linguistic forms…are endowed with meanings in the course of social practice.' (McConnel-Ginet 1992) 'Language studied as discourse opens up countless new areas for the critical investigation of social and cultural life - the composition of cultural groups, the management of social relations, the constitution of social institutions, the perpetuation of social prejudices and so on.' (Jaworski and Coupland, 1999)"
The pattern I see emerging from feminist engagement within rape law reform specifically, and perhaps criminal law generally, is a propensity to entrench women's' victimization by men, inscribing women even deeper into narratives of how they are overwhelmed, in myriad ways, in the presence of power.... [T]he problem is our 'starting point', as Dorothy Smith (1990) notes, when we begin our investigations with existing categories and concepts, we locate ourselves within an ideological mode constructed for us by contemporary 'relations of ruling'. We thereby miss the relations of power that have formed those categories. To begin in this ideological mode …is to participate in ruling relations. She proposes beginning at an earlier point and inquiring into categories and concepts as actual work processes in producing knowledge… [F]eminists need to step back from those stories dominant culture tells about rape to the moment when men have been cast discursively as sexual predators and women as victims. From this starting point we can investigate how these cultural narratives are reproduced through actual social practices embedded within systems of power relations."
"Feminist research has revealed, gender is … structuring principle of institutions…embedded within legal structures…androcentric and sexist assumptions …typically masquerade as 'objective' truths. Not only are dominant notions about male and female sexuality and violence against women implicated in legal statutes and judicial decisions surrounding sexual assault …they also penetrate the discursive arena of the trial."
"The state is male in the feminist sense: the laws sees and treats women the way men see and treat women. The liberal state coercively and authoritatively constitutes the social order in the interest of men as a gender -through it's legitimating norms, forms, relation to society and substantive policies. The state's formal norms recapitulate the male point of view on a level of design." [Catharine MacKinnon]... [T]he trial judge...did not take "no" to mean that the complainant did not consent ... this was a fundamental error ... the error does not derive from the findings of fact but from the mythical assumption that when a woman says "no" she is really saying "yes," "try again" or "persuade me". [Justice L'Heureux-Dubé, Ewanchuck at 513]... "It must be pointed out that the complainant did not present herself to Ewanchuck or enter his trailer in a bonnet and crinolines. She told Ewanchuck that she was the mother of a six-month old baby and that, along with her boyfriend she shared an apartment along with another couple." [McClung, J.A. in Ewanchuck, Alta.C.A., at para. 4]... "In essence, McLung J.A. suggested that a woman who dresses in revealing clothing, is not a virgin, and is living with a man outside of wedlock is more likely to consent to sex with a complete stranger than a woman of 'good' character."...."These comments made by an appellate judge help reinforce the myth that under such circumstances either the complainant is less worthy belief, she invited the sexual assault, or her sexual experience signals probable consent to further activity, based on those attributed assumptions, the implication is that if the complainant articulates her lack of consent by saying "no," she really does not mean it and even if she does, her refusal can not be taken as seriously as if she were a girl of "good" moral character. "Inviting" sexual assault, according to those myths, lessens the guilt of the accused" [Justice L'Heureux-Dubé in Ewenchuck at 513]
Social identities and social practices are brought into being as a result of the conventions of socially-and historically constituted domains of knowledge…and also in the linguistic details of socially situated interactions…the sexual assault adjudication process."