"Contemporary critiques of law have often cited the rape trial as embodying all that is
problematic about the legal system for women. From the revictimization of the rape victims to the legitimization of normative views of female and male sexuality,
the discriminatory qualities of rape trials have led some feminist legal theorists to conclude that 'judicial rape' can be more damaging than 'actual rape',
'masquerading as it does under the name of justice' (Lees 1996)
Frequently the harm produced by the so called remedy is as bad as the original abuse."
Susan Ehrlich (2001) Representing Rape: Language and Sexual Consent, p.1
"As discourse, law is viewed as knowledge, but we are not obligated to treat this knowledge as
(1992) "Feminist Encounters with Post Modernism: Exploring the Impasse of Debates on Patriarchy and Law", Canadian Journal of Women and the Law /
Revue Femmes et Droit, Vol 5, p.75
"Quelle est la relation entre le mythe
et l'expérience? ...les croyances et les mythes sont, avant tout, des outils destinés à comprendre et à saisir le réel.... Quelle est la relation entre le mythe et
l'expérience? Il faut tenter de saisir la réalité de l'expérience des autres, afin d'ajuster le prism à travers lequel on preçoit les réalités."
L'honorable Claire l'Heureux - Dubé (1994) Revue Femmes et Droit / Canadian Journal of Women
and the Law, Vol. 7, pp10-12
"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
S. Lees (1997) Ruling Passions: Sexual Violence, Reputations, and the Law. p. 73
"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."
Marguerite Russell (1989) "A Feminist Analysis of the Criminal Trial Process" Canadian Journal of Women and the Law / Revue Femmes et Droit,
"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."
(date) "Rape Uncodified", in Law as a Gendering Practice, pp.76-77
"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  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."
Madame Justice Bertha Wilson (1990) "Will Women Judges Really Make a Difference" Osgoode Hall Law Journal, Vol.28, #3. pp.515-522
"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."
Marguerite Russell, (1989) "A Feminist Analysis of the Criminal Trial Process" Canadian Journal of Women and the Law / Revue Femmes et Droit,
"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)
AUTHOR (date) "The Sexual Politics of Black Womanhood" in Black Feminist Thought, pp.146-147
"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."
AUTHOR (date) "The Sexual Politics of Black Womanhood" in Black
Feminist Thought, pp.135-137
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."
AUTHOR (date) "The Sexual Politics of Black Womanhood" in Black
Feminist Thought, p.147
"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."
AUTHOR (date) "The Sexual Politics of Black Womanhood" in Black Feminist Thought, pp. 138-141
The master's tools will never dismantle the master's house.
Audre Lourde (1984) Sister Outsider
"It was me and a gun and a man on my back.
And I sang, "Holy, holy" as he buttoned down his pants.
You can laugh…it's kinda funny…things you think…times like these.
Like I haven't seen Barbados so I must get out of this-
And I know what this means…
Me and Jesus a few years back used to hang-
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."
Tori Amos www.welcometobarbados.org
(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 )."
Jill Abrahmczyk (1990) "The Tyranny of the Majority: Liberalism in Legal Education", Canadian Journal of Women and the Law / Revue Femmes et Droit,
Vol. 5, pp.449- 461
"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...."
Henrietta L. Moore (1988) Feminism and Anthropology
"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.
Amnesty International (2000) Freedom from Violence: Every Woman's Human Right
"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. "
Amnesty International (2000) Freedom
From Violence: Every Woman's Human Right
"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."
Margaret Wente (2002) "Counterpoint", The Global and Mail, Saturday, January 26
"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."
Lori L. Heise
(1995) "Freedom Close to Home: The Impact of Violence Against Women on Reproductive Rights", in Julie Peters and AndreaWolper (eds.) Women's Rights Human Rights: international feminist perspectives, pp.238-255
"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."
(1995) "Human Rights as Men's Rights", in Julie Peters and Andrea Wolper (eds.) Women's Rights Human Rights: international feminist perspectives, pp.107-108
"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!!"
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
Susan Ehrlich (2001) Representing Rape: Language and Sexual Consent pp.15-16
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."
Kevin Bonnycastle (19...) "Rape Uncodified" in Law as a Gendering Practice p76
"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."
Susan Ehrlich (2001) Representing Rape: Language and Sexual Consent, p.9
"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]
(2001) "Efficiency or Autonomy? Economic and feminist legal theory in the context of sexual assault" University of Toronto Faculty Law Review,
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."
Susan Ehrlich (2001) Representing Rape: Language and Sexual Consent, pp.16-18
Jusqu'à maintenant, j'ai principalement examiné la fréquence des agressions
sexuelles dans notre société ainsi que le rôle des stéréotypes à l'égard de cette question. Il ressort clairement de cet examen que les mythes entourant les femmes
et l'aggression sexuelle ont une incidence sur la perception que l'on se fait de la culpabilité de l'aggresseur ainsi que de la moralité et, partant, de la
crédibilité de la plaignante, ce qui influe sur le jugement final… La common law s'est toujours montrée soupçonneuse et méfiante à l'égard des victimes d'agression
sexuelle, ce qui a entraîné l'élaboration des règles de preuve particulières
Dans un procès pour agression sexuelle, la plaignante était traitée différmment
des autres plaignants. En effet, dans le cas d'agressions sexuelles la common law "consacrait" les mythes et les stéréotypes en formulant des règles qui
rendaient extrêmement difficile pour la plaignante d'établir sa credibilité…
Justice Claire L'Heureux-Dubé, R. c. Seaboyer
(Voiced during the Hearings at the Rape Maze performance piece, by by Kim Lewis, Legal Counsel, House of
"Traditionally, rape has been condemned as a violation of
man's honour and exclusive right to sexual possession of his woman/property, and not because it is an assault on a woman.... The Geneva Conventions characterize
rape as a crime against the honor and dignity of women. But this too is problematic. Women's 'honor' has traditionally been equated with virginity or chastity.
Loss of honor implies loss of station or respect, reinforcing the social view - often internalized by women - that the raped woman is dishonorable. While the
concept of dignity potentially embraces more profound concerns, the emphasis on honour obfuscates the fact that rape is violence against women-against women's
body, autonomy, integrity, selfhood, security, and self-esteem, as well as standing in the community. This failure to recognize rape as violence is critical to the
traditionally lesser or ambiguous states of rape in humanitarian law.... Under the Geneva Conventions, rape is not specified in the list of crimes considered grave
breaches, which includes 'willful killing, torture or inhumane treatment' and 'willfully causing great suffering or serious injury to body or health.' Clearly
these categories are broad and generic enough to encompass rape and sexual abuse. But if the egregiousness of rape is to be fully recognized, rape must be
explicitly recognized as a form of torture. Although largely ignored by human rights advocates, the testimonies and studies of women tortured during dictatorial
regimes and military occupations make clear that rape is one of the most common, terrible, and effective forms of torture used against women. Rape attacks the
integrity of a woman as a person as well as her identity as a woman. It renders her, in the words of Lepa Mladjenovic, a psychotherapist and Serbian feminist
antiwar activist, 'Homeless in her own body.' .... When women charge rape in war, they are more likely to be believed because their status as enemy, or at least as
belonging to the enemy, is recognized and because rape in war is seen as a product of exceptional circumstances. When women charge rape in everyday life, they are
disbelieved largely because the ubiquitous war against women is denied. Emphasis on the gender dimension of rape in war is critical not only to surfacing women as
full subjects of sexual violence in war but also to recognizing the atrocity of rape in so-called times of peace... From a feminist human rights perspective,
gender violence has escaped sanction because it has not been viewed as violence and because the public/private dichotomy has insulated its most common, private
forms. The recognition of rape as a war crime is thus a critical step toward understanding rape as violence. The next step is to recognize that rape that requires
the imprimateur of the state is not necessarily more brutal, relentless, or dehumanizing than the private rapes of everyday life, nor is violation by a state
official or enemy soldier necessarily more devastating than violation by an intimate.... War diminishes sensitivity to human suffering and intensifies men's sense
of entitlement, superiority, avidity, and social license to rape. But the line between rape committed during wartime and at other times is not so sharp."
(1995) "Gendered War Crimes: Reconceptualizing Rape in Time of War" in Julie Peters and Andrea Wolper (eds.) Women's Rights Human Rights:
international feminist perspectives, pp.201-208
(Voiced, in part, during the Hearings at the Rape Maze performance piece, by Dawn Dale, artists, 3/7/02)
How are the lives of middle-class women shaped by the existence of an area of the
city where prostitution occurs and of a group of women whose bodies exist to absorb the violence? How is the white high-class call girl constituted by the
existence of the aboriginal street-walker? How are the zones of prostitution and the zones of respectability in North America related to each other and to the
zones of sex tourism in Asia?… A spatial analysis of prostitution deepens our understanding of the practices that secure a dominant masculinity and …white
middle-class élites. The great preoccupation with prostitution and with the spaces of impurities that is so evident in nineteenth-century Europe and North
America…had to do with securing the European middle class and drawing the spatial boundaries and transgressions upon which it depended. These hierarchical
arrangements laid the foundation for Western capitalist states, and they continue to underpin the transnational flows of capital and the labour and the making of
modern nation states…. [W]e can see in the laws that regulate space and criminalize prostitution a careful drawing of the lines between respectability and
degeneracy. These lines require prostitution as much as they need it to be disavowed."
Sherene Razack (1998) "Race, Space and Prostitution: The Making of the Bourgeois Subject" Canadian Journal of Women and the Law/Revue Femmes et Droit,
"What anger does her 'no' inevitably tap, not simply in
the mind of the rapist but in the minds of the judge, the jury, the barristers, the police (not all of whom are men)?"
Carol Smart (1989) Feminism and the Power of Law, p.32
In R.v. Morgentaler,  1.S.C.R..30, [Madame Justice Bertha] Wilson, J., writing for herself, stated that
"(t)he right to reproduce or not to reproduce…is properly perceived as an integral part of a modern woman's struggle to assert her dignity and worth as a
human being" (Morgentaler at 30). The Ewanchuk (R.v.Ewanchuk,  1 S.C.R. 330) Rules advance the right of women to determine their reproductive and sexual
lives. The Rules value the choices women make, even when the choice is to not have sex or not to risk pregnancy. In relation to the actus reus for sexual assault,
Ewanchuk ensures that when a woman indicates "No" through words or conduct, her words are given proper effect, and her choice is respected in law.
Simultaneously, in relation to the mens rea requirement, the Ewancuk Consent Rules respect a woman's choice to engage in sexual intercourse by requiring a clear
indication of willingness. Thus, the rules regarding consent articulated in Ewanchuk do not cast women as sexually passive, as receptacles for sperm, or as
incubators for fetuses.(Mandhane at 213, emphasis added.) (P)rior to 1983, there was a marital exemption for the offence of rape (in Canada). In the parliamentary
debates surrounding Bill C-127, the then minister of Justice said,"I want to underline that 'spousal immunity' is being eliminated by this Bill. Women are not
the chattels of their husbands, and sex without the consent of both parties is as unacceptable within marriage as it is outside marriage." (Hon. Jean
Chretien, Bill C-127 debate, House of Commons Debate, (4 August 1982) at 20039, quoted. in Mandhane at 216, n 195.) "However, Kasubhai, "Destabilizing
Power"…points out that, despite the change in the law in relation to marital rape, sexual access to wives by husbands continues to be validated, and is still
entrenched in societal norms.( Mandhane, ibid. ) In general, sexual assault is a crime disproportionately perpetrated by men against women. Statistics demonstrate
that 99 percent of the offenders in sexual assault cases are men and 90 percent of victims are women. Further, the number of women affected by sexual violence is
tragic: one half of Canadian women over the age of 16 reports experiencing some form of sexual violence in their lifetime. Bearing these statistics in mind, it is
especially important to give voice to the concerns of women in the realm of sexual assault. Indeed …a failure to take into account the specific perspective of
women in relation to the crime of sexual assault is equivalent to ignoring the gendered nature of the crime. Such ignorance is intolerable in a society where the
value of women's equality is well recognized and even protected in the Constitution. Moreover, using feminist theoretical perspectives to argue in favour of the
Ewanchuk Consent Rules accords more closely with the perspective of the likely complainant and thus acknowledges the importance of the victim's perspective in
criminal law.( ibid. at 217.) Renu Mandhane, "Efficiency or Autonomy? Economic
and Feminist Legal Theory in the Context of Sexual Assault", University of Toronto Faculty of Law Revue, 59: Spring 2001 pp.173-227
"Terminating a pregnancy…not just a medical decision but a profound social and ethical one as
well. The response of the woman will be the response of the whole person…one that is impossible for a man to understand…A man can respond only by objectifying the
decision…This eliminates the subjective elements of the female psyche which are at the heart of the dilemma."
Justice Bertha Wilson, in Morgentaler.
(Voiced operatically, during the Hearings at the Rape
Maze performance piece, by Rosemary Cairns Way, Vice Dean, Faculty of Law, U of Ottawa, 3/7/02)