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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-andorder 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 degendered 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 ‘antifeminist 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 memorialpedagogical 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 antifeminism 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 antifeminism 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 sociopolitical 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: www.montrealgazette.com
Foran, C. (1999) ‘1989 Revisited.’ Saturday Night. June: 74–9.
Globe and Mail. (1999) ‘The Montréal Massacre,’ editorial, 6 December. Available at:
www.globeandmail.com
Goodden, H. (1999) ‘Massacre Propaganda Never Ends,’ editorial. The London Free
Press, 8 December, A15.
Granatstein, J. L. and N. Hillmer (1999) ‘Canada’s Century: The 25 Events that Shaped
the Country,’ Maclean’s: Canada’s Weekly Newsmagazine.1 July: 18–53.
Grandmont, C. (1999) ‘Massacre of 14 Women Haunts Montréal Ten Years Later,’
National Post, 5 December. Available at: www.canada.com
Kelley, C. (1995) ‘Creating Memory, Contesting History,’ Matriart 5(3): 6–11.
Lakeman, L. (1992) ‘Women, Violence and the Montréal Massacre,’ in S. Crean (ed.)
Twist and Shout: A Decade of Feminist Writing in This Magazine. Toronto: Second
Story Press.
Lebeuf, S.-H. (1999) ‘J’ai compris que la vie n’était pas logique.’ Le Devoir, 6
December: A4.
Malette, L. and M. Chalouh (eds.) (1991) The Montréal Massacre. Trans. Marlene
Wildeman. Charlottetown: Gynergy Books.
Nelson-McDermott, C. (1991) ‘Murderous Fallout: Post-Lepine Rhetoric.’ Atlantis 17(1):
124–8.
Poirier, P. (1990) ‘Canadians Haunted by Montréal’s Ghosts.’ The Globe and Mail, 6
December: A1, A5.
Rathjen, H. and C. Monpetit (1999) 6 December: From the Montréal Massacre to Gun
Control: The Inside Story. Toronto: McClelland and Stewart Inc.
Schmidt, L. (1990) ‘Sorrow, Anger after Montréal.’ Kinesis, February: 7.
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 selfdefence 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 socioeconomic 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 multifaceted 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 feministinspired 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 nonconsent 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 . . . . Desexing 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 wellknown 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 feelgood 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 nondiscretionary 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 womanblaming 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 longterm 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 derace 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 19 th 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 firstdegree 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].