Reflecting on Progress of Women’s Rights amidst our Celebration of International Women’s Day in 2011

March 8 is International Women’s Day – a time to inspire women, celebrate the achievements of the feminist movement in the past and challenge remaining barriers to gender equality in the future. But the recent events concerning the sexual assault of women in Canada chill any optimism that may arise from progress made on women’s rights in the past decades. Unless some have been living in caves, they have likely come across this message: no matter how a woman dresses, sexual assault is never acceptable. It is a myth that the victims of rape invite sexual assault by dressing in a certain way. But some people are still acting as if they were trying to keep such a rape myth alive.

On January 24, 2011, during an information session held at Osgoode Hall Law School on campus safety, Police Constable Michael Sanguinetti said “I’ve been told I shouldn’t say this” and then nonetheless proceeded to suggest that women could avoid being sexually assaulted by not dressing like “sluts.” Facing backlash from his comment, Sanguinetti expressed his regret in a letter of apology to Osgoode: “I am embarrassed by the comment I made and it shall not be repeated.” With a stroke of a pen, has the idea lurking behind the officer’s safety tip instantly vanished?

On February 18, 2011, Justice Robert Dewar of the Queen’s Bench in Manitoba blamed the victim outright in a sexual assault case. At the case’s sentencing hearing, Justice Dewar handed down a two-year conditional sentence with no jail time to the offender Kenneth Rhodes (aka what the Justice called the “clumsy Don Juan”). According to Dewar, “sex was in the air” before Rhodes raped his victim at the side of a highway outside Thompson, Manitoba as Dewar found the victim’s outfit (high-heels, a tube top and makeup) a contributing factor to the sexual assault. Dewar’s conduct has sparked complaints to the Canadian Judicial Council, fueled by the fear that the judge’s comments will prevent sexual assault victims from coming forward. As a result, he will stop handling cases of a sexual nature pending review. With the outpouring of by and large condemnation of Dewar, has the idea lurking behind the judge’s decision suddenly cast away?

Dewar’s words conjure up a frightening reminder of the late Justice John McClung’s written opinion cited in the landmark Supreme Court of Canada decision of R. v. Ewanchuk, 1999 1 S.C.R. 330. McClung strongly professed his anti-feminist sentiment; ironically, he was the grandson of Nellie McClung, one of the famous five women from the Persons Case who is still one of many women celebrated for her feminist achievements. In the 1999 landmark case regarding implied consent, the Supreme Court rejected the assumption that a woman who isn’t modestly dressed consents to sex. The case involved a 17-year-old woman who was sexually assaulted by Ewanchuk after he interviewed her for a job. In the Court of Appeal, 1998, 57 Alta. L.R. (3d) 235, where the accused’s acquittal was upheld, McClung felt relevant to note the attire of the victim, stating “it must be pointed out that the complainant did not present herself to [to the accused] in a bonnet and crinolines” (para.4). Underpinning McClung’s comment is the belief that a woman’s dress can invite sex and therefore, a woman that bares more skin is suggesting her consent. The judge also felt it was important to bring in the fact that the victim was a mother of a six-month-old baby and lived with her boyfriend in an apartment shared with another couple (para.4) as if the victim’s prior sexual experience were of importance. He downplayed Ewanchuk’s actions as “three clumsy passes” (para.5), and concluded by trivializing the matter at hand by saying that “[i]n a less litigious age, going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee” (para.21).

In Ewanchuk, Madam Justices L’Heureux-Dube and McLachlin delivered separate opinions that agreed with the majority but went further. Justice McLachlin, as she was then, said: “Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law” (para. 103). Justice L’Heureux-Dube expressed that McClung’s comments “help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity” (para.89). McClung was so outraged by L’Heureux-Dube’s opinion in particular that he sent a letter to the National Post, calling her opinion a “graceless slide into personal invective” and suggesting she could be a “plausible explanation” for the spike in male suicides reported Quebec; these words caused a public firestorm given that her husband, Arthur Dube, committed suicide in 1978.

Justice McClung was not alone. Before the release of the Supreme Court decision, the Globe and Mail asked in its October 17, 1998 editorial “Context and Subtext in Sexual Assault: Unraveling the Legal Complexities of Yes and No”: “Are we offering judicial protections to complainants at the expense of the equality and judicial rights of defendants – the overwhelming majority of whom are men?” After the release of the Supreme Court decision, Claire Hoy of the Toronto Star attacked the “feminist hijacking of justice,” criticizing the Supreme Court Justices for “reshaping society to fit their own politically inspired image.” In supporting her position, Hoy cited Toronto Lawyer Edward Greenspan. Greenspan expressed that demanding McClung be removed from the bench or censured “means the feminists and their fellow travellers have created such a repressive and authoritarian world that certain words are not only unacceptable, but now constitute misconduct.” Incredibly, Marjaleena Repo, a self-professed feminist, sided with McClung by stating that “The Ewanchuk ruling is no reason to rejoice, One thing is missing from the Supreme Court’s decision: common sense” in the Globe and Mail on March 4, 1999. She characterized the controversy as “a minor molehill” where “a man trying to entice a woman to make love to him, and being rejected – has been turned into the mountain of a major criminal offence.”

It is not suffice to excuse the actions of these people by saying they are just idiots. They are not stupid. For example, Dewar was appointed to the bench two-years ago, after practicing civil law since 1974; McClung had nearly 20-years of experience on the Alberta Court of Appeal before Ewanchuk. Why did they behave this way?

Louise Shaughnessy, from the National Association of Women and the Law, was once quoted by the Globe and Mail as saying: “This all goes back to having to educate our judges.” That was in 1998 in Brian Laghi’s February 21 story “Alberta Judge Stirs Outrage in Sex Case, 17 Year-Old Girl Not Wearing ‘Bonnet and Crinolines’ ”. Shaughnessy also called for more federally appointed female judges. But over a dozen years later, people like Dewar still said what he said.

Now Sanguinetti and Dewar have heard that implying a scantily dressed woman invites sexual assault for which she is to blame is not acceptable; but no one knows whether they have listened. The pair will most likely hold their tongues when speaking about sexual assault in the future, but it is too optimistic to believe that this time around the message will take a strong foothold of the psyche of people who share their perspectives; the problem is bigger than them.

Canada is ranked relatively high in the world in United Nations Development Program’s Gender Inequality Index or World Economic Forum’s Gender Gap Index in terms of variables such as positions of power held by women and women’s education attainment, but we are in denial if we don’t think we have a societal problem based on the two recent incidents.

 We must look deeper to uncover the root causes that keep rape myths alive. Otherwise, a woman’s “signals” will continue to be “misunderstood” by those who express their support for rape myths aloud and those who condone them in silence. In the tragedy of rape, the victim should never be hurt by the aggressor first and then by the society at large.