Violence Against Women: When Facts Won’t Subvert Justice

Jonathan McLeod

Jonathan McLeod is a writer living in Ottawa, Ontario. (That means Canada.) He spends too much time following local politics and writing about zoning issues. Follow him on Twitter.

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36 Responses

  1. Griff says:

    “When you’re drunk, you can’t consent” seems either reductive or tautological, depending on what precisely you mean by “drunk.” If you’re defining “drunk” as “so intoxicated that you’re incapable of meaningful consent” then the statement is trivially true, but tautological and useless. If you’re using “drunk” in a colloquial sense, then I don’t think the statement meshes with the common usage of the word. I think most people would say that you can be “drunk” without being so impaired that you’re incapable of consenting to sexual activity. Am I totally wrong about this usage?

    This is not to say anything in particular about the Howe case, which I haven’t followed at all. But I think it’s worth watching out for this kind of reductive language because it’s partially responsible for the backlash you can get from reasonable (i.e. non-misogynist) people when you’re trying to engage them about these important issues.Report

    • Kim in reply to Griff says:

      Just use the medical definition of informed consent. TRUST ME, it’s both safer, and already has established protocols for “person is under the moderate influence of drugs.”Report

    • Jonathan McLeod in reply to Griff says:

      I’m talking about the law. Canadian law is clear; if you are intoxicated, you can’t consent. Sure, cops often can’t pursue the crime, but that doesn’t change the actual law.

      It doesn’t matter what people think; in fact, that’s the whole point of this post. Too many people don’t give a crap about the law, consent or the autonomy of women.Report

      • Griff in reply to Jonathan McLeod says:

        I don’t know Canadian law, but a quick Google search reveals that section 273.1(2)(b) of the Canadian Criminal Code says that there is no consent where “the complainant is incapable of consenting to the activity,” not where the complainant “is drunk” or “is intoxicated” or (as you put it even more broadly in the linked post) “after drinking”. The question for a fact-finder (does Canada have jury trials or just bench trials?) would thus be “was the complainant incapable of consenting” — at which point the question of whether someone can be “drunk” in lay terms, without being so impaired that they’re incapable of consenting, becomes extremely relevant in terms of how we talk about these matters.

        Notably, in the case of R. v. C.A., 2010 YKSC 32, the Supreme Court of Yukon says that incapacity to consent may be inferred based on evidence that the complainant was “extremely intoxicated,” not just “intoxicated”. I realize that I’m nitpicking a little bit here but I really do think that reductive language like “if she’s been drinking it’s rape” is counterproductive in terms of getting the broader public on the right side of these issues.Report

      • These are the kinds of nitpicky things lawyers agonize over. There is a difference between “extremely intoxicated,” “drunk,” and “had a drink.” As a general proposition the Anglo-American system of justice trusts juries (yes they have them in Canada, of this I’m quite confident) to sort this out. I’m not sure that we should prefer a system that attempted to quantify intoxication, for instance by blood alcohol content, and then tried to draw bright lines about when consent is possible and when it isn’t.

        But the OP points to the significant problem in leaving that sort of approximation in the hands of juries: being drawn from the community at large, jurors, collectively and individually, are going to suffer from the sorts of cultural biases that interfere with making those decisions in a clearheaded reasonable fashion. Specifically in this case, if there is a cultural bias about women behaving in a sexual fashion, then it is likely but that bias will show through in the way a jury, or a judge as described in the first example, handles a particular situation. “Why is she flirting with, or worse yet putting herself in a situation where she may sleep with, some man she isn’t married to? Doesn’t justice demand that we take into account her behavior?”

        Well, no, not really. Did she consent or not, that is the only question. And in the first example, the victim very clearly did not consent to being stabbed and strangled nearly to death.Report

      • Glyph in reply to Jonathan McLeod says:

        Do we have any Canadian criminal lawyers reading this blog? Jonathan has consistently asserted that “Canadian Law is clear” that any level of intoxication absolutely precludes sexual consent, (and I questioned this last time, since it would seemingly have certain problematic implications), but Griff’s note about that section of Canadian law seems more in line with what I’d expect.

        In fact, when I track back from Jonathan’s prior post to one of its source articles, it contains this sentence:

        How drunk is too drunk to legally consent to sex? There’s no clear answer

        Which also seems to cut against the premise.

        It also contains this:

        Benedet discovered many judges have determined that unless the victim was practically unconscious, she was still able to consent to sex. Her 2010 paper, The Sexual Assault of Intoxicated Women, cited cases in which judges or juries set the standard almost impossibly high.

        Judges have ruled that a woman who was so drunk she was unable to speak, a woman who was stumbling and falling when the accused initiated sex in a public place and even a woman who was passed out in the road while two men fondled her breasts, were able to provide consent – in the latter case, because the judge thought it was possible she could have consented to the act before she passed out.

        Presumably, if the law were as crystal clear as Jonathan keeps stating, these boneheaded judges would have been legally precluded from making these boneheaded decisions. That they were even able to do these (again, BONEHEADED) things, suggests Canadian law is perhaps not written the diamond-sharp way Jonathan keeps stating in these pieces.

        Am I missing something? Can anyone with a Canadian legal background elucidate the section of Canadian law with regard to intoxication and sexual consent?Report

      • Griff in reply to Jonathan McLeod says:

        As an American criminal lawyer who has done only rudimentary research into this question, I’d say I’m about 90% confident that Jonathan is just mistaken about what the law actually is. The line is drawn at lack of capacity to consent (which may be caused by extreme intoxication). But just because someone has been drinking doesn’t mean that they were incapable of consenting to sexual activity; that is a factual question which ultimately needs to be submitted to a jury if the case goes to trial.Report

      • Trina in reply to Jonathan McLeod says:

        Actually the law IS NOT that if you are intoxicated, you can’t consent. A drunk complainant may retain the capacity to consent: R. v. R.(J) 2006 (ON SC). Mere drunkenness is not the equivalent of incapacity: R. v. Jensen 1996 (ON CA), (1996), 106 C.C.C. (3d) 430 (Ont. C.A.). Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control: R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.). A drunken consent is still a valid consent. If you are incapacitated you cannot consent but that’s an entirely different test. Maybe Lyle Howe was convicted because ignorant people like you end up on the jury.Report

    • Matty in reply to Griff says:

      This was discussed here a while back. My conclusion was not a legal one but a practical one. The issue is only ever going to come up if a woman reports a rape and given the stresses involved in her doing so scenarios where this would be a problem will be vanishingly rare.

      It seems to be linked to this idea that people have sex that gave every appearance of being consensual then a few days later the women decides she doesn’t like the man after all and runs to the police screaming “Hey I had a glass of wine with dinner, that makes it rape”. It could happen but the evidence seems to be that it doesn’t.Report

  2. j r says:

    In another, we have a sizable community who think the appropriate response to rape is to shout “slut”.

    That is one interpretation. The other is that we have a sizable community who thinks that the man accused of the crime was actually innocent of it. Also, I think it is a mistake to relegate the racial element of this situation to a footnote. Lots of black people supported OJ Simpson and not because they think it is OK to murder your wife. It is because there is a history of black men being railroaded on charges that involve white women. I happen to believe that those people are wrong in the Simpson case, but I wouldn’t go so far as to accuse them of misogyny.

    When activists claim that there isn’t structural or systemic sexism in our society, don’t believe them.

    Of course there is, but there is a bit of space between specific instances of structural sexism and the all-purpose boogeyman of “male privilege” or “rape culture.” You are cherry picking instances that fit your narrative, but what about those that don’t?

    You want to say that stabbing your wife is wrong and should be prosecuted and punished accordingly? I agree. You want to claim that this is part of some larger systemic misogyny that lets men off easy for crimes against women? Not so fast. It is pretty well established that men, for instance, tend to get longer jail sentences than women. Here is a study demonstrating this: The world is far too complicated a place to be shoehorned into these types of vague narratives.Report

    • Cathy in reply to j r says:

      1) “specific instances of structural sexism” doesn’t make sense as part of a sentence that denies the existence of structural sexism – which is generally what “rape culture” refers to.

      2) There is no contradiction between men getting longer sentences than women generally (because men are more “criminal” or “inherently violent” or whatever) and men getting convicted less and sentenced more leniently than they should for crimes against women in particular. The fundamental issue is that societal prejudices (and, yes, the blinders of “privilege” of various types) enter the justice system along with the people that hold them, and especially those that don’t believe that they do. BOTH issues stem from sexist beliefs about men and women, and what they should be held responsible for.Report

    • Jonathan McLeod in reply to j r says:

      If I was writing about Nova Scotia’s wretched history on race, I wouldn’t have made it a foot note. Rape apologism isn’t an appropriate remedy for racism.

      Oh, and by the way, the woman who was stabbed wasn’t married to her attacker. It may not seem like a point worth noting, but reducing a woman to an assumed (but erroneous) relationship to a violent man kinda bolsters my point.

      Also, I’m not cherry-picking. I’m taking two recent prominent cases. I get to comment on the news.

      I never actually stated what the appropriate sentence for this man was. What was inappropriate was the judge’s reasoning. Oh, and that paper is from the University of Michigan, I doubt it studied Canadian sentencing. (But even if it did, so what? The system is fishing sexist. That’s also kind of the point.)Report

      • j r in reply to Jonathan McLeod says:

        If I was writing about Nova Scotia’s wretched history on race, I wouldn’t have made it a foot note. Rape apologism isn’t an appropriate remedy for racism.

        That’s my point. When a black man is accused of sexually assaulting a white woman, you ought not just wave the race issue aside, especially not if you want to understand why some people are supporting the black man’s claims of innocence. Not every situation fits so neatly under the gender lens.

        Oh, and by the way, the woman who was stabbed wasn’t married to her attacker. It may not seem like a point worth noting, but reducing a woman to an assumed (but erroneous) relationship to a violent man kinda bolsters my point.

        Not sure exactly what that point is, but this is from the first news report that popped up when I Googled this guy: “A Toronto man who nearly killed his common-law spouse while she slept was handed a four-year sentence Friday.”

        I raised the sentencing disparity for a specific reason. I read this post as you saying that male privilege and misogyny are deeply ingrained in the criminal justice system and that these two cases are examples of that. Maybe, but the fact that women are sentenced to significantly less time in the same situation as men, that is a pretty big contrary data point. If you simply want to dismiss it, that’s fine, but it significantly weakens any claim that the criminal justice system is set up to favor men over women.

        To put it another way, let’s say that you are on trial for a serious crime, murder let’s say. Would anyone disagree with the statement that the worst thing you could be in that situation (in terms of your chances for acquittal or a lenient sentence if found guilty) is a poor black male? And would anyone disagree that the best thing that you could be in that situation is a wealthy white woman? Privilege is not one-dimensional. It runs in lots of different ways and works differently in different situation.

        “specific instances of structural sexism” doesn’t make sense as part of a sentence that denies the existence of structural sexism…

        Finally, this is not about denying the existence of structural sexism. Rather, it is about trying to get people to speak about specific, precise instances of it, instead of gesturing to the ether. And it is about having a conversation about the merits of those claims, instead of just dismissing anyone who disagrees as a rape apologist.

        I just don’t see what makes either of these cases particularly strong examples of structural sexism. Both of these guys were convicted, one was sentenced to jail and the other is awaiting sentencing. What the judge said certainly seems odd, but is there some larger trend of judges excusing these sorts of attacks? If so, is that trend rising or receding? Was the plea deal in the Gutkin case out of the ordinary or the sentencing unusually light for aggravated assault? These details matter. Otherwise, you are basically lamenting that these two men had the temerity to mount a defense in a court of law and that the court allowed them to do so.Report

      • So the argument is that rape is ok if the cops are racist?Report

      • j r in reply to Jonathan McLeod says:

        So the argument is that rape is ok if the cops are racist?


        If that, however, is what you honestly took away from my comment, then I will just concede and back away from this conversation right now. Maybe you are right and the fact that two men accused of crimes against women were allowed to offer a defense is a sign of all the structural sexism that we have yet to overcome.

        I look forward to the day when these sorts of criminals are just assumed to be the sort of scum that they are and dealt with accordingly. Perhaps there is some phenomenon from the past that might instruct us in how to do this the right way.Report

      • Yup, I was railing against due process. Definitely. I wasn’t pointing out the inherent sexism in a movement that tries to slut shame a woman in order to set a (fairly tried and convicted) rapist free. That’s exactly it.Report

      • j r in reply to Jonathan McLeod says:

        Definitely. I wasn’t pointing out the inherent sexism in a movement that tries to slut shame a woman in order to set a (fairly tried and convicted) rapist free.

        The problem I have is with your use of the word “inherent,” which is defined as “existing in something as a permanent, essential, or characteristic attribute.” If you had said that this is a particular case of sexism and backed it up with actual evidence that the people defending Howe are doing so for sexist reasons, you might be right. Instead, you have simply asserted that defending a man who is accused and/or convicted of sexual assault (not rape) is an “inherent” act of sexism. It is an exercise in circular logic.

        You do not stop to consider that the people defending Howe have motives other than the hatred of women (or you do consider, but then decide to relegate those concerns to a footnote). You have decided that concerns over sexism ought to trump concerns over racism. And for you, maybe they do, but not for everyone. And not only did you fail to give the race angle enough consideration, but now you’re doubling down instead of just admitting that maybe you are overlooking something.

        Maybe you are right that the people defending Howe are motivated primarily by sexism and misogynist views on women’s sexual behavior and only using race as an excuse. However, you have written nothing that actually proves that. You have only asserted it.Report

      • Well, it seems like we’re getting into pretty minor details, here. I stand by my statement that there is inherent sexism in a movement that is dedicated to freeing a convicted sex offender by blaming the victim.

        If they were able to fight for Howe without attacking his victim, maybe I’d see things differently. But they aren’t, so I can’t.Report

      • j r in reply to Jonathan McLeod says:

        What is a minor detail? Race? Maybe it is. I don’t know.

        And again, you are engaging in circular logic. The victim claims that she was blackout drunk and possibly had been drugged. Howe claims that the woman had been drinking, but was not blacked out and was aware of what she was doing and consented. To believe Howe is to make a de facto claim that the woman is either lying or mistaken, so you’re labeling anyone who defends Howe as a sexist. This is a pretty clear case of tautological reasoning.Report

  3. veronica d says:

    Oh look, another “kick the rock and watch the MRAs squirm in the sunlight” post.

    (Which is nothing against you, Jonathan; your article was fine. Just, you know, the inevitable outcome online when we bring up rape.)Report

  4. DavidTC says:

    Ditto his acknowledgment of the facts and his agreement to the conviction, which, the judge said, made a trial unnecessary and saved the woman from testifying.

    I’ve never heard of such a thing.

    People get a little bit off their sentence (or more, if they can negotiate it), if they plead guilty, because that actually does save everyone time and effort. But what is this nonsense about pleading not guilty and then, only after being convicted, saying ‘Yup’? Uh, it doesn’t work like that. ‘Showing remorse’ can get you a little reduction in sentence, but who cares if you agree you’re guilty or not at that point?

    And what on earth is meant by making a trial ‘unnecessary’? If he plead not guilty, and was convicted, he had a trial at some point!

    And, yes, being disbarred because of his actions doesn’t shouldn’t make his punishment lighter. If anything, being a lawyer at the time of committing the crime should make his punishment worse. He’s a damn officer of the court, he should behave like one.

    OTOH, I’m not exactly sure what you mean by ‘pre-trial custody’, I think your sentence is a bit screwy, but, yes, time served should indeed count against his sentence. That’s how that works.Report

    • Griff in reply to DavidTC says:

      It sounds like what happened was some Canadian version of an Alford plea. He claimed not to remember the incident (so couldn’t plead guilty of his own knowledge) but agreed that the prosecution would be able to prove the case. For all intents and purposes it was a guilty plea.Report

    • Griff is correct that there was no trial. Gutkin pleaded not guilty but agreed to the conviction, which seems like a really easy way to admit to something without admitting to it.

      Pre-trial custody is exactly what it sounds like. He would have been in jail prior to (and possibly during) the trial. In Canada, custody counts double (or double and a half, I can’t remember) to the sentence. So if you’ve been in custody for a year, and then you get sentenced to two years, you just don’t serve any more jail time.Report

      • scott the mediocre in reply to Jonathan McLeod says:

        Do you happen to know the stated justification for time in pretrial custody counting as double time against the sentence rather than the US norm of counting against the sentence with no multiplier? It seems a bit odd – creating incentives for trial-delaying gamesmanship for e.g. somebody who ultimately intends to plead guilty.Report

      • Griff in reply to Jonathan McLeod says:

        I believe the reasoning is that pretrial time is “harder” time because it’s served in overcrowded facilities that don’t have any programming (e.g. classes, work opportunities, mental health or substance abuse counseling/treatment), and that unlike time served after sentencing it doesn’t count toward parole eligibility.Report

      • dragonfrog in reply to Jonathan McLeod says:

        As Griffs states – per trial time Is spent in often terribly overcrowded facilities designed to hold people only for a few days or a week, but sometimes housing them for over a year. They’re often much more violent and dangerous than regular prison. The time is also spent in the stress of legal limbo.

        Incidentally, our current Conservative government is trying to end the practice, and getting quite a lot of resistance from the judiciary. I believe It used to be one and a half or double at the judge’s discretion, and the government is trying to make it straight time with time and a half reserved for exceptional circumstances.Report

      • scott the mediocre in reply to Jonathan McLeod says:

        Thanks, Griff and Dragonfrog. The harder time aspects (especially the uncertainty) make sense, plus if pre-trial custody time does not count against the parole guidelines then the extra utility of the double counting is reduced.Report

      • KatherineMW in reply to Jonathan McLeod says:

        Plus, counting pre-trial custody as double-time increases the government’s incentive to ensure that accused people are provided with their right (under the Charter of Rights and Freedoms) “to be tried within a reasonable time”.Report

      • In the United States, a defendant may enter a plea of nolo contendre, or “no contest.” That is different than entering a guilty plea. In theory, when a defendant does this, the judge is supposed to look at the prosecutions case, accepting its evidence at face value, and determine if there is evidence justifying a conviction. If so, the judge will then convict the defendant without further trial. In practice this step is usually skipped, since prosecutors easily have the ability to allege all of the appropriate facts, and if they had failed to do so, the defense attorney would have filed a motion to dismiss.

        One reason defendants enter no contest pleas as opposed to guilty pleas is that a no contest plea cannot be used in a civil action later. That sounds about like what Gutkin did; there must be the legal equivalent of nolo contendre In Canada and it may even be the same phrase.Report

    • Burt Likko in reply to DavidTC says:

      You don’t suppose that having been disbarred, he might have been depressed or despondent? This might have tended to have affected his mental state.Report

  5. KD says:

    One is entitled to one’s ideology. I suppose, one is entitled to use particular incident to construct a stereotype, and point to it and say this is how it always is. Leni Riehenstahl was very effect at this.

    There is an extensive literature on domestic violence, and the literature generally shows that there is sexual parity in domestic violence with the exception of crimes rape:

    It is a reflection of human nature (or human societies), not male nature (or gender ideology).

    Moreover, the majority of offenders fit the profile of the majority of other criminal offenders: low SES, poly- substance abuse, low educational attainment, veterans, mental illness, etc. That is, they are generally the broken down, the weak, the people who have been failed by our system, those people we Americans like to sneer at rather than help. Your average offender is not smart enough to possess some ideological theory of patriarchy, they are too busy drinking and smoking crack and arguing with the girlfriend if they can read. To claim that (half of) domestic violence is the result of some patriarchal conspiracy is a conspiracy theory with little in the way of facts to support it (You might also conclude that bank robberies are the result of anti-capitalist sentiment).

    Moreover, a small minority of men are responsible for sexual assaults, and this is true cross-culturally. I don’t know how we can turn aberrant behavior into subscribing to some cultural ideology. It is possible they might be linked, but it could also be genetics, etc.

    Why should this be pointed out? I think the sane approach is to look at domestic violence as a public health issue, study it, and develop effective interventions. Instead, we have started with a non-verifiable ideological “explanation” based on stereotypes with no empirical foundations, and tried to “cure” domestic violence. The dogma goes on, and the generation of knowledge (which threatens the dogma) and constructive interventions (which requires knowledge) are rejected. Go look up the studies showing the efficacy of the “Duluth method”.

    The question is: is domestic violence a problem to solve, or a symptom justifying a moral crusade? If the latter, then clearly you want to increase the incidence, all the better to create greater moral outrage against your scapegoat (jew, communist, man, capitalist, etc.)Report

  6. KatherineMW says:

    Just wanted to say I appreciate this post, Jonathan.Report