Dou­ble stan­dards abound

Tri-County Vanguard - - OP-ED - Rus­sell Wanger­sky

Last week the po­lit­i­cal cir­cus con­tin­ues to the south of us and, chances were, bare-knuckle pol­i­tics by a crowd of ve­nal and priv­i­leged old men would con­tinue set the tone, serv­ing their cronies and their pay­mas­ters.

As part of that, even af­ter his bizarre, an­gry, tear­ful per­for­mance, Brett Ka­vanaugh would prob­a­bly find his way into a seat for life on the U.S. Supreme Court.

But what I keep get­ting stuck on is what would have hap­pened if that shoe was on a dif­fer­ent foot; if Ka­vanaugh’s yelling/cry­ing per­for­mance had been given by a fe­male prospec­tive ju­rist, the de­ci­sion that she was un­fit for the job would have come al­most im­me­di­ately.

I can tell you that, most likely, they would be told they were too emo­tional and hys­ter­i­cal and not an­a­lyt­i­cal enough to do their job fairly.

But don’t take my word for it.

All you have to do is look at one re­cent On­tario Su­pe­rior Court of Jus­tice case.

Just last month, a fe­male judge with 23 years on the bench, Judge Anne Mol­loy, gave her an­swer to a de­fence re­quest that she re­cuse her­self from a case and de­clare a mis­trial, in part be­cause she ap­peared to be emo­tional when two graphic cell­phone videos were played in court. (Mol­loy is orig­i­nally from New­found­land, is well known for her strong record of ju­rispru­dence.)

Mol­loy showed why she is so well known for her ju­rispru­dence, tak­ing the re­quest apart an­a­lyt­i­cally.

“It may well be the case that I looked dis­gusted while watch­ing one or both videos. They de­pict a ter­ri­fied woman be­ing de­meaned and bru­tal­ized, at times with a knife to her face. In the se­cond video, the bruis­ing on her face from be­ing punched is also vis­i­ble… How­ever, what I can say defini­tively is that the ex­pres­sion on my face had ab­so­lutely noth­ing to do with any ul­ti­mate con­clu­sion I might reach as to the guilt or in­no­cence of the ac­cused in this case,” Judge Mol­loy wrote. “Af­ter 23 years as a trial judge in Toronto, there is not much hor­ror I have not seen. I do not shirk from my re­spon­si­bil­ity to view such sub­ject mat­ter in the course of the trial process… One can be re­vulsed by photographs of a butchered mur­der vic­tim, with­out los­ing sight of the re­quire­ment to be sat­is­fied beyond a rea­son­able doubt as to the iden­tity of the per­pe­tra­tor. Like­wise, one can be ‘dis­gusted’ by images of sex­ual vi­o­lence, with­out los­ing sight of the re­quire­ment to be sat­is­fied beyond a rea­son­able doubt as to the guilty mind of the al­leged per­pe­tra­tor.

“If what (the de­fence) is sug­gest­ing is that other trial judges be­fore whom he has ap­peared are bet­ter at con­ceal­ing their re­ac­tions than I was that day, I ex­pect he is prob­a­bly right. I am not much of an ac­tress, nor am I known to be a per­son whose face is com­pletely un­read­able… Judges are hu­man be­ings who will have the same range of emo­tions as other hu­man be­ings, re­gard­less of their role as im­par­tial de­ci­sion-maker or the fact that they have seen many hor­ri­ble images to which the gen­eral pub­lic is not rou­tinely ex­posed. In­deed, I would sug­gest that if there are judges who do not feel such emo­tions, or who have be­come in­dif­fer­ent to hu­man suf­fer­ing over time, those judges are less equipped to be fair and im­par­tial than are their coun­ter­parts with com­mon hu­man emo­tions.”

Mol­loy re­fused to grant a mis­trial.

Ask your­self now, in all hon­esty: would a male judge have been taken to task in the same way over the same cir­cum­stances?

Or would a dif­fer­ent stan­dard ap­ply?

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