Classic feminist text is a credible legal source
I just finished reading Susan Brownmiller’s book Against Our Will: Men, Women and Rape.
It was on my mind because defence lawyers pointed to it, along with 12 other texts, as evidence that Ontario Court Justice Marvin Zuker was biased in his guilty verdict against York PhD student Mustafa Ururyar.
It was one of the “social science sources” Zuker allowed to “cloud his objective assessment of the evidence,” according to the lawyers’ affidavit of the merits of the appeal.
Zuker found Ururyar guilty of sexually assaulting fellow PhD student Mandi Gray last month. A week later, he revoked his bail. Ururyar’s lawyers persuaded Ontario Superior Court Justice Michael Quigley to reverse that decision this weekend and grant the 29-year-old bail until the day before his sentencing on Sept. 14. Although he hasn’t yet given his reasons, Quigley did call the citations a “jaw-dropper” given that none had been introduced as evidence in the trial.
Zuker’s mind may have been “a little too full” with these articles and books on gender-based violence to deliver a fully impartial ruling, Quigley opined.
Among the 13 are: five articles from academic journals, a couple of training manuals, a district attorney association newsletter, a U.S. Department of Justice statistics report and four books. Against Our Will is by far the most famous, which is why I picked it up.
Published in 1975, it was the first book that studied rape, both historically as a weapon of war and as a present-day tool of oppression. An American journalist, Brownmiller spent four years digging through history books, pre-revolutionary newspapers, ancient congressional investigations, FBI crime reports and police manuals. In the end, she argued convincingly that rape was not a sexual act of perverted deviants, but a calculated act of violence by “the boy next door.
“Rape is not a crime of irrational, impulsive, uncontrollable lust, but is a deliberate, hostile, violent act of degradation and possession on the part of a would-be conqueror,” she wrote, “designed to intimidate and inspire fear.”
At the time, that idea was radical. Now, it is baseline.
It wasn’t just a classic feminist text. The book was a textbook in law classes. Law professors, including the University of Toronto’s Denise Réaume, began teaching it in the 1980s in seminar courses such as “Women and the Law.”
In the 1990s, it became mainstream in the first-year mandatory curriculum at the University of Toronto, Réaume says. All law students spent a week learning about gender and the law and would have to read Against Our Will or one of its successors to give them an idea of how legal rules are often biased against women. (In the 2000s, the week-long module was sadly withdrawn from U of T’s mandatory course, Réaume says.)
Reading Against Our Will, it’s easy to see why it was considered a textbook. In the last chapter, Brown- miller lays out her ideas for law reform. She argues that:
Rape should be redefined as sexual assault.
It should be degendered, so not only women could be the victims.
It should be broadened from vaginal penetration to “all acts of sex forced on unwilling victims.”
Just as armed robbery was treated differently from unarmed robbery, sexual assault should have different levels of severity.
The punishment for rape should be reduced from life to prison terms of six months to 20 years.
The law should no longer exempt a “woman not one’s wife” from its breadth. At the time, the idea that a husband could rape his wife was considered preposterous and legally impossible. “Compulsory sexual intercourse is not a husband’s right in marriage,” Brownmiller wrote. “Consent is better arrived at by husband and wife afresh each time.”
Finally, a woman’s sexual history “has no place in jury room deliberation as to whether or not, in the specific instance in question, an act of forcible sex took place,” Brownmiller stated.
Every one of those suggestions were introduced to Canada’s Parliament in 1982 and written into the Criminal Code the following year. (The rape shield provisions prohibiting defence lawyers from delving into victims’ sexual history was struck down by the Supreme Court in 1991 and reintroduced in a modified state the following year.)
“The argument Brownmiller first made shaped the 1983 law reform,” says Lise Gotell, vice-chair of the Women’s Legal Education and Action Fund and a University of Alberta women and gender studies professor.
I am not a lawyer, so I can’t judge the merits of the appeal, whenever it gets heard. But I do wonder how citing Against Our Will shows any more bias than referring to case law, which Zuker does liberally.
“That same person would never have that reaction to Abraham Lincoln or any of the dead white guys judges regularly cite. But if it’s a non-dead feminist, that’s automatically proof of ideological bias,” Réaume says. “The ideological bias is that of defence counsel who have never bothered reading any of this . . . and factor it into their practice of criminal law so they’re not just running all over sexual assault victims with their hobnail boots.”
Zuker’s decision is 534 paragraphs long. He cites these contentious “social science sources” in 15 of them. Brownmiller’s book and two others are referenced in one single paragraph. The point those three books are propping up? “There are a host of complex issues involved with sexual and gender-based violence. There is a need to appreciate the interplay of power, gender and sexuality.”
If Zucker hadn’t cited some feminist books, would any lawyer have a problem with that? Catherine Porter can be reached at cporter@thestar.ca. You can follow her on Twitter at @porterthereport