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Liberal Feminism & Sexual Assault

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M. Decena

on 14 November 2012

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Transcript of Liberal Feminism & Sexual Assault

Liberal Feminism &
Sexual Assault Ashley Colby, Michael Decena, Jeremy Davis and Harry Grewal -Feminism itself is not one unitary theory, there are multiple perspectives that fit into feminism, and all of these involves different assumptions about the source of gender inequality and women’s oppression Liberal Feminist Criminology Five central aspects of feminist theories:
1.Gender is a complex social, historical, and cultural product, which is related to biological sex differences and reproductive capacities
2.Gender and gender relations order social life and social institutions in fundamental ways
3.Gender relations and constructs of masculinity and femininity are not symmetrical, rather they are based on an organizing principle of men’s superiority and social and political-economic dominance over women
4.Systems of knowledge reflect men’s views of the natural and social world, and the product of knowledge is gendered
5.Women should be at the center of intellectual inquiry, not peripheral, invisible or appendages to men -Feminist theory is typically divided into five major perspectives: liberal feminism, radical feminism, Marxist feminism, socialist feminism, and postmodern feminism
-In Liberal Feminism the view is that gender role socialization is the primary source of women’s oppression ie: men’s social roles (competitive and aggressive) vs. women’s social roles (nurturing and passive)
-Because of this liberal feminists emphasize political, social, legal, and economic equality between men and women
-Within criminology liberal feminists view women’s crime and offending as a function of this gender role socialization; they believe women’s socialization provides them with fewer opportunities to engage in crime & deviance which results in lower rates of offending
- Historically the feminist movement is divided into 3 waves
- The first wave began in the mid to late 1800’s in the United States with the birth of the abolitionist and women’s suffrage movements
- The second wave of feminism surfaced in the 1960’s and 1970’s marked by the women’s liberation and civil rights movements
- It was during this wave that feminism made its appearance in criminology
-Feminist criminology developed because liberal feminist scholars were opposed to the fact that gender was excluded from criminological analyses because gender is such a strong predictor of offending, arrest, and sentencing outcomes
-Feminist scholars were frustrated with the failure of mainstream criminology to recognize issues of gender inequality
-They were especially dissatisfied about the exclusion of women’s experiences in the emerging “general theories of crime” which were being developed using almost exclusively male samples to predict male patterns of delinquency
-Feminist criminology was born during a crucial point in time of the feminist movement
-It was at this time that feminists in minority groups began to notice that their experiences were underrepresented in mainstream feminism
-This gave way to the third wave of feminism in the 1980’s and 1990’s, which focuses on “multiplicities” which is the belief that multiple genders, races, and sexualities exist Prior to 1983 The Evolution of Feminist Theory The Criminal Code of Canada did not refer to sexual assault, but rather to rape and to the lesser charge of indecent assault.

Principal Offences of Sexual Aggression:
Rape and Attempted rape (s.143), Indecent Assault against a Female (s.156), and Indecent Assault against a Male (s.156) Male Reflected Laws The requirement of penetration by the man’s sexual organ defined it as the only instrument with which a woman’s body could be sexually violated.

Unique usage of legal concept of consent underlines the pre-1983 law’s definition of intercourse as rape when the woman’s consent was ‘extorted by threats or fear of bodily harm’ (s.143).

The very definition of rape as sexual intercourse suggests a purely male perspective. Victims
are unlikely to call their victimization an example of intercourse. Yet the inclusion of the term in the definition of rape warranted interrogation of the complaint by defense lawyers as to the amount of pleasure she experienced and the extent of her cooperation. Sexual Offences defined by Male Sexuality Rape referred specifically to assaults that involved vaginal and/or anal penetration, and was characterized as a sexually motivated crime rather than as a physical assault.

Rape laws were not designed to protect a woman’s right to physical or sexual autonomy, but to preserve male right of ownership in valuable property, including sexual and reproductive property.

A man can force sexual intercourse upon his wife without being accused of rape because he is her proper owner, and may use her sexuality as he sees fit. But if he were to force the same act upon another man’s wife, he would then be guilty of rape.

Marital rape was not a recognized crime and men accused of rape often used the argument that they “honestly believed” a woman had consented to their sexual advances.
Husbands were granted unlimited access to their wives’ sexuality/ body. Attacks on their sexual organs which do not result in physical injury are not illegitimate and will not lead to punishment of their assailants.

The rapist commits a wrongful act because he damages or “steals” another’s property; his crime is sexual because the property stolen is sexual.

Before 1983, possible to use information on the complaint’s sexual conduct and reputation in assessing credibility.
Lawyers could question rape victims about their past sexual experiences as a tactic to discredit their allegations of being forced into unwanted sexual activities, i.e. that they had actually been assaulted. AFTER 1983 LEVELS OF SEXUAL ASSAULT AS IN THE CRIMINAL CODE OF CANADA Level 1(s.271): Any form of sexual activity (e.g., kissing, fondling, oral sex, vaginal or anal intercourse) forced on someone else resulting in minor physical injuries or no injuries to the victim.
Level 2(s.272):Sexual assault with a weapon, threats, or causing bodily harm.
Level 3(s.273): Sexual assault that results in wounding, maiming, disfiguring or endangering the life of the victim.
Source: Brennan, S. and Taylor-Butts, A. (2008). Sexual assault in Canada 2004 and 2007. Canadian Centre for Justice Statistics Profile Series. No. 19. Statistics Canada Catalogue no. 85F0033M. Ottawa. Reforms Criminal Code of Canada was amended to replace the crimes of rape and indecent assault with three new sexual assault offences.
New legislation clarified that males or females could be the victim of sexual assault.
The also made it clear that the spouse of a victim could be charged with sexual assault.
Encouraged the victims of sexual assault to report incidents to the police.
To focus on the violence committed by the assailant rather than the sexual nature of the offence.
The offence was redefined in gender-neutral terms. The term sexual assault replaced rape. To limit judicial discretion and the legal link between unchastity and low credibility. Until 1983, Canadian law incorporated biased views that lowered the credibility of sexually assaulted women and presumed that sexually active women were more likely to consent to sex.
Inquiries into the complainant’s sexual conduct with other people were restricted, as well as the examination of the victim’s sexual history in regard to credibility. HOWEVER -Issues persisted in the:
Definition of sexual assault and consent
Available defenses and
The burden of proof CHASE (1987) -Established the definition of the offence of sexual assault:
Any assault committed in circumstances of a sexual nature
The sexual integrity of the victim is violated
The assault is sexual in the context visible to a reasonable observer
May also factor in whether the motive is sexual gratification
General intent mensrea only EWANCHUK (1999) SEABOYER (1992) -Challenges the constitutionality of s. 276 and 277
These sections were ruled constitutional by the Supreme Court of Canada.
Led to the creation of s. 273.2, which limits the defense of mistake of consent
-Self-induced intoxication
-Recklessness of willful blindness
-The accused did not take reasonable steps to ascertain that the complainant was consenting -Affirms three major points in the definition of a sexual assault
No means no
There is no such thing as implied consent
Places an evidentiary burden upon the accused DAVIAULT (1994) -Allowed the defense of intoxication to acquit the accused in extreme circumstances in which the intoxication brought the accused to a state of automatism.
-Led to the creation of s. 33.1 in 1996
Stating that self-induced intoxication is never a defense to a general intent crime (including sexual assault) OTHER CASES -R. v. Daigle (1998)
Consent not valid while intoxicated
-R. v. McCraw (1991)
Threats of sexual assault may count as serious bodily harm (psychological
-R. v. Matheson (1999)
Consent not valid where submitted to an authority figure PERSISTING ISSUES Continued assaults on women’s credibility in trials
The difference between “real” and “ideal” victims
Continued complexities around the law of consent
Victim blaming
The victim is still expected to show physical signs of resistance to reaffirm she was not compliant
The “disappearing perpetrator” – focus entirely on the victim Future Initiatives & Changes to be made: •The criminal justice system needs to ensure that assaults on women’s credibility, and attacking their sexual history does not occur during trial.

•Stereotypes still exist in regards to victims. The victim is still expected to show physical signs of refusal to show that she was not compliant and submissive to the assault. Society expects the female to fight back and have proof of doing so.

•Difficulty in recognizing sexual assault in intimate relationships still exists.

•Lower level sexual assaults still go unnoticed and are of no major concern. It is the rapes that are given attention, the minor touching is usually not even reported. • Bring the legal definition of rape and sexual assault into line with women’s experiences so that legal definitions and presumptions do not reinforce false stereotypes or ‘myths’.

• Ensure that the legal requirements of participating in the criminal trial does not cause further trauma to the victim, further compromising her autonomy and dignity.

• Reform institutional attitudes and practices in relation to the police, so that all who report sexual offences are treated with respect rather than disbelief.

• Have more organizations in place that allow women to come report their victimization even if they want to do so anonymously. Some may just want to talk about it without going through the criminal justice system.

• Clearance rates for sexual offences are lower than for violent crimes, strengthening the notion that the society focuses more on violent crimes. QUESTIONS?
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