Can a male judge apply the law of sexual assault—a crime that disproportionately affects women and girls—fairly?
Recent high-profile and controversial sexual assault cases in Canada and the U.S. have some asking whether or not male privilege negatively affects legal outcomes for girls and women.
California judge Aaron Persky’s recent decision to sentence Stanford University undergraduate Brock Turner to six months in county jail for the sexual assault of an unconscious woman (rather than the recommended minimum six years) had many calling for his removal. Just last week Turner was released having only served half of his sentence, and Persky launched his own website RetainJudgePersky.com in response to continued efforts by Stanford law professor Michele Dauber to recall him.
Canadian court justices have also made headlines for the way in which they’ve interpreted the law in sexual assault cases. Federal Court Justice Robin Camp is currently being investigated for his conduct during a 2014 sexual assault case while he was a provincial court justice in Alberta.
Over the next several days a five-member inquiry panel formed by the Canadian Judicial Council will decide whether Justice Camp will stay on the bench or be removed for his conduct during the case of R. v. Wagar.
During that case Justice Camp made repeated disturbing comments that suggest he was not as impartial as he ought to be. Not only did he repeatedly refer to the 19-year-old complainant in the case as “the accused,” but he also asked the young woman, who alleged she’d been raped by the accused in a bathroom, troubling questions like, “Why couldn’t you just keep your knees together?” and, “Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” The trial resulted in an acquittal.
If not for a group of law professors who made a formal complaint against Justice Camp in 2015, the justice’s conduct may not have been scrutinized or censured. His ruling in R v. Wagar has been subsequently appealed.
(One interesting note: part of Justice Camp’s defence submission in the inquiry, which is available online at the Canadian Judicial Council website, is his lack of experience with sexual assault law and his own blinkered notions about sexual assault and gender stereotypes.)
Kim Stanton, legal director of the Women’s Legal Education Action Fund (LEAF), a non-profit organization that intervenes on behalf of equality rights is going to be part of that inquiry. LEAF is part of a national coalition of women’s organizations that was granted the right to make oral and written arguments to the panel.
“There needs to be accountability,” says Stanton.
Stanton talks to FLARE about what makes Justice Camp’s conduct troubling, why women need advocates in sexual assault cases, why things won’t get better for rape victims until the culture has a social justice awakening and whether or not male judges are part of the problem.
What does LEAF do exactly?
LEAF is a national non-profit organization that for more than 30 years has worked to protect and promote the rights of women and girls in Canada using litigation, law reform and public education. Our work is based on the equality guarantees in the Charter of Rights and Freedoms. We use a fulsome view of equality to help the courts understand the need to really provide full equal rights to women and girls.
We’ve intervened in many Supreme Court of Canada cases where equality rights have been at issue and we have provided the court with our perspective with respect to all kinds of stuff. For example, pregnancy discrimination is seen as a form of sex discrimination after LEAF’s intervention in a case in the ’80s. Similarly, sexual harassment is seen to be a form of discrimination because of a case we worked on in the ’80s as well. In more recent years, we’ve worked on all kinds of cases in all kinds of areas, but one of the threads throughout has been our advocacy for sexual assault complainants and to have a strong standard with respect to the law of consent.
What makes LEAF necessary?
It’s really important for women to have a voice in the court system. Sexual assault complainants, in particular, are not a party in a trial. There is the accused and there is the Crown and the sexual assault complainant is potentially called as a witness, but is not a party and does not have counsel generally and is not represented. It’s really important that a woman’s equality voice be capable of making submissions to courts and inquiries so that the adjudicators will hear from a knowledgeable intervenor party that understands the context of sex discrimination, gender discrimination, and understands that in order to ensure that equality is achieved in the law that there may be considerations beyond those that the court might otherwise listen to from the Crown or the accused’s counsel.
Justice Robin Camp’s behaviour during R v. Wagar is disturbing. What was your reaction when you read the transcripts of the trial?
There are two things that really concern me. One is the perpetuation of myths and stereotypes about sexual assault complainants that are so prevalent in our wider society but ought to have no place in Canadian law at all. That’s obviously a big concern but even that aside—and I don’t mean to take that lightly because I take it very seriously—what really worried me was that he acknowledged that there are legal protections for sexual assault complainants in the law, and they are protections that LEAF fought very hard to get, and he had disdain for those protections and refused to apply them.
So, here we have a judge who is not adhering to the rule of law in Canada and that is very, very worrisome. For over 30 years, we have fought to have these protections in the actual letter of the law and if we now have a judge who knows the law and just simply chooses to ignore it or refuses to apply it—it’s a concern.
Which protections are you referring to specifically?
He showed disdain for the protections against bringing in a complainant’s sexual history. Section 276 in the Criminal Code is the section under which a sexual assault complainant is protected from having her sexual history introduced unless there is a hearing for that purpose and it is determined against a number of criteria that any aspect of her sexual history may be introduced, but it can’t be introduced to suggest that she shouldn’t be believed.
How rare is his conduct in your opinion?
It’s very hard to know because there are so many trials going on in any given day across the country. In 1999 LEAF intervened in a case called Ewanchuck vs. the Supreme Court of Canada. That was a case that really set a robust standard for the law of consent in sexual assault trials, where the court very clearly said a) there is no such thing as implied consent and b) myths and stereotypes about sexual assault complainants have no place within Canadian law… We hoped that in 1999 we had dispensed with that kind of thinking and at least, if judges—even if they thought that themselves—would not bring [myths and stereotypes] into the courtroom. But clearly Justice Camp is an example of a judge who didn’t get the memo on that, by which I mean he didn’t understand that he’s to apply Supreme Court of Canada jurisprudence in the court. And if he’s not doing it, and certainly we hear examples of other judges not doing it—and they’re anecdotal and I can’t quantify it for you—but it’s more common than we would like.
Judges are getting more attention for their rulings of late. I’m thinking of the Brock Turner case, for example. What’s your thinking about that kind of focus on judge’s behaviour? Should we be upset with the judge or upset with the culture he reflects?
I can’t really comment on the American context, but certainly in the Canadian context our concern is not just with any particular judge. Our concern is with the broader culture in our society that facilities and enables violence against women. We live in a society where women do not have equality and until we have equality, violence is going to be continued to be used against us at a disproportionate rate and that is the overall context that we need to be concerned about, and that is the overall picture that we here at LEAF really try to work on by taking cases in different areas of the law because it’s so clear to us that until we achieve substantive equality—so, not just treating everybody the same—but treating people in a way that acknowledges the context in which they live. For example, the complainant in the Wagar case that is at the heart of the Camp inquiry was homeless, she was struggling with addiction issues, she was living in poverty, she was indigenous. She is going to experience what happened to her and the abuse she experienced in the courtroom in a much more profound way then a person without all of those extra layers to deal with in life. I wouldn’t presume to speak for her, but it seems to us that when we have a society where we have such drastic inequality… we are going to continue to see this kind of circumstance arise. We really need to get at some of those problems and ensure that people are not made vulnerable to violence in the same way.
Is a male judge somehow compromised in a sexual assault case?
I wouldn’t say that, but I would say that it’s so important for us to have diversity on the bench. It’s so important not just because every judge brings with them their life experience, but also because in order to have credibility amongst the people they’re hearing before them it’s very important for people to see themselves reflected in some way in the judicial system and not just in the accused box or complainant witness box. In order to have credibility on the bench we need to have diversity of experience there. Just because you have a woman elected leader doesn’t mean you’re going to have a feminist at the helm and just because you have a male judge before the court doesn’t mean that you’re not going to have someone who is concerned about equality—it’s what a person brings with them. But the more that we have representativeness on the bench the more likely we are to see ourselves on the bench and therefore achieve better outcomes across the board for people that have traditionally not held power in our society.
How can we prevent the conduct Justice Robin Camp exhibited from happening again?
More diversity on the bench, more education for people who become lawyers and judges in terms of understanding the inequities in our society and the persistence of stereotypes and myths in our society.
We do need to have a broader social justice realization. We need adequate housing, we need access to education, we need access to employment for young women and people who don’t have equal access to opportunity yet in our society. We need the broad-based changes, but we also need within law to keep raising our voices to ensure that when a committee like the Canadian Judicial Council undertakes its work it is understood that the public is paying attention to what they’re doing… You need to be able to say, ‘We are listening and we are concerned and we are noticing what you are doing and it is important that access to the law and application of the law is equal.’
Why Are Women Reluctant to Use the Word Rape?
Will Consent Education Finally Stop the Rape Epidemic?
When “No Means No” Doesn’t Quite Fit
#RedMyLips: How Lipstick Can Help Reduce Rape Shame
Dal Prof Speaks Out Against Campus Rape Culture