Claire+L'Heureux-Dubé,+Beyond+the+Myths

__**"Beyond the Myths: Equality, Impartiality and Justice", by Claire L'Heureux-Dubé**__

Violence against women is as much a matter of __equality__ as it is an offence against human dignity and a violation of human rights.

Eliminating myths and stereotypes from law is an important change required to reduce violence against women in society for these reasons: > brutal cross-examination of complainants regarding their sexual history and facilitates the undermining of their credibility by allowing the introduction of > irrelevant considerations into the trial. Complainants have also been denied justice due to biased legal characterizations of concepts such as rape, consent, > discovery, and self-defence, as they failed to take into account women’s perspectives and experiences
 * (1) Myths and stereotypes contribute at a systemic level to the revictimization of the victims of violence. Myths about men’s and women’s sexuality have often led to the denial of the very existence and seriousness of the problem of violence against women. It has taken great persistence and dedication in order for the international community to recognize rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization as war crimes and crimes against humanity.
 * (2) at the individual level, women who come forward to report crimes committed against them may be revictimized by a legal process that permits

Thesis: LHD explores how the concepts of impartiality, equality, and justice shed light on the ways in which myths and stereotypes distort the truth-finding process and perpetuate discrimination. For these reasons, myths and stereotypes have no place in the law (R. v. Seaboyer, 1991).

- Myths and stereotypes have more to do with fiction and generalization than with reality. They are irrational, nonscientific narratives used to explain what we do not fully understand. They are, therefore, incompatible with the truth-seeking function of the legal system. - Myths and stereotypes are both pervasive and difficult to recognize because of their cultural and collective origins. They haunt our unconscious. - Myths and stereotypes are usually generated by those who dominate the political, social, and economic structures of any given society. They are therefore a powerful tool for maintaining the status quo because they are often so firmly entrenched in the collective cultural conscience that even the victims of the stereotypes are apt to believe in them and to accept responsibility for their victimization.
 * Part I: What are myths and stereotypes?**

Examples of myths and stereotypes that the Supreme Court of Canada has recognized and highlighted in cases such as R. v. A.G. (2000), R. v. Ewanchuk (1999), R. v. W. [G.] (1999), R. v. Esau (1997), R. v. Osolin (1993), and R. v. Seaboyer (1991), as having skewed the law’s treatment of sexual assault claimants: From R. v. Ewanchuck: "Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions."
 * that the rapist is always a stranger, never a friend or relative
 * that women are less reliable and credible as witnesses if they have had prior sexual relations;
 * that women are more likely to have consented to sexual advances if they have had sexual relations in the past;
 * that a woman will always struggle to defend her honor;
 * that women are “more emotional” than males so unless they become hysterical, nothing must have happened;
 * that women mean “yes” even when they say “no”;
 * that women deserve to be raped on account of their conduct, dress, and demeanour;
 * that women fantasize about rape and therefore fabricate reports of sexual activity even though nothing happened.
 * that a husband cannot rape his wife (R. v. R., UK)

All courts are beginning to recognize that it is imperative that all jurists go beyond myths and stereotypes in order to ensure that justice is done—we need to “debunk” these myths. Though this is a daunting task, there is already improvement. In part, this is because we now have a much better understanding of **two of the most important concepts needed to debunk myths and stereotypes: impartiality and substantive equality**.

Cardozo said: the impartial judge is neither purely objective nor a blank slate - the act of judging may indeed be enhanced by a diversity of experience, provided that the judge remains free to entertain and act upon different points of view with an open mind - Bias is the opposite of open-mindedness. Judging based on myths and stereotypes is entirely incompatible with keeping an open mind, because myths and stereotypes are based on irrational predisposition and generalization, rather than fact. They close one’s mind to both truth and reality. - What makes it possible for us to genuinely judge, to move beyond our private idiosyncrasies and preferences, is our capacity to achieve an “enlargement of mind.”We do this by taking different perspectives into account.
 * Part II: WHY MYTHS AND STEREOTYPES ARE INCOMPATIBLE WITH JUDICIAL IMPARTIALITY**

- A rich, purposive understanding of substantive equality under s.15 of the Charter emphasizes dignity and respect for all. It requires more than formalistic sameness of treatment for similarly situated people - The test under s. 15(1), recently summarized in Law v. Canada (1999), operates as follows: where equality-seeking claimants can showthat they are being denied a benefit or protection of the law due to a legislative distinction, courts must look to see whether they are members of a group that is subject to negative stereotyping and unfair treatment in society. (For a recent example of such an enquiry, see Corbi`ere v. Canada, 1989.) The Court has recognized that where stereotyping is found, discrimination likely follows. - the Supreme Court has adopted a contextual approach, in recognition of the importance of ensuring that courts remain attentive to historical patterns of discrimination
 * Part III: WHY MYTHS AND STEREOTYPES ARE INCOMPATIBLE WITH SUBSTANTIVE EQUALITY**

Three examples of gradual transformation of law's response to violence against women:


 * (1) Legislation and Dialogue: New Limits on Cross-Examining Complainants and Compelling Disclosure**

__Rape Shield__ - //R. v. Seaboyer//: the majority held that Parliament’s initial attempt to legislate protection for complainants against undue and irrelevant intrusions into their private lives [ie: the rape shield legislation] was an __unconstitutional__ infringement of the accused’s right to a full and fair defence. LHD dissented. The court discredited the “twin myths” that (1) a woman’s testimony is unreliable unless she makes a complaint shortly after the sexual assault and that (2) a woman’s testimony regarding a sexual assault is unreliable if she has had previous sexual relations. - Parliament's reaction to //Seaboyer// was to enact legislation dealing with sexual history evidence by way of a voir dire in which the trial judge is required to balance a variety of factors in order to determine whether the prejudicial effect of the evidence on the claimant outweighs its potential value to the truth-finding process (McIntyre, 1994). The constitutional validity of this new legislation was confirmed in //R. v. Darrach//.

__Psychiatrist Records__ - Whether the production and disclosure of the complainant’s private therapeutic records, including records of psychiatric and other forms of counseling, could be compelled by defense counsel in sexual offence proceedings. In the absense of any legislation on this issue, the majority of SCC (with LHD dissenting again) held in R. v. O’Connor (1995) that there should be a relatively low threshold for the production of such records. Crown counsel submitted that uninhibited disclosure of medical and therapeutic records would revictimize the victims, and suggested that the disclosure order exhibited gender bias. The dissent set out factors to be considered by the trial judge faced with an application for disclosure: relevance; probative value; whether production of the record would be premised upon any discriminatory assumptions or stereotype or bias; and the potential prejudice to the complainant’s dignity, privacy, or security of the person. - Result: Defense went on “fishing expeditions” searching for any tidbit of information from Crown that will play, for example, into the myth that consultation with a psychiatrist is, by itself, an indication of untrustworthiness. - Parliament enacted new rules in Bill C-46 (1997) governing the disclosure of therapeutic records in order to prevent courts from deciding cases based on myth, instead of on fact.


 * (2) Substantive Equality Rights at the Heart of the Law: Lavallée**

- Equality-seeking claimants may also seek to dispel myths and stereotypes by challenging the common law rather than by seeking to obtain, and then to defend, legislative reform. - //R. v. Lavallée:// beaten women killed her husband. Although the law of self-defense did not intentionally discriminate against women, there was a significant adverse effect due to the unconscious incorporation of myths and stereotypes about women’s behavior in situations of domestic violence. This popular mythology suggested that a battered woman could not be as badly beaten as she claimed or she would have left the man long ago, or, that if she was battered that severely, she must have stayed out of some masochistic enjoyment of it. SCC: Justice Wilson accepted the submission that expert evidence on “battered wife syndrome” was needed to dispel popular mythology about domestic violence. - Wilson J. used the constitutional principle of substantive equality, which required the Court to consider the perspective of a woman who had been the victim of domestic abuse as potentially different from that of “the reasonable man.”


 * (3) Using Equality to Eradicate Myths about Consent**

Equality considerations have also been crucial in exploding myths informing judicial definitions of consent in sexual assault cases, and in particular, in debunking the myth that a woman means “yes” even when she says “no.” //R. v. Ewanchuk (1999)//: substantive equality requires that consent to sexual relations be viewed as a two-way act of communication. There can be no such thing as “implied consent.” Thus, where consent is at issue as part of the actus reus of the offence, the court must consider the perspective of both parties in order to determine whether consent was, in fact, given.


 * Conclusion**

Progress has been made so far in the law's response to violence against women. The judiciary can not alone weed the myth out of the truth. The legislator plays an important role, too. International tools, such as the Convention on the Elimination of All Forms of Discrimination against Women (1979), can raise awareness. The Convention recommends 'gender-sensitivity training for the judiciary'.