Wednesday, September 7, 2016

Dumb Judge



In Calgary, there is a most unusual event occurring. An inquiry is being held to determine whether or not a judge should be allowed to continue to hear cases. This judge, during a rape trial made a few grossly inappropriate comments to the victim including  "Why couldn't you just keep your knees together?" (CBC).The inquiry is unusual in that there have only been two other cases where judges have been judged by their peers as to whether or not they are fit to be judges.

The fact that the judge made the above comment clearly indicates that his thinking is out of step with both the law and what many Canadians think. The law is clear: All that a woman needs to do to prevent rape is to say "no". For the judge to suggest anything else should immediately disqualify him for passing judgements on others. On the other hand.................

I must confess I have a tiny little bit of empathy for the judge. I don't agree with him. He should have known better but I think it is fair to say that what is allowable and not allowable in terms of sexual conduct between two adults is a bit of a moving target. The evolution of thought as to how two people should relate to each other, specifically sexually, has in the past thirty years changed in profound ways. It clearly has a long way still to go. Those values are constantly shifting - moving one would hope to a point where no one would ever feel coerced to do anything they did not want to do. But unfortunately the language and the message is not always as clear as it apparently needs to be.

The question that occasionally floats through the back of my mind is how does one know that know consent is freely given? There was a time, not that long ago, when consent was implied if the other person did not say no. We are, at least in some courts, thankfully well past that point. It is no longer enough for a person to assume that a kiss or a nice meal in a restaurant means consent for anything else. It is accepted (I hope) by many/most that partners need to validate the consent throughout at least the initial stages of a relationship. And that at any time when either of the individuals expresses discomfort or concern, the other must stop. The "no" does not even have to be explicit. I think that is clear. But my question is - in a society that is still overwhelmingly patriarchal, where power relationships are unequal, where advertisers  target the genders differently, where the expectations of behaviour and dress are clearly different - are women comfortable in saying no? Do they know that they can?

Supporting my concern is a MIT 2014 survey in which it was reported in the New York Times that       

" Large numbers of undergraduates, male and female, also agreed with statements suggesting that blame for the assault did not always rest exclusively with the aggressor. Two-thirds agreed that “rape and sexual assault can happen unintentionally, especially if alcohol is involved”; one-third said it can happen “because men get carried away”; about one in five said it often happened because the victim was not clear enough about refusing; and a similar number said   that a drunk victim was “at least somewhat responsible.”

MIT is a university full of some of the brightest young people in the USA. It is scary that they could think that the victim is at least partially responsible. As some women continue to rightly place the responsibility onto men to listen to what their partners are saying and to respond to it, other women appear to be still looking for excuses to explain men's assaultive behaviours. As long as they do so - men will use those excuses both be legitimately confused and to justify their behaviours. Unfortunately people in positions  of power such as the above judge will continue to say dumb things.

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