At the beginning of this season, I wrote a blog arguing for the importance of framing the A2J debate as a narrative about power – who has it, who doesn’t, and what the consequences are.
I could not have imagined that within a month we would be witnessing one of the most remarkable examples of power in action, in a quasi-legal process: the U.S. Senate Judiciary Committee’s nomination hearing for Brett Kavanaugh.
The effort to reconcile and adjudicate the conflicting testimonies of nominee Judge Brett Kavanaugh, and Dr. Christine Blasey Ford, who alleges that Kavanaugh tried to rape her when they were teenagers, is not exactly a model of Access to Justice. Instead, it is a familiar story of power – specifically, gender-based power.
That feminist stuff again?
Gender?
I can already faintly hear the cracking of knuckles as one of our regular correspondents gets ready to deliver another tirade about how NSRLP is a lesbian cabal. (It’s sweet that you are so concerned about our social lives, given how hard we work for NSRLP…)
Whenever we post a blog or news item that relates specifically to women, we usually receive a small number of angry messages asking if NSRLP is a “feminist organization”.
My understanding of feminism is that it is both aware of and seeks to draw attention to entrenched differences in how we understand and value the behavior, character, and contributions of men and women. Or put more simply, when men get the breaks (greater income, more power, a pass on behaving badly) and women get none. With that definition in mind, let me declare unequivocally that yes, NSRLP is a feminist organization.
If NSRLP’s goal is Access to Justice for all Canadians, gender-based power imbalances – as well as race-based power, expertise-based power, sanction power, status power, class power and many other forms of power – are a problem. And one we hope that A2J advocates are open to thinking about.
How the Kavanaugh hearing looked nothing like Access to Justice
- A2J requires that the truth should ultimately be more important and conclusive than who is most powerful
Many of those who come self-represented to the courts tell us that they began believing that the legal system was designed to find and reward “truth”. By the time we hear from them at NSRLP, this faith is often in tatters.
Watching the Kavanaugh hearing last week also made it hard to hang on to this belief.
- A2J requires that the powerful are not permitted to silence the less powerful
Many SRLs point out to us (and this is an analysis shared by some of those working inside the justice system) that there is a tendency in our justice system for those with power to silence those without power.
Being silenced means failing to assert one’s rights, or to defend them, or giving up on trying to do either.
This means choosing between being silenced, or taking on the anxiety and intimidation experienced by many of those who come to court without counsel. It usually means having less presentation time in court. It means making an educated guess on how to best present information, with the recognition that no strategy will be as powerful as the strategies chosen by those with insider knowledge and membership.
The power of insider strategies in the legal system is not confined to knowledge of the law or membership in the club. It is also about behaviour and appearance. In particular, anger is only allowed (praised, even, as “heroic”, “passionate”, and “adversarial”) when it comes from those with power. When others lose their temper they are seen as overly emotional, or even “hysterical”. Or in SRLs, “vexatious”. And it will not be tolerated.
- A2J requires everyone to take seriously and respond truthfully to reasonable questions designed to uncover the truth
There are many different ways to testify. However responses that amount to “how dare you ask me that question?” do not meet that standard (see this interesting infographic on Ford and Kavanaugh’s answers to questions).
This is also about gender-based power
The Kavanaugh hearing lays painfully bare entrenched attitudes about allegations of sexual violence toward women and girls.
Despite the impact of the #MeToo movement, as a society we:
- Downplay the frequency of sexual assault, harassment and rape by men on women (it does happen to men too, but here I am going to concentrate on women and girls, who make up the majority of victims). It is estimated that 1 in 3 women will experience a sexual assault over the course of her life. That means many women that you know! Additionally, since more assaults take place against women of colour and younger women, it’s even more likely to have occurred if these are the folks you hang with.
How many of us have put up with a persistent sexual harasser at work? How many of us have planned our workplace movements carefully to ensure we never get stuck alone in the back room with the creepy guy who (everyone knows) gropes his female co-workers? How many of us have left a party or other social event in a hurry, perhaps without our ride home, because we needed to get away from a person who appeared to not take “no” for an answer?
How many of us? Well, most of us. If this shocks you, check with some of the women you know.
- Seem unable to grasp the disincentives for complainants to come forward. Many people continue to believe that a large number of complaints are fabricated (according to both the RCMP and the FBI the actual figure is under 5%). This is despite consistent statistics about the underreporting of sexual assault, the appalling experiences of women who do step forward, and settled science that explains the long-term impact of trauma on brain development and mental health.
How many of us – whether we have turned to our human resource department, or to the justice system – felt confident we that were not about to be shut down or punished for complaining about predatory sexual behavior?
Unequal power is the enemy of justice
The Kavanaugh hearing is for me, and I believe for millions of others, about the impossibility of achieving justice when our legal or quasi-legal processes are distorted and unbalanced by unequal power – here, gender-based power.
Challenging unequal power, an insider/outsider divide, and the indignant privilege of the powerful is exactly what NSRLP does.
We shall continue to do this, on behalf of everyone – no matter their gender identity – who feels powerless and unfairly treated in the justice system.
It’s disturbing to hear that tribalism has invaded the inner sanctum of NSLRP with vile commentary. I also find it disturbing that you give these extremists publicity with an intelligent-a bit to ardent- reply. I doubt that any NSLRP member of supporter would pay any attention to this type of commentary. Don’t encourage absurd mental grade 1 graffiti
It is becoming the norm now for the powerful to use members of the powerless and TEMPORARILY puff them up to believe they have some power so they beat down their very own. Case in point using female lawyers to cover their sexist power- example- Rachel Mitchell in Ford v Kavanaugh and Marie Heinan in Ghomeshi v all those women he abused or getting a femal judge to do the honours (often where well thinking male judges refuse to do any dirty job)
In cases of racists power they get a person of colour to carry out the dirty deed by making that person of colour a temporary ally
this is what I found as well when I tried to access justice. I was mocked and ridiculed. it was suggested by another woman,, a lawyer,, that I probably didn’t even know who my childs father was. the woman judge said nothing. I repeatedly asked to examine the evidence,, I was called vexatious and summary judgemented out of court. I had an order proclaiming me indigent, and saying I was to pay no more court fees for the duration of my issue. the court then ordered me to pay triple costs. I obtained an expert evidence report showing problems with the testing,, I took it to the police, they asked me what I wanted from this poor guy anyway. how much money,, give them a figure. they suggested I wanted him,, they suggested that I was not mentally well they suggested I had written that report. not a genetics professional. . I tried repeatedly to get a lawyer to present this new evidence to the court,, I was refused by everyone I spoke to,, some said they were the wrong lawyer, some said they didn’t know what to do with the evidence, etc etc. one fellow took the file, kept it,, took my money,, then said to go away and he kept the money., the law society backed him up on this. I took that report and sent it to all parties, suggesting that since the evidence in this case was not properly handled or recorded,, and some of it was clearly wrong, and illegally shared with other labs, we should for the sake of justice,, redo the testing with proper safeguards and protocol They refused. they have no interest in justice,, they want to get away with what was done. Opposing counsel threatened me with legal action if I ever contacted them again. This is all because I told the truth about who my childs father is,, and wanted him to provide for her like all other men do for their children. like the law insists is done. I have now developed ptsd as a result of the ongoing abuse I have suffered for speaking up. when will this be rectified?? who will help?? I can only hope for now. until then,, the abuse of both of us continues.
Such an accurate and factual analysis!
“…another tirade about how NSRLP is a lesbian cabal.”
Ha! Thanks for the chuckle.
I’m sure that many such comments come from within the legal profession and the judiciary as some seek to de-legitimize the NSRLP and others who are spearheading the access to justice #A2J movement.
After all, the NSRLP is pressuring (however diplomatically) lawyers and the courts to adhere to the rule of law and rules of the court when dealing with self-represented persons – instead of abusively walking all over them as is still common.
The Access to Justice #A2J battle is all about unequal power and the unwillingness of the legal cabals to surrender their control over the justice system – including outcomes in the courts.
Canadians are blessed to have Dr. Macfarlane and the rest if the NSRLP leading the charge on this foundational issue – access to justice for all Canadians.
“Unequal power is the enemy of justice.” Truer words…
Thank you for addressing this critical issue Julie.
A lot of abuse that men experience, is levied against them by other men.
It is increasingly evident that A2J and the Metoo movement are interdependent upon and must unite forces with one another, if social justice is to become anything more than an idea we pay lip service to.
As a victim of domestic violence resulting in brain injury, homelessness and over a decade of systemic abuse that followed because I dared to attempt to exercise my rights, I was baffled to discover that swift predictable consequences for abusive behavior, is often cited as the ONLY effective means of curbing abuse, and yet we consistently fail to see justice materialize for abused Women & Girls. (W/G)
Men abuse us because they know the system is highly likely to protect them from facing the consequences of their choice to harm us. Men abuse W/G, because they can get away with it. PERIOD.
At its core, justice is about the fair and equal application of timely and appropriate consequences for harming other members of society. Justice does not exist without consequences and reparations.
Because the vast majority of us are unable to access the courts for countless reasons, crimes against W/G have in fact, been given a green light to continue as business as usual. Every time a victim is silenced, our lives are collectively rendered more precarious. Every time another abuser gets to walk away high-fiving the system that protected him, the system becomes further entrenched and morally responsible for perpetuating abuse against us.
Abuse is about the real human suffering of people whose lives have been affected by sexualized and or other violence and whose communities charged to protect us, abuse us as well.
Few if any of us are ever compensated for our loses which adds to the systemic financial abuse and further impoverishment of women. If this were happening to MVA or other tort victims, society and the legal system would not stand for it. It in fact doesn’t allow those victims to be disabled and discarded. In fairness, it set up a pool to ensure uninsured drivers were compensated as per the law. But because the damages concern the safety, dignity and economic well-being are perpetrated against a devalued group of people, our issues are largely ignored as unimportant by those with the power to change our plight.
The power imbalance further speaks to why our legitimate feelings are squelched, pathologized and punished in courts of law. Women’s emotions, our pain, fear, anger, injuries, interrupted & ruined lives are unwelcomed facts that ARE the heart of the issue, are excluded from the conversation and re framed in language that obscures the true horror at the core of what abuse is. Abuse of power against us.
It is one thing to find a meaningful way to tell our stories, if and when we can and another to actually be provided with any measure of justice for the violation of our basis rights as human beings to safely live in peace.
Millions of women are blocked access to their right to a remedy and that in and of itself is evidence of
how refusal to uphold the law, the most significant abuse of power there is, has set the stage for and solidified the continued sub-standard quality of life that so many women’s lives reflect.
Metoo without A2J is an a movement that is destined to die on the vine. Without consequences there is no justice.
Dr Allan Wade – THE CENTRE OF RESPONSE-BASED PRACTICE
Language and Violence – web.mala.bc.ca
http://www.lawsociety.ab.ca/files/newsletters/Advisory_Volume_8_Issue_2_Apr2010.pdf
Session: Telling It Like It Isn’t: How Media & Professionals Hide Violence & Blame Victims
web.viu.ca/mathesond/…/Coates&WadeJournalofFamilyViolence05.doc
The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians
Trigger Affects- Pg 59
http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf
Thank you. I have saved all the e-mail from NSRLP and not had the courage to read any of it since I lost my case.
I struggled for years – right up to the Supreme Court – asking them to stand by their so-called commitment to fairness, as well as reviewing the rules regarding judges – to no avail. I had been fired from my job when I got sick from toxic mould. My lawyer had a breakdown, his partner had friends in my former company board of directors. He then helped the insurance company present a paid for Doctor report (who I never met) and did not show the pre trial judge any of my evidence. When I fired my lawyer and sued – another travesty. I lost at a motion hearing. Later the Waterloo Regional Court stated they had concerns that the judge was long time friends with the opposition council. SO what! I am broke – 100,000 in legal bills and still suffering health issues. I am an individual who fits your descriptions to a “T”.
YEA Canada!!!
Allison Garrett
Kavanaugh is a judge so is born to lie-a judge for a SRL will mostly be bias=you have to lie to be bias.
With a rape conviction rate in canada of 1 in 200 i cant figure out why women in the millions dont sue-sect 7 security of person against the laws,as well the new rcmp commissioner Lucki says there is a rape culture at the rcmp-and they are i charge of rape !!!!,90% of women wont report rape to the police-why isnt all that a hate crime against women?
Lawyers/judges write the rape laws that cause a 1 in 200 conviction rate-why does no one complain/isnt that a hate crime-lawyers get rich off rapists so they wrote the laws to protect them-if there was a 100% conviction rate/non bias laws/judges then lawyers couldnt help them and so make less money off rape.
You have to change the justice system to be there for the victim not the criminals-that is a security of person issue and discrimination to find laws hurt criminals only-only they get benefit of the law.
I have watched the Kavanagh hearings with great interest. I definitely DO NOT see it as a gender based issue at all. I see it for what it is… a grab for power and the sky is the limit on the negative damage to the justice system and political arena.
It seems to be all about winning and not about colour of law, justice, human rights or anything close to these.
It has been my honour to have been represented in court by some of the finest legal minds that our country is blessed to have.
It has also been my privilege to represent myself in court. Thank goodness that I did have the ability to learn from those who represented me in the past, as well as those lawyers from the opposing side.
Our justice system is NOT the American legal system. It has its similarities and its differences but in both unfortunately, sometimes ( for expediency) it becomes all about making deals not about what is right or just.
When I was young, a lawyer was a respected leader in the community, a person of letters. When I was young you went to court with a lawyer who would represent you to the best of their ability and make a level playing field in the court.
Now it seems that lawyers have lost the respect they once had because now its all about the “deal” and one-upmanship (not pc I know), and winning at any cost(usually legal fees).
The Court was a sanctified place where a dignified and learned Judge would listen to both sides of an argument and decide what was fair and just. It was a place of respect and you believed that justice always prevailed. Now a Courtroom, in some cases,(POA) isn’t ‘even presided over by a Judge, rather you have Justices of the Peace, who in some cases have absolutely no legal background whatsoever.
Often in Provincial Offences the accused has little or no court experience so the only one running the courtroom is the Prosecutor, who the JP often relies on for “the law in the matter”. To say this process is one sided or weighted against the accused is an understatement, not to mention the exorbitant court costs against a SRL.
I hope the NSRLP can do something to change this.
Now about FEMINISM…One thing I will say is that “feminism” in my opinion has never been a positive influence for me.
Feminism is a word and a theory that makes me want to grind my teeth and growl. It does not, in my opinion create or enable strength in women. I do not think that women running around wearing pink pussy hats or dressing up as a vagina enhances my standing as a woman.
Women need to be strong and independent and smart. As far as I am concerned the feminist movement has achieved the opposite. It has made women appear as screaming harpies with no dignity. Feminism has done absolutely nothing for me. But…if running around in parades and carrying a placard in one hand and a latte in the other is your thing…best of luck.
the lack of power in society generally and in the courts specifically for women, is a very long standing matter,, yes,, the lack of power IS a gender issue,, simply because women generally,, not just one,, do not have any. And speaking in a dignified and respectful manner has for generations,, not changed one thing about it. it started to improve in the 60s and 70s when women became more vocal and militant. The issue of racism was also raised in this same manner. it seems that unless the storm is at the door, men will continue to congregate and ignore the rights of everyone not exactly like them, During the 80s and 90s, women became more complacent, we assumed the changes had already happened. This crisis in the legal field shows us just how little really changed. The appointment of Raybold to the position of attorney general was a sop to try to show how the system really HAD changed. We see now she is little but a figurehead. Our systems are falling apart and the victims of its discrimination, us,, women,, are speaking up. And we are woefully disrespectful of our sisters if we do not say,, whatever you have to do for yourself and in whatever manner you need to say it in,, is respected here. I am not you, I support however your right to speak in whatever manner you feel it necessary to do so. I know you will do the same for me. it is now time to relook at the ideas we had back in the 60s when we first started demanding respect as human beings.