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BELOW ON THIS PAGE: The original text of an essay by Marjaleena Repo which has been published in the Ottawa Citizen and the Globe and Mail. Barbara Amiel, dubbed by Homemakers' magazine as "the steel magnolia in Conrad Black's lapel," wrote this in the National Post. injusticebuster Sheila Steele joins the fray.

Debate on the Ewanchuk decision

Albertan sentenced in 'no means no' sexual assault

EDMONTON - An Alberta man who went all the way to the Supreme Court arguing that a teenage girl he sexually assault had actually consented was sentenced Friday to one year in jail.

Steve Ewanchuk, 51, was charged in 1994 after exposing himself and putting his genitals on the shorts of a 17-year-old girl he was interviewing for a job.

The teenager said she declined his advances, and asked him to stop three times. But she admitted in court that she didn't fight him off vigorously because she was worried he would become violent.

In 1995, Ewanchuk was found not guilty of sexual assault when a judge ruled that the accused was under a "mistaken belief" that the victim had consented.

Three years later, the Alberta Court of Appeal upheld the acquittal, describing Ewanchuk's repeated fondling of the victim as "far less criminal than hormonal," and suggesting that the girl "was not lost on her way home from a nunnery."

But in 1999 the Supreme Court rejected the existence of a "mistaken belief" defence in sexual assault cases, ruling that "no" really does mean "no".

It ordered Alberta Court of Queen's Bench Justice John Moore to sentence the custom cabinet-maker.

The case was delayed when the Crown tried to have Ewanchuk declared a dangerous offender for a series of previous convictions for rape, as well as several unproven sexual complaints against him over the past three decades. But prosecutors ended up dropping the application.

Ewanchuk's defence lawyer said he is disappointed by Friday's sentence, saying he didn't think the judge would put his client behind bars. He had expected Ewanchuk to receive a conditional sentence, and is considering an appeal.

The Ewanchuk decision nothing to rejoice

Marjaleena Repo

So, "feminists are jubilant" about the Supreme Court's decision which resulted in Steve Ewanchuk's conviction for trying to put the make on a young woman. "A no is a no is a no, isn't that wonderful", is the mantra. Well, this feminist is not delighted; on the contrary, she is disturbed and alarmed. Here are the reasons why.

The facts are indisputable: no force, no violence, and no threats were used by the man. No rape or attempted rape took place and the woman in question was not under age, yet Ewanchuk is facing a jail sentence.

What took place was a failed seduction by someone who might have thought of himself as a regular Don Juan. He tried several different approaches, including a promise of great thrills. The scantily-dressed woman who voluntarily entered his trailer to discuss employment even exchanged a back massage with him, surely a sign of consent to something. Hopeful, he groped, until she told him to stop altogether, which "he did immediately," as court documents state. Before she walked out of the trailer - he opened the door for her - he said, "See, I'm a nice guy. I stopped," and gave her $100 bill, which from all accounts she accepted. (Perhaps he gave it in the hope of enticing her back, who knows.)

Nevertheless, when she got home she saw fit to call the police and have him charged for sexual assault. Although the man was acquitted by two Alberta courts, the highest court in the country has now ruled this man's actions to be criminal. It decided that there cannot be "implied consent" in sexual affairs, just a categorical yes or no: "...once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to 'test the waters.'" (emphasis added).

The implications are colossal: Any man who tries but fails to sexually interest a woman can now be found guilty of a criminal offence because he didn't get her consent first.

To abide by the ruling, a man would have to get the woman to sign a written document agreeing to physical contact, as even saying YES, or worse, using body language to indicate interest - and reciprocating a back rub speaks volumes - won't be enough, because she or someone acting for her (the appeal was supported by the heavy hitters of Women's Legal Education and Action Fund, Disabled Women's Network Canada and the Sexual assault Centre of Edmonton, now cheering the decision) can later argue that she gave her consent only because "she was afraid." Every woman thus a victim, every man a sexual aggressor and a would-be felon if he so much as touches her arm before getting a written agreement. ("May I touch your arm? Thank you, can I now touch your shoulder? Please sign here.") Every unhappy, confused, vindictive, resentful woman can now succesfully charge any man, no matter how long ago and how innocuous the contact was, because she "didn't give consent" and he "took liberties."

There is no doubt this could lead to whole courtrooms, no, buildings, being set aside for men who have "committed sexual assault" by not proceeding in a proper manner, laid out by the Supreme Court of Canada. Prisons will be filled with men who have to undergo sexual abuser treatment for engaging in "reckless conduct which is not excusable," as the Supreme Court decision described Ewanchuk's actions. They will be taught proper manners of approaching a lady, while their lives lie in ruins.

If the injustice to Ewanchuk is staggering, equally shocking is the cultivation of the image of this young woman - and through her ALL women - as a helpless victim of crude male sexuality. Judge McClung's suggestion that a "well-directed knee" could have ended the encounter has a degree of common sense to it, but the simplest solution would have been for the woman to walk out when she says she started to feel "uncomfortable."

As a friend or mother of the young woman I would have also told her, "No, dear, you don't go looking for work in shorts and tanktops; you will be misunderstood." And perhaps I would have even exclaimed after the incident, "So, what did you expect?" A little discussion of what and how we communicate with clothing and the lack of it in different situations, and what giving a strange man a back massage in his trailer might lead to, would have been in order, followed by a reassuring hug of "live and learn." But the suggestion that the police be called would have resulted in a belly laughter accompanied by "You gotta be kidding!"

But what has happened to Steve Ewanchuk is no laughing matter. A minor molehill, that is, a man trying to entice a woman to make love to him, and being rejected, has been turned into the mountain of a major criminal offence. Common sense - and an understanding of the complexities and confusions of everyday relations between the sexes (a lot of it guesswork, hit and miss, taking chances, trying different approaches) - has vanished from the thinking of the highest legal body of the country. This unfortunate decision is now turning the "war of the sexes" with its very human ambiguities and ambivalences into an unilateral declaration of war against all men and their very sexuality. The battle of the sexes is entering its nuclear war stage. Nothing to rejoice by any real feminist concerned about justice.

------- Marjaleena Repo is a writer, researcher and organizer on social, political and justice issues. She lives and works in Saskatoon and Toronto. In Toronto: 663 Greenwood Ave., Toronto, Ontario M4J 4B4 Tel: (416)466-6533

Barbara Amiel of the National Post

Some of us wear our tragedies on our sleeve. Others keep them to themselves, a more admirable stance, in my view. I cope, for example, with the suicide of my father and other close family members by acknowledging it publicly -- that helps me. Supreme Court Justice Claire L'Heureux-Dube, who lost her husband to suicide, says nothing about it -- it probably helps her.

Last week, Alberta's Judge John McClung reacted to L'Heureux-Dube's vituperative personal attack on him by writing a letter to the editor suggesting that her views on men would drive Quebec males to suicide. The intake of breath among L'Heureux-Dube's supporters sounded like a cosmic vacuum cleaner. Hisssss. How could he???????

McClung was seen not only as the author of a stupid letter, which he was, but the author of a cruel personal attack -- which he almost certainly wasn't. McClung probably knew as little as most of us did about the personal circumstances of M. Dube's death. Toronto criminal lawyer Edward Greenspan has already put that aspect of the squabble in context in this paper.

As he said, L'Heureux-Dube's comments about McClung were gratuitous; she wrote a bully's attack on him after the Supreme Court had already overturned his judgment. Her addendum to that judgment accusing McClung of being, in effect, a psychologically-challenged male, handicapped by "stereotypical" thoughts and in dire need of re-education, was unprecedented in its discourteous, ad hominem attack upon a fellow judge.

After the initial fuss and McClung's apology to L'Heureux-Dube, debate still rages, but an ominous silence clothes the key issue. No one questions the motivation and implications of the remarks by L'Heureux-Dube. To me they underline a crucial problem.

L'Heureux-Dube is routinely and respectfully referred to as "the feminist" on the court. What does this mean? Virtually everybody in Canada today supports the idea of full equality for women. Almost all Canadians support the full integration of women into the labour force, doing whatever they choose and are able to do. We all want a society in which individuals, regardless of race or gender or indeed anything else, can pursue their full potential, enjoy the security of their person, have the ability to enter into contracts, and all the rest of it. These are standard liberal goals, and while we can't guarantee every citizen 100% security of person or immunity to disease, crime, or hard luck, by now we all enjoy the essential freedoms of a liberal democratic society.

When feminists were seeking equality for women, they were well in the mainstream of the liberal movement. Just as one could say there was a "liberal" on the court whose traditions clearly harkened back to Jeffersonian democracy, or a "Conservative" seat whose Toryism was of Burkean descent, so, too, feminists were a part of the liberal values subsumed by our culture. Had someone mentioned that there was a communist or fascist on the court, however, eyebrows would have been raised. Such a person would be fundamentally opposed to our traditions and heritage, and indeed the ideas for which we fought the Second World War and in the case of a communist, the Cold War.

In fact, for a very long time now, feminism has had absolutely nothing to do with equality for women -- quite the opposite. It is now a movement whose name has been hijacked by radicals fundamentally opposed to all our institutions and heritage. Nor, if you actually study their writings, do its adherents deny this: It is enough to read the judgments of "feminists," including L'Heureux-Dube and the people she happily quotes with approval. Read and you will discover that their fundamental assumptions are every bit as distanced from our assumptions and heritage -- and sometimes further distanced -- as those of communists or fascists.

By now our institutions have been so affected by radical feminism that it is hard to know how to countermand their grip on our lives. The first step, I should think, must be to identify what we are fighting. The civil service, the judiciary, academia, and the publicly owned media seem too slow-witted or lazy to deal with the problem. From Statistics Canada to the Law Society, we see nothing but compliance with a point of view totally at variance with our experience of life in this country. The authorities and quotes L'Heureux-Dube chooses to illustrate her judgments and speeches are relentlessly anti-male, illiberal, and anti-equality.

Here is a brief selection: "In Canada," she writes, "one-half of all women are said to have experienced at least one incident of physical or sexual violence since the age of 16." (StatsCan, 1993.) This assertion that hovers between the unwarranted and the ludicrous, based on a definition of sexual assault that includes glances or jokes perceived as lewd or off-colour, is introduced into the debate to set up a climate of hysteria in which the suspension of common sense and curtailment of civil liberties can be justified. How many men would be victims of violence under the same standards?

"Since our legal system is ineffective in protecting the rights of women and children, it is necessary to re-examine the doctrines which reflect the cultural and social limitations that have preserved dominant male interests at the expense of women and children." ("The Standard of Social Justice as a Research Process," 1997, Can. Psychology.) Assertions such as this are supposed to justify abandoning gender-blind justice.

She is particularly enthusiastic about the UN Convention on the Elimination of All Forms of Discrimination Against Women, 1980, to which Canada is a signatory. This covenant may well have application in countries such as China, where women are forced into abortions, in Africa with forced removal of the clitoris, or Third World countries with female slavery and forced prostitution -- all with the compliance of the authorities -- but its relevance to Canada seems utterly obscure. Still, L'Heureux-Dube feels so strongly about it that not only did she quote extensively from it in her separate opinion to McClung, whom she clearly feels is a candidate for its more draconian recommendations, but she underlined the sections quoted below:

The pervasive violence against women must be eradicated by "all appropriate measures, including legislation, to modify, or abolish existing laws, regulations, customs and practices which constitute discrimination against women." Since we don't have forced abortion, clitoridectomy, female slavery, or forced prostitution, what laws, customs, and practices of ours does she want "eradicated"?

The answer may be found in other authorities she quotes with approval, who see a brave new world in which all judges will be re-educated to understand that women think "differently" about the context of much crime and so should not be punished the same as men, required to follow the same evidentiary procedures, or held to the same contractual obligations. It does not seem to have occurred to these legal feminists that if women are not to be held to their signatures, for instance, then this would justify the pre-Victorian laws that required a husband to countersign his wife's contracts.

Women think "contextually" and evaluate decisions and situations in terms of "relationships." Mari Matsuda, a U.S. feminist and law professor whom L'Heureux-Dube particularly likes, points out that the law has too long been concerned with specifics and facts that have nothing to do with justice. "High talk about language, meaning, sign, process, and law," writes Matsuda, "can mask racist and sexist ugliness if we never stop to ask: 'Exactly what are you talking about and what is the implication of what you are saying for my sister who is carrying buckets of water up five flights of stairs in a welfare hotel?' "

But just because L'Heureux-Dube and her colleagues believe that white males have oppressed women, that does not mean they trust all women. It is not enough to be a woman to win their approval -- you have to be a bona-fide radical feminist. As both U.S. law professor and well-known feminist Catharine MacKinnon and Denise Reaume, a University of Toronto law professor, point out, in our system of law "women of colour, lesbians, poor women, disabled women -- have been excluded in favour of those white, middle-class, straight, able-bodied women. Indeed it is sometimes the case that the law exemplifies a double form of implicit exclusion, completely excluding the needs or interests of some women even as it distorts those of a more privileged group." (In fact, almost all support for these ideas comes from the sort of women that MacKinnon and Reaume dismiss here as "privileged.")

Among the solutions that L'Heureux-Dube embraces is the belief that so long as we don't let justice fall into the hands of these non-women, the right kind of women judges will be uniquely suited to judge cases involving women. "Only someone who has lived an experience will truly be able to understand it," she writes. Women will be able to "render more gender-sensitive justice" -- providing they do not get trapped by biased male assumptions implicit in concepts of "judicial notice" and old-fashioned rules of evidence, or, worst of all, "common sense."

On this, L'Heureux-Dube quotes Australian feminist professor Regina Graycar: "Those who have written about women's credibility, both within and outside the law, have noted there are enormous obstacles to women's stories occupying the same space and having the same authority as the stock stories that underpin the common sense of deeply gendered legal discourses."

L'Heureux-Dube does not grasp the nettle that if women need the right sort of women to judge them, men ought surely to be judged by men who have lived their experience. Of course, L'Heureux-Dube is counting on the courses she recommends to make men "gender-sensitive" to solve this. She does not suggest women be re-educated to be gender-sensitive to men. Nor follow the logic of her position to cast doubt on her own ability to judge men. Nor realize that if she is right to assume that we are all trapped inside "gendered" intellects and imaginations, then justice between us becomes impossible.

This is her universe, these are the stars in their constellation: University of Calgary law professor Kathleen Mahoney, Carol Gilligan (author of In A Different Voice), Catharine MacKinnon, Mari Matsuda, Lynn Smith (dean of the University of British Columbia), UBC professor Isabel Grant, Regina Graycar, and so on. By their own admissions, their position is that all the constructs of what we know from our system of government to our notion of family, from our legal system to our philosophy and logic, are specifically male constructs and more specifically white European male constructs. They believe that women have a different reality, and that all our institutions must be changed and fundamentally altered to respond to that reality. Far from creating equality, such feminists are exclusionary. They wish to create a new privileged caste, namely the matriarchy. Mahoney sneers at "formal equality" as a right-wing concept that must be replaced by "substantive equality" -- a code for statistical parity, with quotas and privileges for women. These feminists are, in fact, promoting gender wars. They have already played havoc with the workplace and had a very adverse influence on such major institutions as the military, and, of course, the judiciary -- not to mention the family. Far from nation-building, they are destructive of the nation and highly detrimental to the fabric of our society. Like all ideologues, they have structured a universe in which everything proves whatever they wish it to prove and it is all used to structure a matriarchical system in which they will be able to wield almost unchecked power through intimidation, the establishment of standards and structures of morality that suit their ideology and function to their own benefit.

Though small in number, they occupy influential positions and have formidable weapons with which to intimidate. What man can face the whisper of child abuse in a divorce or custody proceeding? The accusation of sexual harassment or even "sexism"?

The nightmare of clearing oneself of a "repressed memory," or as Clarence Thomas found out, the claim of a pubic hair on a can of Coca-Cola? Our male judges have lost their nerve in the face of this onslaught and the fear of being seen as "reactionary" or in the grip of "myths" or "stereotypes" (i.e., common sense).

Ultimately, these feminists permit the state, on the basis of promoting various feminist aims, to encroach further and further on the autonomy of the family. Here is an alliance indeed: a power-grab by a statist matriarchy.

L'Heureux-Dube herself is described as an exceedingly gentle and nice woman. I do not mention this to indicate some sort of hypocritical "fairness" on my part or to soften the criticism. I believe it. I cannot understand why she is caught up in this, but having read her work, I am inclined to think she is a genuine "victim" of sorts herself. Because of the Zeitgeist, with its need for high-achieving women, she is living beyond her intellectual means. She doesn't really understand what she is saying, or its consequences. In her essay, "Making a Difference: The Pursuit of a Compassionate Justice," she quotes the Fanonian-feminist Matsuda serving up the notion that justice should favour "the standpoint of the oppressed" -- i.e., whichever group she and/or Mao elect to champion from time to time. Then L'Heureux-Dube approvingly quotes the late Brian Dickson, former Supreme Court chief justice, in the belief that he was saying the same thing.

But far from saying the same thing, Dickson was actually saying the opposite. He wasn't removing his judicial blindfold to favour "the oppressed" or any other group. He wasn't arguing for partiality in justice, but -- like the good liberal he was -- for the necessity of admitting all groups to impartial justice.

Such a distinction eludes L'Heureux-Dube. I suppose, in the end, she is an example of the singular kindness Canada shows in giving lesser minds a role in society. We will have to be tougher, though, if we wish to preserve that kind and caring society. Madame Justice L'Heureux-Dube may be a kind woman, but her ideas are lethal to equality, compassion -- and justice.

Southam Inc.

My observations on the Ewanchuk case

Ewanchuk is a convicted 47 year old rapist who sexually assaulted a 17 year old unemployed woman. She was prepared to pose in scanty costumes to attract customers to his woodworking display and even to give him a massage. She wasn't prepared to fuck him. Nor did he ask her to. Nonetheless, he threw his body on top of hers and ground his groin against her, threatening to excite her against her will. I call that violent. And I hope he gets fair due process before they lock him up and throw away the key.

This encounter might have happened differently if the sex trade was legal. Ewanchuk might have even got his hundred bucks worth after paying in advance for clearly stated services.

The Supreme Court made the right decision because they knew very well that Ewanchuk was a convicted sex criminal. They are experienced jurists who read the papers and between the lines of court transcripts. The fact that the phrase "first offence" does not come up in his defence is the tip-off. While encouraging the citizenry to say what it means in clear language, the judges should really do the same. Skirting the fact that the decision was influenced by knowlege or educated speculation about the defendant's past adds troubling ambiguity. While claiming to stand for clarification in the realm of sexual relations, the Court is not yet prepared to show that the law could also benefit from precision and truth in its expression.

The debate about this has come down to a suggestion that the choice is between "seduction" (persuading a person to do something they think is wrong) and signed binding contracts between partners before the first touch. Gosh. What happened to all those choices in between?

Is speaking the words before doing the act such a difficult and unreasonable thing to expect? I'd even suggest full eye contact should take place at some point in the striking of the agreement. And the word sex should probably come up, if only as an educational tool since the U.S. President actually believes that receiving a blow-job is not having sex. It always has stuck me as a good idea when doing anything with another person that we have some clear idea of what we are doing. Words are usually the most efficient way of establishing this.

I grew up in a family where "it" wasn't discussed and I was very grateful to the straightforward man who shook me out of the crippling self-consciousness that comes with such an upbringing. Dumb-striking shyness often comes from hesitation to discuss birth control and prevention of disease. This is 1999, folks. Time to get over it.

The Christian coalition says "Just say no" to drugs and to sex outside of marriage. Good for them. At least they are talking, if only in monosyllables. I presume than no means no in their lexicon. This is a brave stance in a world of economies based on temptations.

Logically, if no means no, yes means yes. A nice word with a nice ring to it. A word which is not too difficult to pronounce, by adults who have attained the age of consent., especially if it follows congenial conversation. It could turn out to be the sexiest word in the dictionary! Let the coyness fade away with the hi-fidlity record-player and the typewriter. This is the age of communication, I'm told. So why don't we all learn how to do it?