‘Victim-blaming couched as legitimate judicial inquiry’

  • Subtitle: Lori Douglas is the victim of a sexual crime; her public re-victimization is just plain wrong.
Written by  Jasmine Akbarali and Gillian Hnatiw Posted Date: November 17, 2014
‘Victim-blaming couched as legitimate judicial inquiry’Like a watermelon dropped from a balcony, discussions of sexual violence against women have broken open in dramatic fashion since the allegations against Jian Ghomeshi became public. 

Ghomeshi himself broke the first wave of the story when he took to Facebook to decry the CBC’s decision to terminate him — he claimed — over his adventurous sexual activities with consenting adult women, including a “jilted ex-lover.”

Initially the public was sympathetic. His supporters denounced the CBC and pre-emptively disbelieved his anonymous accusers. Even noted feminists like Elizabeth May and Sheila Copps were quick to jump to his defence, echoing Pierre Trudeau’s words that Ghomeshi’s lawyers invoked to open his $55-million claim against the CBC: “the state has no place in the bedrooms of the nation.”

Later that day, the Toronto Star published allegations from three anonymous women about non-consensual, violent sexual behaviour. More came forward after that with two brave women going public. The room was suddenly smoky; Ghomeshi supporters fled.

The #beenrapedneverreported hashtag went viral. Women began telling their stories, many for the first time, of sexual assaults by “bad dates,” boyfriends, husbands, fathers, strangers, and friends. The statistic that only six to eight per cent of assaults are reported was suddenly made personal. There was wide-spread acknowledgement that sexual violence happens, all the time, to all kinds of women.

It became a self-evident truth that our society could do a better job of supporting and empowering victims, and encouraging reporting of sexual crimes.

Some of the stories being shared related to a form of sexual exploitation that is becoming commonplace in the digital age – revenge porn, or, more technically, the non-consensual sharing of digital sexual images.

We all know the story of #YouKnowHerName, the teenage girl from Nova Scotia who took her own life after digital images of her being sexually assaulted were shared online among her peers. We’ve heard about the hacking and sharing of celebrity nude photos, which Jennifer Lawrence rightly called a sex crime. We saw how the actress Emma Watson was threatened with a nude photo leak after delivering a stirring speech to the United Nations declaring herself a feminist and asking men to take up the cause.

The threats against Watson should put to rest any doubt that these crimes against women are not about titillation, but power, intimidation, and control.

Bill C-13, which has passed second reading in the Senate, will soon criminalize the non-consensual distribution of intimate images in Canada, thus recognizing the people in these photos are victims of sexual exploitation and violence. As the law adapts, we must acknowledge that members of the legal community are not immune to these crimes or the dangerous layers of judgment and victim-blaming that surround them.

This takes us to the Canadian Judicial Council’s inquiry into Manitoba Associate Chief Justice Lori Douglas. Douglas is (ostensibly) being investigated for failing to disclose in her application for judicial appointment the existence of photographs that depict her engaging in legal, consensual sex with her husband.

Prior to her application, without her knowledge or consent, her husband shared these photos online and used them to try to entice a client to have sex with her. The client complained. Her husband was fired. A settlement was reached in which all copies of the photos in the client’s possession were purportedly returned. The images were removed from the Internet. Douglas and her husband destroyed the photos in their possession. She must have thought it was over.

But it was not. After her appointment, the client resurfaced with the photos and complained to the CJC. The photos made their way back onto the Internet. Intimate images of Douglas that had been shared in a gross violation of trust were again available for consumption. The images were reposted by an American law blog that pre-empted complaints by saying that if the reader didn’t find it titillating to look at photos of a middle aged judge performing sex acts, well, don’t knock how other people get their “bliss.”

One can only conclude that Douglas is the victim in this story. Yet somehow, before the CJC, she is also the accused.

The CJC’s Committee of Inquiry is charged with considering:
(i)    whether the facts related above should have been disclosed in Douglas’ application for judicial appointment; and,
(ii)    whether the availability of the photos on the Internet is inherently contrary to the integrity of the judiciary and could undermine public confidence in the justice system.

Fundamentally, the CJC is asking whether Douglas’ failure to disclose that she was victimized by her husband and his client is relevant to her appointment; and whether engaging in consensual, lawful, kinky sex disqualifies her from the bench.

Put thus, the questions answer themselves.

Douglas sought an order that the photos be found inadmissible, and returned to her. Earlier this month, the committee released its decision, concluding notwithstanding the judge’s victimization, and the clear harm that further disclosure of the photos would inflict — her confidential medical information having been filed in support of the motion — it would “not be advisable not to view the photographs” because their “specific content” has a “relevant bearing” on whether Douglas is incapacitated or disabled from the due execution of her office.

The committee’s decision is premised on the flawed assumption that the content of the photos is somehow determinative of Douglas’ culpability, though it does not explain why it needs to know anything more than that the photos depict lawful, consensual sexual acts, and were disseminated without her consent. The committee’s mandate amounts to victim-blaming couched as legitimate judicial inquiry.

After drawing summary conclusions about the relevance of the images, the committee, relying on a commercial decision about the admissibility of wiretap evidence, held the public interest in a transparent process outweighs Douglas’ right to be protected against further violation.

The Committee ignored the medical and social science evidence filed by Douglas that attested to the specific harms caused by the non-consensual distribution of intimate images. The notion that there is any true “public interest” in the photos harkens back to the days when a woman’s body and sexuality were matters of community concern.

To the extent the committee is occupied with Douglas’ sexual practices, perhaps Ghomeshi’s lawyers could remind them that the acts in question occurred in her bedroom, where the state has no place.

Douglas is seeking judicial review. One hopes the next panel to adjudicate the case will be alive to the challenges faced by victims of sexual violence.

For what articling student will report an incident of sexual harassment or rape when a woman in a position of power is re-victimized for little more than being a victim of a sexual crime? Will judicial hopefuls be expected to disclose incidents of assault on their applications? Does every instance of non-missionary sex need to be disclosed, or only if there are photos?

Or this: if she had lived, would the images of her rape have meant that #YouKnowHerName would have been unfit for a career on the bench?

We ought to recognize that Douglas is the victim of a sexual crime. Her public re-victimization in the inquiry is wrong. It is time to rise to her defence and to demand better treatment for her and all victims of sexual violence.

Jasmine Akbarali is a partner in Lerners LLP’s appellate advocacy group. Gillian Hnatiw is a partner at Lerners LLP who regularly advocates for survivors of sexual violence.

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Comments   

+1 # lawyerdavid s 2014-11-22 17:01
I think that if you have such a high-public position where your professional image is vital to the integrity of the justice that you "facilitate"as a judge, potential compromising pictures should be reported before the committee upfront. This is precisely where Douglas went wrong.

If you don't report it and it leaks out, it's your fault for taking those pictures in the first place and putting yourself in a position to be the victim of a sex-crime.

If I have sex and take pictures I'm certainly smart enough not to risk damaging my own reputation by not giving them out to people in the first place.

I think this is also a critical difference between this case and the case of the numerous celebrities which were cyberhacked and their photos stolen.
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0 # She didn't give the photos outCathy R 2015-11-09 11:49
Quoting david s:

If I have sex and take pictures I'm certainly smart enough not to risk damaging my own reputation by not giving them out to people in the first place.

I think this is also a critical difference between this case and the case of the numerous celebrities which were cyberhacked and their photos stolen.


That doesn't apply in this case - she didn't give the photos out. It was her husband, whom I'm assuming she trusted.
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+2 # Why is the CJC Predisposed to Mishandle This?Chris Budgell 2014-11-17 19:28
It may be worth reviewing the initial reaction to this matter when it became public.

An example is the opinion of Professor Alice Woolley of the University of Calgary, prominently featured in the National Post on September 2, 2010:

http://fullcomment.nationalpost.com/2010/09/02/alice-woolley-the-problem-with-judges-and-kinky-sex/

Perhaps Ms. Woolley should be invited to tell the public if she has changed her mind. And if not, why not.
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0 # Life isn't fairA Canadian Lawyer 2014-12-15 20:03
Thanks for the reminder about Professor Woolley's article. As unfair as the situation is to Douglas, Professor Woolley's arguments are still compelling. The judicial appointment process isn't entirely about the suitability of the candidate per se; it's also about appearances, about confidence in the system. The question on the application was “is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?” If you knew such photos were out there, there's a good case for saying you ought to reply in the affirmative.

On the other hand, there are those words “which should be disclosed”. Perhaps it is not in the public interest to require disclosure of something like this where the applicant was only a victim. Perhaps a better system would not require disclosure of such things at the time of the application, but perhaps after being selected or short-listed?
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+7 # lawyerJohn G 2014-11-17 17:29
Absolutely right! How is it relevant to an application to become a judge that one has been the victim of a crime? Must a married adult woman - or man - decline to participate in public life, or to accept a public appointment, because that person has sex with her or his spouse?

It is certainly not necessary for the panel to see the pictures, either. There is no question about the legality of Justice Douglas's behaviour, so there is nothing in the pictures for the panel to learn about or judge on.

My own view is that it should not matter to the appointment even if she had published the pictures thsmelves, since it would not have been illegal for her to do so (with her spouse's consent). But that would involve a far greater public acceptance of normal sexual activity than I expect to see in my lifetime.

In any event, that is not Justice Douglas's case. She is a victim. Tha is not a disqualification for judicial office.
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+6 # retiredDoug Seeley 2014-11-17 01:18
I completely agree with this article. When are we actually going to bring essential Canadian values such as fairness, kindness and generosity into a profession filled with over-literal interpretations, logic based solely on documentation, and cleverness put high on a pedestal? Please bring human values and justice back into professional law.
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