Eaton Hamilton

#Ghomeshi ##gomeshi #ibelievelucy #IStandWithLucy #BillCosby #hairextensions #truthmatters #rapeculture #cndjustice #sexualassault #dowomenlie #canadaisrapingyou #rapeisrape #womensrights #listentosurvivors

The complicity of the Canadian state in rape is a prelude to assault.

We have debunked the myth that the blame for sexual assault lies with the victimized.* Verdict after case not tried after case not reported assures us the fault doesn’t lie with the offender. According to Stats Can, only 3 out of 1000 sexual assaults in this country end in conviction.

Folks, there is only one other place to land fault: With the government of Canada, which is failing to protect you, and in failing to protect you, creating the misogynistic atmosphere that virtually assures your victimhood.

Here is part of your Canadian Charter of Rights and Freedoms, which indicts the government for all of us to read:

Section 7: right to life, liberty, and security of the person.

Section 12: right not to be subject to cruel and unusual punishment.

Section 15: equal treatment before and under the law, and equal protection and benefit of the law without discrimination.

Canada is courting rapists, and their statistical shout could scarcely be louder: Rapists, please, go for it.

Once, residential schools were legal. Once, Japanese internment was legal. Outside of our country, apartheid, the holocaust and slavery were legal.

Now, in Canada, rape is surely the next thing to legal. Rape is used as a tool of power and control to maintain the status quo and it establishes a dominance our legal system entrenches.

If you were a Canadian rapist, and you knew that you could rape with impunity, would you be likely to stop?

At least 1 out of 4 Canadian women is raped. Imagine 4 women in your life. Imagine 8 women. Imagine 16 women. Of those 16 women, 4 at least will have been raped. All of them will have experienced the preludes to assault, including the sure knowledge that if they are next, they will be unprotected by the law.

33 women out of 1000 raped women come forward. Imagine if only 33 out of 1000 break and enter victims called police. We would know something besides our front window was broken.

6 out of 1000 sexual assaults go to court. That’s how many victims Canada finds credible, and most of those complainants will be undermined—by introducing irrelevancies that don’t pertain to the assault.

Furthermore, only 2-8% of women lie about rapes, which is less than the percentage of people who lie about robberies, car accidents and assaults. Yet the outcomes to the different crimes are radically different.

Does anyone—even within the law profession–really imagine that the complainants in the Jian Ghomeshi case had equal treatment under the law, and equal protection and benefit of our laws without discrimination? Or do our Charter protections only come into play if you’re charged with a crime? Do women’s equality rights end when an abuser puts his or her hand on her? Do they end later when she reports to police? Or does she retain them until she is “whacked” in court?

I cherish our Charter.

As one of the litigants in Canada’s same-sex marriage case, I sat in Beverly McLaughlin’s courtroom in Ottawa as the court debated the reference questions from Parliament about changing our constitution to include queers in 2005. What living Canadian would I most like to have dinner with? Beverly McLaughin.

Our Charter is a living tree. It is meant to branch and change over time. I have watched it grow, quite literally under my fingertips. For a long time after the Charter’s advent in 1985, we had a program called Court Challenges, which provided funding to lawyers to challenge the constitution. The Harper government got rid of it and just this week the Libs announced they’re bringing it back.

Lately people, especially lawyers and pundits, seem stuck in the idea that we can’t change how sexual assault cases are tried. I find this notion bizarre and ridiculous.

“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.” –Margaret Mead

Neil MacDonald in an article for the CBC (linked below) maintains that I mock due process. And, in fact, he’s only half wrong: I regard it warily. If it is used as a means to justice, I admire it. If it is used to psychologically batter (almost always female) complainants, I do not admire it.

One is called to wonder why we value rapists’ freedom so very much that 2999 victims out of 3000 don’t have the reassurance that their rapists will be jailed for assault. Is it really better to let 2999 guilty offenders off the hook in order that one innocent one doesn’t rot in jail? Are abusers 2999 times more important than their victims?

Because that’s what we’ve been saying with how we utilize due process in sexual assault cases.

Leah McLaren has written in the Globe and Mail about the UK system of trying sexual assaults. It has changed there, and it can change here:

“The British court has significantly changed the way it deals with sexual-abuse trials. Most complainants are now interviewed and videotaped by police at home and not required to retell their story live in court. Complainants are then cross-examined via video link in a separate room from the defendant to avoid potential intimidation.

Defence counsel are required to make a special motion in advance if they want to bring up the complainant’s sexual history or conduct unconnected to the alleged incident. They must also, in most cases, submit their questions for cross-examination in advance, to be approved by a judge before trial. Neither are defendants given a choice to be tried by judge or jury. Virtually all serious crimes are tried by jury in Britain.

In the aftermath of the Jimmy Savile scandal and Operation Yewtree, it simply isn’t possible for defence lawyers in Britain to ambush and “whack” complainants in sexual-assault cases the way they once did (and the way, as some say, they are still perfectly entitled to in Canada). In Canada, by contrast, we still have a system that continues to fail the very victims of sexual assault it was designed to protect.”

We know the answer for why Canada has organized itself to dissuade victims from reporting their assaults. It’s because of systemic misogyny. Courts and the law have been formed and shaped by (elderly white) men to perform for (elderly white) men. At each step along a woman’s post-rape path, the system must step on her back and she must learn just how unimportant and impeachable she is as a citizen. Because if women didn’t stay down, misogyny would crumble.

Guess who will stop Canada from treating women like this, if you don’t? You know the answer: No one.

Here’s a radical idea:

Survivors who have been decimated in Canada’s courts, whether in the Ghomeshi case or in other sexual assault cases, might band together, preferably in several provinces at once, find a lawyer interested in constitutional law and sue the Federal government for abridging their Charter rights.

Readers will want to tell me, I know, how my analysis is skewed and this can’t possibly be done, given Canada’s current legal structure, but please save your breath.

Don’t tell me how it can’t be done, tell me how it can be.

And then show me.

*I use the word victim to refer to victims and survivors and complainants. I use the word men to also stand in for other genders. I use the word women to also stand in for other genders. I use the terms rape and sexual assault interchangeably despite the fact that “rape” is not legal terminology in Canada.

Court Challenges:

Relevant Dates:

• 1978: First court challenges program for language rights.
• 1985: Program expanded to cover Charter equality rights.
• 1989: Standing Committee on Human Rights and the Status of Disabled Persons carried out a study, hearing from 62 witnesses. It concluded unanimously that there were “not merely sufficient, but compelling reasons” for continuing the Program
• 1992: The program was cancelled by the Conservative government.
• 1994: Under a new Liberal government the CCP was reinstated under the Department of Canadian Heritage (it is later made into an independent non-profit corporation)
• September 2006: Program abolished by the Harper government.
• May, 15 2007: Parliament’s Official Languages committee stops functioning after the Conservative chair refuses to hear witnesses on the government’s decision to axe the CCP.
• June 2008: The Harper government restores funding for the linguistic rights part of the former CCP, now operating under the name the Language Rights Support Program.

Role or Position

The Court Challenges Program (CCP) provided funds to support test cases of national significance. Specifically, court cases that clarified the constitutional rights of official language minorities and/or those pertaining to equality rights of Canadians.

Implications and Consequences

• Equality: Access to justice in equality rights cases is severely limited and is available mostly to those with the financial capacity to pursue them.
• Equality: Canada’s global reputation of being a leader in human rights is greatly diminished by the elimination of a unique program admired around the world.
• Democracy: Discriminatory laws and practices remain untouched and unchallenged for much longer.
• Equality: Programs to provide protection from government discrimination such as LEAF for women, DAWN, for women with disabilities, Egale for gays, lesbians, bisexual and trans-identified people are limited in their ability to protect individuals as effectively.
• Equality: The cancellation of the CCP diminished the disability community’s access to justice.

Court Challenges Program

Charter of Rights and Freedoms

Canadian Rape Stats

Neil Macdonald for CBC

Leah McLaren for the Globe and Mail

Jane Eaton Hamilton The Preludes to Assaults