Lawyering After #MeToo: Science Fiction Otherworlds and Feminist Ethics for Legal Representation

In 2017, when the #MeToo movement was named Time Magazine’s Person of the Year. Tarana Burke, credited by Time for creating the movement, said “Now the work really begins.” And, as retiring Supreme Court of Canada Chief Justice Justice MacLachlin told the CBC in an interview upon her retirement last December, “we can do a lot better.”[1]

It is a new year: 2018. Let’s roll up our sleeves, my friends, and do that work. The threshold of a new year presents an ideal place to remember that moments are radically contingent and we are all in the process of becoming. What better cultural time than now, when a woman-led production of The Last Jedi dominates the box office with, at its centre, woman heroes fighting alongside men. Let’s make 2018 a year of change, a year of what Sarah Lefanu, in her book In the Chinks of the World Machine[2] called “wedging open the world machine” allowing for a deeper, more agentic visibility and participation for women and girls in legal spaces. Lefanu studied how science fiction writers were able to create feminist utopias in otherworlds, and looked at the implications of this for how we can make egalitarian change in our own world possible.

But, to bring about a more equal world, what work can we in the Canadian legal profession do? In my Law Times editorial this week, I made some suggestions, which I elaborate further upon here.

The direct work to be done on sexual assault and sexual harassment cases is enormous. The RCMP is processing over 1100 open claims made by women in relation to workplace sexual assault and sexual harassment. As was recently reported in the Globe and Mail, Law enforcement agencies across Canada are reopening over 37,000 sexual assault cases.[3]

Taking action against sexual harassment and sexual assault is where we should begin our work, yes, but not where we should stop. Not all of us will be involved directly in those cases. It is far too easy to make the #metoo movement a search for monsters, too easy to slide into a moral panic about sex. It is highly problematic to do so, too, because, as Stuart Hall theorized, moral panics have a social effect of reinforcing the status quo by scapegoating wrongdoers for social ills and thereby allowing the community to continue unaltered.[4] It is imperative that we remember how the high profile men recently deposed due to sexual harassment and assault allegations were enabled in their abuse by their positions of power. People and structures were complicit, many of them women. More complicated than rooting out villains is the knotty work of untangling the gender bias and systemic inequalities in a society that normalizes and enables them. Social order rests not only on law but also on a cultural web of small interactions; we all have some power at our local level to do law differently. It is not only men but also women who need to act.

My 2015 book about the carceral homicide of Ashley Smith[5] concluded with a challenge that is ever more relevant: find ways to ensure that contexts where legal processes are carried out are emancipatory spaces for women and girls as world makers. Unless we open those spaces, there will be no justice.

We must talk differently about women and girls. We need to do better to represent women, by confirming they matter as individuals, not just as someone’s sister, mother, wife, or daughter. We must put forward the complexities of women’s characters when we represent and purport to speak for them. It is imperative that we think differently about ethics in representation. Law has cultural power. When we represent people in advocacy we also create representations, or depictions, of persons. These representations take on a cultural reality. The can confirm or challenge stereotypes. They create worlds.

We can do better to make visible the pain of victims and the failures of our systems to protect them. We must say their names. For example, in discussing the trial of Basil Borutski for his 2015 misogynist murder spree in Wilno, Ontario, we should focus much more on the lives and agencies, and the failure of our systems to protect, Anastasia Kuzyk, Nathalie Warmerdam and Carol Culleton. We should turn our gaze not to the notoriety of the perpetrator, but to the courage of the women who died, and on fighting for those who are living.

When representing or cross-examining a woman, we can consider how her humanity is being depicted in the courtroom. We need to ask ourselves: is how I am representing, or questioning, or describing, this client, complainant, or opposing party, itself a form a violence? R v Barton, 2017 ABCA 216 presents an example of troubling representation intersecting with race and gender. Barton was charged with first degree murder in relation to the death of Cindy Gladue, who was found dead in the bathtub in a hotel room occupied by Barton. She died from blood loss from a perforation of her vaginal wall. The Alberta Court of Appeal overturned Barton’s acquittal and ordered a new trial on the basis of errors in the charge to the jury. In addition to the errors in law, the trial has been condemned because of the manner in which Gladue’s dismembered body was represented in the court. Her actual vagina was brought in for inspection. The trial of Bradley Barton itself dehumanized Cindy Gladue.

Lefanu’s study of science fiction, argued that the genre is socially useful for showing us how alternative worlds are possible. From “Star Wars”, we can observe how women can work side by side in professional collaboration, with men, and with each other. It can help us see anew how our own world is filled with strong role models: a woman can be Canada’s longest- serving Chief Justice and a woman can be a triumphant Jedi Knight. Those of us in the Canadian legal profession can make 2018 a year of taking action towards more just and emancipatory lawyering. We are all more powerful than we think.

Endnotes

[1] “We Can Do A Lot Better: Justice MacLachlin on What’s Wrong With Our Justice System” CBC The Sunday Edition (14 December 2017).

[2] Lefanu, Sarah, In the Chinks of the World Machine: Feminism and Science Fiction (USA: Silverwood Books, 2012.)

[3] Dolittle, Robyn, “The Unfounded Effect” The Globe and Mail (8 December 2017).

[4] Hall, Stuart; et al. Policing the Crisis: Mugging, the State and Law and Order. (New York: Palgrave Macmillan, 1978).

[5] Bromwich, Rebecca Looking for Ashley: Re-Reading What the Smith Case Reveals About the Governance of Girls, Mothers, and Families in Canada (Toronto:Demepter Press, 2015)