Setting the Bar high

Last weekend, in the cold shadow of an anniversary of the dangers that exist because men scapegoat women, I did a quick google search for a story that hit the news in November. I was hoping for an update on what would become of Alberta provincial court judge Robin Camp, who asked a sexual assault victim why she didn’t keep her knees together.

Yes, even though it is 2015, some men still blame women for everything that happens to them.

Justice Robin Camp’s comments during the trial insinuated that proof of self-defense was necessary. His comments insinuated that proof of refusal (as opposed to consent) was the deciding factor. His comments make it clear that he doesn’t recognize neither the physical or psychological power imbalance between the victim and the assailant as factors. His comments make it clear he prefers to recognise a man’s right to claim he wasn’t adequately deterred, rather his responsibility to get consent. His comments perpetuate the outdated and dangerous narrative that it is a woman’s responsibility to justify her existence in a man’s world, and if things go wrong it is the woman’s fault. His comments reveal an attitude that is morally repugnant, and one that has been firmly disavowed by Canadian lawmakers.

Sexual assault hinges on one, and only one, thing. Consent. That’s it. Attempts to fight, actions taken to mitigate consequences, tactics used to deter potential assailants … all of these are utterly irrelevant and suggesting that they are is not only morally repugnant, they are legally inadmissible in a court of law. Why? Because the law recognises that the absence of any of those things is not a signal of consent, it is a signal of compliance. Compliance and consent are not synonyms, one does not infer the other. Consent must be given freely without fear, manipulation, coercion or threat.

Herein lies the problem with Justice Camp’s handling of a sexual assault trial. As a judge, he is the manifestation of Canadian law. It is his job to understand, interpret, and apply laws in keeping with the letter, the spirit and the intent of our social conscience. Judges must both demonstrate a thorough understanding of, and an unwavering willingness to correctly apply the law. A judge must embody justice.

Not only is it obvious that Justice Robin Camp’s world view is inconsistent with the Canadian social conscience, it is evident that in this case he erred in law. The defendant defends. The victim must only prove the crime happened, not that the crime could not have been prevented. Sex without consent is a crime. Sex without a struggle is not consent. These are not just vague ideas we bring up when bad things happen, they are concepts written into the law.

I understand this Justice Camp has been removed from all cases indefinitely and is expected to take gender sensitivity counselling. That sounds good.

But I think the ultimate outcome will have to be his permanent removal from the bench, because he has at best demonstrated an inability to understand the legal definition of consent, and at worst demonstrated a clear unwillingness to apply that legal definition. In Canada appeals are granted on errors of law. The fact that an appeal was granted indicates that the court of appeal also recognises that this judge erred in his interpretation and/or application of Canadian law. But that doesn’t go far enough. The system needs to recognise that he errs in attitude, and that his attitude makes him unable to embody the law. He can take remedial courses that could fill in knowledge gaps. At best it will teach him to avoid voicing his outdated and unacceptable views, but it won’t eliminate them.

I don’t know how the Canadian Judicial Council can overlook the magnitude of moral and legal error in this case when they are so directly conflict with proper application of Canadian law, and with the human dignity of half of Canada’s population.

Canada needs leaders to stand for the values we have written into our laws. We need leaders to spread and nurture the attitudes and ideas that underpin our laws or those attitudes have no hope of ever being universally adopted. We’ve made the legal progress, we lag behind in cultural progress. We need those at the forefront of our pursuit of justice and fairness to lead, not to lag. It is not enough for the court of appeal heard this case and do a better job of applying the law. We need to be sure we do right, right form the start. Removing Justice Camp from the bench is about setting the bar high for our justice and social leaders. If we can’t get justice in the courtroom, we will never get justice in the streets.

In light of the sheer magnitude of the progressive awakening in Canada this past year; the political tables upturned, the gender balance calibrated, the reconciliations untaken and the compassion renewed, what better way to keep the progress rolling than start the new year by making one more firm commitment to progressive Canadian values, and show Justice Camp and his outdated ideas to the door? If people ask us why we can say, because it’s 2016.

 

 

 

 

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