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On feminism and criminal defence

On Behalf of | Aug 24, 2016 | Uncategorized

I recently met with a law student who was interested in doing an internship with me. As we finished our conversation, she expressed her excitement about the opportunity to work with a feminist criminal defence lawyer. Her eyes sparkled as she said this, as if she had spotted some sort of elusive rainbow unicorn. I sort of shrugged it off at the time, but the comment stuck with me. I realize that when I finished law school and was grappling with how to merge my own goals of social justice with actually paying my bills, that I had not yet identified any feminist practitioners to look to as role models. That being said, I would count many of my own colleagues as feminists, whether they self-identify or not. And while merging feminist analysis with criminal defence work certainly comes with its own set of challenges, I’ve found that it has strengthened my practice. 

Whenever I speak to law students, particularly women, I often get a question of whether I could represent someone in a sexual assault case. The idea, of course, is that the rights of sexual assault complainants and accused persons are diametrically opposed. And in some ways they are. However, I always explain that I think it’s better to have a defence lawyer who is well aware of the myths and stereotypes that are often invoked in these trials, who will treat complainants with respect during cross-examinations. The Criminal Code limits the scope of cross-examinations, keeping things like recent complaint and past sexual history off bounds. But there is room there for a feminist ethic to cross-examine on inconsistencies without invoking other sexist tropes.

I also often meet with complainants of domestic assault charges to provide them with independent legal advice. They often are completely overwhelmed as to what is going on and find it helpful to understand the steps of a criminal case and what to expect as a file moves along. I have assisted women to draft affidavits to have their version of events told on their own terms, when they felt that their interactions with police left them feeling ambushed and without control. Meanwhile, I think that a feminist analysis that tries to understand the context of race, mental health, ability and colonialism helps me to better advocate for my clients.

Still, there remains this idea that feminism and criminal defence somehow can’t co-exist. Watching the Jian Ghomeshi trial unfold was uncomfortable for me, given the media storm and accusations that defence lawyers exploit complainants and hold up a system that suppresses women. I don’t deny that the criminal justice system has its faults, but it was difficult to hear these indictments while being so acutely aware of these issues. I almost wanted to yell “I’m trying!!!” I’m trying to be mindful of my own privilege and power when approaching these cases and to examine my own biases, while still vigorously defending my client. As I prepared to speak on the CBC Ottawa’s evening news about the case, a colleague joked with me that I would be booted from the legal feminist guild. “There’s a special place in hell for women who don’t help other women!’ he laughed. But I didn’t receive any hate mail, and I would like think that I was able to offer some insight into the case and the imperfect way that the courts deal with complex social problems. (Later on, I pulled some comfort from Marie Henein’s comment to Peter Mansbridge: “I’m not about to send myself back to the kitchen just because someone doesn’t like what I do”)

So while feminism and criminal defence may seem like unlikely bedfellows, I think having this approach has helped in my practice. And yes, it was a nice surprise to see that a soon-to-be lawyer has identified this work as something that she can aspire to do too.

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