The relationship between feminism and criminal law centers on examining how the criminal justice system impacts women, particularly in the context of sexual assault and gender-based violence. Feminism critiques the societal structures that allow for gender-based violence and aims to provide a feminist perspective to the legal system in order to improve it.
It is common for criminal defence lawyers to receive inquiries from friends and family about representing individuals who have been accused of a crime, particularly when the lawyers know their clients are guilty. This is especially true for female or feminist criminal defence lawyers who may face additional scrutiny and be asked questions such as “How can you defend rapists as a feminist?” This is a valid question, especially when the victim is a woman, given that sexual assault is a gendered crime that disproportionately affects women.
Does taking on clients who have been charged with sexual assault compromise your feminism?
Abolish Absolutism
To bridge the apparent divide between these two potentially conflicting identities, it is necessary to reject absolutist thinking. Embracing feminism does not require believing every claim made by women, just as being a defense counsel does not entail assuming that all complainants are dishonest.
Understand that Current Power Structures Perpetuate Inequality
To gain a more comprehensive understanding of how oppressive male behavior is enabled by existing power structures, it is necessary to take a step back and examine the wider societal issues that contribute to sexual assault.
Recent high-profile cases suggest that the crime may not be solely the result of an individual’s actions, but rather a complex interplay of factors such as class, power, desperation, allure, promises of advancement, and other forms of hierarchy. Sexual assault is a multifaceted crime, and a feminist perspective must be similarly nuanced and avoid simplistic explanations or dichotomies.
Perhaps the greatest example of complex and nuanced criminal defence litigation in the context of rape, as it then was, which was highly influenced by the feminist perspective, is the amicus brief filed by a group of feminist organizations in the American case of Coker v Georgia. The 1977 ruling by the United States Supreme Court ultimately determined that the death penalty violates the Eighth Amendment of the U.S. Constitution in cases of rape.
Ruth Bader Ginsburg, now a Justice on that very court, is the first listed author on the brief which articulated that rape prosecutions were racist, sexist, and that sentencing convicted rapists to death was intolerable. The brief went on to emphatically state that the destruction of men’s lives does not serve to protect and honour women. Ginsburg further explained that the crux of the brief was that rape had only been punishable by death because women were viewed as property of men and that property (i.e., a man’s daughter or wife) was taken or damaged through the act of rape. Standing firmly against the notion that women were the property of men, the brief successfully argued that capital punishment was not appropriate in instances of rape.
Johnson, Brooke, “Defending against charges of sexual assault as a feminist” National Magazine, January 14, 2020
Further Examples of Feminism Shaping Criminal Law
Rape Shield Laws
The concept of “rape shield laws,” which protect sexual assault victims from having their past sexual history used against them in court, was developed with the support of feminist advocates.
Battered Women’s Syndrome
In R. v. Lavallee (1990), the Supreme Court of Canada ruled that a woman who kills her abusive partner in self-defense is entitled to use expert evidence on the issue of “battered women’s syndrome” to establish the reasonableness of her belief in the need to use force.
Decriminalization of Abortion
Former Supreme Court Justice Bertha Wilson affirmed a woman’s right to choose whether or not to terminate an unwanted pregnancy and overturned the provisions that made it a criminal offense to procure an abortion in her concurring decision in R v Morgentaler. Justice Wilson’s judgment recognized that the ethical and legal considerations involved in making such decisions cannot be divorced from the lived experiences of women.
Victims Bill of Rights
The Canadian Victims Bill of Rights, passed in 2015, was influenced by feminist advocates and provides victims of crime with greater rights, including the right to information about the case and the right to present a victim impact statement in court.
Challenging Rape Myths
In R. v. Ewanchuk (1999), the Supreme Court of Canada rejected the notion that women who dress provocatively or act flirtatiously are inviting sexual advances, thereby challenging rape myths that suggest that women are partially to blame for being sexually assaulted.
Prevent Further Victimization in Sexual Assault Trials
In R. v. Barton (2019), the Supreme Court of Canada adopted a more victim-centered approach to sexual assault trials, recognizing that the criminal justice system has traditionally re-victimized complainants of sexual assault.
Feminist Perspective Has a Long History in Supporting Equality
The feminist perspective has a history of supporting and collaborating with marginalized and underprivileged communities. The criminal justice system disproportionately affects disadvantaged individuals, particularly those who are poor or non-Caucasian, which is troubling for anyone who values equality – a core principle of feminism. When viewed in the larger context of the criminal justice system as a whole, defending a person who is accused of sexual assault takes on a crucial feminist dimension.
Criminal Law Needs Feminist Perspectives
In the realm of criminal law, feminism has played a significant role in shaping laws and court decisions. Feminist legal scholars have worked to expose the gender biases that exist in the criminal justice system, such as the belief that women are not credible witnesses or the myth that women frequently fabricate sexual assault allegations.
Feminist voices in the courtroom can enhance criminal law, especially in cases of sexual assault, even if they do not have the power to bring about immediate legal change. Although the Criminal Code places limits on cross-examination of sexual assault complainants, a feminist defense counsel who is well-versed in the various myths, stereotypes, and tropes that pervade sexual assault trials can provide a positive foundation for questioning complainants.