Courtship in monosyllables

Poor manners distract us from the high court's sophistry

Lorne Gunter 

It's a shame Mr. Justice John "Buzz" McClung of the Alberta Court of Appeal chose to respond in such a boorish fashion to the Supreme Court's reversal of a decision he wrote in a rape case last year. By suggesting that Madame Justice Claire L'Heureux-Dube's judicial feminism has led a disproportionate number of Quebec men to commit suicide, McClung demonstrated a lack of manners and good sense, though he probably did not know that L'Heureux-Dube's husband took his own life more than 20 years ago. 

By replying in such an undignified manner, McClung has damaged his own reputation, ensured that no one remembers his original point, and deflected attention from yet another piece of legal sophistry from the high court. 

In his now notorious letter to the National Post last Friday, McClung rightly accused L'Heureux-Dube of a "graceless slide into personal invective." In her ruling in the case of Steve Ewanchuk, an Edmonton woodworker who three times tried to force himself on a young woman he was interviewing for a job, L'Heureux-Dube's tone was more than condescending.  In terms that were unusually personal for a legal judgment, she questioned not only McClung's finding of fact, but his intellectual ability to draw the proper conclusions (i.e. her conclusions). 

Yet whatever legitimate complaint McClung may have had was buried in the storm of protests his own invective aroused. 

Also buried in the controversy is proof that, yet again, the Supreme Court has swallowed whole feminist definitions of sex and rape. In her rebuke of McClung, L'Heureux-Dube cites comparatively few legal precedents, aside from those she herself has earlier written. Instead, she relies heavily on such sources as Catharine MacKinnon's Toward a Feminist Theory of the State.  MacKinnon is an American law professor who argues that almost all heterosexual sex is rape.  [In the US, there are an estimated 520,000 false rape allegations a year — 98.1% of all reported cases.  Eeva Sodhi, Debunking Domestic Violence Statistics; Rape]

Armed with this stack of dubious bedside reading, L'Heureux-Dube contends that the determination of consent in a rape case "is a matter of the state of mind of the complainant." No matter that the complainant may have given every verbal and physical indication of her consent. If, in her mind, she was frightened or uncertain when she said "yes," she cannot be said to have freely consented. At best, her partner might be guilty of "honest but mistaken belief," but he is still guilty. 

This has been dubbed the "no means no" case. It might just as well be nicknamed the "yes means no" case. 

For feminists, sex must be as black and white as contract law and probably as much fun. The male (the term "man" isn't clinical enough to express the mindset involved) must have in his possession a signed consent form from the female before proceeding in a respectful and fully protected manner, in a place and at a time of prior mutual consent. 

That's not sex, it's surgery. 

Throughout her discourse, L'Heureux-Dube disparages myths about rape that she asserts are still widely held by men. Yet her one-sided definition of consent, which she freely admits is "an entirely subjective test," is itself based on several other myths: Women are never devious in affairs of the heart, nor even of two minds. They never mean "maybe." And men are nothing but walking hormone rockets always frantic to launch. 

Not only does the court's ruling establish a definition of consent with the potential to make the complainant the principal determiner of fact, and provide the defendant little or no defence, in Ewanchuk's case, the ruling may have denied him a common protection of his right to a fair trial. 

Typically, especially in criminal cases, when the Supreme Court overrides a lower court decision, it clarifies the meaning of the law in question, then returns the matter to the lower court for a rehearing or retrial.  This convention is an acknowledgement by the high court that while it may be last, it isn't always right. Should new issues arise at the retrial, the accused retains the right to appeal the outcome yet again. 

For this reason, the court almost never convicts or acquits a criminal defendant. Yet it did in Ewanchuk's case. And it is difficult to shake the impression that the Supreme Court tread on due process in its blind rush to castigate McClung. 

On the facts, Ewanchuk appears guilty, and the Alberta Court of Appeal seems wrong for acquitting him. McClung is surely wrong for his bizarre comments.  But neither excuse the bad law and twisted precedent the Supreme Court made in this case. 

Related Sites 
R. v. Ewanchuk 
http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/ewanchuk.en.html 
The Supreme Court decision handed down in the "no means no" sexual assault case. 

Jurist Canada 
http://jurist.law.utoronto.ca/ 
The leading judicial website. 
 

One can almost see her rolling up her sleeves and reaching for her seal club. Last Thursday, after her colleague Mr. Justice John Major, had overturned Alberta Court of Appeal Justice John McClung's acquittal of an Edmonton rapist, Supreme Court Justice Claire L’Heureux-Dube apparently remained dissatisfied. 

"Although (Justice Major) has recounted the facts," L'Heureux-Dube wrote, revving up for her attack on McClung, "there are some nuances that need to be stated." That may not sound like much, but in judicial circles, it's about as snide as things get. 

In fact, Major had dealt adequately with all the legal nuances. He had dismissed, for instance, the notions that Steve Ewanchuk's victim had given her "implied consent" and that Ewanchuk had an "honest but mistaken belief" his advances were welcome. Rather, L'Heureux-Dube seemed intent on spending a few pages slamming McClung. 

For the record, last year when McClung upheld Ewanchuk's acquittal, I disagreed with both his reasoning and his conclusion. 

Ewanchuk, who was in his mid-40s at the time of the 1994 assault, lured a 17-year-old into his trailer in a mall parking lot with the hint of giving her a job. That she presented herself for the interview in a T-shirt and shorts hardly matters. She was a teenager. At a mall. 

More important, Ewanchuk sought her out, not the other way around. Nor did she have time to go home and change. Her outfit made no statement about her openness to sexual advances since it had been chosen for a day of shopping with a friend, not as an enticement to a prospective employer. 

Besides, in the victim's mind, Ewanchuk and she were employer and employee.  Perhaps she was naive not to see what was going on. But even if Ewanchuk had hopes of having sex with the victim when he convinced her to join him, there is no indication that she shared or even understood his intentions. By entering his trailer she was not inviting Ewanchuk's groping and grinding. 

Still, L'Heureux-Dube, far from reasserting some reason into the debate, perpetuated a gross of feminist myths about men and rape, and in the process made a very bad, one-sided precedent by which to try future cases.  "According to (McClung's) analysis," L'Heureux-Dube asserted, "a man would be free of criminal responsibility for having non-consentual sexual activity whenever he cannot control his hormonal urges." 

Drivel. McClung advanced no such argument. In his less-than-delicate way, McClung was contending that determining whether consent for sex has been granted is a complex, often difficult process. Messages, both verbal and physical (including the way a woman dresses), can be mixed, and misunderstood. 

That McClung's determination of consent in the Ewanchuk case was wrong, does not mean his reasoning is universally flawed. The faulty reasoning belongs to strident feminists who contend it is always easy to determine guilt in a rape case: If a women cries rape, she must be telling the truth. Some man must pay. 

L'Heureux-Dube argued Thursday that the test for consent should be entirely subjective. If the woman did not consent in her own mind, even if she consented in words and actions, there is no consent and, therefore, the man is guilty of sexual assault. 

Feminist groups have hailed L'Heureux-Dube's judgment, which points to a two-facedness on their part on the crime of rape. 

Ewanchuk, in the confines of his "office," squeezed a prospective employee's breasts, ground his clothed pelvis into hers, and exposed his penis in hopes she would consent to sex with him. After each unwanted advance, his victim said "no" and he desisted. 

McClung referred to these assaults as "three clumsy passes," and was upbraided by L'Heureux-Dube for doing so. To describe these "as 'clumsy passes,' (is) plainly inappropriate," she wrote. It minimizes "the importance of the accused's conduct and the reality of sexual aggression against women." 

But Bill Clinton, in the confines of the Oval Office, squeezed the breasts of a woman who came looking for a job (Kathleen Willey), and forced her hand onto his clothed penis. And, when he was governor of Arkansas, he exposed his penis to Paula Jones, an employee of his state government, in hopes she would consent to sex. 

Yet, writing in the New York Times last March, feminist icon Gloria Steinem called Clinton's assault on Willey "a gross, dumb and reckless pass." He was not guilty of sexual assault, according to Steinem, because after each unwanted advance, he "took 'no' for an answer." 

Plainly, feminists believe what is criminal in most men is appropriate for a charming, pro-abortion, liberal politician.