Week 8

BACKGROUND
Interpretations of general principles o Occur in legal reasoning: judgments (how they are upheld, changed, enforced etc) o Criminal law is a system of substantive judgment on human conduct (99) o Through judgments, sexual difference is expressed, understood, organized What is reasonable? o When does no mean no

LACEY IN DETAIL
To be critical of general principles, focus on how they are applied when: o Defining offences o Defining relevant or admissible evidence o When/where/how offences are interpreted In legal reasoning, context matters Legal reasoning in criminal law Substantive judgment on human conduct(99) Context matters o Must examine law in action o Assumptions and effects of judgment o Evidence of how sexual difference is understood and organized Main Argument: Laceys Thesis To deconstruct criminal laws real sexual inequities o Undertake the analysis of the substantive offences interpreted in the light of the supposed general principles (95) Dont just focus on principles alone o But how they inform judgment in a specific context

Week 8 DPP vs Morgan [1976]

Director Of Public Prosecutions V Morgan Appellant: Morgan Facts
3 subordinate ranking officers went drinking with Morgan, wanted to go find prostitutes, but Morgan told them to just come home with him where the 4 of them raped his wife. . She screamed, they cut off air to her Morgan told 3 friends wife was kinky, protesting aroused; all had intercourse without consent; 3 charged with rape; Morgan had spousal privilege 3 subordinates claimed consent Must belief and consent be both honestly and reasonably held Must be honest, need not be reasonable; convictions upheld (improperly informed jury) Won appeal, but were still convicted because the jury was misinformed No jury would have believed defendants Mens Rea in rape a matter of intent; to insist that belief must be reasonable is to insist that accused is to be found guilty of intending to do that which in truth he did not intend to do

Issue Decision Reason Relevance

Laceys comments Lord Halisham focused on subjective Mens Rea Why not objective approach? o Thought to corrupt presumption of innocence o Focus on culpability (intent) not result (act) Halishams argument o presented a reasoning structure inhospitable to arguments specific to the case of rape (91)

Week 8 R v Ewanchuk [1998]

Court of Appeal of Alberta Appellant: Crown o Appealing acquittal from trial case Facts
Man approaches two 17 year olds in job, exchanged numbers for a job working at his wood shop. Calls the next day, interviews girls in the van, then he tells her to check out what he has in his trailer. He shut door behind her, she felt as though the door was locked. Things got personal; he asked for massage, she insisted he massage her. He tried to initiate more, she said no, he continued. He got on top, she was in fear, finally, she said no, he stopped, started again and took out his penis. She said no, and so he stopped. Told her not to say anything and gave her $100.00 for the massage. After interview in van, E invites woman to trailer; made advances; continued despite no; paid $100 for silence; charge: sexual assault CC s 271 Onus not on accused to prove implied consent; onus on crown to prove absence of consent beyond a reasonable doubt Ewanchuk aquitted (not charged) her conduct raised reasonable doubt: Implied consent as defence acceptable Intent matters, not result; to exclude belief of accused cuts across enshrined Canadian Criminal law precepts and renders the law uncertain, inconsistent and resented

Issue Decision Reason

Relevance

Justice McClungs Decisions Focused on her appearance o it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines She wasnt innocent; had child and live-in boyfriend at 17 Described Ewanchuks behaviour as less criminal than hormonal o He was a horn dog Apply feminist Lens

Week 8 R v Ewanchuk [1999]

Supreme Court of Canada Appellant: Crown Facts Issue Decision Reason Relevance
After interview in van, E invites woman to trailer; made advances; continued despite no; paid $100 for silence; charge: sexual assault CC s 271 If trial judge erred in understanding of consent; if defence implied consent exists in Canadian Law Appeal allowed (crown won); no new trial ordered. Supreme Court of Canada excercises diecertion and convicts (rare) Sent to lower court for sentencing Accused did not provide enough evidence that there was any consent; honest belief is no defence Trial judge erred; did not consider how no could form basis for implied consent

CRIMINALITY
Focus on Culpability (intent) not Result (act) Emphasis on mental conditions o Basis for deciding responsibility Men as rational standard o Might lead to marginalization of womens full responsibility (p. 97) -- Crying for a speeding ticket, too emotional to be a criminal etc Except in crimes associated with sex and reproduction o Infanticide, prostitution, abortion

RE-ASSESSMENT
Laceys Feminist Approach Assumptions? Strengths? Weaknesses?

RECAP
Criminal law as system of judgment o In judgments, principles interprerted Need to focus on specifics, substance o Uncover how sexual difference understood DPP v Morgan: focus on objective standard o Culpability over result R v Exanchuk: reasonable doubt and consent Women and criminal responsibility