25 replies to this topic

[almostnot]

I think law school made me more liberal. I wonder if my experience is common.

[whereverjustice]

Law school itself didn't change my political views. Some of the experiences I had over the three years did, though.

One example stands out: During my 2L summer, a friend of mine was detained at the G20 summit. In the past, I'd been pretty deferential to police (and similar authorities). Once I heard his story, that trust was absolutely shattered.

Edited by whereverjustice, 17 January 2012 - 07:59 AM.
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[Pyke]

whereverjustice, on 17 January 2012 - 07:39 AM, said:

Law school itself didn't change my political views. Some of the experiences I had over the three years did, though.

One example stands out: During my 2L summer, a friend of mine was detained at the G20 summit. In the past, I'd been pretty deferential to police (and similar authorities). Once I heard his story, that trust was absolutely shattered.

This, but also, this poll is somewhat flawed under the current lack of distinction of whether someone already was or wasn't liberal. That influences their tendency to change positions.

[Mal]

I don't think the liberal/conservative dichotomy is all that persuasive, law school made me more nuanced and have a better appreciation of things not really more liberal.

[Stupor]

whereverjustice, on 17 January 2012 - 07:39 AM, said:

Law school itself didn't change my political views. Some of the experiences I had over the three years did, though.

One example stands out: During my 2L summer, a friend of mine was detained at the G20 summit. In the past, I'd been pretty deferential to police (and similar authorities). Once I heard his story, that trust was absolutely shattered.

Am I the only one who finds the friend's screed against the G20 security apparatus comically overwrought?

Quote

We were all, in fact, effectively ‘disappeared’ for the entirety of our detention

The entire 20 hours of it? Oh no.

Quote

keep in mind how this compares to other parts of the world where, albeit much further along the fascistic spectrum, occupying armies and repressive regimes carry out mass, indiscriminate arrests and sweeps, and keep people in conditions based on the same CIA low intensity psychological torture techniques for breaking people down

This comparison makes the G20 security look like angels.

Quote

the overall architecture of this ‘temporary prisoner processing Centre’ was the most Orwellian, fascistic, brutalizing, fucked up thing that I have ever seen.

I have no doubt it was. But that says more about his sheltered upbringing and the bubble he inhabits than anything else. Seriously, locked up in a shitty cell for 20 hours is "Orwellian"? Has he read Orwell?

Quote

I’ve never called anyone a Nazi in my life, but there I was telling them that they had been assigned to work in a concentration camp and that when this all came to light the excuse that they were ‘just following orders’ wouldn’t cut it.

So being locked up in a shitty cell for 20 hours is akin to what the Jews suffered in concentration camps. Right.

I'm as wary of the abuse of police power as anyone else, and I have serious reservations about the way G20 security was conducted. But the out of control protestors at the G20 (everyone's seen photos of the broken shop windows and the torched police car, right?) and ridiculously entitled bitching like this actually make me more sympathetic toward the police, not less.

Edited by Stupor, 17 January 2012 - 12:04 PM.

[Maurice Levy]

Stupor, on 17 January 2012 - 12:04 PM, said:

Am I the only one who finds the friend's screed against the G20 security apparatus comically overwrought?

Yes

[lawlady1985]

Stupor, on 17 January 2012 - 12:04 PM, said:

Am I the only one who finds the friend's screed against the G20 security apparatus comically overwrought?

No

[Uriel]

Weird question. I think I, too, fall into the same-but-more-nuanced camp.

I've been a kind of Red Tory for ages. I grew up with what seemed like the worst of the regulatory state. I got a summer job once at a government facility where I fired rubber bands at coat hooks and called in to radio shows because I was just there to fill up budget space. When I complained of being too bored, I was assigned to triple-check documents that had already been checked twice by hand and once by computer. (They were fine.)

I went to school with kids whose parents were dirt poor but couldn't get a student loan because their parents were farmers and technically owned a million dollars of real property. They could have taken out a loan on it, but there was no possibility they would be able to service the debt and it certainly wouldn't have had an interest-free period. I had my living funds cut in half once because a government employee decided it was unreasonable to accept my submission that I didn't own a car. I was 21. Who's 21 in Manitoba and doesn't own a car? Ascribe $13,000 in assets.

My dad and his friends once went into a public park after canvassing the opinions of everyone in the neighbourhood and put up a playground structure for kids, pro bono. It was carefully constructed by himself --- he was in construction at the time --- a couple of contractor buddies, a plumber and a lawyer. The municipal government spent $3,500 having municipal employees tear it down. There had been no complaints; the folks in the neighbourhood loved it. An administrative officer just had subjective concerns about liability and ordered the demolition.

As Philip Howard says in his lectures, the entire U.S. interstate system was developed in 15 years. He had an expert analyse the regulatory requirements and come back with an estimate as to how long it would take to complete that project now. The result: it couldn't be done, in any time frame.

I've similarly worked in regulated industries and as a government employee and I gradually became Ron Swanson. Thatcher had it right. The government shouldn't be involved in every part of your life; it should do a very few things extremely well, to the point that the community can be proud of its accomplishment. Once it starts swelling up and precluding progress rather than fostering it --- once people think of it as the government rather than us, and about government employees as somehow certifiably more trustworthy or competent than the same individuals in another job --- it ceases to be anything but an impediment to social progress.

That said, I don't subscribe to the Neo-Conservative ideal that the government should keep its hands off people like me, and be highly interventionist if anyone dares to not be like me. I don't see how anyone can credibly argue that the government should stay out of my backyard and my bedroom... unless I'm gay or middle eastern. You do have to accept the concept of freedom wholesale.

So, I don't have a political party. The recent Liberal convention was mind-blowing in its perfect microcosm of Liberal policy. In light of an economic crisis, let's debate internal regulation and pot smoking, and have a mass, uninformed vote as to procedural ideas without any sense of the ultimate cumulative effect of those procedures. Rules for the sake of rules.

Similarly, I was in for a shock in the last provincial election when the PCs resorted to homophobic ads to try to rally last-minute support in a painfully stupid swan dive into the dirt under the finish line. I can no longer bring myself to be associated with them. And the federal Tories, while they don't seem so bad and are responding appropriately to the new gay marriage issue, don't speak to the other half of the equation: the government should do some things, and very well. While I tend to agree with them in matters of national security, they blatantly pander to the fears of the middle class by launching campaigns of even more vigorous force against accused criminals, the mentally ill, the poor and immigrants of all classes.

So, right, the question was law school. It certainly confirmed my conservatism inasmuch as I got a much better understanding of market efficiencies and lost a lot of patience for ineffective or pie-in-the-sky regulation. I got a lot more fodder for believing that the government is not an effective service provider for virtually anything --- although in the cases where we do want government to provide services, efficiency is not always our ultimate goal.

On the other hand, I got a much better sense of equality issues in all respects. I had only a rudimentary understanding of formal versus substantive equality, and that's something I carry with me daily now. I don't think before law school I would have considered myself a feminist per se, but now I do get very upset reading about the pathetic partnership rates among female members of the profession, for example. (Though I don't imagine they'd let me join the action group.)

I also learned an awful lot about effective regulation, and when it can be appropriate. (Still, I learn even more by working with private sector clients and finding out what they fear and what they don't respect.)

Still, the compass hasn't budged an awful lot. What I gained in liberalism in terms of substantive equality and the need for focused regulation is offset by the newfound respect I have for the efficiency and singelmindedness of the private sector. I no longer think of corporations as somehow immoral; they're just amoral. They're just like low-functioning animals --- poke them here and they'll do this. Put that there and they'll eat it. I received at once a better sense of the fact that strict boundaries need to be set up to protect us from the strictures of capitalism, as well as the strong resolution that within those boundaries, get the hell out of their way --- they're doing far more good than harm.

[Uriel]

Also, BLAH BLAH BLAH

[Hegdis]

Law school cured me of a bad case of Undergraduate Liberal Rhetoric.

Every now and again I relapse. But for the most part, I have become a whole lot more respectful and knowledgable about other points of view, because law school taught me the value of dispassionate analysis.

It has not altered how I vote but it has altered my appreciation and understanding of the issues.

[Rocka]

Generally, the more educated you are, the smarter and more liberal you become.

[Malicious Prosecutor]

Rocka, on 17 January 2012 - 10:19 PM, said:

Generally, the more educated you are, the smarter and more liberal you become.

I disagree with both assertions.

[lecavaleur]

I've come into law school as a classical liberal, that is, not a member or supporter of either the Liberal Part of Quebec or of Canada, but rather someone who believes in both free-market capitalism and civil liberties. So far, my views haven't changed and if they ever do, I doubt it will be law school that changes them.

I will say that even in such a short period of time, law school has changed the way I think. If I was a critical thinker before, now I am a hopeless sceptic.

[Denning Jr]

I'm ALMOST done Law School, so do I count?

Really, I think Law School does more to drag people to the centre, than shift in one direction. 3 years studying the intricate workings of the system makes you appreciate how much of that regulation and law is necessary for its proper functioning. It also makes you appreciate how both sides have a point, and how much of the law is really about compromising between the interests of one part of society against that of another.

Personally, the biggest change has been in the level of nuance to my views. For example, I definitely have a lot more respect for prisoner rights. I understand why the tax act is 3,000 pages long, and why most of that is actually necessary and coherent. There is no longer any question in my mind that the current level of regulation on banks and capital marks is absolutely necessary to the proper functioning of the system.

[danman99]

Has law school caused anyone to become more spirirtual and more in tune with their Qi?

[almostnot]

I am neither common nor uncommon it appears...how painfully dull.

[Kein_Mitleid]

A quick summary:

Before post-secondary education: classical liberal (Thomas Jefferson type, definitely not the reform/progressive/social liberal type)
After first degree: paleoconservative (definitely not the neocon type)
After second degree: libertarian
After third degree: more libertarian (Austrian school)
After first law degree: extremely libertarian (Rothbardian, minarchist, objectivist, Randian)
After second law degree: anarchist (philosophical anarchist, anarcho-capitalist, anarcho-individualist, anarcho-pacifist, Stefan Molyneux type)

Whereas most of my colleagues seem to have gone the other way in terms of the political spectrum (in case the labels are confusing, I'm talking about the full four-quadrant political spectrum, like these http://humanknowledg...iticalSpace.jpg or http://2.bp.blogspot...Nolan+Chart.bmp or http://thoughtsaloud...ircle_small.jpg , which are much more accurate than the false left-right paradigm), a very small number of them seem to have had a growing distrust of governments, laws, courts, and coercion-based authorities and have progressively become more libertarian as they advanced in their legal studies. I only know of one other fellow who had become a pure anarchist towards the end of his third year of law school.

The rest seem to have moved towards statism/authoritarianism, no matter of the "left" (NDP, Liberal with capital L, socialist) kind or the "right" (neocon, Harper conservative, etc.) kind. Throughout their legal studies, they have greatly increased their legal knowledge, no doubt, and are very sensitive to procedural justice, though many have lost the ability to question the moral rightness and legitimacy of the law, and no longer question the sagacity or efficaciousness of any law or regulation promulgated by any government body. The three years spent in the law school tunnel vision causes a significant homogenization of ideology, though few would be willing to admit it. Fortunately, some do eventually wake up from their trance after a few years of practice.

OP, I'm really glad you asked this original question.

[Crim Bob-Omb]

I attribute my new-found feminism to Crim. in 1L. Before, I just didn't get what everyone was on about. Then you read about who is committing the crimes, and who are getting hurt by them (read: men hurting women). It's terrifying. It made me think that maybe something WAS wrong. And thus feminism was born.

[Hegdis]

Crim Bob-Omb, on 04 February 2012 - 12:11 AM, said:

I attribute my new-found feminism to Crim. in 1L. Before, I just didn't get what everyone was on about. Then you read about who is committing the crimes, and who are getting hurt by them (read: men hurting women). It's terrifying. It made me think that maybe something WAS wrong. And thus feminism was born.

During my Crim class there was often some tension, primarily because of this one guy who just didn't know when to keep his mouth shut. I recall very clearly him trying to draw an analogy between the civil contributory negligence standard and how a woman who has been molested was dressed. He was not trying to be funny. He was trying to be clever. He was a very odd, sort of generally offensive dude.

I think he made a lot of the class much more aware of their inner feminist than they would have been without his alarming and disturbing "contributions".

[Pyke]

Relating back to my original answer in this thread, the question is somewhat problematic in its scope depending on what your starting values were/are. When I commenced my undergraduate degree, I was on both social and economic lines, extremely liberal in my views. After four years, I had shifted some towards the center on economic type concerns, but still solidly in the NDP camp on most issues. Though I consistently voted for the Liberals (pragmatic reasons more than ideological ones), I considered myself to be an NDP'er. Entering law school, my views tempered even more, with the result that my economic views on *some* issues are almost directly in the center. Ideologically, I'd argue that actually makes me more "Liberal" but less "liberal". Go figure.

I think law school, like any advanced degree, has the side effect of tempering ones views. Some of you have expressed this as making them more nuanced; perhaps this articulation is more apt. It is the combination of an increased degree of understanding coupled with the inevitable application to one's own beliefs, and perhaps a dose or two of maturity and experience that comes with education. I don't think it necessarily follows that one will become more (insert political or ideological leanings) here, in fact, I'd suggest that one is more likely to gravitate a little away from their position than see it reinforced. This is sensible, since you will be exposed to people who are bright enough and articulate enough to defend their point of view. I disagree with Uriel on many issues, but respect the manner in which he is capable of defending them [even if, as I maintain he must be, he is wrong ].

[Pyke]

Hegdis, on 04 February 2012 - 11:01 AM, said:

During my Crim class there was often some tension, primarily because of this one guy who just didn't know when to keep his mouth shut. I recall very clearly him trying to draw an analogy between the civil contributory negligence standard and how a woman who has been molested was dressed. He was not trying to be funny. He was trying to be clever. He was a very odd, sort of generally offensive dude.

I think he made a lot of the class much more aware of their inner feminist than they would have been without his alarming and disturbing "contributions".

Although I don't completely agree with the parallel he is drawing, I can understand the argument.

Is it really just, as a society, to treat as equally culpable two sexual assaults, one in which was the result of something falling short of mistake of fact, and the other which was premeditated and planned? To the extent there is judicial discretion in sentencing, I do not see why the principles of tort contributory negligence should not apply in a criminal context in favour of the accused. It's also not equivalent to saying "the woman had it coming" or "deserved to be sexually assaulted" (as, she did not), any more so than it is saying "he deserved to have his house burn to the ground" when he left the pilot light on.

We're fond of applying frameworks in one context and not others, particularly when it results in uncomfortable consequences. A good example of this is the way in which we are have massive campaigns in Canada against seal culls (presumably because they're cute), but very few campaigns about the systematic eradication of fish stocks on either coast. Both are important for the local economy and serve as a key sustenance for some groups. I could probably find better examples, but I'm tired, and lazy.

I think, on the subject of law school and changed views, it's one thing I'm less willing to accept. Before law school, I was more willing to accept these kinds of cognitive splits, whereas post law school, I tend to be more questioning of whether the underpinnings of the split are truly deserving of such. In some instances (e.g.: perhaps in the case of contributory negligence and sexual assault), the split is driven by other societal needs (e.g.: the need to protect people from sexual assault), and is thus defensible on other grounds.

[Hegdis]

Pyke, on 04 February 2012 - 10:47 PM, said:

Although I don't completely agree with the parallel he is drawing, I can understand the argument.

Is it really just, as a society, to treat as equally culpable two sexual assaults, one in which was the result of something falling short of mistake of fact, and the other which was premeditated and planned? To the extent there is judicial discretion in sentencing, I do not see why the principles of tort contributory negligence should not apply in a criminal context in favour of the accused. It's also not equivalent to saying "the woman had it coming" or "deserved to be sexually assaulted" (as, she did not), any more so than it is saying "he deserved to have his house burn to the ground" when he left the pilot light on.

Since sexual assault is criminal, not civil, this exercise is nothing more than an elaborate legal argument that comes down to victim blaming. This is precisely the sort of reasoning that appeals to the grossest assumptions and presumptions about what it is to be a "proper" female in society with no reference or regard to the fact that sexual assault occur when men (mostly) decide that women (mostly) are there for their own pleasure consumption.

Most sexual assaults occur within the context of a relationship where the parties have known each other for a period of time. What she happens to be wearing is a flimsy excuse for disrespecting or ignoring her wishes or her capacity to refuse his wishes. Treating a sexual assault as her responsibility (pilot light) is yet another way of turning the whole focus away from his behavior and zeroing in on hers, because we as a society love telling women what to do and espcially, what they're doing wrong.

How many conversations like this start out with lip service "we all know rape is wrong" and then get straight into victim blaming "but let's focus on what she was wearing / where she was walking / how much she was drinking." I say NO. Let's keep the focus squarely where it belongs and ask what the fuck he thinks he's doing and why he thinks it's okay to do it.

I challenge you all to have an entire conversation about sexual assault that only ever addresses the man's behavior, attire, attitudes, and habits. Just once, pretend it really isn't the woman's responsibility to keep from being raped.

[Crim Bob-Omb]

Hegdis FTW. I am simply awestruck with how well you put that. Just to reiterate: the analogue between sexual assault and negligence is WEAK. They are different in kind.

Now I generally take the view that people should feel free to discuss legal issues to their heart's content. It is the staple of a true democracy. BUT, in this case, you need to be mindful of the victims (as well as the potential perpetrators). Sexual assault is amazingly common. FAR TOO COMMON. It thrives on a culture which seeks to normalize it. Statements that draw comparisons to negligence (which, fun fact, has a MUCH LOWER standard for culpability) make it look less blameworthy. This both helps perpetuate it and harms the victims. Society needs to say, unequivocally, that sexual assault - in all its forms - is a tremendous evil. Don't make excuses for those who commit it, don't blame the victims.

Edited by Crim Bob-Omb, 05 February 2012 - 01:09 AM.

[Pyke]

Hegdis, on 05 February 2012 - 12:10 AM, said:

Since sexual assault is criminal, not civil, this exercise is nothing more than an elaborate legal argument that comes down to victim blaming. This is precisely the sort of reasoning that appeals to the grossest assumptions and presumptions about what it is to be a "proper" female in society with no reference or regard to the fact that sexual assault occur when men (mostly) decide that women (mostly) are there for their own pleasure consumption.

Most sexual assaults occur within the context of a relationship where the parties have known each other for a period of time. What she happens to be wearing is a flimsy excuse for disrespecting or ignoring her wishes or her capacity to refuse his wishes. Treating a sexual assault as her responsibility (pilot light) is yet another way of turning the whole focus away from his behavior and zeroing in on hers, because we as a society love telling women what to do and espcially, what they're doing wrong.

How many conversations like this start out with lip service "we all know rape is wrong" and then get straight into victim blaming "but let's focus on what she was wearing / where she was walking / how much she was drinking." I say NO. Let's keep the focus squarely where it belongs and ask what the fuck he thinks he's doing and why he thinks it's okay to do it.

I challenge you all to have an entire conversation about sexual assault that only ever addresses the man's behavior, attire, attitudes, and habits. Just once, pretend it really isn't the woman's responsibility to keep from being raped.

You're making a straw man out of the position I articulated.

The fact that sexual assault is criminal, and not civil, does not affect the underlying premise of the doctrine of contributory negligence, namely, someone else is less culpable because of some degree of culpability on your part. You characterize this as "blaming the victim", while I would characterize it as "considering the circumstances". In some circumstances, I agree this would completely inappropriate. Let me give you two different examples to illustrate my point.

Example 1: Woman walks naked down the street at night. Man sexually assaults her. Doctrine of contributory negligence is completely inapplicable in my view, since, as you note, it's completely ignoring the man's behaviour and focusing on blaming the woman. I think we can agree that women (and men, since, they do get sexually assaulted as well), should be able to be free from being sexually assaulted.

Example 2: Woman is in a committed relationship, sleeping with her partner. He wakes up, and pulls her towards him, so that they are in effect spooning. This is an activity they have engaged in numerous times in the past. Following the decision of the Supreme Court of Canada in R. v. J.A. this is sexual assault now (http://scc.lexum.org.../2011scc28.html)... [As an aside, my views parallel Fish's Dissent]. Here, I think it's completely fair to take the fact that the "victim" had consented in the past, arguably would have consented on this occasion (but for their apparent legal inability to do so), and may have induced the conduct.

The second example is on the edge of conduct that would still amount to sexual assault, but the fact is, it's there. You could shift the line towards conduct that is more clearly sexual assault, and get the same result. Two college kids are out at a party. Both are drinking. After flirting for a bit, they head up to the bedroom, where they begin to have consensual sex. The woman passes out while they are engaged in the activity. The law requires the man to stop here - whether the woman would want, require, or need him to stop. If he fails to do so (perhaps he is drunk, and is not thinking like a rational person), he is culpable for sexual assault. Now, there might be a defence available if he did not realize she had passed out... but being drunk alone tends to not be sufficient in sexual assault cases (though it might go to mens rea, alcohol based defences are rarely successful).

As to Crim-Bob-Omb's points, I have three thoughts:
(1): You note that a civil standard is a much lower one, in terms of culpability. I agree. This hurts your argument, though, as opposed to helping it. If the defence of contributory negligence is available when one needs to prove negligence on the balance of probabilities, it should certainly be available when one must prove the elements of the offence beyond all reasonable doubt. Contributory negligence lends doubt that, as far as the legal term is concerned, it is made out.
(2): It is extremely dangerous to start carving areas that are simply beyond discussion because they make discussion uncomfortable. I agree discussions need to be in a delicate and respectful way when the subject is sensitive, but this is different than not discussing them at all. Consider the maxim, "I disapprove of what you say, but will defend to the death your right to say it". I was once asked, "What if one was arguing for the end of free speech?". You must still defend it, for otherwise, there is no free speech. Our legal system is built on the premise that intelligent, rational and thoughtful individuals will ensure that our laws are just, not only in their intent but in their application as well.
(3): As a related premise, I recall when I was younger, I read about a story from the United States that really bothered me. An 18 year old black male slept with his girlfriend a week before her 16th birthday. This man had been accepted to University, with a scholarship. He had a bright future. It was consensual. It would not have been an issue, but for her parents discovering that their daughter had slept with him. This bothered them, since she was white. He was charged with sexual assault, since as a minor, she could not consent to sexual assault. He was convicted, with a lengthy prison sentence (I can't remember the number of years, more than 5, less than 10). He had only recently turned 18. A stupid application of the law has ruined his life.

I guess, my view is, it's important to recall that sexual assault is a legal term. It has legal consequences. To the extent that the boundaries of the term have been defined in a manner to include behaviours that, in my view, are unfairly culpable, then I am willing to extend principles from other areas of the law to try and re-balance the scales. I completely agree that when someone deprives someone else of their freedom of choice, it is a tremendous evil. I agree that when someone inflicts upon someone else the removal of choice and forces themselves upon them, they should be punished accordingly. I'm not prepared, though, to accept that every and any action that might fit the legal definition of sexual assault is equally culpable merely because it meets said definition. To the extent that a consideration of the circumstances helps protect against this, I am for it.

I should, by the way, add that I am not picking on sexual assault with my views. I am always pro-defendant, in that I would much rather see a guilty individual walk free than an innocent individual incarcerated. I suspect many people, particularly among law students, would be prepared to espouse such a view. The difference, I suspect, is many would be willing to tweak it when they are uncomfortable with the potential consequences flowing from that... E.G.: Well obviously all accused's should have the right to a fair trial, except child molesters. They're just evil and should be thrown in jail for life." I despise what pedophiles do, and the consequences of their actions. I truly hope we can one day figure out what the hell is wrong with their brains such that they are sexually attracted to children, and how to stop it. Until that day comes, I agree that we need to lock them up. We may end up looking back upon this, as a society, one day, as cruel and unusual punishment in the manner that we now look upon the treatment of those with mental handicaps in previous centuries. That, we cannot control. What we can, though, is ensuring that they get a fair treatment at trial. That they have the same rights as others. That they have the opportunity to present a defence. That the evidentiary standards do not change because our reprehension rises.

It is extremely easy to pay lip service, to borrow Hegdis completely unfair characterization of my position, to the notion of justice and rights of the accused when the accused is someone you want to protect. It's much harder when he is accused with something that you find morally or emotionally reprehensible. It doesn't change the underlying commitment / importance of those values, though. You defend them for the same reason that the words oft attributed to Voltaire must be defended; if you fail to do so, you surrender the underlying premises of a fair and just legal system.

[Hegdis]

Pyke, I have been assuming that our fundamental disagreement is not on whether every sexual assault is "equal"*, but whether we can ever assign anything approaching the concept of "contributory negligence" to a woman's role in the assault.

After reading your last post, I believe you are actually arguing the former (I am not disagreeing with you) while I am arguing the latter (and perhaps that is not actually what your position is).

We should clarify, because I suspect we are carrying on two different arguments.



* Not every sexual assault is equal, obviously. In terms of sentencing (ie when there is no acquittal based on honest but mistaken belief in consent), the circumstances do play into the decision, but those circumstances are squarely on what the man said, thought, and did. Believe me, him saying "she was asking for it" is never something that lightens the sentence.

** I disagree with your interpretation of the case law. Spooning isn't necessarily sexual - I don't think you can simply conclude that this would be a sexual assault.

Edited by Hegdis, 05 February 2012 - 01:45 PM.

[Pyke]

Hegdis, on 05 February 2012 - 01:44 PM, said:

Pyke, I have been assuming that our fundamental disagreement is not on whether every sexual assault is "equal"*, but whether we can ever assign anything approaching the concept of "contributory negligence" to a woman's role in the assault.

After reading your last post, I believe you are actually arguing the former (I am not disagreeing with you) while I am arguing the latter (and perhaps that is not actually what your position is).

We should clarify, because I suspect we are carrying on two different arguments.

* Not every sexual assault is equal, obviously. In terms of sentencing (ie when there is no acquittal based on honest but mistaken belief in consent), the circumstances do play into the decision, but those circumstances are squarely on what the man said, thought, and did. Believe me, him saying "she was asking for it" is never something that lightens the sentence.

** I disagree with your interpretation of the case law. Spooning isn't necessarily sexual - I don't think you can simply conclude that this would be a sexual assault.

I'm arguing the former. The only extent to which I would apply the latter is in circumstances where, it influenced the thing to make it very unequal - as for example, in my interpretation of R. v. J.A.. The woman "contributed" to the situation. I do not wish to be grouped in with the position that, "it's the woman's fault because she dressed provocatively", because, I don't think that's a legitimate argument (it assumes, without support, that dressing more provocatively is a causal agent for sexual assault, and thus one should bear some of the blame for the choice). While I have little doubt that is what the student was arguing in class, I would not be prepared to adopt such a position. Even if it could be shown (and perhaps it can, I don't know), that dressing provocatively increased the risk of sexual assault, I still would not be prepared to accept it, because the choice remained entirely with the perpetrator to commit or not commit the sexual assault. I do though, draw a distinction between these types of situations, and the one noted in Fish's dissent.