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From Consent to Responsibility, from Pity to Respect: Subtexts in Cases of Sexual Violence Involving Girls and Women with Developmental Disabilities

Published online by Cambridge University Press:  27 December 2018

Sherene Razack
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Abstract

How might feminist law reform serve all women? The author explores this question within the context of sexual violence involving girls and women with developmental disabilities. She presents the difference impasse as a theoretical tool for understanding how women are positioned in law differently and unequally in relation to each other. She explores how, within the consent framework of a rape trail, competing social narratives or subtexts about race, class, gender, and disability circulate in the courtroom. She also explores the issue of pity in rape traiIs and argues that focusing on interlocking systems of domination and on our complicity in maintaining categories of women in law and law reform is a useful approach for feminist law reformers.

Type
Symposium: Women, Law, and Violence
Information
Law & Social Inquiry , Volume 19 , Issue 4 , Fall 1994 , pp. 891 - 922
Copyright
Copyright © American Bar Foundation, 1994 

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References

1 Interview by the author, Vancouver, 30 Oct. 1991.Google Scholar

2 Shirley Masuda with Jillian Riddington, Meeting Our Needs: An Access Manual for Transition Houses ix (prepared for Disabled Women's Network Canada; Toronto: Dawn Canada, 1990) (“Masuda with Riddington, Meeting Our Needs”).Google Scholar

3 Mary Louise Fellows & Sherene Razack, “Seeking Relations: Law and Feminism Roundtables,” 19 Signs 1048 (1994).CrossRefGoogle Scholar

4 Catharine MacKinnon noted that equality is only granted to asexual people or to virgins and that women gain credibility in court on these terms only. See her “Sex and Violence: A Perspective,”Feminism Unmodified 91 (New York: Cambridge University Press, 1987) (“MacKinnon, ‘Sex and Violence’“).Google Scholar

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6 This discussion of the difference impasse draws extensively on a co-authored work in progress, by Mary Louise Fellows & Sherene Razack, “The Difference Impasse in Law and Feminism” (on file with authors).Google Scholar

7 See, e.g., Catharine MacKinnon, “From Practice to Theory, or What is a White Woman Anyway' 4 yale J. L. & Feminism 1 (1991); responses to MacKinnon appear in the same issue.Google Scholar

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15 Anne Finger gave the example of grand rounds at the law and feminism roundtables to illustrate why the definition of sexual violence has to be expanded when we consider women with disabilities. Fellows and I use it to illustrate the difference impasse in ways that Finger herself did not articulate or endorse. See Fellows & Razack, 19 Signs at 1055 (cited in note 3).Google Scholar

16 Yvon Appleby makes rhe argument that very often no model of sexuality is pushed at women with disabilities in “Disability and ‘Compulsory Heterosexuality,’“in Sue Wilkinson & Celia Kitzinger, eds., Heterosexuality: A Feminism and Psychology Reader (Newbury Park, Cal.: Sage Publications, 1993). Note that women with disabilities also encounter the opposite stereotype, i.e., they are considered oversexed. See note 44.Google Scholar

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23 An example of women in this category are aboriginal women and women with disabilities. Both have been legally denied the right to keep their children, and in some cases to have them by legislation as diverse as the Indian Act in Canada for aboriginal women and various compulsory sterilization measures. For an account of these, see Beverly Sellars and Laura Hershey's discussion in Fellows & Razack, “The Difference Impasse” at 1064 (cited in note 6).Google Scholar

24 For a full discussion, see Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor 19 (Cambridge, Mass.: Harvard University Press, 1991), and Sherene Razack, “Collective Rights and Women: ‘The Cold Game of Equality Staring,’” 4 J. Hum. Just. 1 (Autumn 1992).Google Scholar

25 There is little doubt that women with developmental disabilities experience sexual violence to a greater degree than most other groups. Vulnerable, a study of sexual abuse and people with an intellectual handicap, examined several Canadian and American studies and found rates of sexual abuse and assault four times greater than the national average. Charlene Y. Senn, Vulnerable: Sexual Abuse and People with an Intellectual Handicap 4–8 (Downsview, Ont.: G. Allan Roeher Institute, 1988, 1989) (“Senn, Vulnerable”). The statistics notwithstanding, many researchers and activists have suggested that a conspiracy of silence exists around sexual violence against people with developmental disabilities. Asch and Fine speculate that many women with developmental disabilities are sterilized “to keep the effects of rape from the public eye.” Adrienne Asch & Michelle Fine, “Introduction: Beyond Pedestals,” in Asch & Fine, eds., Beyond the Pedestal: women with Disabilities 23 (Philadelphia: Temple University Press, 1988). Certainly some of the impetus for forced sterilization, often unarticulated but disturbingly close to the surface, comes from the fear that a child or woman with a developmental disability is unusually vulnerable either to rape or to an unrestrained sexuality. Legal analysts discussing sterilization, e.g., are often overly preoccupied with the “burden” that disability imposes on nondisabled people, identifying, among other things, die “intolerable” strain on the family who cares for a woman with a developmental disability whose sexuality is not controlled. See, e.g., The Honourable Bertha Wilson, “Women, the Family, and the Constitutional Protection of Privacy,” 17 Queen's L.J. 18 (1992); Elizabeth S. Scott, “Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy,” 1986 Duke L.J 845; M. Anne Bolton, “Whatever Happened to Eve?” 17 Manitoba L.J. 219 (1978); Margaret A. Shore, “Notes of Cases,” 66 Con. B. Rev. 639 (1987).Google Scholar

26 Masuda with Riddington, Meeting Our Needs 3 (cited in note 2).Google Scholar

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29 I am indebted to Mary Louise Fellows for helping me to articulate this point.Google Scholar

30 NAC, “Justice for Women” at 4.Google Scholar

31 I have put this term in quotation marks in order to express my disagreement with it. It leads too easily to the view that prostitution is primarily an issue of employment and not violence.Google Scholar

32 Minow, Making All the Difference 219 (cited in note 18).Google Scholar

33 Nabil Shaban, cited in Jenny Morris, Pride against Prejudice 192 (London: Women's Press, 1991).Google Scholar

34 In many cases of sexual violence involving girls and women with developmental disabilities, legal practitioners display a casual unreflective use of the disability label to connote vulnerability. In 14 such cases collected by the Metro Toronto Action Committee on Violence against Women, courts continue to use words to describe developmental disability that many members of that community find offensive. “Mental handicap” is the most frequently used term, but one also finds “feeble-minded,”“slow-witted,” and imprecise descriptions of deficiency, diminished intelligence, and impairment. While the offensiveness of the terms used is occasionally shocking, it is the uses to which they are put that are of paramount interest. In all 14 decisions, the connection between developmental disability and increased vulnerability was made as though to signal an awareness of a greater abuse of trust, but this awareness does not manifest itself in stronger sentences.Google Scholar

35 Frances Lee Ansley, “Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship,”74 Cornell L. Rev. 994 (1989). Cheryl I. Harris, “Whiteness as Property,” 106 Harvard L. Rev. 1784 (1993), has also argued that in the context of the affirmative action debate, privatization of the issues, the descent into “the warp of sin and innocence,” takes the focus away from distributive justice. Thus the affirmative action debate becomes one of who harmed whom and who should be made to pay for it as opposed to a consideration of claims in the context of racism. Within this latter framework, the question then becomes, In a fair world, absent racism, who would be entitled to what? Hence white individuals would not be entitled to claim benefits they acquired in a racist world and black individuals would be entitled to benefits that would have accrued to them in a racially fair world. In effect, the fact of white supremacy in its past and present effects has to be brought into the evaluation of claims for justice.Google Scholar

36 Minow, Making All the Difference 174, also makes this point when she argues that when difference is thought to reside in the person rather than the social context, we are able to ignore our role in producing it.Google Scholar

37 I have selected these two cases because they help me to illustrate what I mean about subtexts. Although I cannot argue that they are paradigmatic, I strongly suspect they are.Google Scholar

38 Ruth Luckasson has suggested that one telling indicator of the devaluing of the harm suffered by persons with developmental disabilities when they are victims of crime is the tendency to label crimes against them euphemistically, e.g., to call the crime abuse or neglect when it is in fact torture, discrimination when it is hate crimes, and mercy killings when it is murder. See her “People with Mental Retardation as Victims of Crime,” in Ralph Conley, Ruth Luckasson, & George Bouthilet, eds., The Criminal Justice System and Mental Retardation 211 (Baltimore: Paul H. Brookes Publishing Co., 1992).Google Scholar

39 R. v. Mohammed, Toronto, Ont., Court, Provincial Division (30 April 1992).Google Scholar

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44 For an account of how fatness is lived as a disability that gives rise to a number of stereotypes, see Carol Schmidt, “Do Something about Your Weight,” in Susan E. Browne, Debra Connors, & Nanci Stem, eds., With the Power of Each Breath 248 (Pittsburgh: Cleis Press, 1985) (“Browne et al., Power of Each Breath”).Google Scholar

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48 Marilyn Frye observes that oppressed peoples often find themselves in a double bind—“situations in which options are reduced to very few and all of them expose one to penalty, censure or deprivation.” She offers as one example of the double bind the situation of women penalized for both sexual activity and sexual inactivity with men. The choice is between being labeled a whore or being labeled frigid or sexually abnormal (since heterosexuality is the norm). Frye, “Oppression,” in Margaret L. Andersen & Patricia Hill Collins, eds., Race, Class, and Gender 38–39 (Belmont, Cal.: Wadsworth Publishing Co., 1992).Google Scholar

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50 Jennifer Wriggins, 6 Haw. Women's L.J. at 111 (cited in note 16), notes that American “courts even applied special doctrinal rules to Black defendants accused of the rape or attempted rape of white women, [note omitted] One such rule allowed juries to consider the race of the defendant and victim in drawing factual conclusions as to the defendant's intent in attempted rape cases.”Google Scholar

51 Mohammed at 52.Google Scholar

52 Senn, Vulnerable at vi (cited in note 25) (sources omitted).Google Scholar

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57 Re Seaboyer v. The Queen; Re Gayme and the Queen, [1991] 2 S.C.R. 577 at 690. Although the majority decision does not discredit motive to fabricate evidence, Madame Justice L'Heureux-Dube, in dissent, explicitly rejected the possibility of a vengeful women. She comments that any use of past sexual history “depends for its relevance on certain stereotypical visions of women, that they lie about sexual assault, and that women who allege sexual assault often do so in order to get back in the good graces of those who may have her sexual conduct under scrutiny.” For a fuller discussion of this aspect of Seaboyer, see Peggy Kobly, “Rape Shield Legislation: Relevance, Prejudice and Judicial Discretion,” 30 Alberta L. Rev. 988 (1992).Google Scholar

58 Kristin Bumiller, “Rape as a Legal Symbol: An Essay on Sexual Violence and Racism,” 42 U. Miami L. Rev. 75, 88 (1987).Google Scholar

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67 All information referred to has been gleaned from the New York Times, which covered the case exhaustively for more than a year. The material 1 rely on is therefore sometimes speculative and second hand. In the absence of the actual court transcript, 1 still find the newspaper accounts useful in that they enable me to illustrate a possible scenario.Google Scholar

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80 Douglas Biklin, quoted by Catherine S. Mannegold, “A Rape Case Worries Advocates for the Retarded,”N.Y. Times, 14 March 1993, p. 3.Google Scholar

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82 My suggestion that we pursue a more detailed description of the victim and the accused in their social context and move away from consent issues to violence may be seen here as incompatible with the chief objective of a trial which is a determination of guilt or innocence. A discussion of social context may be seen as more relevant to a sentencing hearing. I would respond, however, that issues arising from the social context, issues of the sources of violence, contribute greatly to the finding that is reached at the trial. 1 would not suggest, then, that they are best postponed to sentencing.Google Scholar

83 Ruth Luckasson, quoted in Catherine S. Mannegold, “Bracing for a Message from Glen Ridge Jury,”NY. Times, 7 March 1993, p. 42.Google Scholar

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87 Legal rules often promote this decontextualization. For example, in R. v. L. (].C.) (1987) 36, C.C.C. (3d), a trial judge took notice of a context of repeated sexual violence inflicted by the offender on the victim, his daughter. On appeal, however, the court reduced the sentence from four years to three on the basis that sentencing must reflect the gravity of the specific offense for which L. (].C.) was being tried, namely, the one incident for which he is charged. All other offenses were only alleged and thus could not have an impact on the sentence meted out since the offender has not been tried for them. Similarly, in R. v. Duffney (1986), 61 Nfld. & P.E.I.R. at 178, involving a father who sexually assaulted his daughter over a number of years, a trial judge wrote:Google Scholar

I am not going to attempt to calculate the number of times that these assaults took place because we don't have evidence that is tied to a specific period of time. When the complainant referred to it having taken place 20 or 30 times over a period of probably four years, we have to be very careful in interpreting that as an accurate statement, because that is a wide range anyway, 20 to 30 times in a period of four years. That isn't the time that is covered anyway. The accused himself in his statement that was put in evidence referred to two or three times, something like that.Google Scholar

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90 28 April 1989, Edmonton 8803/3048C3 (Alta. Crt QB):2–5.Google Scholar

91 Minow, Making All the Difference 143 (cited in note 18), quotes this phrase from Robert Burt, who makes the point in his essay on HaMerman v. Pennhurst State School & Hasp. that initially all nondisabled parties in this case were able to come together but could not ultimately sustain this cooperation “over the long haul as the neediness of the vulnerable, inscrutable retarded people seemed to grow endlessly toward insatiability.” Robert Burt, “Pennhurst; A Parable,” in R. Mnookin, ed., In the Interests of Children 324 (New York: W. H. Freeman, 1985).Google Scholar

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