Toronto Star

Sunday, March 7, 1999

Rhetoric flies out of control in rape ruling

Michele Landsberg
Toronto Star

THE SMOKE, the flames, the deafening roar of cannon, the screams of the wounded animals - the media firefight over the Ewanchuk decision is as bewilderingly chaotic as a 19th-century battleground. And it's deliberate: The meaning of ``smokescreen'' has never been clearer to me.

The Supreme Court, in overturning Steve Ewanchuk's acquittal, was unanimous. Mr. Justice John Major wrote the decision, making absolutely clear that there is no such defence in Canadian law as ``implied consent'' to a sexual assault. Such cases are rare, but important to the community's sense of safety and justice, wrote Major. ``The law must afford men and women alike the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected.''

In a side comment, Madame Justice Claire L'Heureux-Dubé set out, crisply and incisively but without even a hint of personal insult, the reasons why sexual stereotypes and rape myths are not acceptable in Canadian law.

Then all hell broke loose. It's been the biggest, most prolonged and most misleading example of ``spin'' this country has seen, springing from the pages of the National Post. Every day brings another outburst from the shrill minority that inhabits the far-right fringe - most of them singling out L'Heureux-Dubé for wildly abusive personal attack. The rhetoric has been so violent that it created its own news - surely no accident - spilling into other media and leading people to assume, wrongly, there was something notoriously controversial about the unanimous decision.

On the contrary: the majority of legal minds in this country, as well as the general public, has accepted for years that ``no means no.''

Year by year, Parliament and the courts have struggled to encode that understanding in clear language. It took the National Post to make a woman's right to sexual autonomy seem an infringement on men's freedoms.

Let me remind you: The complainant, a physically tiny and pretty 17-year-old, was enticed to Ewanchuk's van on the pretext of a job interview. She began to be frightened as soon as he lured her into his trailer and locked the door.

She was right. Ewanchuk, then in his 30s and a serial rapist, is at least twice her size. Surrounded by lethal-looking carpentry tools, he began to grope the teenager. She agreed to rub his shoulders - she testified that she was terrified, and afraid to enrage him by acting scared or defiant. This, as well as her evidence that she said ``no'' three times and that she pushed Ewanchuk's hands away, was accepted as valid.

Ewanchuk, as he fondled the girl, would stop now and then and leer ``I had you scared, didn't I?'' He knew she was scared. He knew she didn't consent. Still, he tried to grope her crotch, then took out his penis and ground it against her pelvis, even trying to poke it up under her shorts.

The trial judge erred in law by saying that there was ``implied consent.'' Legally, consent must be clearly communicated, by words or actions.

At the appeal court level, Judge John McClung trivialized the assault as ``clumsy passes,'' ``hormonal rather than criminal,'' ``romantic.'' He insulted the complainant, who has suffered in silence for five years as McClung's outrageous comments about her are repeated. He sneered she wasn't ``wearing a bonnet and crinolines''; she wasn't ``coming home from a nunnery''; in his day, when a ``boyfriend'' went too far in the back of a car, a girl was expected to deal with it by a swift slap or kick.

So - a burly and menacing stranger gets to grind his naked penis against a terrified teenager, with impunity, because she didn't use physical force to fight him off? McClung was patently wrong in law, and when his mistakes were corrected by the Supreme Court, he went berserk, aiming insults at L'Heureux-Dubé he would never have dared aim at a man.

McClung has told the newspapers that he is a ``staunch conservative'' who is watching the United Alternative with interest. He is now surrounded by a cabal of Reform MPs, ultra-conservative journalists, and the criminal defence lawyers Eddie Greenspan (of recent Gerald Regan fame) and Alan Gold, both of whom raged intemperately and astonishingly against L'Heureux-Dubé. It's an odd alliance: just a couple of years ago, Gold was tongue-lashing the Reform party for ``unfair attacks on the Supreme Court, which cannot as a matter of law defend itself.'' I guess misogyny makes strange bedfellows.

Also heard from were the usual female groupies of male power. Like some of the men, they were all atwitter that if ``no'' really means ``no,'' lovers will have to get legal contracts before advancing to kisses or hugs. This tedious mantra has no basis in real human relationships or in law. Intimate lovers who really consent do not haul each other into court. In fact, as the twitterers surely know, rape is the most under-reported of crimes, in part because of the criminal lawyers' ruthless bullying of complainants.

The Supreme Court ruling is fair, humane and still allows the accused an ``honest though mistaken belief'' defence. The sexual assault law has finally reached a balance, safeguarding equally the rights of victim and accused. We should not be distracted from this happy result by the smoke and thunder of a bellowing backlash.

Michele Landsberg's column usually appears in The Star Saturday and Sunday.

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