Nasty Women in the Law

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Last week, the Women’s March overshadowed Trump’s Inauguration. So what was it about Hillary Clinton that people found so nasty? What was it that triggered such comments like: “such a nasty woman”?

And what is it about women lawyers that trigger these attacks? Such as: “Marie Henein is a successful female lawyer at the top of her profession. Total bitch.”

In “Nasty Women and the Rule of Law“, Alice Woolley and Elysa Darling analyze this conundrum. They argue that women lawyers face this backlash because being a lawyer requires women to challenge and subvert gendered norms. Women are supposed to be feminine. Being feminine usually means being: affectionate, cheerful, sensitive, soft-spoken, warm, and so on. Contrastingly, being masculine generally means being: a leader, aggressive, ambitious, assertive, analytical, dominant, competitive, and so on. Characteristics that lawyers are generally required to embody.

Woolley and Darling state:

But by acting in this way [masculine], she not only violates our expectations of what women can do, she also violates our standards about what women ought to do…

[W]omen risk being targets of gendered hostility, because being a good lawyer means being a bad woman – it means abandoning or acting contrary to the communal behavior women ought to exhibit, in favor of the agentic values men ought to exhibit. This is particularly so if the woman is an aggressive lawyer, exhibiting the kind of zeal and occasional incivility that the profession frowns upon, since doing so could be considered a violation of a “gender-intensified proscription”.

Interestingly when we look at Hillary Clinton she is often described as masculine. Whereas Ivanka Trump (a power player in her father’s circle) is often described in feminine terms, e.g. beautiful, a good daughter, polite etc. [To read more about Ivanka’s carefully crafted persona click here: INSIDE IVANKA AND TIFFANY TRUMP’S COMPLICATED SISTER ACT. ]

So what’s the solution? How can women lawyers embody traditionally masculine characteristics and avoid all of the nastiness?

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I originally posted this blog post on slaw.ca. I would like to add to my original post by stating that I completely agree with Woolley and Darling’s paper. Women are faced with a backlash and are often punished or called names for exhibiting “masculine” traits. This backlash often occurs for behaviour that no one even notices coming from a man, a treat that I have experienced first hand. Perhaps the only answer is to stay calm and carry on in the face of sexism.

“I would have quit this job a long time ago if I was listening and waiting for people’s approval.”– Marie Henein (Toronto Life)

 

 

 

Revolving Tables

Last week I attended the Israel Cancer Research Fund fundraiser Revolving Tables. One mentor was assigned to each table, and attendees switched tables at each course. I had the pleasure of sitting with Heather Conway (Executive Vice-President of the CBC), Susan Horvath (President and CEO of the ROM Governors), and Marie Henein (criminal lawyer).

Some insightful pieces of advice were:

  1. Focus on your strengths. Often times in school we are encouraged to focus on the subjects that we are weak in to achieve strong grades in everything. When we switch from school to work, we should focus on that which comes easy to us. We should invest our time in developing our natural talents, rather than fight to do what we are weak at.
  2. This leads me to my second point: “Talent + effort” will take you far. Putting energy into what we are good at has the potential to propel you far within your field of expertise.
  3. If an employee is not performing at their full capacity, look at your managerial style. Change it.
  4. De-clutter your life. Focus on what matters. Forget the baggage.

Should the Ghomeshi trial be televised?

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Often times academics, judges, and lawyers complain about the public’s disengagement with the legal system, proclaiming that if only the public voiced their concerns then the justice system would be properly funded. But now we have meaningful public discourse about our justice system, including debate over defence tactics through the conversation surrounding the Ghomeshi trial.

Lawyers, laypeople, and reporters alike cling to every tweet, as their only avenue of following the questioning and arguments. Beyond news coverage, it is nearly impossible to follow. To watch the trial, people need to line up at 7:50 a.m. each day to get a ticket.

Should the trial be televised?

Every lawyer I have asked to date has responded with a clear “No”.

In Ontario, trials are not televised. Only Supreme Court of Canada proceedings are televised and streamed. Perhaps if video technology existed hundreds of years ago, it would be tradition today to televise popular proceedings.

In the United States, several high profile trials have been televised. The OJ Simpson trial was televised. The Steven Avery trial was televised. In fact, it was the recording of the trial that made the documentary Making a Murderer so compelling, and which has fueled public debate about the criminal justice system.

Putting aside the publication ban on two of the witnesses, why shouldn’t the trial be televised? Why should only Torontonians that can take a day off work and line up at 7:50 a.m. be able to watch the trial? Why should we curtail public interest?

The common answers I have heard are:

  • Televised proceedings will distort testimony;
  • it will disincentivize people from coming forward as complainants or testifying at trial; and
  • it will undermine the seriousness of the proceeding.

In response I say, courtrooms are public proceedings, not private arbitrations. As revealed, by the tweets regurgitating the questions asked and answered.

Public engagement should be encouraged. Public discourse admired. Saying that trials are public because we can walk into a courtroom hides the truth. Trials are practically obscure. This obscurity prevents true openness of the courts, thereby undermining the health of our democracy. Open courts facilitate the rule of law, a foundational principle of our democracy.

Judging Jian Ghomeshi

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Assuming that the criminal suit against Jian Ghomeshi goes to trial, Marie Henein’s case will be severely disadvantaged by the prior press coverage regarding Ghomeshi’s behaviour. Numerous women have spoken out against Ghomeshi along with one man, all claiming to have been sexually assaulted in similar ways.

Even if Marie Henein succeeds at excluding most of the similar fact evidence, it might not make a major difference. Undoubtedly the judge will have already heard of the corroborating allegations against Ghomeshi through the press. There will consequently already be an unconscious bias towards convicting Ghomeshi.

In R v Handy (2002), the leading case regarding the admissibility of similar fact evidence, Justice Ian Binnie writes for the Court:

40           The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”:  Hamlet, Act I, Scene v, ll. 66-67.