The Complications of Consent in Pre-Existing Relationships

Laura Thistle
JD Candidate, 2020    

Sexual assault cases cause controversy and tension for the Canadian justice system. The common argument is that the system does not provide justice for victims of sexual assault. The real challenge lies in understanding the circumstances surrounding the crime of sexual assault – namely, how often the crime is committed by an individual known to the victim, and the psychological implications this has for those involved.

Earlier this year I had the chance to speak with Professor Woolley of the University of Calgary, author of the recent ABlawg article “Defending Rapists.”[1] Woolley pointed out that in sexual assault cases, there is often no dispute about whether or not sex occurred – it is a question of consent. That the circumstances surrounding the act are in question means testimony of the parties involved is carefully scrutinized.

Stemming from this scrutiny, there is often vehement disagreement from the public over what the verdict of particular sexual assault cases should be, and whether or not victims are treated fairly. Canada’s sexual assault legislation was overhauled in 1982 to account for historical injustices, but problems persist. Last fall, for instance, it came to light that Alberta Justice Robin Camp presided over a 2014 sexual assault trial and drew on numerous disrespectful assumptions and questions while addressing the victim.[2] Clearly, although steps have been taken to treat victims of sexual assault more fairly, significant tension still exists.

Some of this this tension can be directly linked to the high frequency with which someone the victim knows commits the sexual assault. According to Statistics Canada, 87% of police reported sexual assaults are committed by someone known to the victim.[3] It is therefore unsurprising that less than 10% of sexual assaults are reported to the police – strikingly fewer than other violent offences such as robbery (47%) and physical assault (40%).[4],[5]

When someone known to the victim commits the sexual assault, the victim faces the personal conflict of whether to report the crime at all. Relationships are jeopardized, and families may be torn apart. Furthermore, when bringing a case forward, the presence of a pre-existing relationship between the perpetrator and the victim can cause authorities involved to question the lack of consent. The testimony can become clouded by the presence of a prior relationship with the accused perpetrator – particularly if that prior relationship was a romantic one.

If someone expresses consent once, it is not automatically granted at every future juncture. Similarly, just because trust exists between two people, that does not imply sexual consent. Chief Justice McLachlin set forth the proper understanding of consent in her R. v. J.A. 2011 SCC 28 ruling. She stated, “The legislation requires ongoing, conscious consent […] to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.”[6] However, later judgments have failed to take this principle into account. For example, in R. v. H.E. 2017 ONSC 4277, Justice Robert Smith dismissed the accused’s sexual assault charges. This acquittal was despite accepting that the accused had sex with his wife on many occasions without her consent.[7] He pointed to the fact that he believed he had a right to do so as reason to doubt his mens rea.[8]

Why was ignorance of the law an acceptable defence in this instance, when we know from R v. Jorgensen that ignorance in the law is no defence?[9] I argue that it is due to deep assumptions about consent stemming from pre-existing relationships, and that somehow trust implies ongoing consent. I would further suggest that these erroneous assumptions are often unconscious; few would say they truly believe that the existence of a past relationship implies future consent. Nevertheless, it appears that it is easier to believe that a stranger would disrespect a person’s agency in such an intensely invasive way than to believe that a friend – or worse, a partner – would do the same.

In order for this misconception to be properly addressed within the justice system, everyone needs to have a clear understanding of the difference between pre-existing trust and situational consent. Judges and juries need to be aware of the fact that the existence of a trusting relationship does not preclude the possibility of a lack of situational consent. Similarly, police officers responding to sexual assault allegations must refrain from assuming that cases are unfounded because of pre-existing relationships. Sensitivity training already exists for front-line officers who respond to these sorts of cases, but a better understanding of the psychological implications of a pre-existing relationship between victim and assaulter is vital in order for this training to be effective.

 

[1] Alice Wooley, “Defending Rapists” (30 December 2016) ABlawg (blog), online: <http://ablawg.ca/2016/12/30/defending-rapists/&gt;.

[2] Sean Fine, “The Robin Camp transcript: ‘…keep your knees together’ and other key passages” (9 September 2016) The Globe and Mail, online: <theglobeandmail.com>.

[3] Cristine Rotenberg, “Police-reported sexual assaults in Canada, 2009-2014: A Statistical Profile” (3 October 2017) Statistics Canada, online: <statcan.gc.ca>.

[4] Craig Desson, “What Happens When Someone is Sexually Assaulted? Statistics Canada Says Few Convictions” (5 December 2014) The Toronto Star, online: <thestar.com>.

[5] Statistics Canada, “Trends in Sexual Offences” (12 February 2013) Canadian Centre for Justice Statistics Profile Series, online: <statcan.gc.ca>.

[6] R v JA, 2011 SCC 28 at 3, [2011] 2 SCR 440.

[7] R v HE, 2017 ONSC 4277 at 16.

[8] Ibid at 16.

[9] R v Jorgensen [1995] 4 SCR 55 at 16, 129 DLR (4th) 510.

Issues Surrounding Surrogacy: A Call for Repairs in the Legal Environment

Maja Petrovic
JD Candidate, 2019

The November 2016 Shirley Greenberg lecture, Reproductive Labour: Reflections on the Law and Policy of Surrogacy, addressed a major issue in property law, namely surrogacy and proprietary interests within the body. The lecture highlighted two key concerns in relation to surrogacy: bodily exploitation and commodification. The speakers of the panel, Professor Bronwyn Parry, Erin Lepine, and Pam MacEachern touched on a number of key points for consideration.

The Assisted Human Reproduction Act (AHRA)[1] is the main piece of legislation on this topic; however, its enforcement has been minimal. In particular, sections 6 and 12, which speak to the practice of surrogacy, are poorly enforced and are currently under revision. I suggest that this uncertain legal environment has contributed to the problems of bodily exploitation and commodification in surrogacy practices. A sound legislative scheme, with proper enforcement and regulation mechanisms, is crucial to addressing these concerns.

Exploitation of Women

In the lecture, Erin Lepine and Pam MacEachern explained how exploitation is inherent in commercial surrogacy, particularly through the use of surrogacy agreements. These agreements are extremely restrictive, with potential constrictions on a woman’s diet, exercise, and general lifestyle choices. Surrogate mothers are at risk of severe penalization if there is a breach of contract. Additionally, surrogate mothers often receive minimal compensation, while fertility clinics accumulate significant wealth.

However, Professor Parry argued that “selling access to one’s reproductive capacities” through surrogacy is not “inherently exploitive,” and should not be illegal. Parry’s arguments mirror those of Richard Arneson, who in his article “Commodification and Commercial Surrogacy,” argues that the case against commercial surrogacy is not strong enough to show that it is “socially harmful.”[2] Arneson concludes that a complete ban of commercial surrogacy is unwarranted.[3] Parry admitted, however, that the lack of legal enforcement, and the absence of regulations have given rise to undue exploitation.

Commodification of the Body

Parry also argued that surrogacy is not entirely distinct from other forms of “clinical labour” that are deemed acceptable in society.  She analogized surrogacy with modern-day purchasing of services, such as nursing, or day care, which essentially commodify “affective care.”

However when it comes to surrogacy, the specific concern is with the potential for commodifying the body. Lepine and MacEachern suggested that surrogacy is founded on the notion of framing the body as an object, and reproduction as a skill that can be paid for. Similarly, David Snow argues that surrogacy frames women as “objects of use” and treats babies as “objects to be purchased and sold.”[4] Genevieve Plaster points to arguments made by “Stop Surrogacy Now” (SSN) that surrogacy frames children as “objects of contract,” making commercial surrogacy “indistinguishable from the buying and selling of children.”[5] Commodification of the body is particularly problematic because it infringes on our existing social and moral values, which uphold the dignity and sanctity of the human body, as suggested by Mosk J in Moore v Regents of University of California.[6]

A broader issue echoes in this discussion: should our bodies be considered legal property? In Our Bodies, Whose Property? Anne Phillips suggests that associating the body with property essentially diminishes our bodies’ moral significance to our persona, and allows us to think of our bodies as marketable resources.[7]

Perhaps the real challenge is answering the following: how can the law allow for surrogacy without implicitly allowing for the commodification of women’s bodies, and framing the human body as “property?” It seems that whether surrogacy is altruistic or commercial, the ultimate result is commodification. However, to add some food for thought: if someone is engaging in a practice for all of the “right” reasons (i.e. altruistic surrogacy or organ donation), does that make commodification of the body in those circumstances less problematic? Is there room in the law to allow for practices that inherently frame our bodies as commodities in cases where it is socially, morally, and ethically acceptable?

Parliament and Health Canada ought to work together to establish an effective piece of legislation that addresses the discussed concerns, given the evident flaws within the existing legal environment. Perhaps the best results will come from considering the interests of those who appreciate the benefits of surrogacy, while limiting opportunities for the practice to cross society’s moral boundaries.

[1] Assisted Human Reproduction Act, SC 2004, c 2.

[2] Richard J Arneson, “Commodification and Commercial Surrogacy” (1992) 21(2) Philosophy & Public Affairs 132 at 164.

[3] Ibid.

[4] David Snow, “Criminalising Commercial Surrogacy in Canada and Australia: the political construction of ‘national consensus’” (2016) 51(1) Australian J Political Science 1 at 3.

[5] Genevieve Plaster, “Surrogacy: The Commodification of Motherhood and Human Life” (1 June 2015) Charlotte Lozier Institute, online: <lozierinstitute.org/surrogacy-the-commodification-of-motherhood-and-human-life/>.

[6] Moore v Regents of University of California, 51 Cal (3d) 120 at 167 (1990).

[7] Anne Phillips, Our Bodies, Whose Property? (Princeton: Princeton University Press, 2013).

Water: Life Giving, Spirit Fulfilling

Victoria Kayal
JD Candidate, 2019

Western culture recognises water as necessary for physical survival; its value is tied to its physiological benefits. Water in many Indigenous cultures[1] holds additional cultural and spiritual significance.[2] Last year I was given the opportunity to attend a listening circle with four Indigenous women concerning the role that water plays in their culture.[3] It was an eventful evening, and not only because my friend nearly got run over crossing the street outside of the community centre.

The Earth is said to be a woman. In this way it is understood that woman preceded man on the Earth. She is called Mother Earth because from her come all living things. Water is her lifeblood. It flows through her, nourishes her, and purifies her” – Benton-Banai, 1988[4]

In many Indigenous cultures, women have a special relationship with the Earth. Mother Earth is the mother of all, including water and people. Women are linked to Mother Earth as they too give life, carrying their children in water for nine months. Every person is born from water, but women in particular are inextricably linked to it. This has led to a heightened cultural responsibility for women to care for and respect water.

In the circle, Elder Saysewahum said that the stories she was telling are not hers; they are her mother’s, aunts’, grandmothers’, and so forth. The teachings she learned as a child are what she has passed on to her children. Women keep the knowledge of water—this role is unique, and active.[5] It encompasses a culturally holistic understanding of the role that water plays both physically and spiritually to the community.[6]

Having no access to clean, safe drinking water is unacceptably common in Indigenous communities across Canada. The federal government passed The Safe Drinking Water for First Nations Act in 2013. The Act has been criticised for failing to acknowledge the role of Indigenous women in water maintenance, and for ignoring women in the decision-making process.[7] Recognition of women’s powerful relationship with water is lowered the more centralised decision-making becomes, and the more removed it is from Indigenous communities. We should be past the point where it is acceptable to bar Indigenous women from the discussion table.

Where Canadian property law is grounded in concepts of personal ownership, and resource management is inherently tied to power relations, Indigenous laws are grounded in their cultural history. The laws are real because they cannot be changed. Women and water are tied together; it has been this way since the beginning, and it will continue into the future.

It would be easy to create a chart that highlights the dichotomy between Aboriginal and Western cultures, but painting the situation as a clash of cultural values just encourages a system that already ignores the needs of Indigenous people. There are clear cultural differences, but they are not irreconcilable.

At the circle, Caitlin said, “young people today are fighting different battles than our ancestors, but we are fighting for the same reason: to maintain our way of life.” The common law tends to insist on removing the agency of Indigenous women. It is my role to work to oppose this, in whatever way I am told is helpful.

Further reading[8]

Idle No More: http://www.idlenomore.ca/

Aboriginal Water Crisis:

Woman and Water: Collection of Oral Histories:

[1] “Indigenous culture” is a generalisation that I am using to refer more succinctly to the collective beliefs of distinct Aboriginal groups. The women who participated in the circle, as well as the stories I read in my research, are all from different aboriginal groups. The importance of women and water appears to be common amongst many different Aboriginal groups, although I would not claim to know if it was across all.

[2] Michael Blackstock, “Water: A First Nations’ spiritual and ecological perspective” (2001) 1:1 BC J Ecosystems & Management, 1.

[3] Circle Speakers: Elder Juliette McAdam Saysewahum, Big River First Nation; Janice Makokis, Saddle Law Cree Nation; Cynthia Tomlinson, Lubicon Lake Nation; Caitlin, 3rd year student in the English Common Law program.

[4] Cited in Deborah McGregor, “Traditional Knowledge: Considerations of Protecting Water in Ontario” (2012) 3:3 Intl Indigenous Policy J 1.

[5] Natasha J Szach, Keepers of the Water: Exploring Anishinaabe and Métis Women’s Knowledge of Water and Participation in Water Governance in Kenora, Ontario (MNRM, University of Manitoba, 2013) [unpublished].

[6] Kim Anderson, “Aboriginal Women, Water and Health: Reflections from Eleven First Nations, Inuit, and Métis Grandmothers” Paper Commissioned by Atlantic Centre of Excellence for Women’s Health & Prairie Women’s Health Centre for Excellence, online: <http://www.onwa.ca/upload/documents/womenandwater.pdf&gt;.

[7] Supra note 6.

[8] Indigenous cultures are largely based on oral histories. The majority of sources listed above are a collection of oral histories, as was the circle that I participated in.

Professor of the Month: Angela Cameron

Each month, we feature a professor from the Faculty who supports and contributes to feminist legal thought.

angela-cameron

Angela Cameron
Associate Professor
Shirley Greenberg Chair
Interviewed by: Ashley Seely

AS: We know where you are now, so would you be able to tell us where you started? What was your first job?

AC: When I was 12 years old, I was put in charge of other children in the summer. A family hired me to babysit their four children.

AS: You’ve come a long way! What was your path to law?

AC: I knew I wanted to do human rights work, for sure, and law seemed like an academic aspiration. I was enthusiastic about my studies and I came from a family where no one had a law degree, so I thought it was a goal to aim for academically. By the time I was in high school I had a pretty clear idea that I wanted to be a human rights lawyer — I wrote it in my yearbook. It seemed like a big deal, a pinnacle of achievement.

AS: Did you know you were interested in the academic side of law then, or did that happen later?

AC: No, that happened much later.

AS: Can you tell me a little bit more about how that interest developed?

AC: I ended up doing my masters of law because I was interested in learning more about feminism and I wanted, for life reasons, to move from Halifax to Vancouver. So I left Halifax and moved to Vancouver. I’ve always been academically inclined, but the masters was a bit of an excuse, something to do while I figured out what I wanted to do. I started doing pro bono anti-violence work, and that’s when everything started to come together. I did the math about living off contracts in anti-violence NGOs versus doing that and teaching. Which I really wanted, I wanted to teach. The academic job would combine those things, the NGO, and the academic work, and more teaching, which I discovered during my masters that I really loved.

AS: What are you working on right now that you’re particularly excited about or proud of?

AC: I’m the Chair of the Feminist Alliance for International Action (FAFIA). We’re a national women’s NGO, who advocates at the United Nations and the Inter American Human Rights Committee to have Canada live up to our international human rights obligations in relation to women. So we’ve been working, in the time I’ve been Chair, on bringing to the fore issues that involve Indigenous women in particular.

I’m co-Chair of the Ottawa Rainbow Friendship Alliance, which is a private sponsorship group for LGBTQ refugees. That club grew out of a way to try to mark the work of the late professor Nicole LaViolette, who was a scholar and French Common Law professor. It’s made up of faculty, students, and community members. Here at the law school we teach law students how to do the legal part of these refugee applications. So Nick Hersh does the course, and we’re proud to say that we have two newcomers as a result of the work of the group, and they are being actively resettled as we speak, which is really exciting.

I’m currently holding the Greenberg Chair here at the faculty. It’s a huge opportunity to basically do and fund all the feminist dream work you want to do. The capacity to fund research and events, and the speaker series, and to support feminist student endeavours, it’s really fabulous. It’s allowed me to deepen my relationship with the feminist student groups at the faculty and I’ve really loved that. I have had wonderful feminist mentorship and friendship here at the faculty, so this places me right in the middle of all that, working with my great feminist colleagues.

AS: What is the best thing about being a professor at uOttawa?

AC: The students at uOttawa are phenomenal. I have taught at a few other universities as a sessional — this is my first full-time tenured gig — and my experience with the uOttawa students has been that they’re receptive, they’re interested, they’re enthusiastic, and they’re inspirational. They have ideas about how they want the world and the law to look, now and in the future, and they’re taking active steps to realize that, to make it a reality.  I’m a firm believer in pushing my boundaries around pedagogy. So sometimes I’ll use my students. They’re the first to try something that I’ve developed in reading pedagogical theory and they’re unerringly open to new experiences, and new ways of learning. My experience is that they’ve always embraced those new ways of learning enthusiastically.

AS: What about your free time? Can you tell us your favourite book or movie?

AC: Right now I am reading Love Medicine, by Louise Erdrich.

AS: And would you recommend it?

AC: It’s fantastic, absolutely. Another one I’ve read recently is called The Sympathizer, by Viet Thanh Nguyen. It won the Pulitzer.

My favourite movie is an older Russian movie called Burnt by the Sun. It’s incredibly mega political, but its also so much about the personal. It’s about a Russian family and about a really difficult point in Russian History, so you get all of the historical piece, but it’s really about what happens to this one particular family. And it’s beautifully shot.

AS: Tell me about your love for blank.

AC: I love vegetarian cooking.

AS: Is this a love born of necessity, or is it a passion?

AC: No, I really love it.

AS: As the Greenberg Chair, and as such an engaged and supportive faculty member, you’re something of a feminist role model — have you always been involved in feminist activities?

AC: I had to do a lot of paid work when I was doing my JD, I was supporting myself, so I held two jobs when I went to law school. I wanted very much to be a part of the feminist movement, there was a lot going on in NS at the time. Part of the move to BC was being really excited to get engaged. It was in BC that I really got involved with feminist groups, mostly working in the women’s anti-violence movement. And I had great feminist role models and mentors at UBC.

AS: If you had one piece of advice for law students what would it be?

AC: Try and get enough sleep.

AS: Do you have any advice on how to do that?

AC: Stay off of your computers, just read. Focus on a particular reading and just block off time to read. Don’t read off of your computers, if you have to read on your computers, get the software that freezes other applications. It shouldn’t take you three hours to read 15 pages. If it does, you’re multitasking.  Stop multitasking and do your readings. That’s how I do it. Don’t book your Air BNB, or do your online shopping, or browse Facebook. You can do those other things when you’re exhausted, but you can’t do your readings when you’re exhausted. Then it becomes a choice, do I do an hour of Facebook or do I go to sleep? So you go to sleep. That’s how I do it, that’s how I get everything done.

Gendered Robots and the Devaluation of Gendered Labour

Christina Clemente
JD Candidate, 2019

In the final scene of The Stepford Wives (1975), a robotic replica of the main character, Joanna, is seen eerily approaching the human Joanna. The robot holds a stocking stretched between both hands, and although not shown, it is clear to the audience that the robot will strangle human Joanna to death. This striking metaphor illustrates the real harm inflicted on women by robotics, and by the creation of artificial women, or sex robots.

Companies have been manufacturing sex dolls for decades. However, recent technological advancements have allowed for the creation of sex robots so lifelike, they are indistinguishable from human women. In this essay, I argue that these lifelike sex robots can perpetuate harmful views on women’s labour and women’s agency. Sex robots such as “Realdolls,”[1] are a very literal personification of the overt sexism, racism, and misogyny already present in society. Arguments that these robots serve a therapeutic purpose, providing companionship to lonely men, deserve more critical treatment. Furthermore, proposals to regulate the creation and manufacturing of sex robots alone are insufficient, as they overlook the systemic and societal causes of the harm.

The potential harm that lifelike sex robots could have on women’s agency has garnered concern from a number of feminist writers. Sinziana Gutiu, for example, points to the effect lifelike sex robots may have on consent, since they are programmed to always say “yes.”[2] Because sex robot users are able to bypass consent, Gutiu suggests this erodes consent, and therefore autonomy, in intimate relationships between human individuals.[3] Similarly, in interviewing sex robot engineer, Sergi Santos, Melanie Ehrenkranz highlights the misogyny underlying the hype around engineering mastery and robotic creations like sex robots.[4] Santos, for example, claims to believe “that men should understand that a woman is not an object.”[5] However, Santos has the audacity to suggest that the “seduction mimicking” algorithm titled “call for attention” that he created for his sex robot is like consent.[6] This “gamifying” of consent is dangerous because it “downplays the idea of consent,” undermining the nuances of communication between two human individuals.[7]

In addition to reducing women’s agency, sex robots reinforce already damaging notions of what constitutes women’s labour. To understand how this occurs, it is necessary to look at how the industry caters to isolated and lonely individuals.[8] First, rooted in the marketing of sex robots as companions for lonely men is the idea that women are responsible for providing emotional labour. This is not a new idea; whether human or plastic, women are disproportionately categorized as the providers of companionship, aesthetic beauty, sexual, and emotional labour. However, the manufacturing and distribution of sex robots reinforces this unequal distribution of emotional and sexual labour in society, creating a self-perpetuating feed back loop. Lonely men seek out feminized robots to offer them companionship because they understand it to be a “female” job, and the feminization of robots entrenches the emotional labour is the work of women.

Second, reliance on sex robots for companionship could undermine support for funding social services, or paying care workers to provide companionship and emotional support to isolated or mentally ill people. This is highly problematic, particularly since feminized labour is already undervalued in our society. As well, undervaluing feminized work disproportionately disadvantages the care work labour force, which is mostly made up of women, particularly women of colour. The manufacturing and distribution of sex robots therefore reinforces the unequal distribution of undervalued emotional and sexual feminized labour in society.

The discourse supporting lifelike sex robots often points to their therapeutic role, their ability to provide companionship to marginalized individuals.[9] The push for further technological advancements is therefore justified by the alleged therapeutic benefits the sex robots offer lonely men. However, if the objective is to create the most lifelike companions, then surely a robot’s ability to say “no” would mark the highpoint of sex robot creation. The implausibility of this type of programming exposes the fact that the motivation behind sex robots is likely not wholly “therapeutic,” or to honour the female form.

Lifelike sex robots currently allow men to wilfully ignore issues such as sexism and violence against women, diminishing the value of women’s agency and women’s labour. As suggested by the interview with Santos however, the focus should be on educating people about consent and sexism, rather than relying on a regulatory approach that would limit the manufacturing and distribution of sex robots. As underlying issues of increased loneliness and lack of community support buttress the demand for sex robots, cutting off the legal supply of these robots addresses only one half of the problem.

[1] Siri Agrell and Tralee Pearce, “Silicone Soulmates Offer Love to the Lonely,” 11 October 2007, The Globe and Mail, online: <theglobeandmail.com>.

[2] Sinziania M. Gutiu, “The Roboticization of Consent”, in Robot Law, Ryan Calo, A Michael Froomkin & Ian Kerr (eds) (Northampton: Edward Elgar, 2016) at 187.

[3] Ibid.

[4] Melanie Ehrenkranz, “The Latest Futuristic Sex Doll is Teaching Men all the Wrong Things about Consent” MIC, online: <https://mic.com/articles/171698/the-latest-futuristic-sex-doll-is-teaching-men-all-the-wrong-things-about-consent#.KOY9CgfhI&gt;.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] See e.g. Guys and Dolls (BBC), online: <https://www.youtube.com/watch?v=wgkSngzwdhk>.

[9] Ibid.

How Many Walls Must be Torn Down Before the Ceiling Can Fall?: A Feminist Overview of ‘Copyleft’ Counter Cultures in Canada

Rebecca De Sanctis
JD Candidate, 2019

We are all equal, but some of us are more equal than others…” – George Orwell, Animal Farm.

Orwellian politics can be used to understand the intersections between intellectual property, copyright protections, ‘copyleft’ counter cultures, and feminism in Canada. In theory, the ‘copyleft’ movement emerged as an inclusive anti-capitalist alternative to copyright protections; however, in practice the copyleft movement continues to perpetuate gendered constructs and hierarchies. Thus, although feminist ideologies theoretically intersect with the philosophy behind open access software, the two diverge in practice.

Copyright provides the owner of a work an exclusive right to copy their material, a right to publish for the first time, and a right to perform. Thus, copyright protections protect an owner’s moral and economic rights in regards to the work in question. Although there are benefits to copyright protections, such as recognition and monetary incentives, copyright protections have also been criticized for perpetuating power structures within the real world and in cyberspace.

Open access software and hacking have emerged as two counter cultures that seek to defy and destroy the established power structures maintained by copyright.[1] Academics such as professors Carys Craig and Sophie Toupin have argued that the philosophy behind these two counter cultures is in line with feminism.[2] Ideologically, all three structures are equalitarian in nature, and maintain the view that knowledge and participation are quintessential to power. Furthermore, hackers, feminists, and geeks all contribute to an online recursive public based on the notion of openness.[3] This concept of openness (expressed through free software, creative commons licencing agreements, or hacking), values freedom of expression and speech over intellectual property law constructs. For example, hackers view hacking as “an arms race between those with knowledge and power to erect boundaries and those with equal power, knowledge and desire to unarm them.”[4] Thus, in the name of social liberalism and utilitarianism, hackers, feminists, and geeks are trying to break down the walls set up by copyright protections in order to make knowledge more accessible.

However, not all walls are broken down equally. A disparity arises between the theory and practice of openness in a recursive public. Despite the all-inclusive rhetoric of openness in hacking and the ‘copyleft,’ such practices often exclude, marginalize, or act to the detriment of “women, queers, and people of colour.”[5] In response, women, members of the LGBTQ community, non-gender binary individuals, and people of colour are forming their own hacker spaces, such as Femhack,[6] where they can learn about hacking practices, and discuss issues of ownership and accessibility.

Whereas ‘fem-hackers’ are able to skirt the perpetuation of power structures reflective of the patriarchy by creating their own physical spaces to hack, women who engage in the ‘copyleft’ through creative commons licencing have a harder time creating similar space. In considering the shortcomings of open access publishing through a gendered lens, Craig draws on Sevigny Desolier’s analysis that women’s labour is de facto valued less within society.[7] Craig postulates that if academic journals using copyright protections are seen as prestigious, then women scholars who publish via a creative commons license may be devaluing their work, playing into the trope that women are expected to work for free.[8] Craig’s study is an interesting inquiry into the junction between anti-capitalist counter cultures (such as the ‘copyleft’ movement), equalitarianism, and gender.

In the “tyranny of structurelessness,” Jo Freeman argues that “the lack of formal structures deployed by a group or in space ends up favouring those who already enjoy gender, class, and race privilege, ultimately reinforcing the informal power of certain individuals or cliques.”[9] Freeman’s critique of ‘structurelessness’ has been reiterated by hacktivists and academics to criticize the double standard of ‘openness’ that surrounds mainstream hacking movements and aspects of the ‘copyleft’ movement. However, we should remember that the open access movement is dynamic, and as it continues to grow and restructure itself there is still hope that by breaking down one wall in the name of accessibility we can shatter the online glass ceiling before it becomes concrete.

 

[1] E Gabriella Coleman and Alex Golub, “Hacker Practice: Moral Genres and the Cultural Articulation of Liberalism” (2006) 8:3 Anthropological Theory 255, <online: steinhardt.nyu.edu/scmsAdmin/uploads/003/679/255.pdf>.

[2] Carys Craig, (Shirley Greenberg Lecture delivered at the Faculty of Law, University of Ottawa, 2016), online: <drive.google.com/file/d/0Bz6soJjrQQtkRVFHN3ltMlkxdjQ/view>; Sophie Toupin, “Feminist Hacker Spaces: The Synthesis of Feminist and Hacker Cultures” (2014) 5 J Peer Production, online: <peerproduction.net/issues/issue-5-shared-machine-shops/peer-reviewed-articles/feminist-hackerspaces-the-synthesis-of-feminist-and-hacker-cultures/>.

[3] Christopher Kelty, “Geeks, Social Imaginaries, and Recursive Publics” (2005) 20:2 Cultural Anthropology 185.

[4] Supra note 1 at 263.

[5] Toupin, supra note 2.

[6] “Femhack”, online: <htmlles.net/en/participant-e-s/femhack/>.

[7] Craig, supra note 2.

[8] Ibid.

[9] Joe Freeman, “The Tyranny of Structurelessness”, online:<struggle.ws/pdfs/tyranny.pdf>.

Roses Are Red, Cyborgs Are Dead: Analyzing the Relevance of Haraway’s “Cyborg” in 2017

Ida Mahmoudi
JD Candidate, 2019

I said it – it might be time to carefully store Haraway’s “Cyborg Manifesto” in our grandmothers’ treasure chests and keep it there. The piece is peppered with generalized notions of identity performance and a hint of techno-solutionism. In an effort to stray away from a homogenous sense of “womanhood,” Haraway’s analysis of disabled women is incomplete, if not entirely absent. In this piece, I analyze the ways in which Haraway’s metaphor of cyborgism is obsolete given the literal social realities and interactions between disabled persons and their prosthetics.

What is ironic about Haraway’s own affinity with biotechnology and biopolitics is that she omitted the lived reality of disabled persons. We currently live in a world where the term “cyborg” has separated into two subjects – a human and her prosthetic. Sobchack warns that when we use metaphors, we displace the realities of those people the message affects most.[1] What results is the erasure of the experiences of those who do not feel “posthuman,” “postgender,” and “postsex,” for example. In the context of prosthetic technology, using the term “cyborg” in 2017 has a different meaning than its fetishized meaning in Haraway’s piece. In her Cyborg Manifesto, Haraway abstracts the cyborg as “freed of the need to ground politics in ‘our’ privileged position of the oppression that incorporates all other dominations.”[2]

Not all women want to use or exercise what Haraway might call their “cyborgism.” In “Breast Cancer: Power vs. Prosthesis,” Audrey Lorde shares a concerning exchange between herself – a black, female, cancer survivor – and her nurse. She walks into her doctor’s office to be greeted by the nurse who anxiously remarks, “[y]ou’re not wearing a prosthesis.” Lorde responds that “it just didn’t feel right” to which the nurse responds disapprovingly, “it was better than nothing … you will feel so much better with it on.”[3] If some women reject their potential interactions with technology, other women should not condemn them.

Also interesting is Haraway’s paradoxical view of the cyborg. On the one hand, the cyborg is “our” ontology and that it determines “our” politics. On the other hand, the cyborg is a consequential means to an equitable world where no identity politics of gender, sexuality, unalienated labour, and pre-oedipal symbiosis are grounded. In other words, the cyborg is both the means and the end to her preferred world. In the context of disability, the “cyborg” does not provide the same liberating message and politics. The fact that a human requires, for example, a prosthetic to “live at the same level” as another able-bodied human does not seem to have the same endearing and optimistic message.

What immediately comes to mind is the identity of the “shut-in” and how able-bodied policymakers used techno-solutionist rhetoric to enact policies that spoke for disabled persons instead of allowing them to speak. In the 1920’s and 1930’s, U.S. policymakers fought for the “shut-in” when they decided to favour fewer high-powered national radio stations while cutting lower-powered stations.[4] They argued that high-powered national radio stations would shift the country’s culture to include disabled persons who would otherwise suffer from exclusion. This example illustrates how the “blessed boon” of technology was centred around disability discourse in order to achieve an outcome not associated with disabled persons’ rights. Instead, disability was instrumental to profitable media policy.

This is not to say that Haraway intentionally omitted disability discourse in order to facilitate her argument. Instead, if read while considering disabled persons’ performance in her utopia, Haraway might have resonated more strongly with an important group of actors in civil society.

In 2004, the United States National Council of Disability issued a report canvassing the ways in which research and innovation could lead to the creation of inclusive and universal technology design. Design for Inclusion analyzed the roles that industry players, the federal government, and consumers assumed in relation to automated teller machines (ATMs), cellphones, distance learning software, personal digital assistants, televisions, and voice recognition technologies.[5] The study found that in most cases, accessibility was a driving force in creating inclusive products. However, these same products that were designed to be accessible did not actually meet the needs of disabled users.[6]

These examples indicate that disability discourse shapes approaches toward innovative and accessible technological design. Yet, these designs are implemented at the cost of inadequacy for the people they purport to reflect, limiting capacity to engage in meaningful civic participation. Haraway’s work was revolutionary; she disrupted conventional ways of feminist mobilization, but times have changed. The mythical creation of the cyborg is no longer useful in techno-societal rhetoric because it alienates disabled persons from their literal social realities. This is why I take issue with Haraway’s Manifesto – it is meant for everybody, but it is not really meant for everybody.

 

[1] Vivian Sobchack, “A Leg to Stand On: Prosthetics, Metaphor, and Materiality” in Carnal Thoughts: Embodiment and Moving Image Culture (Berkeley, University of California Press, 2004) at 209.

[2] Donna Haraway, “A Cyborg Manifesto: Science, Technology and Socialist Feminism in the Late Twentieth Century” in Simians, Cyborgs and Women: The Reinvention of Nature (New York: Routledge, 1991) at 21.

[3] Audre Lorde, “Breast Cancer: Power Vs. Prosthesis” in The Cancer Journals: Special Edition (San Francisco: aunt lute books, 1980) at 60.

[4] Bill Kirpatrick, “’A Blessed Boon’: Radio, Disability, Governmentality, and the Discourse of the ‘Shut-In,’ 1920-1930” (2012) 29:3 Critical Studies in Media Communication at 165.

[5] Gerard Goggin & Christopher Newell, “The Business of Digital Disability” (2007) 23:3 The Information Society at 163.

[6] Ibid.