The rape victim may not say “his” penis
Shahdin Farsai wrote an opinion piece for Canadian Lawyer Magazine in October, titled British Columbia’s practice directions on preferred gender pronouns in court are problematic. Yesterday the magazine removed the article.
On December 16, 2020, both the BC Supreme and Provincial courts issued practice directions to lawyers that require parties and/or lawyers to state their preferred gender pronouns at the beginning of all court proceedings, which are “to be used” by all participants appearing before the courts including judges.
My antennas naturally went up as a lawyer. I see these practice directions as problematic for three central reasons. They are potentially compelled speech in court, a breach of privacy rights, and damage the perception of judicial impartiality.
… Outside of court, we have legislation to protect gender identity or expression in the BC Human Rights Code, but inside court all parties are protected by absolute privilege or immunity. This doctrine shields the legal process from itself becoming the source of further litigation. No one can dictate the words spoken or written by court participants including judges during judicial proceedings. The doctrine is essential to the administration of justice because it permits parties to give evidence in whatever words they choose and lawyers to protect and present their client´s case unfettered.
We saw this play out when the judge compelled Maria Maclachlan to refer to the man who assaulted her with female pronouns, which obviously impeded her ability to give evidence in her own words, and indeed to tell the truth about what happened.
The doctrine of absolute immunity goes hand in hand with lawyers’ professional duty to zealously protect their client’s rights. Advocates must not be under any obligation to refer to another party by their preferred pronouns, especially if doing so would go against the legal position and the instructions that they receive from their clients. This point was made in a recent case before the BC Supreme Court. The court heard the case of a mother attempting to prevent her 17-year-old daughter from having surgery to remove her breasts. The daughter wanted to transition to the male gender, and provincial authorities supported her wish. The mother still regarded her daughter as a female. The question of her gender transition was the very issue before the court. Yet when the mother and her counsel referred to the daughter as “her”, the judge challenged the mother´s right to do so. According to the transcript, the judge said, “there has been a request that counsel refer to [the youth] as he or him … are you refusing to do that?”
The woman who gave birth to the girl was being compelled to refer to her as he and him.
But as I mentioned the piece was removed. Conversation ensued.
No skin off his…nose, is it.
H/t GW
I notice Gurvir missed/dodged the thrust of the question: should the woman’s wording be FORCED. And, less than 300 times? Apparently throughout all Canadian courts, at all levels, that syntax has been used not even 300 times in 55 years? Seems like an extremely rare syntax in that case.
But, Holms, that’s nearly 5 1/2 times a year! More than 5 times a year! That’s Bigly! That’s Yuge!
Is it the word “penis”, or the word “his” that causes distress?
Cock. Dick. John Thomas. One-eyed trouser snake. Percival. Peter. Willie. Pecker. Wang. Knob. Schlong. Pleasure pump. Noodle. Vagina miner. And about 100 more words could be used.
Revictimising the victim is a thing, of course. Always was. Always will be.
By denying the victim her choice of words, she is denied the ability to give evidence in her own words. And it is her words the court needs to hear, as identification in rape cases can often come down to very minuscule pieces of evidence. A freckle or a lump. A turn of phrase. The use of particular words/vernacular is sometimes all the court has to go on.
I wonder how the court would respond if the complainant said: “I was raped by his girlie dick”?
Further, would the victim be committing perjury if the attacker described his penis in male terms at the time?
Also, isn’t “assumes facts not in evidence” a reasonable objection used by lawyers? If she is to now assume his penis is “hers” now, how can she know, if it was indeed unstated, that’s what the attacker thought then?
Let’s face it, Arcadia. We are talking about a woman here, and so we can erase her identity without fearing any blowback.
I’ve just spent the afternoon with Abigail Shrier’s “Irreversible Damage”, and all I can say is Holy Fucking Shit, how did we get here?
Re #3
Pronouns are the issue, not terminology. “The accused’s penis” is acceptable, according to this doctrine, but “his penis” is not.
Time for court appointed gender interpreters. If the trans cult is going to persist in making up pronouns and gender/sex descriptions, then there needs to be some kind of officially sanctioned group that can translate it into standard, and/or legal language. Universities seem to be up to the task of educating people in this horseshit, so it’s only a small step to offering degrees. It could become a kind of twisted foreign language major. ‘Trans 101’ etc. What a lucrative career path, the field is wide open with possibilities. :P
Seahorse-shit, surely. Seahorse dads are real horse dads!
Torture is illegal in Canada, right? The English language should sue.
(Also, “a syntax of words”? Syntax is about how we arrange words to form phrases and clauses and sentences. I’ve never heard anyone refer to “a syntax of words”; I’m not even sure what that would be, unless you’re talking about the order of affixes in an agglutinating language such as Turkish.)
As opposed to syntax of images, perhaps? But I think he simply means collocation.
Jurors (and judges), being human, use a lot of different cues to evaluate a witness’s credibility. One frequently used criterion is how confident a witness is — do they speak clearly and assuredly, or do they stumble and/or appear to be choosing their words carefully? I think many psychologists would dispute whether these are good criteria — my understanding is that there’s a lot of evidence that a speaker’s confidence is, if anything, negatively correlated with truthfulness and accuracy — but the fact is that they do.
A witness who is already dealing with a stressful situation but has been told that she will be reprimanded or punished by a judge for using the “wrong” words is likely to stumble, be hesitant, and look like she is carefully choosing her words. Fairly or not, that’s going to hurt her perceived credibility, especially since in many instances, the jurors will not know why she’s struggling with her choice of words.
Oof. Yes. Also, it occurs to me, the frustration and anger at being coerced to do that could also damage her perceived credibility. I know it would mine if I were in that situation, because I’m very bad at hiding such feelings, and I doubt that’s unusual.
And I suspect that snarky and sarcastic use of “the accused’s penis” isn’t going to sit too well with judges and juries, either…unless the jury is made up of the B&W commentariat (and host).
IMO, counsel for the prosecution should go to the mat on behalf of the witness in such a case, and if the prosecutor won’t, separate counsel should be appointed to represent the witness. The witness has given an oath or affirmation to tell the truth; the court has no business requiring the witness to lie. It shouldn’t be up to the witness to defend herself (or himself in situations like referring to a child’s biological sex) in face of the power of the court. The attorney should take the heat.
” I see these practice directions as problematic for three central reasons. They are potentially compelled speech in court, a breach of privacy rights, and damage the perception of judicial impartiality.”
I see them as problematic for another reason: They are a result of a combination of stupidity and cowardice. There is no real difference between Republicans’ misuse of the notion of free speech to justify attempts to overthrow the government, and the use of intimidation to force a patently absurd view of human biology on everyone. We are all familiar with the Latin expression, “Exceptio probat regulam,” which is usually mistranslated as “the exception proves the rule,” but which actually means “the exception tests the rule,” the word “probat” having produced the English word “probe.” And thus it is here. I can go to Bosley for Men and have hair implanted all over my entire body, but it will not make me (except figuratively) a baboon; and no amount of surgery or consumption of dangerous chemicals can make a man into a woman. The refusal to recognize this fact has now reached a stage where it is threatening the success of our century long effort to free women from male domination, and because the cause of women’s equality is so central to our entire liberal endeavor, the refusal to stand up to this malicious nonsense threatens the standing of liberal politics everywhere.
I know expressing opinions like this exposes me to the likelihood of threats and abuse similar to that dealt out by the Proud Boys and similar right wing groups today; but to allow them to bully us into tolerating their craziness is to endanger everything we have fought for.