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| Stephanie DiGiuseppe |
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| Laura Metcalfe |
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| Sam Puchala |
The #MeToo movement can get a bad rap amongst defence lawyers. #MeToo is often seen as synonymous with the idea that we should “believe survivors” without analysis — a concept that some may see as diametrically opposed to the constitutional values criminal lawyers work to uphold.
That position is an oversimplification.
Of course, the idea that we should simply believe all survivors has no place inside a courtroom. In a courtroom, we are concerned with the application of the criminal burden of proof to the evidence in each case. This means that the obligation is on the state to prove guilt beyond a reasonable doubt. The burden is high — and for good reason. Criminal convictions trigger state-imposed, life-altering consequences, from lengthy jail sentences to criminal records to sex offender registrations. To justify such severe consequences, the presumption of innocence must permeate the criminal courtroom. Nothing less than “beyond a reasonable doubt” will do.
But the #MeToo movement serves a different purpose. It brings awareness to systemic problems in the pursuit of change. While trials are retrospective (they seek to conclusively determine what happened during a past event), #MeToo moments are fundamentally prospective. They seek to change patterns of behaviour and create a better world for women.
All women have the right to speak up to help bring change to our respective workplace environments. Including women who work in the legal system. Including women who advocate for clients in contexts where allegations of gender-based violence have been made.
Criminal defence lawyers defend the person; we do not defend the crime. No serious criminal defence lawyer thinks sexual harassment or sexual assault is socially acceptable. Our job is to hold the state accountable to the high burden of beyond a reasonable doubt. Our job is not, and never has been, to say that violence against women is morally or legally correct.
This distinction is often lost on the public, and it appears to be lost again in this moment. In response to the Star investigation, voices popped up singing that same old song: how dare family lawyers and criminal defence lawyers complain about sexual harassment and sexual violence when they make money doing what they do?
The answer is simple: we do dare. We are in male-dominated spaces across this country every single day, defending our clients vigorously and fearlessly. We know what some may think about what we do, and we do it anyway. We understand the important distinction between upholding justice in a particular case and advocating generally for systemic change that improves the lives of all women. We can and will do both.
The Star article also prompted another form of dissent — this one from within the legal community itself. Some argued that female lawyers who have experienced harassment or other forms of abuse must not be very good lawyers. They must not be able to advocate for themselves and, therefore, shouldn’t be advocating for others.
Let’s be clear.
Many women in the legal community who experience gender-based harassment and violence do advocate for themselves. We would be so bold as to wager that most advocate for themselves. That advocacy takes many forms. It can take the form of speaking out at the moment or making an official complaint. It can take the form of being unshakeable: brushing the comments aside and getting down to business. It can take the form of being unstoppable: sticking it out for decades in a hostile industry environment and succeeding no matter what is thrown your way.
It can take the form of choice. Like the choice to start your own firm or the choice to withdraw from a toxic situation. It may even include the decision to leave law altogether and take your talents elsewhere — though we hope there will soon be an end to that particular brand of solution.
All these responses require strength; none of them imply that the woman in question is not an effective advocate.
Self-advocacy may also take the form of speaking up at this very moment by saying loudly and clearly: enough is enough.
There is no one correct response to sexual harassment or sexual violence. But belittling the lawyers brave enough to speak up and stand against it sure is a lousy one.
Stephanie DiGiuseppe is a partner at Henein Hutchison Robitaille LLP in Toronto and the assistant treasurer of the Criminal Lawyers’ Association (CLA). Laura Metcalfe is a criminal defence lawyer at Addario Law Group in Toronto and the Toronto women’s director of the CLA. Sam Puchala is the founder of Velox Law Professional Corporation in London and the regional women’s director of the CLA.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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