BC Women’s Employment Inequality Calls for Rights-Based Approach

The CFLS is delighted to present a new series of student-authored blog posts on current feminist legal topics. These opinion, editorial-style posts were written by Allard Hall JD and LLM students as part of the Women, Law & Social Change course in 2016-2017.

In October 2016, British Columbia was held to account for its disappointing women’s rights record at the United Nations in Geneva. “British Columbia does not have a women’s rights focal point,” said UN Committee member, Nahla Haidar, at Canada’s periodic review for compliance with the Convention on the Elimination of Discrimination Against Women (CEDAW).[1]

Those who are skeptical about the power of a rights-based approach might see BC’s implementation failure as affirming their position. The ten BC-based non-governmental organizations (NGOs) that made submissions at Canada’s review would disagree. BC’s pronounced inequality does not reveal the weakness of a rights-based approach; it is the consequence of failing to adopt one.

This week, the BC Liberals held onto their 16-year leadership of the provincial legislature – a period in which multiple regressive policy decisions have adversely impacted BC women. As of 2002, BC is the only Canadian province without a Human Rights Commission.[2] BC has no pay equity law, no employment equity law, and some of the least affordable childcare in Canada.[3] BC has now been without a Human Rights Commission for almost 15 years, meaning that the broad oversight needed to effect structural change has been absent for the same amount of time.[4]

The Commission was formerly tasked with educating the public, inquiring into systemic issues, developing guidelines, and promoting human rights compliance.[5] By asking what systemic obstacles block opportunity for communities, the Commission embodied a rights-based approach.

A rights-based approach turns ‘problems’ into ‘violations’ – the difference being that violations are not inevitable, and do not need to be tolerated.[6]  Rights “change the way people perceive themselves vis-à-vis the government and other actors,” calling power structures into question.[7] In these respects, the approach is transformative – and when it comes to systemic discrimination, transformation is what we need.

Today, BC relies on adjudication of individual complaints, with only the Human Rights Tribunal remaining.[8] The Tribunal provides a forum for discrimination complaints to be heard – but in the context of employment, where gender stereotypes are so embedded and power dynamics so imbalanced, there are many factors that deter complainants from coming forward. To this end, the Ontario Human Rights Commission plainly states, “a lack of complaints does not mean there is no problem to address.”[9]

With a glance at today’s statistics, the problem – the compounded effect of countless human rights violations – becomes apparent.  The Canadian gendered wage gap is twice the global average at 30%.[10] BC women are even further behind, with the gap widening to 35% provincially.[11] From 2000 to 2010, median income of Canadian women rose by 10.6%. BC made only a 4% gain.[12]

The BC Human Rights Code precludes employers from refusing to hire persons because of their gender or family status[13] – but statistics tell us that discrimination is happening at an increasing rate. Discrimination may be unconscious, as “stereotypical assumptions about women’s abilities, interests and priorities… lead even fair-minded, well-intentioned employers to discriminate against women in the workplace”[14].

With no employment equity law or programs, BC employers are not required to scrutinize hiring practices to eliminate discriminatory effects, or to challenge ingrained stereotypes by hiring disadvantaged groups in fields where they are underrepresented.[15] As a result, women are funnelled into low-paying, precarious work. 70% of BC’s minimum-wage workers aged 25-54 are women.[16]

With BC lagging so far behind national averages for women’s employment, it is clear that the state of affairs is not the result of one or two poor policy decisions; it is the result of prolonged power imbalance. The rights-based approach identifies problems as “rooted in differences of power, income and assets”.[17] BC has the highest rate of income inequality in Canada, with average household income of the top 1% growing by 36% in the last 10 years, while that of the median remains unchanged.[18]  With such pronounced inequality, it is imperative that exploitative power relationships be challenged. This can only happen with the involvement and empowerment of those who are most marginalized.[19]

Fortunately, the United Nations did just that – they involved and empowered 22 Canadian NGOs by hearing their submissions at the 2016 CEDAW review. Typically, underfunded NGOs face barriers that limit access to such global institutions while “representatives of private capital generally enjoy unfettered access to the decision-making table”.[20]  With funding from Status of Women Canada, as well as other research grants, the voices of marginalized Canadians were heard.

During the review, the BC CEDAW Group was pleased to hear the Committee press Canada on provincial issues of single mothers’ poverty and sub-par human rights enforcement. Canada’s federal structure was also addressed. “In treaty obligations, the obligation rests with the state party regardless of the constitutional order of the state” said the Committee. The Committee proceeded to ask for “a national strategy to address the structural factors leading to persistent inequality,” pointing to use of federal spending power to “speed up [provincial] inability to implement.”[21]

Adoption of a rights-based approach brought Canadian NGOs to the table, but now we need action at home. “International conventions establish rights as universal, but give little guidance on translating the universal into local realities,” said Oxfam in a report on rights-based development.[22] This concern was borne out following the last CEDAW review in 2008, when the Harper administration simply ignored most of the Committee’s recommendations.[23] This time around, NGOs hope that the feds take heed.

“We have a Prime Minister who repeatedly reaffirms his commitment to gender equality – so structurally, we are in a good place,” assured Linda Savoie, Senior Director at Status of Women Canada.[24] NGOs are cautiously optimistic, urging the BC Liberals to implement the CEDAW Committee’s 2016 recommendations. “We know the conclusions of this Committee have the power to ignite political will,” said the BC CEDAW Group.[25] For the sake of all Canadian women, let’s hope they are right.

Carly Stanhope is a JD student at the Peter A. Allard School of Law and the research assistant to the BC CEDAW Group.

Sources

[1] CEDAW, 65th Sess, 1433rd Mtg, UN Doc CEDAW/C/SR.1433 (25 October 2016).

[2] BC CEDAW Group. 2016. Women’s Rights in British Columbia: Submission to the Committee on the Elimination of Discrimination Against Women on the occasion of its consideration of Canada’s combined eighth and ninth periodic reports at its sixty-fifth session.

[3] Ibid.

[4] BC CEDAW Group, supra note 2 at 1.

[5] Day, Shelagh and Gwen Brodsky. 2014. Strengthening Human Rights: Why British Columbia Needs A Human Rights Commission.

[6] Oxfam America. 2001. Challenges And Opportunities Of Implementing A Rights-Based Approach To Development: An Oxfam America Perspective.

[7] Ibid.

[8] Ibid.

[9] Ontario Human Rights Commission. 2008. Human Rights At Work.

[10] Feminist Alliance for International Action. 2016. Reply To Issues 3, 4, 7, 8, 11, 12 & 13: Report To The Committee On The Elimination Of Discrimination Against Women On The Occasion Of The Committee’S Eighth And Ninth Periodic Review Of Canada.

[11] Canadian Centre for Policy Alternatives – BC Office. 2012. BC Disadvantage For Women – Earnings Compared With Other Women In Canada.

[12] Ibid.

[13] Human Rights Code, RSBC 1996, c 210, s 13(1).

[14] Women’s Legal Education and Action Fund. 2016. Closing The Gender Wage Gap.

[15] BC CEDAW Group, supra note 2 at 7.

[16] West Coast LEAF and Coalition of Childcare Advocates of BC. 2016. A Cornerstone Of Equality For Canadian Women: The Essential Role Of Child Care In All Articles Of The Convention On The Elimination Of All Forms Of Discrimination Against Women.

[17] Chapman, Jennifer, Valerie Miller, Adriano Campolina Soares, and John Samuel. 2005. Rights-Based Development: The Challenge Of Change And Power.

[18] BC Poverty Reduction Coalition. 2016. Factsheet On Poverty and Inequality In BC.

[19] Chapman et al, supra note 17 at 5.

[20] Oxfam America, supra note 4 at 16.

[21] CEDAW, supra note 1.

[22] Oxfam America, supra note 4 at 19.

[23] BC CEDAW Group, supra note 2 at 4, 9.

[24] CEDAW, supra note 1.

[25] BC CEDAW Group. 2016. “Women’s Rights in BC”. Presentation, United Nations Headquarters, Geneva.

 

CFLS Awards

Nominations or applications for the following two CFLS awards are now open! To apply, please submit the required documents by email to parkes@allard.ubc.ca by June 1st, 2017.

Auriol Gurner Young Award 2017

A prize in the amount of $3000, awarded to a student in the JD program who has made significant contributions to feminism and the law. Please provide a letter explaining the candidate’s contributions to feminism and the law and attach the candidate’s resume.

Marlee Kline Essay Prize 2017:

A $250 prize to the best essay written by a JD student addressing the themes in the following quotation:

“The various intersections between race, class, sexual orientation, and other differentiating characteristics, will affect how and when all women experience sexism.” (Marlee Kline, 1989)

(See posters/links for additional details)

Rape Culture at the International Criminal Court: A Call for Accountability in Cases of Conflict-Related Sexual Violence

The CFLS is delighted to present a new series of student-authored blog posts on current feminist legal topics. These opinion, editorial-style posts were written by Allard Hall JD and LLM students as part of the Women, Law & Social Change course in 2016-2017.

Rape culture accepts sexual violence as a fact of life, when in reality much of what we excuse as inevitable is the expression of values and attitudes that can change. Despite a host of progressive, feminist-inspired law reforms, misguided attitudes toward sexual assault are prevalent in Canadian courts, where decisions have repeatedly come under fire for being informed by myths and stereotypes. But attitudes toward gendered crimes do not confine themselves to state borders nor submit to the optimism of advocates for global justice. At the International Criminal Court (ICC), prosecutors, judges and witnesses hold implicit biases that not only affect decision-making in cases of conflict-related sexual violence, but also influence which cases are afforded their day in court to begin with.

On 16 September 2016, Nadia Murad Basee Taha was appointed United Nations Goodwill Ambassador. When militants captured the city of Sinjar, Iraq in August 2014, Nadia was captured, sold and subjected to grave abuses, while her elderly mother and male family members were murdered as part of the ongoing campaign of genocide against the minority Yazidis perpetrated by the Islamic State of Iraq and the Levant (ISIL; also known as ISIS). Nadia escaped, but thousands of women and girls remain enslaved in ISIL strongholds where girls as young as 9 years old are being bought and sold in slave markets at this very moment.

In a speech to the United Nations in December 2016, Nadia implored the international community to act in response to the ongoing genocide of her people. Yet to this day not one member of ISIL has been held accountable at an international court or tribunal for crimes against Yazidis. When it comes to prosecuting conflict-related sexual violence, accountability is the exception; impunity the rule. Despite the explicit classification of conflict-related sexual violence as a war crime and crime against humanity in international law, the ICC continues to mischaracterize, overlook and under-prioritize conflict-related sexual violence. The pervasive myth that conflict-related sexual violence is ‘opportunistic’ and isolated from the broader conflict is a gross mischaracterization of how militant groups such as ISIL strategically utilize sexual violence as a weapon of war.

While entire communities suffer the consequences war, women and girls are particularly affected due to the prevalence of gendered crimes. Reports from the International Criminal Tribunal for the former Yugoslavia (ICTY) explain that sexual violence  “… [was] particularly tailored to [the] goals of driving women from their homes or destroying their possibility of reproducing within and ‘for’ their community.” When innocent women like Nadia stand in the face of genocide, their suffering is no longer confined to the consequences of war. Their bodies become the battlefield itself.

Supposing that conflict-related sexual violence is more about sex and less about violence allows for a second myth, that gathering evidence for these crimes takes ‘extra’ work. The misguided belief that sexual violence is not a core crime makes it difficult to justify allocating the necessary resources to gather witnesses, military records, and other key evidence. But do cases of sexual violence really pose any additional challenge compared with other international crimes?  Maxine Marcus, an experienced investigator and prosecutor of international crimes, says not. She argues instead that sexual violence is neglected by international jurisdictions because investigators and prosecutors shy away from sexual evidence.

This was certainly the case at the Nuremberg trials, where the subject was considered “too distasteful” to prosecute. Fifty years later, interviews with judges, prosecutors, and other parties at the ICTY revealed that many of them accepted rape myths, held misogynistic views about women, and felt ambivalent and uncomfortable when dealing with cases of sexual violence. In response to the lack of accountability, one prosecutor confessed, “I get embarrassed asking questions to rape victims”.

Surely sexual violence is a difficult topic to speak about, but that is no excuse not to hold perpetrators to account. If global justice is to be realized, the trend of applying inconsistent approaches to sexual violence as compared to other crime categories must end. This calls for a reasonable allocation of resources, which will only be possible if prosecution offices change their mentality toward conflict-related sexual violence and begin to perceive it as a core crime.

Of course the reluctance to prosecute conflict-related sexual violence is not entirely unreasonable, especially given the difficulties of successfully prosecuting any crime at the ICC. In addition to the overarching challenge of confronting myths and stereotypes about sexual violence, each case presents its own complexities. In the cases of ISIL, there is the issue of jurisdiction. Since neither Iraq nor Syria have signed on to the Rome Statute, a case against top ISIL members would require the support of the United Nations Security Council, which presents its own political hurdles. However, the challenges associated with such cases are not insurmountable and are in fact comparable to those faced by other war crimes, which are readily prosecuted at the ICC.

The international community must be vigilant to ensure that impunity for gendered crimes does not continue to be the norm. As a starting point, the working group of the ICTY suggests prosecuting gendered crimes under the general categories of torture, enslavement, and genocide to contextualize them in the broader conflict. Other improvements would include assigning senior staff to advocate on gendered issues and employing diverse investigative teams to reach out to witnesses. Finally, the international legal community must be sensitive to the needs of survivors and answer the call of victims like Nadia, who are not helpless, but rather courageous enough to call on us for help. We too must be courageous and ensure their cries do not continue to go unanswered.

Rochelle Kelava is a JD student at the Peter A. Allard School of Law and the Centre for Feminist Legal Studies’ Student Coordinator for 2016-2017.

Sources – Academic

Serge Brammertz and Michelle Jarvis, eds, Prosecuting Conflict-Related Sexual Violence at the ICTY (Oxford: Oxford University Press, 2016).

Doris Buss, “Women at the Borders: Rape and Nationalism in International Law” (1998) 6:2 Feminist Legal Studies 171.

Doris Buss, “Performing Legal Order: Some Feminist Thoughts On International Criminal Law” (2011) 11 International Criminal Law Review: Special Issue on Women & International Criminal Law 409.

Doris Buss, “Knowing women: Translating Patriarchy in International Criminal Law” (2014) 23:1 Social & Legal Studies 73.

Christine Chinkin, “Gender-Related Crimes: A Feminist Perspective” in Ramesh Thakur and Peter Malcontent (eds), From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (United Nations University, Press, 2004) 116.

Anne-Marie de Brouwer, “The Importance of Understanding Sexual Violence in Conflict for Investigation and Prosecution Purposes” (2015) 48 Cornell International Law Journal 662.

Margaret M. DeGuzman, “Giving Priority to Sex Crime Prosecutions at International Courts: The Philosophical Foundations of a Feminist Agenda” (2011) 11 International Criminal Law Review 515.

Margaret M. DeGuzman, “An Expressive Rationale for the Thematic Prosecution of Sex Crimes”, in Thematic Prosecution of International Sex Crimes, Morten Bergsmo, ed. (Torkel Opsahl Academic EPublisher, 2012).

Dakshita Sangwan, “Sexual Offences in International Law” (2012-2013) 12:13 ISIL Year Book of International Humanitarian and Refugee Law 259.

Sources – Reports and UN Documents

ISIS Escapees Describe Systematic Rape: Yezidi Survivors in Need of Urgent Care, Human Rights Watch, 2015.

ISIS is Committing Genocide Against Yazidis, UNOHCHR, 2016.

 Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July – 10 September 2014, UNOHCHR, 2015, at 12-16.

 Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the light of Abuses Committed by the So-Called Islamic State of Iraq and the Levant and Associated Groups, UNOHCHR, 2015, at 16-49.

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3.

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609.

Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, arts 7(1)(g), 8(2)(b)(xxii)-(e)(vi) (entered into force 1 July 2002).

Women Peace and Security, SC Res 2106, UNSC, 6984th session, UN Doc E/13-37215, 24 June 2013, at para 2; and Women Peace and Security, SC Res 1820, UNSC, 5916th session, UN Doc E/08-39144 19 June 2008.

Supporting Vulnerable Witnesses: The Use of Courthouse Dogs in Witness Accommodation

By: Allison Sharkey

Winston, Kim, and Caber pose with Dana-Lyn Mackenzie, Associate Director of Indigenous Legal Studies.

On February 14, the Indigenous Legal Studies Program, in partnership with the CFLS, welcomed two speakers to Allard Hall to discuss the accommodation of vulnerable witnesses and the role that courthouse dogs play in facilitating access to justice. Winston Sayson (QC) is a senior trial prosecutor at the Surrey Crown Counsel Office of the Criminal Justice Branch of the Ministry of Justice, and an alumnus of UBC Law. Kim Gramlich (BA, MA) is the Coordinator of Delta Police Victim Services, where she has worked for 17 years. Also in attendance was Kim’s Accredited Facility Dog, Caber, who works to support victims of crime, vulnerable witnesses, and witnesses with disabilities. Winston and Kim have pioneered and advocated for the use of accredited courthouse dogs in the accommodation of vulnerable witnesses.

Winston spoke to the numerous barriers that victims of crime face in accessing the court; fear of public speaking, fear of backlash, fear of facing the accused, and fear of having to recount traumatic events. Recent developments in the law have contributed to making courts more accessible to certain classes of victims; those under the age of 18, those with physical or mental disabilities, and those who have been the victims of certain types of crime, such as criminal harassment, sex crimes, and spousal violence. These developments include allowing victims to testify behind a screen or by CCTV in a room outside the courthouse, statutory publication bans, exclusion of the public from court rooms, and the use of Accredited Facility Dogs. Pre-recorded witness statements can be used in some cases to avoid the revictimization that may occur when vulnerable witnesses are required to recount traumatic events in court. Winston emphasized the need for continued innovation in the law to facilitate the participation of child victims, disabled victims, and vulnerable victims in courthouse proceedings.

Kim described the role that Delta Police Victim Services (DPVS) plays in supporting victims of crime. She stressed that DPVS is a trauma informed practice, and their services are available 24/7 “from crisis to conclusion.” DPVS offers emotional support and referral, education, crisis intervention, information on investigations, court support services, and long term follow up. Kim’s Accredited Facility Dog, Caber, was the first victim services dog and courthouse dog in Canada. Caber trained with Pacific Assistance Dogs Society (PADS) for two and a half years and has the highest level of accreditation possible for any type of assistance dog in the world.

Working with DPVA, Caber assists people who struggle to talk about traumatic events and provides support during testimony in court. In forensic interviews, Caber enhances victim comfort during disclosures and minimizes the negative impact of revisiting victimization. Caber also supports victims during preparation and delivery of victim impact statements. Kim emphasized that canine intervention can have positive physical as well as psychological effects. Interaction with a support dog can lower blood pressure and increase oxytocin production, thus directly combating stress. In closing, Kim affirmed that objectivity and compassion in the criminal justice system do not have to be mutually exclusive and she encouraged the continued development of strategies for improving vulnerable witnesses’ access to justice.

UBC President Santa Ono Visits the CFLS

By Allison Sharkey and Alison Colpitts

On Tuesday, January 17, UBC President Santa Ono visited the Peter A. Allard School of Law for a tour of its research centres. In addition to visiting the Centre for Asian Legal Studies, the Indigenous Students’ Lounge, and the Centre for Business Law, President Ono stopped by to lend his support to the Centre for Feminist Legal Studies (CFLS). Led by Professor Debra Parkes, Chair in Feminist Legal Studies, students and faculty engaged President Ono in a discussion on a variety of topics, including the Centre’s 20th anniversary, the RISE Women’s Legal Centre, and the social media campaign #LawNeedsFeminismBecause.

Professor Parks began by highlighting the Centre’s high-impact, policy-oriented research and presented President Ono with a sampling of the Centre’s most recent publications. She also drew attention to the CFLS’s community engagement, focusing on the standing speaker series.

Professor Janine Benedet, Associate Dean, Academic Affairs and former Co-Director of the CFLS, next introduced President Ono to the Centre’s new initiative addressing gender inequality, the RISE Women’s Legal Centre. Launched in May as a partnership with West Cost LEAF, the RISE Centre operates to provide free legal services to low-income women, primarily in the area of family law. Professor Benedet then introduced JD candidate Elizabeth Cameron to talk about her recent experience working at RISE. Elizabeth noted how RISE allowed her to put her interest in feminist legal studies into action and mentioned her appreciation of encountering first-hand the gendered issues around access to justice in British Columbia. President Ono showed particular interest in this last point, engaging Elizabeth, Professor Benedet, and Dean Catherine Dauvergne in a discussion around the problems with legal aid funding in BC.

Rochelle Kelava, Student Coordinator of the CFLS, expressed gratitude for President Ono and the UBC Administration’s interest in the Centre, noting the important role that the CFLS plays in many students’ decisions to study law at Allard. Rochelle emphasized that the centre fosters respectful dialogue among students, staff, and faculty on topics that may not be addressed in the JD curriculum.

By the time the visit drew to a close, President Ono had reaffirmed his support for the CFLS, committing to help the Centre as it grows its Speaker Series and fundraising efforts. President Ono also expressed his interest in participating in #LawNeedsFeminismBecause, a nation-wide social media campaign to make space for our experiences and diversity to legal education and the legal profession.