1 Interview by the author, Vancouver, 30 Oct. 1991.Google Scholar

2 Shirley Masuda with Jillian Riddington, Meeting Our Needs: An Access Manual for Transition Houses ix (prepared for Disabled Women's Network Canada; Toronto: Dawn Canada, 1990) (“Masuda with Riddington, Meeting Our Needs”).Google Scholar

3 Mary Louise Fellows & Sherene Razack, “Seeking Relations: Law and Feminism Roundtables,” 19 Signs 1048 (1994).CrossRefGoogle Scholar

4 Catharine MacKinnon noted that equality is only granted to asexual people or to virgins and that women gain credibility in court on these terms only. See her “Sex and Violence: A Perspective,”Feminism Unmodified 91 (New York: Cambridge University Press, 1987) (“MacKinnon, ‘Sex and Violence’“).Google Scholar

5 Margaret Baldwin, “Split at the Root: Prostitution and Feminist Discourses,”5 Yale J.L. & Feminism 47, 81 (1992).Google Scholar

6 This discussion of the difference impasse draws extensively on a co-authored work in progress, by Mary Louise Fellows & Sherene Razack, “The Difference Impasse in Law and Feminism” (on file with authors).Google Scholar

7 See, e.g., Catharine MacKinnon, “From Practice to Theory, or What is a White Woman Anyway' 4 yale J. L. & Feminism 1 (1991); responses to MacKinnon appear in the same issue.Google Scholar

8 Jane Roland Martin, “Methodological Essentialism, False Difference, and Other Dangerous Traps,” 19 Signs 630 (1994).CrossRefGoogle Scholar

9 MacKinnon, “Sex and Violence” at 91.Google Scholar

10 Catharine MacKinnon, “Towards a Feminist Theory of the State,”excerpted in Beverly Balos & Mary Louise Fellows, Law and Violence against women: Cases and Materials on Systems of Oppression 486 (Durham, N.C.: Carolina Academic Press, 1994).Google Scholar

11 Baldwin, 5 Yale J.L. & Feminism at 81.Google Scholar

12 Id. Google Scholar

13 Id. at 69.Google Scholar

14 See, e.g., Regina Austin, “Black Women, Sisterhood, and the Difference/Deviance Divide,” 26 New Eng. L. Rev. 887 (1992); Kristin Bumiller, “Fallen Angels: The Representation of Violence against Women in Legal Culture,” in Martha Fineman & Nancy Thomadsen, eds., At the Boundaries of Law 95 (New York: Routledge, 1991); Jennifer Wriggins, “Rape, Racism, and the Law,” 6 Harv. Women's L.J. 103 (1983).Google Scholar

15 Anne Finger gave the example of grand rounds at the law and feminism roundtables to illustrate why the definition of sexual violence has to be expanded when we consider women with disabilities. Fellows and I use it to illustrate the difference impasse in ways that Finger herself did not articulate or endorse. See Fellows & Razack, 19 Signs at 1055 (cited in note 3).Google Scholar

16 Yvon Appleby makes rhe argument that very often no model of sexuality is pushed at women with disabilities in “Disability and ‘Compulsory Heterosexuality,’“in Sue Wilkinson & Celia Kitzinger, eds., Heterosexuality: A Feminism and Psychology Reader (Newbury Park, Cal.: Sage Publications, 1993). Note that women with disabilities also encounter the opposite stereotype, i.e., they are considered oversexed. See note 44.Google Scholar

17 Patricia Hill Collins, Black Feminist Thought 170 (New York: Routledge, 1990).Google Scholar

18 Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, N.Y.: Cornell University Press, 1990) (“Minow, Making All the Difference”).Google Scholar

19 Id. at 215 Google Scholar

20 Id. at 390.Google Scholar

21 See Jennifer Nedelsky, “Law, Boundaries and the Bounded Self,” 30 Representations 162 (1990); Carole Pateman, The Sexual Contract (Stanford, Cal: Stanford University Press, 1988).CrossRefGoogle Scholar

22 Minow, Making All the Difference 276.Google Scholar

23 An example of women in this category are aboriginal women and women with disabilities. Both have been legally denied the right to keep their children, and in some cases to have them by legislation as diverse as the Indian Act in Canada for aboriginal women and various compulsory sterilization measures. For an account of these, see Beverly Sellars and Laura Hershey's discussion in Fellows & Razack, “The Difference Impasse” at 1064 (cited in note 6).Google Scholar

24 For a full discussion, see Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor 19 (Cambridge, Mass.: Harvard University Press, 1991), and Sherene Razack, “Collective Rights and Women: ‘The Cold Game of Equality Staring,’” 4 J. Hum. Just. 1 (Autumn 1992).Google Scholar

25 There is little doubt that women with developmental disabilities experience sexual violence to a greater degree than most other groups. Vulnerable, a study of sexual abuse and people with an intellectual handicap, examined several Canadian and American studies and found rates of sexual abuse and assault four times greater than the national average. Charlene Y. Senn, Vulnerable: Sexual Abuse and People with an Intellectual Handicap 4–8 (Downsview, Ont.: G. Allan Roeher Institute, 1988, 1989) (“Senn, Vulnerable”). The statistics notwithstanding, many researchers and activists have suggested that a conspiracy of silence exists around sexual violence against people with developmental disabilities. Asch and Fine speculate that many women with developmental disabilities are sterilized “to keep the effects of rape from the public eye.” Adrienne Asch & Michelle Fine, “Introduction: Beyond Pedestals,” in Asch & Fine, eds., Beyond the Pedestal: women with Disabilities 23 (Philadelphia: Temple University Press, 1988). Certainly some of the impetus for forced sterilization, often unarticulated but disturbingly close to the surface, comes from the fear that a child or woman with a developmental disability is unusually vulnerable either to rape or to an unrestrained sexuality. Legal analysts discussing sterilization, e.g., are often overly preoccupied with the “burden” that disability imposes on nondisabled people, identifying, among other things, die “intolerable” strain on the family who cares for a woman with a developmental disability whose sexuality is not controlled. See, e.g., The Honourable Bertha Wilson, “Women, the Family, and the Constitutional Protection of Privacy,” 17 Queen's L.J. 18 (1992); Elizabeth S. Scott, “Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy,” 1986 Duke L.J 845; M. Anne Bolton, “Whatever Happened to Eve?” 17 Manitoba L.J. 219 (1978); Margaret A. Shore, “Notes of Cases,” 66 Con. B. Rev. 639 (1987).Google Scholar

26 Masuda with Riddington, Meeting Our Needs 3 (cited in note 2).Google Scholar

27 Senn, Vulnerable 12 (cited in note 25).Google Scholar

28 National Action Committee on the Status of Women, “Justice for Women: A Brief on Bill C-49, An Act to Amend the Criminal Code (Sexual Assault),” 14 May 1992 (available from the National Action Committee, Toronto) (“NAC, ‘Justice for Women’”); Women's Legal Education & Action Fund, “Submission of LEAF to the Legislative Committee on Bill C-49, An Act Respecting Sexual Assault” (available from LEAF, Toronto, 1992); National Association of Women & the Law, “A Brief on Bill C-49,” 20 May 1992 (available from NAWL, Ottawa, Ont., Can.).Google Scholar

29 I am indebted to Mary Louise Fellows for helping me to articulate this point.Google Scholar

30 NAC, “Justice for Women” at 4.Google Scholar

31 I have put this term in quotation marks in order to express my disagreement with it. It leads too easily to the view that prostitution is primarily an issue of employment and not violence.Google Scholar

32 Minow, Making All the Difference 219 (cited in note 18).Google Scholar

33 Nabil Shaban, cited in Jenny Morris, Pride against Prejudice 192 (London: Women's Press, 1991).Google Scholar

34 In many cases of sexual violence involving girls and women with developmental disabilities, legal practitioners display a casual unreflective use of the disability label to connote vulnerability. In 14 such cases collected by the Metro Toronto Action Committee on Violence against Women, courts continue to use words to describe developmental disability that many members of that community find offensive. “Mental handicap” is the most frequently used term, but one also finds “feeble-minded,”“slow-witted,” and imprecise descriptions of deficiency, diminished intelligence, and impairment. While the offensiveness of the terms used is occasionally shocking, it is the uses to which they are put that are of paramount interest. In all 14 decisions, the connection between developmental disability and increased vulnerability was made as though to signal an awareness of a greater abuse of trust, but this awareness does not manifest itself in stronger sentences.Google Scholar

35 Frances Lee Ansley, “Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship,”74 Cornell L. Rev. 994 (1989). Cheryl I. Harris, “Whiteness as Property,” 106 Harvard L. Rev. 1784 (1993), has also argued that in the context of the affirmative action debate, privatization of the issues, the descent into “the warp of sin and innocence,” takes the focus away from distributive justice. Thus the affirmative action debate becomes one of who harmed whom and who should be made to pay for it as opposed to a consideration of claims in the context of racism. Within this latter framework, the question then becomes, In a fair world, absent racism, who would be entitled to what? Hence white individuals would not be entitled to claim benefits they acquired in a racist world and black individuals would be entitled to benefits that would have accrued to them in a racially fair world. In effect, the fact of white supremacy in its past and present effects has to be brought into the evaluation of claims for justice.Google Scholar

36 Minow, Making All the Difference 174, also makes this point when she argues that when difference is thought to reside in the person rather than the social context, we are able to ignore our role in producing it.Google Scholar

37 I have selected these two cases because they help me to illustrate what I mean about subtexts. Although I cannot argue that they are paradigmatic, I strongly suspect they are.Google Scholar

38 Ruth Luckasson has suggested that one telling indicator of the devaluing of the harm suffered by persons with developmental disabilities when they are victims of crime is the tendency to label crimes against them euphemistically, e.g., to call the crime abuse or neglect when it is in fact torture, discrimination when it is hate crimes, and mercy killings when it is murder. See her “People with Mental Retardation as Victims of Crime,” in Ralph Conley, Ruth Luckasson, & George Bouthilet, eds., The Criminal Justice System and Mental Retardation 211 (Baltimore: Paul H. Brookes Publishing Co., 1992).Google Scholar

39 R. v. Mohammed, Toronto, Ont., Court, Provincial Division (30 April 1992).Google Scholar

40 Id. at 31.Google Scholar

41 Id. at 32.Google Scholar

42 Id. at 49–50.Google Scholar

43 Kimberlé Crenshaw, “Whose Story Is It Anyway?” in Toni Morrison, ed., Race-ing Justice, Engendering Power 408 (New York: Pantheon Books, 1992).Google Scholar

44 For an account of how fatness is lived as a disability that gives rise to a number of stereotypes, see Carol Schmidt, “Do Something about Your Weight,” in Susan E. Browne, Debra Connors, & Nanci Stem, eds., With the Power of Each Breath 248 (Pittsburgh: Cleis Press, 1985) (“Browne et al., Power of Each Breath”).Google Scholar

45 Mohammed, at 5 (cited in note 39).Google Scholar

46 Id. at 38.Google Scholar

47 Anne Finger, “Claiming all of Our Bodies: Reproductive Rights and Disability,” in Browne et al., Power of Each Breath 303.Google Scholar

48 Marilyn Frye observes that oppressed peoples often find themselves in a double bind—“situations in which options are reduced to very few and all of them expose one to penalty, censure or deprivation.” She offers as one example of the double bind the situation of women penalized for both sexual activity and sexual inactivity with men. The choice is between being labeled a whore or being labeled frigid or sexually abnormal (since heterosexuality is the norm). Frye, “Oppression,” in Margaret L. Andersen & Patricia Hill Collins, eds., Race, Class, and Gender 38–39 (Belmont, Cal.: Wadsworth Publishing Co., 1992).Google Scholar

49 Mohammed at 56.Google Scholar

50 Jennifer Wriggins, 6 Haw. Women's L.J. at 111 (cited in note 16), notes that American “courts even applied special doctrinal rules to Black defendants accused of the rape or attempted rape of white women, [note omitted] One such rule allowed juries to consider the race of the defendant and victim in drawing factual conclusions as to the defendant's intent in attempted rape cases.”Google Scholar

51 Mohammed at 52.Google Scholar

52 Senn, Vulnerable at vi (cited in note 25) (sources omitted).Google Scholar

53 Mohammed, at 44.Google Scholar

54 Id. at 26.Google Scholar

55 Senn, Vulnerable at 69.Google Scholar

56 Mohammed at 60.Google Scholar

57 Re Seaboyer v. The Queen; Re Gayme and the Queen, [1991] 2 S.C.R. 577 at 690. Although the majority decision does not discredit motive to fabricate evidence, Madame Justice L'Heureux-Dube, in dissent, explicitly rejected the possibility of a vengeful women. She comments that any use of past sexual history “depends for its relevance on certain stereotypical visions of women, that they lie about sexual assault, and that women who allege sexual assault often do so in order to get back in the good graces of those who may have her sexual conduct under scrutiny.” For a fuller discussion of this aspect of Seaboyer, see Peggy Kobly, “Rape Shield Legislation: Relevance, Prejudice and Judicial Discretion,” 30 Alberta L. Rev. 988 (1992).Google Scholar

58 Kristin Bumiller, “Rape as a Legal Symbol: An Essay on Sexual Violence and Racism,” 42 U. Miami L. Rev. 75, 88 (1987).Google Scholar

59 Id at 88.Google Scholar

60 Mohammed at 56 (cited in note 39).Google Scholar

61 Social Planning Council of Metropolitan Toronto, A Time for Change: Moving through Discrimination in Employment (Toronto: The Council, 1989); Philomena Essed, Understanding Everyday Racism: An Interdisciplinary Theory (Newbury Park, Cal: Sage Publications, 1991).Google Scholar

62 Mohammed, at 60.Google Scholar

63 Martha Minow, “Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors,” 33 Wm. & Mary L. Rev. 1201, 1204 (1992).Google Scholar

64 Id. at 1215.Google Scholar

65 Province of Ontario, Ministry of the Attorney General, Crown Policy Manual, Policy # SO-2, 15 Jan. 1994.Google Scholar

66 Baldwin, 5 Yak J. L. & Feminism, at 71 (cited in note 5).Google Scholar

67 All information referred to has been gleaned from the New York Times, which covered the case exhaustively for more than a year. The material 1 rely on is therefore sometimes speculative and second hand. In the absence of the actual court transcript, 1 still find the newspaper accounts useful in that they enable me to illustrate a possible scenario.Google Scholar

68 Robert Hanley, N.Y. Times Metro, 29 Jan. 1994, p. 24.Google Scholar

69 Joseph Sullivan, “New Jersey High Court Sets Rules on Mental Handicap in Sex Cases,”N.Y. Tmes, 5 May 1991, p. 44.Google Scholar

70 Judge Burrell Ives Humphreys, quoted in Robert Hanley, “Judge Rules Sexual History Is Admissible in Trial,” N.Y. Times, 29 Aug. 1992, p. 21.Google Scholar

71 Robert Hanley, “Counselor Says Woman in Abuse Case Sought Affection to Gain Friends,”NY. Times, 9 Dec. 1992, p. 6.Google Scholar

72 Robert Hanley, “Accuser's Mother Testifies in Sexual Assault Trial,”N.Y. Times, 18 Nov. 1992, p. 5.Google Scholar

73 Robert Hanley, “Sister Calls Woman in Assault Case Pliable,”N.Y. Times, 11 Nov. 1992, p. 6.Google Scholar

74 Robert Hanley, “Glen Ridge Abuse Trial Struggles with Two Images of the Accuser,”N.Y. times, 1 Dec. 1992. p. 5.Google Scholar

75 Dr. Susan Esquilin, quoted in Robert Hanley, “Witness in Abuse Trial Calls Accuser Vulnerable,”N.Y. Times, 29 Oct. 1992, p. 8.Google Scholar

76 Anna Quindlen, “Public and Private; 21 Going on 6,”N.Y. Times, 13 Dec. 1992, p. 4.Google Scholar

77 Repoaed by Robert Hanley, “Prosecutors Introduce Secret Tapes at Sex-Assault Trial,”N.Y. Times, 30 Oct. 1992, p. 6.Google Scholar

78 Robert Lipsythe, “Must Boys Always Be Boys?”N.Y. Times, 12 March 1993, p. 7.Google Scholar

79 See, e.g., Lisa W. Foderaro, “Glen Ridge Worries It Was Too Forgiving to Athletes,”N.Y. Times, 12 June 1989, p. 1, in which the town is described as white, Christian, and sport-loving but also antisemitic; Elizabeth Miller-Hall & Robert Laurino, “Revoke Bail, Prosecutor Says to Court,”N.Y. Times, 23 March 1993, p. 6.Google Scholar

80 Douglas Biklin, quoted by Catherine S. Mannegold, “A Rape Case Worries Advocates for the Retarded,”N.Y. Times, 14 March 1993, p. 3.Google Scholar

81 James Ellis, quoted in Mannegold, id, at 3.Google Scholar

82 My suggestion that we pursue a more detailed description of the victim and the accused in their social context and move away from consent issues to violence may be seen here as incompatible with the chief objective of a trial which is a determination of guilt or innocence. A discussion of social context may be seen as more relevant to a sentencing hearing. I would respond, however, that issues arising from the social context, issues of the sources of violence, contribute greatly to the finding that is reached at the trial. 1 would not suggest, then, that they are best postponed to sentencing.Google Scholar

83 Ruth Luckasson, quoted in Catherine S. Mannegold, “Bracing for a Message from Glen Ridge Jury,”NY. Times, 7 March 1993, p. 42.Google Scholar

84 Elizabeth M. Schneider, “Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering,” 14 Women's Rts. L. Rep. 232 (Spring/Fall 1992) (originally published in 1986).Google Scholar

85 Id. at 235.Google Scholar

86 In Canada, consent is not a defense in any sexual offense against a child less than 14 years old. Criminal Code, sec. 139 (1).Google Scholar

87 Legal rules often promote this decontextualization. For example, in R. v. L. (].C.) (1987) 36, C.C.C. (3d), a trial judge took notice of a context of repeated sexual violence inflicted by the offender on the victim, his daughter. On appeal, however, the court reduced the sentence from four years to three on the basis that sentencing must reflect the gravity of the specific offense for which L. (].C.) was being tried, namely, the one incident for which he is charged. All other offenses were only alleged and thus could not have an impact on the sentence meted out since the offender has not been tried for them. Similarly, in R. v. Duffney (1986), 61 Nfld. & P.E.I.R. at 178, involving a father who sexually assaulted his daughter over a number of years, a trial judge wrote:Google Scholar

I am not going to attempt to calculate the number of times that these assaults took place because we don't have evidence that is tied to a specific period of time. When the complainant referred to it having taken place 20 or 30 times over a period of probably four years, we have to be very careful in interpreting that as an accurate statement, because that is a wide range anyway, 20 to 30 times in a period of four years. That isn't the time that is covered anyway. The accused himself in his statement that was put in evidence referred to two or three times, something like that.Google Scholar

88 19 Nov- 1986, Halifax S.C.C. 01487 (N.S.C.A.).Google Scholar

89 Id. I cannot of course confirm that this was true without an examination of the transcript of the trial.Google Scholar

90 28 April 1989, Edmonton 8803/3048C3 (Alta. Crt QB):2–5.Google Scholar

91 Minow, Making All the Difference 143 (cited in note 18), quotes this phrase from Robert Burt, who makes the point in his essay on HaMerman v. Pennhurst State School & Hasp. that initially all nondisabled parties in this case were able to come together but could not ultimately sustain this cooperation “over the long haul as the neediness of the vulnerable, inscrutable retarded people seemed to grow endlessly toward insatiability.” Robert Burt, “Pennhurst; A Parable,” in R. Mnookin, ed., In the Interests of Children 324 (New York: W. H. Freeman, 1985).Google Scholar

92 R. V. Chin, 23 Feb. 1989, Vancouver CA008543 (B.C.C.A.).Google Scholar

93 Id. at 6.Google Scholar

94 Id. Google Scholar

95 Id. at 7.Google Scholar

96 Id.Google Scholar

97 R. V. Chin, 4 Dec. 1987, Kamloops 204/0529 (B.C.S.C.) at 1.Google Scholar

98 Research studies have suggested that the introduction of evidence about prior sexual history makes it more likely that the complainant will be not believed. Kobly, 30 Alberta L. Rev. at 991 (cited in note 57).Google Scholar

99 Bumiller, 42 U. Miami L. Rev. at 76–77 (cited in note 58).Google Scholar

100 Baldwin, 5 Yale J. L. & Feminism at 119 (cited in note 5).Google Scholar