False Rape Accusations as Defamation

A friend of mine asked for my comments on this article: http://www.nationalpost.com/m/wp/blog.html?b=news.nationalpost.com%2F2015%2F02%2F12%2Fb-c-man-wins-right-to-sue-rape-accuser-for-defamation-after-he-was-cleared-of-charge and as usual it got to be a little long for a Facebook post. Intro First, in case the article goes away, the condensed report is

• A "minor" female told many people in the community that a particular man had raped her
• She visited to the local RCMP detachment and swore out a complaint to this effect
• The RCMP investigated, asking the accused about this.
• The accused furnished receipts and other documents proving that he was hundreds of kilometers away at the time. The RCMP decided not to lay charges.
• Gossip continues, and he has filed suit for defamation against his accuser, partly alleging that it was not a live issue until she put a patina of legitimacy to this with the RCMP complaint and subsequent report that she had withdrawn her complaint rather than it being determined unfounded.
• The girl sought to exclude the content of the RCMP complaint from evidence because it was made to a quasi-judicial panel. The article reports the court ruled the RCMP is not a quasi-judicial panel and so is not a safe forum to make non-malicious false statements. The further its truth-seeking function one is not prosecuted for making mistaken statements to a quasi-judicial panel. (As an aside, the article reports that Parliament is a safe forum to make statements that are both false and malicious.)

Yes, this is a challenge. There are two actions or potential court actions involved here and only one is happening. In this case, it sounds to me that everything is related to pure civil defamation. While the statement to the RCMP was involved in the court ruling, all it does is lower the statement to the RCMP to the same level as statement to a friend or to the media. So far, his allegations are still unproven in court. He must show both falseness and malice with the burden of proof on him to show this. He appears to have convinced the police on the falseness, though I am not sure what standard of proof they require. It is short of beyond reasonable doubt that the Crown Prosecutor requires, but might be on balance of probabilities or lower. (The Crown has discretion to decline to proceed if there is no reasonable prospect of conviction, and the police have discretion to not charge based on a similar discretion. The thing is that there are allegations that sometimes they invoke this discretion based on the consideration of random disbelief of rape, or potential impact to the perpetrator's public image when they have simple he-said she-said.) State Involvement This is a preliminary that does not answer the central question, and can be skipped. I don't know what statements the RCMP made as a result, and whether there would be a case to be made that they might be implicated by repeating the false statements. Apparently she reported the visit to the RCMP to provide the unfounded rumour with a patina of legitimacy. Should the RCMP have denounced her publicly when her story did not even pass basic coherence? Charged her with attempting to mislead? But the public policy of this might give license to other officers to attempt to use these tools for the more common failure of a complaint not having a reasonable prospect of being provable beyond reasonable doubt. (It should be noted that for a high price the complainant can still proceed on with a civil tort and only need for it to be provable on balance of probabilities.) (Practically, naming the RCMP as a party would fail for already established policy reasons that you can not put a chill on police investigating complaints, so that they were doing their job. In addition, they are the Crown and have wide immunities. I would allege that they should potentially be namable depending on how they do the job. ie if they state her allegations as fact to the media and ask for others to step forward to corroborate is different than asking others for their recollections of the event without leading.) As an aside, another interesting case of pressing the state into the service of private conflict is the woman who denounced her husband to the Nazis for treasonous statements and had him hauled off to the concentration camps. I can not remember if it was actually that he was beating her, but this was not a crime. Sometimes the police have an any means to the end attitude, and sometimes (eg Al Capone's Tax Evasion prosecution) the state will bless this. This can sow confusion in the populous that it is legitimate for private citizens to use the State as a tool to handle private disputes because they do not have access to the Courts or other tools to press their legitimate claims. I assert this has led to an inappropriate expansion of the criminal law to trivialities that people just don't like. Here, however, the criminal law, and the state involvement branches are entirely left out. Civil Side Again, a tangential preliminary is that according to the article, it would appear that the ruling that the RCMP is not quasi-judicial might be gratuitous, since maliciously false statements are only protected in parliament. If malice could be shown then the evidence should not be excluded. However, maybe this would have set too high a bar, because this is far higher than simply deliberately false. However, this might be based on the admissibility rules. There is a desire to put all relevant evidence before the trier of fact, rather than to excessively use admissibility to never set it before the judge/jury to be weighed for credibility and probative value. This might be the motivation for the ruling. Rape (or as we call it in Canada, Sexual Assault) is special. Historically, the allegation puts an independent moral taint on both the accused and accuser. It is still a basis for vengeance law that the state sought to stamp out by stealing the right to justice from the parties into the Criminal law. [I am taking Restorative Justice this term where we read an article about how by taking the offence onto the King/the State rather than it being between the parties, neither party is served well.] At this point, I realized it was going to take too long to write up all the thoughts, so here is the shorter post on Facebook: As usual, my thoughts have become over-long and I started a blog post about it, but now I am wondering if I will have time to finish it. Essentially the position of the girl's litigation guardian is that "sure I can't say this stuff in a blog post or to a newspaper reporter, but I should be free to lie the police with impunity. (And a further extension not in issue in this court ruling that "I can lie about what the police said to me, using the cloak of confidentiality as a shield to them correcting the record.") (This is assuming that his allegations are truth.) I am hesitant to carve out sexual assault as a class of false statements one can safely make without danger of being brought to court for defamation. Maybe, in weighing the historical impediments to reporting the legislature might find it important to make that carve-out, but I think it would be counter-productive, fueling the false-allegation perception by making it the one thing you can lie about with impunity and hiding the true reports among a perception that this was used simply because it is safe when there is something else going on. As the guy alleges, false accusations have significant personal costs to the accused. The article itself fuels the false reporting myth, partly because they often do not report on true reports. Somewhere around here, I have some stats on false reporting, and one of the things it found was a significant number of withdrawn complaints were as a result of third party pressure to report or third party complaints not backed up by the victim. Given that this is a minor I am wondering if there might have been an element of parents involved in this situation. I am suspicious that this is a situation that got out of her control where she made a random unguarded ambiguous statement, and was forced into amping it up to this level by people in her community trying to stand up for her rights, rather than her maliciously setting out to ruin this guy. I am wondering if she was hanging out with this guy that her parents did not approve of and to save her reputation with her parents, she minimized her own agency in the interactions. She was then caught in the false-reporting perception where people, and particularly the parents, latch onto someone who is saying something as a symbol of all the unreported incidents to achieve community denunciation of the crime as an idea rather than this particular perpetrator. Having made one statement she would then be forced to stick by that and elaborate it further rather than admit to the previous things and have the whole thing come crashing down. Just to clarify about the withdrawn third party reports: I am putting my own spin on this stat. It is entirely possible that the victims do not proceed not because of the report being wrong or a misunderstanding but that they did their own weighing of the personal and relational cost to proceeding and came to a different conclusion as to the value of the prosecution than the third party. I really don't know how we can get out of this loop. Sexual Assault is freighted with all kinds of extra baggage. On the one hand, we can not demote it to common assault or theft because this would fail to recognize the historical treatment of its most frequent victims. On the other hand, ramping up the implications of the accusation and conviction means that it becomes an excessively heavy hammer that no one wants to wield, meaning that people become overly cautious proceeding with the prosecution and overly aggressive fighting it. Because of the lingering doubt and implications to his community standing and career prospects, he can not just leave it as unproven so he has to fight back and prove it false and malicious which as you point out has the consequence of fueling the myth of false accusation and hence furthers the under-reporting. Just to push my latest hobby horse (I am taking a Restorative Justice course), I would assert that had this been undertaken in a restorative justice conference that we could have addressed the actual issues involved because it would not end (as the criminal arm did) when he showed that he was not there, but could then have moved on to find out why the accusation was made, and implicate all those that furthered it possibly resulting in a simple public statement to the parties not at the conference clearing up the misunderstanding, rather than all this expense and collateral damage.

Today's Theme is Hate Speech

https://www.facebook.com/cbcnews/videos/10153312402009604/?pnref=story

This brings up something I did not know: The new law protecting against the sharing of intimate images online passed last year also added a number of new groups protected against hate propaganda. The old list was "colour, race, religion, ethnic origin, sexual orientation". To this we now have added "national origin", "age", "sex", "mental or physical disability".

This means that the statement (I have heard before) of "I am afraid of young people today because they are violent and out of control. We should all hate and fear them." could now be hate speech (to be clear, the "we should all hate and fear them" was added to make the matter more explicit, I don't think I have actually heard it stated so clearly). One question that results is whether a politician who advocates for changes to the Youth Criminal Justice Act based on this sentiment has the protection of parliamentary privilege given that we would be shifting this protection from not just a civil tort, but also against a criminal act.

However, I would also note that "young muslim men are prime candidates for recruitment to ISIS and should be watched closely" might previously have enjoyed the protection of slicing and dicing the "muslim" group and being able to say that it is not advocating hatred of all muslims, but now engages three different grounds, and is clearly skirting the edge of hate speech.

Finally, to be clear, I am not afraid of nor have hatred for "young people today" nor "young muslim men" and am further relying on CCC s. 319(3)(d) for protection against being accused of hate speech for repeating other people's sentiments.

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The question is whether he is hoping to use the existing criminal code provisions, in which case it will just be a whole pile of fail, or whether he is planning to introduce new provisions. The United Church is especially protected under 319(3)(b) in that as long as they can link their speech to a religious text then they are completely immune. They can't break that provision because some of their base is dependent on it to stay out of prison. (Further, it protects a Zionist who steps over the line and advocates hatred of those who stand in the way of giving the jewish state control of all the promised lands.) However, I think everyone else is protected by 319(3)(a): if the statements are true, or 319(3)(c): "statements were relevant to any subject of public interest". Further, there is the stumbling block of the definition of "identifiable group": any section of "the public" distinguished by "national origin". I read this (and remember this is criminal law, so is read narrowly rather than broadly) as being people walking around in Canada, so provides no protection to Israelis in Israel. (a likely more tenuous argument might engage whether Israeli politicians in Canada might also not be protected, as they might not be a member of the public, being an organ of the Israeli State rather than a pure person). Given this, unless one is advocating for attacks or hatred of Israeli tourists it is possible that a legitimate defense could be presented against the case on its face. Therefore a Crown Prosecutor, can not pursue the charges because there is no reasonable prospect of conviction. Finally, there is the question of defining "advocating hatred" versus "advocating punishment or unequal treatment". The big challenge is that this is an interpretation imposed by the courts rather than the executive, and so it is likely to fail. So here is some news: Last year, someone mused about whether the Dentistry scandal was hate speech, and it was observed that "sex" was not included in the definition of "identifiable group" in Criminal Code s. 318. Well, it seems this has been changed in the mean time by Protecting Canadians from Online Crime Act, SC 2014 c 31 s 12. However, one should note that one now needs to be careful: "Young people today are violent and should be feared and hated." could fall under the new definition of hate propaganda, because "identifiable group based on age" was also added.

Holliwood Pushing the Costume Limits and Questions about Their Role in Culture

As friend on my facebook feed recently posted this commentary picture  https://www.facebook.com/1013TheBrew/photos/a.195619466488.123649.110527966488/10153289475976489/?type=1

(For those that can not open it, it is a picture of three actresses at the AVN (Adult Video Awards) and four Holliwood actresses on the red carpet at "The Met Gala", with the caption of "On the left PORN stars at the 2014 AVN porn awards, and on the Right : Influencial People at the Met gala..".  The porn stars are dressed in a modest manner as you might see a young woman dressed at a formal social occassion with on in a knee-length frilly white strapless dress, one in a floor-length black dress with straps and a bodice coming to a few inches above the sternum, and one "pushing the limits" in a polka-dot dress with a slit on the side to mid-thigh, and a bodice that emphasizes her breasts but would not be out of the ordinary for a large breasted women at a formal event in your own city.) On the right the "Influencial People" : the middle two have sheer shoulder to floor dresses with strategically placed accents to provide a minimal level of coverage covering vulva and nipples in one case (Beyonce?), and obscuring things in the other (Kim Kardashian).   The one on the far left has cutouts on the side and back such that the side of the dress from the top of the pelvis hipbone to about 3" below the ball of the thigh hipbone is exposed (From the CNN labels, this is probably Jennifer Lopez).  In the case of these three they are clearly not wearing underwear.  The far right has a comparatively modest neck to floor green gown with a cutout on the side from underarm to top of pelvis exposing side-boob, but otherwise is fairly standard.  Matching to CNN this is Kendall Jenner.)  The point is that Holliwood has surpassed porn stars in the extent to which they are willing to dress racy for their events.

Various commentors posted, reproduced below my piece, and their comments prompted this blog post:




So here is a tangential thought about appropriate places: Movie stars sometimes are asked to be naked in films that a private industry association decides are targeted to a certain audience.  Periodically they are invited to public events, and this provides them the opportunity to do advertising of their brand to potential customers.   The red carpet provides them the opportunity to present the image "this is what I could look like with preparation" compared to the poparazzi shots on the street.  Therefore in this context it makes sense for someone in this specialized industry to advertise how effectively they have sculpted and maintained their body, revealing what features their product has in order for customers to select the best one for their particular project.  This means that the men are not wearing revealing enough clothing, and should at a minimum be encouraged to make their costumes less uniform.  Now, if you are not willing to do nude scenes, then clearly you include this feature in your advertising, by wearing modest clothing that is as revealing as you are willing for your movie costume to be.   (Carrying the thought to as an extreme conclusion I can get to, I guess this means that given the current guidelines of the MPAA, the women should be showing their vulvas, but the men should be covering their penises?)

(I admit my whole thesis is blown by how the porn stars are dressed.  Though I could try for a token thing about the work being so extreme that it would like asking why a carpenter does not wear coveralls and bring  a hammer to the builders' awards, or go for a transform based on my second-to-last paragraph that the customers they are selling to is not producers/directors but the general public, and AVN stars have a more limited audience that does not attend the awards show, so they can dress for any formal event rather than advertising their product.)

 The challenge is in disambiguating between those who are doing this type of advertising, and those who just have a personal style that does not accommodate this style in their private lives even if they are willing to play a character with a different personal style.  Potentially you could dress in the style for the types of roles you are currently looking for right now.  However, how does one determine when someone is living their private life visiting parties in their social set, and when they are doing their job interview/cover letter.  Industry awards shows and movie openings are clear opportunities to do this for business networking purposes, but Met Gala theoretically should be a private party thing.  On the other hand, there must be sufficient awards shows (once a year), film openings (concentrated in a particular season), and film festivals to afford them the opportunity to do the advertising year-round.   It might be that the Met Gala falls at a lull in the industry-specific events, and so is a good opportunity to hijack this public appearance for professional advertising rather than dressing their own personal style.  Then also, there is the question of whether we are more offended by our perception of Beyonce, Lady Gaga, and Madonna as a canny business women who make  carefully planned decisions to push the limits in furtherance of shaping their personal product regardless of the impact on wider society, or the standard actress dressing a la mode who does not think through the implications of the current fashion and does not have the courage to push against the standard script for their costume, and the implications of their disempoweredness.  (Given the other narratives about Beyonce, I actually think it would be inappropriate to make the above characterization of pushing her empire reckless of the impact on society, and would characterize it more as an internal argument in the feminist movements about being free to act as you please is an expression of empowerment as Beyonce would assert, or that this is lipstick feminism (using objectification as a commodity to trade for advantage or power) as some young self-described second wavers asserted to me a while ago.)

Returning to the original thread.  So having laid the groundwork for the thesis that the actresses are culture workers, we have a question about their role: (1) are the culture drivers producers and directors that write to this culture model, and the actresses are advertising their product to these potential employers, as I am asserting, (2) are the actresses driving the culture as is implicit in many of the above comments, or (3) are we driving the culture preferencialy purchasing this type of product and the first two candidate groups are simply delivering the product demanded?  (And if we are unhappy with last option, whose behavior should we be shaping: those who do not offer alternative products that do conform to our personal preferences, those who supply the objectionable product, or those who buy the objectionable product?)

Finally, an interesting side-note: this is a very appropriate conversation as was pointed out by one of the commenters on the original post.  Apparently Met Gala is an annual fundraiser for the Metropolitan Museum of Arts Costume Institute.  Given this, commenting on their costumes (though I am a little vague on how any of the dresses embody "China: Through the Looking Glass"), what they mean, what they say about Society, and such does actually make a lot of sense.

<hr>

Here is the comment thread that prompted this in case context is needed.   Reproduced without permission, but I have obscured the names in case people were not intending to post publically attached to their identity:

[OP] Seriously. Hollywood has gotten insane. I will never let my daughter idolize people like Beyoncé who make being nearly naked cool and stylish.

[JW] My thoughts also! Like why can't you just wear a nice dress? Why do I have to almost see your vagina? I don't get it

[ET] Beyoncé is a brilliant business woman. She's got a child, a husband, her net worth is $450 million, she's won countless awards for her music and is one of the top female musicians in the world. She's a brilliant role model and the fact that she felt like wearing a revealing dress doesn't negate that. It's 2015.

[OP] Personally it bothers me that she's worth that much and she does so by exposing her body. I want to teach my daughter that what's in her brain is what matters and that your body is not for everyone. What's next? It's OK to have your vagina exposed? Sure she's a brilliant business woman, she's giving Hollywood what they want: more skin, more sex, more images and discussion about her body and less about anything of value. It's sending feminism backwards in my opinion.

[ET] There's absolutely nothing wrong with a grown woman showing off as much of her body as she wants. That doesn't mean that I can't teach my daughter that it's okay to be smart and independent and to value intelligence AND that she can be into caring about her appearance. Bodies are bodies. We all have them. It's okay to show them off, if it's your choice. It doesn't make you any less of a feminist. And in the case of Beyonce, regardless of her manner of dress, she's still a phenomenal artist. Her last album was almost universally critically acclaimed. She's been nominated for 53 Grammy awards and won 20 of them. To make the inane assumption that Beyonce has only reached the level of success she has because of her sexualized public image is nothing more than internalized misogyny.

Also, you wouldn't be able to see her vagina unless you had a speculum. Vaginas are on the inside.

[OP] Haha, I correct that statement then, we shouldn't walk around with exposed labia. And you may teach your daughter that, it's totally your right. However I will teach my daughter that she can flaunt her body by wearing flattering things that still cover her body. Because, in my opinion, it shows self respect and pride in the fact that she doesn't need to show excessive amounts of skin to be beautiful, or even sexy if that's how she wants to look.

[TW] ET,  if you would actually allow a young impressionable person near anyone who was near nude or nude for the sake of "progressive thinking" you are the problem. Yes within the right context these gowns are fine but dont tell me they are appropriate for children.

[ET] I'm sorry, I must have missed the part where the Met Gala was an event directed at children!

• [TW] As to the met gala point you are right though
• 
  

[TW] "There's absolutely nothing wrong with a grown woman showing off as much of her body as she wants. That doesn't mean that I can't teach my daughter..."

[TW] That being said I find the most problematic thing in this picture the shaming of adult actors as if they were expecting them to be dressed "sluttily" or however you want to put it. These people work really hard (AB) and when they get to wear something nice people arent pointing out how nice they look and how beautiful their clothes are they are using them as a comparison to some unrelated gala.

[ET] I, personally, do not think Beyonce's style of dress doesn't really have any weight in the discussion of whether or not she is a good role model. I don't believe that bodies, nude or otherwise, are something to be feared. Literally every human being has a body. Female bodies, specifically, have been historically subjected to so much fear and girls are taught from a young age that the way we dress directly affects what kind of person we are, when the two have nothing to do with each other.

 I do agree with you though that shaming the adult film stars in the picture is problematic. It's sad that they're being compared to a completely unrelated event and the focus is not being put on the awards they've earned.

[EP] I dunno, people shouldn't be ashamed of their bodies no matter how covered they are

[OP] Not ashamed, it's just not something to be shared. I don't cover my nipples because I'm ashamed of them, I cover them because they aren't something to be shared with the world. My body is my business.

[EP] I ran on the beach in Jamaica a few weeks ago with no shirt, so i guess it's just women's nipples then? I like that line though, "my body my business." now where have I heard that before....it sounds familiar

[AC] It's hard for men to be slutty because thier bodies are gross and hideous.

[OP] Really? Are we going to say men's and women's nipples are the same? And when I think of my body being my business to me that means that each individual's body is their business, not something to be shared. It's like everyone has sex, but it's not appropriate to do in public. That's a private thing, as is your body. Private, not for public display non stop. There are times and places. The beach for example.

[KA] My body, my business doesn't mean a body is necessarily private, though OP. You may feel like your body is only for private display, and so you choose not to expose certain parts of yourself in public. Someone else may feel comfortable (or happy or whatever term you'd like to use) having more of their body on display publicly. It doesn't make either choice more or less valid; it is just personal preference.

[AC]  My son must wear the full body veil, to hide his shame.

[OP] I can certainly see that side of it KA, and I certainly wouldn't confront anyone on the street who I thought was wearing too little. However I think that the personal preference of being exposed to nudity should be allowed too. We blur out private parts of the body on TV and movies with nudity are age restricted. At work we are all expected to cover a certain amount of our bodies to be professional. I don't think once we're not in a professional environment that should go out the window and it's appropriate to wear next to nothing. But there is no way to draw the line other than when peoples genitalia is not covered.

 But I agree that people are allowed their preference.

The Law Classes are paying off Already

Friends have asked me whether I intend to practice once I get the law degree.  It is still maybe, but Public Law has allowed me to say the below and sound like I might know what I am talking about:  :-) (Full disclosure: the second part of s174 description about "standard of legitimate political speech" is pure conjecture about how the case law would/did go.)

Question on the metronews website comments section: (http://metronews.ca/news/halifax/1101737/nude-bikers-bare-all-through-downtown-halifax/)
"No laws against public nudity / indecent exposure in Halifax?"

My answer:
You have pretty much hit the nail on the head there: there are both titles but neither apply: s 173(2) is being nude for a sexual purpose, and s174 is political nudity which does not meet the standard of legitimate political speech.

I am not sure if you alleging the former, ie that the purpose of this activity was sexual on the part of the participants. I would assert it was not. This is one line that distinguishes R v Jacob from R v Gowan.

On the second charge, this protest has two very clearly articulated political statements. The first of safety for cyclists is not just legitimate speech, but also in line with law. The second of acceptance of body does not touch on law, but is occasionally in line with some government policy. Both are rationally connected to the form of speech.

The body acceptance/shaming message is however counter to dominant culture which advocates body shaming in subtext, and so one would make an argument that it is a legitimate limit on speech in a free and democratic society, in that it undermines Society to counter its dominant messaging or that it creates attitudinal harms. Possibly to ban this speech one must ban the speech of both sides of the debate in the public interest. The result would be a ban on much commercial advertising. If steps were taken to suppress the protesters' message without suppressing the opposite position, it could be a reviewable error. In addressing attitudinal harms the protesters would allege that greater empirical harms are created by people believing they have ugly bodies, and so this social attitude should be classed more like the irrationality of women (preventing them from voting) than like the belief that people are not legitimate currency (preventing slavery), and hence that they are preventing rather than creating attitudinal harms. [I might not be quite on point on the attitudinal harms discussion I am still trying to get a handle on this particular doctrine.]

Moving back to the first message (bicycling safety from cars). One might make an argument that because it is law, there is no legitimate protest against the policy, so there is no legitimate political speech taking place. I will skip over revisiting the question of public opinion being contrary to government policy covered above. One would make an argument that this law as applied places reasonable limits as necessary in a free and democratic society, and/or that it does not make a legitimate political statement. Legitimate limits were placed on the protest that it was not to visit areas where bicycles are not menaced by cars. This policy was respected by the protesters, keeping them within the bounds of protected speech, and out of conflict with the executive.

In short, yes both laws exist in the abstract but do not apply to this particular fact scenario.

Question "So, if I was standing on a corner totally nude as the bikers/cyclist went by, would I be arrested, sure I would, so what gives?. Oh I got it, get myself a bike and then stand on the corner nude, let's see how long I would be there before you know what comes along."

For context on the reference to "as Charlotte says", Charlotte's Answer: "I think the dubious logic here is that if you join the *cough* protest, you can be naked if you're riding a bike, but if you're just watching the *cough* protestors and you expose yourself, you'd be arrested for violating public decency laws. Go figure."

My followup:

As Charlotte points out, you need to be riding the bike with the protest to be covered by the "cyclist safety message" freedom of speech argument.

You don't need the bike, but you need the group to be covered by a PETA protest (ie and example of a naked non-bicycle protest).

As for making the statement that bodies should be accepted, if you stripped down and stood on the corner that is part of the planned route in a similarly naked group for the duration of the protest, and then covered up again, you could be fine. You could bolster the case more if you painted a slogan on your body as these protesters did, or held a sign.

If you want to go outside these well-trod boundaries (ie operating outside the scope of a protest with no political messaging) I recommend you get a constitutional or criminal lawyer because the complexity of the Charter argument goes up significantly if you are challenging it on unequal burdens of the law because you can not afford clothes (which is not a protected ground and that is a whole different topic), fighting the attitudinal harm precedent, or on the criminal side if you are running a motivation argument.

Well Charlotte replied "The lunatics have taken over the asylum, and minutemax is their spokesperson and legal counsel."
At which point I am thinking "Uh oh.  I hope it does not sound like I am offering legal advice", so....

I was not intending to be a spokesperson, though I suppose in evaluating the connection of the arguments to a defence, I did reiterate the arguments, however, the article presented the arguments independently.
However, just to be clear I am not counselling anyone to take part in the protest. It is a protest, as it is violating taboos, and there are laws that could be interpreted to condemn the activity. One could receive a citation for it, and could be convicted with the right judge. However, I am just saying that my experience so far with the arguments would be that it would have a high likelihood of not being pursued by the Crown, being quashed if it got to court, or reversal on appeal. If I were in a position to be trying to defend such a charge, and I am
not, I would present the above argument, but somewhat better
researched. That being said, there is a non-zero chance that one could end up with a conviction, and have to spend a lot of money to fight it, and possibly ultimately fail. When undertaking a counter-cultural action, one needs to enter it with eyes wide open that there could be social, professional, and even legal repercussions, and balance these concerns against the strength of your convictions.
However, I am hoping that this event (or commenting on it) has at least made you more careful to watch for bicycles when driving or opening your car door.
I am passionate about this issue because I have been knocked into traffic by someone opening their car door into me when I was beside them. Fortunately, I escaped with only minor bumps and scrapes, but I was terrified that it could have been worse and it took me a few weeks to get back on my bike. Perhaps you think me a lunatic to have gotten back into the saddle, but I feel that anything that will bring attention to the issue and make people more careful is a good thing and to be supported.
Just to reiterate and be very clear: I am not giving legal advice that one should (or should not) participate in a naked protest whatever the cause. I am giving even less advice about whether you should walk down the street naked for fun.
 

 

Interestingly, later "itsjustme" rolled through commenting about everything and ended one post with "the law is the law" in response to another person's comment.  They did not touch either of threads where I was talking about the law.  :-) 

Question: Please, I am trying to understand the connection between exhibitionism and bicycle safety "awareness? " More skin exposed means more of a road rash of you took a spill.

The symbolism is that bicyclists are naked of protection on the road in comparison to occupants of cars. By bringing attention to this nakedness in a dramatic way it is hoped that the drivers who see it and those who read about it will watch more closely for them in the future when they are wearing more protective gear. An investment once a year for greater year-round safety.
More flippantly, (or maybe more pragmatically?) maybe the drivers will watch more closely for bicyclists because they might catch a glimpse of boobies or dongs. :-)
The slogans you see painted state this:
- Can you see me now? / Now can you see me?
- Stop killing bicyclists
- Drive safe
- Caution tape bikini
- Doing it For (name)
There are also enviro themes while they have your attention, with vines, leaves and flowers and
- Less gas, more a** / More sun less gas
- Burn fat, not oil
- More bikes
- Pump pedals, not gas
As for the exhibitionism, it is not supposed to be that, it is supposed to body de-shaming, personal freedoms, sexual equality of treatment ("top freedom"), and women's rights with
- The bare bodies themselves in all shapes and sizes
- Freedom
- Bike free
- Still not asking for it
- Stop regulating my body
- And probably a bunch more creative one that I missed because I cue in more on bicycle safety, and clever environmentalism.
That is to say that it is not supposed to be for personal gratification (as exhibitionism would be), but rather either a personal sacrifice of dignity to bring attention to an issue, or an assertion of personal rights balanced against societal rights.
(I am not trying to be a spokesperson, I am just passing on the received messaging that I am in agreement with in a clear way so that people understand the point of the protest and hopefully take it to heart.)
 

 

 

 

On Wearing Bras... or not

A member of a group I am in on Facebook posted asking how many in the group wear bras.  She cited a letter from Arunachalam Kumar, "Burn the bra! (and men’s tight underpants too): compromised ‘chaotic’ cooling by constrictive clothing in the causation of testicular and breast cancers", Medical Hypotheses, v 73, iss 6, Dec 2009, p. 1079–1080 which suggests that the lack of cooling caused by restrictive undergarments could be the cause of testicular and breast cancers, given that areas where these garments are less common have lower reported rates of cancer.

She took these concerns to heart, and motivated by how uncomfortable this garment is, announced that she is wearing her bra as little as possible.  She asked how alone she is in this new bra-less movement.  She mentioned the potential for negative social consequences, and recognized that it is not the most important social justice or feminist issue.  I think that is all the context needed to follow my reply. 

Facebook found my reply to be too long, so I guess I have to post it here and do a link....?

I don't know how appropriate it is for me to weigh in on this, since I have never worn a bra, but I figured I would chime in anyway, since this is the Internet and all:
1) It appears in a peer-reviewed publication, but the article itself is a letter putting the theory out there as something to be studied based on correlation between lower reported cancer rates in rural areas of low industrialized countries versus higher reports in more industrial areas, and a similar pattern of bra use. Personally, I would suggest some confounding factors: I would observe that the incidence of industrial contaminants might be a more proximate cause, as well as the potential for lesser reporting rates of any medical conditions, and (here I am really reaching) the potential for traumatic injury and pathogens to take someone before the cancer can get them.

However, the precautionary principle would suggest that all things being equal in your decision, if there is a possibility that it might cause health issues, then you should avoid this factor.

2) However, you have indicated all things are not equal in that you are uncomfortable. Further, whether we consider lack of cooling on hot days (the most direct relationship the author is drawing) as a comfort issue or a health hazard (more likely the former in this climate I would postulate) either way it would militate toward a lack of constricting clothing.

As for social norms, you will be damned for wearing it if you let it show, and you will be damned for not wearing it if you let it show. Given that, I would opt for the more comfortable choice. Not being a fashion historian I am not sure what led the change in social norms that allowed women to stop wearing corsets or being allowed to show their ankles, but I would assume there were some people in the vanguard who thought it ridiculous to be so uncomfortable for fashion and decided to push the envelope. I feel like back then these clothes were all about sculpture and engineering. With less layers it appears to me undergarments now have a very duellistic relationship: You should be wearing underwear, but you should not have a VPL, so you should appear not to be wearing them. Likewise, to be fashionable you should wear strappy or strapless clothes, but you should not appear to be wearing a bra (or at least not show the straps), but should not not be wearing a bra, so you need to redesign to have strapless bras too. So what is the origin of the more modern style of showing the bra strap? Is it a rejection of the arms race between having to assure everyone that you are wearing undergarments without appearing to be doing so, or is it a trend to hyper-sexualization in showing off one's undergarments? I have to admit that this arms race has me (and likely most non-bra wearers) confused and I think that the people most able to discern whether you have thrown off your shackles or meerly devised a more clever and more uncomfortable way of appearing to not be wearing it are those with intimate knowledge of the mechanics of the garment. That is to say that I think you should fear more negative social consequences resulting from your rebelious act from your sisters (raised eyebrows and assumptions about sexual practices) than from the male gaze (leering). I hesitate to question your lived experience, but it surprises me to learn that you fear assault on a Halifax street simply for not wearing a bra. Certainly there are places even as close as the southern USA where I would countenance this, but here I would be surprised. I am perhaps naive though.

The question of what an important feminist issue is depends on the feminist. Equal pay is vitally important to the 65 year old who has forgone hundreds of thousands of dollars in lost wages, and is facing an uncertain retirement because their pension is 60% of that of their male peers. However, to the six year old girl who wants to take off her shirt like the rest of the kids being told she can't because she is a girl, it might be the first step to accepting "you can't be an engineer because you are a girl". However, we don't really have to look to potential long term impacts. While it is all dramatic and noble to fight for the abstract child bride and the infibulated, the day to day indignities are the ones that are going to be noticeable to the most people and the small insidious gestures are the ones most likely to widespread uptake, and least likely to get push-back before they are entrenched, symbolic, and become a right that can't be taken away. I wasn't there in the 60's but I suspect that is the insight that prompted the first bra burnings: it looks like a small silly thing that the powers will look ridiculous for calling someone over, but it actually means a whole lot more.

Finally, with my recent growth in girth and resulting increase in pectoral mass subject to "up, down, [...], right or left, circular and elliptical motions" and the strange sensations of these motions when running, as well as chafing, I wonder whether there might not be a lot of men who would like permission to wear your discarded constricting garments. Clearly the grass is always greener in the other pasture.

Other thoughts I could not shoehorn into the flow:
- Riffing on the theme of widespread acceptance, this could be a point of commonality with your sisters from Real Women. "Even if a woman's place is in the home, why does she have to be uncomfortable while she is there?" "If the pinnacle of a woman's potential achievements is making babies, why make it so hard to feed them?" "I don't know nothing about that equal rights stuff, but lordy this thing is uncomfortable and you are saying it is OK to take it off? Sign me up." "Take off your corset, petticoats, bustle and bra. It's cheaper than air conditioning."

- Thinking back to my elementary school days, I wonder whether the flowering of training bras on the playground might have been the first of the things that set the girls apart. It was actually a girl that introduced me to the playground game of sneaking up behind a girl and snapping her bra strap against her back. Thinking back though, I have this overwhelming sense that it was the same girl who turned to the boy behind her at an assembly and said loudly "I'm not wearing one." after which he turned bright red (I did not see it, but I am guessing his hands might have been shall we say caressing her back). There are a lot of interesting themes one might explore in that anecdote.

- As for supposed sexual practices, I am curious as to what you think it might say about your sexual practices if you don't wear a bra. On a warm day, if you were wearing a loose comfortable top and no bra (or nothing on top), I would hear "So f-ing hot. I am more interested in comfort than anything else. Sex? Are you nuts? I am more interested in you slipping me a cold iced tea than anything else. Call the cops if you feel strongly about it, but the law is on my side and you are just going to piss everyone off." If it were a cold day and no top I would be looking around for the PETA signs, or the bicycles. However, if you were wearing no bra and something tight enough to make it obvious, to be honest I would be hearing: "I am not afraid to admit that I might like sex. I communicate clearly about it (*), and if I say 'No', I am deadly serious. If I am not having fun, I will be calling it quits so you had better be pleasing me. I am not a Rules Girl, so if this is going to happen you will know it." (* This is partly the political statement of straying from the norms, but also from the "Game" in Game Theory perspective in that you are not obscuring the signalling of your arousal by hiding your nipples, you don't feel have to hide when your body is betraying you because your head is firmly in control.) I leave it up to you whether that is the message you want to be sending, or whether you want to call me for making any assumptions at all about your sexual attitudes. However, as for your practices, I don't think a bra or lack thereof makes this any less ambiguous, but since I think it means you communicate clearly if I need to know, then I better ask lest I find myself in a very surprising situation, and if don't need to know I should probably mind my own business.

A discussion on my facebook news feed got me thinking about whether Canada could afford a larger space program.

Quote> Katie Toth the space travel thing is really something we gotta work on. do we want to be known as the dudes who made an ARM for the rest of canada's history?

As it turns out, the answer is Yes. The USA Space Shuttle program spent $198B over 30 years or $6B/year, with roughly $60B attributable directly to missions. The latest corporate tax cut costs $11.5B per year, bringing the total annual cost to $13.6B since the 2007 round of cuts began. Added to this is the F-35 jet program and ship procurement has climbed to $80B, or 2/3 of the cost of building a shuttle program.

We could have a shuttle program ($3b/year in amortized startup and ongoing launch costs), an annual manned mission to Mars ($4b), a national free daycare program ($2.2b), and tripling the budget to fix water systems on reserves to ($1B). I was going to suggest restoring health care funding, but at a current shortfall in the range of $64b/year, my leftover $3.4b/year will only make a small dent. However, I am sure someone on here has another wishlist item in the appropriate range to make a complete package.

In summary, Starships [really could] Start Here.

Seriously. Is Puppy Love Really Stalking?

A friend of mine posted a link this this article "The Problem With Puppy Love".  I was going to comment in the facebook post, but the essay ended up shockingly long, so I finally decided to bite the bullet and open my own blog account to put these things on.



I think she was reading too much into the situation.  I am trying to remember when my peers started separating and becoming
icky.   I feel like it was more like grade 5, but it is totally possible that it was grade 3, and the discussion of their relationship
by their peers does suggest this.   At this point, there is a conception that there is a difference, and all sorts of weird reactions
from calibrating what does this otherness mean as well as defining rolls both fed from wider society, parents, and caregivers.

In essence, I think adult scripts are both being imposed on, and inappropriately attributed to these grade 3 children.

Script 1: "Billie has a girlfriend" The interaction between the Boy and his Parents:  Reading between the lines, what hear happening is this.  Says the boy "I like Katie".   Says the parents, "Aw isn't that cute, Billy has a girlfriend.  You should tell her how you feel."   This interaction has some heteronormative elements, but also represents some pro-social elements too. 

One aspect is the actual intention: When Billy says "I like Katie."  does it mean "Johnny is playing stupid games, but Katie always has the coolest dolls on the playground."?  or does it mean as the author claims "I want to have sex with Katie no matter her wishes."  These are 8 year olds, which extreme do you think is more plausible?  In truth I think it is a little bit of both in a way.  I suspect Billy finds some aspect of Katie quite likable, whether it is her choice of play-style, play objects, her impecable manners, or her appearance is not clear.  I think they are too young for it really to be an attraction to her "alienness" (the feminine mystique), however, maybe he is precocious and actually does think girls are actually significantly different, novel and hence interesting.  His parents instead of teasing out the actual meaning of the vague "I like Katie", immediately imposed a heteronormative pair-bonding interpretation, and proceeded to suggest the adult script that goes with this.

Script 2: "He is stalking her" .  "Puppy Love" is a common phenomenon, and is encouraged in the Courtly Love nostalgia represented by the Disney canon she cites.   Kids have very underdeveloped filters. It has some similarity to stalking in that there is no calibration of "too much", and based on a weak understanding of Theory of Other (ie that there might be a lack of reciprocity in the feelings toward self from the other).   However, it has some distinct differences.  One very important distinction, is that it does not turn violent in light of rejection.  This is because as a normal developmental stage, it is a learning exercise and when that calibration happens, and/or if it is clear the feeling is not mutual, instead of blaming the object of desire, the subject simply learns that just because I like someone does not mean they like me.  While I am not a parent, I have distinct recollections of "Why won't Peter play with me?"  from my own childhood.   Thee is a true lack of understanding of reciprocity of feelings.   This actually is reinforced by attempts at teaching social behaviors, like "Share your toys", which are premised on "Share, and you will be shared with.", or "How would you feel if Karen had hit you?"  ie the attempt to reverse other-ness by fostering empathy.

There is a reason why there is such a similarity between puppy love and stalking.   They are both based on an unformed or malformed social sense.   The difference is that 99% of people grow out of it, and when I say grow out of it, I mean get trained out of it by going through rehearsals just like this. 

Script 3: "How should boys and girls court each other".  Let us assume that he truly is seeking a "girlfriend", that is not a playmate who happens to be physically female, but rather a yin to his yang, a compliment to his weaknesses, or whatever it means to be pair-bonded. 
At an older age, the standard scripts are to dip hair in ink, assault, insult, snub, and all sorts of weird counter-productive behaviours, but I don't think these are particularly common until the 11-15 year range.    Given this, the proposed script of "Clearly state your desires" is very much more pro-social.  Surprisingly, Katie was less concerned about being followed around and slut-shamed (I will get to my objection to the assertion that script was in play later), and only when he wrote her a clear and direct letter, and she was no longer able to ambiguate his intentions toward her did she become so upset as to request assistance from her mother. 

At a later point, we have The Rules, an intentional and systematic breakdown of communication. 

Billy's parents told him to state his desires clearly, and when following her around did not adequately indicate his desire to play with her, he was encouraged to write her a letter.   When that went unanswered, his parents recognized the  "Girls are supposed to play coy, and encourage further courting, because if he does not have to work for it, he will not desire it" (Script 4) script.  He was encouraged to write again, and a third time.   

Katie's mother called up and said that no Katie was not enacting Script 4, but instead is just not interested.   Billy's parents said "Ah.  Ooops, ok, well we have been encouraging clear communication.   Would she mind awfully clearly stating her disinterest rather than perpetuating the ambiguity of desire roll that has been imposed on her by society?"   To which the author replied "No, clear communication is not something I wish to teach my daughter.   I choose to see this as Script 2 (he is stalking her), and as such I want to impose Script 5, the TRO Script. 

Script 5: "The Temporary Restraining Order".  In the face of real psychosis, sometimes we invoke external controls in order to protect people. 
In the case of real psychosis (rather than imposition of the script on other situations), one of the challenges in the third party communication scenario is that there is absolute certainty that the feelings are reciprocated and if these third parties, the crisis workers, psychiatrists, police, and justices, would just pass on the message everything would be fine.  While I quite agree that it is not Just to demand of the objects of these obsessions, I think it significantly increases the ability of treatment workers to break down the fantasies if the object of the fantasy can directly challenge the edifice, rather than having third parties pass on the message and not have it believed.  From a harm reduction standpoint, the lesser wrong is for the victim to participate in the process than for the victim to always be looking over her/his shoulder in fear, and possibly lose their life.  Embarassingly, I do not know the stats on successful TROs, but the popular culture version of this script is "obsession, externally imposed third party restraining order, assault and murder", one that I would certainly not wish on my daughter. 


The irony that this piece would appear on a site called rolereboot, when the author is reinforcing traditional roles is quite fascinating.   Rather than saying "You are right, we need to encourage clear communication.", she instead inadvertently encouraged the feminine mystique role by encouraging her daughter to stay silent about her intentions.  In addition, she further took away her child's agency by telling her that she is too weak to deal with her own problems.

How would I deal with it?

I am not a parent, so maybe I would make different choices in the situation, but in the cold light of day and theory-craft, here is how I would have approached the situation:

I would ask Katie "Have you clearly and unambiguously told him that you are not interested?"  only after that did not succeed would I be going down the road of direct intervention.   

Given that there is no particular reason to believe that we are dealing with psychosis, my direct intervention would begin with mediation, bringing the children and parents together, possibly with a third party such as the teacher character,  in which I would ask the boy why he thinks his feelings would be reciprocated in the face of strong evidence to the contrary, reinforce the theory of other, her subjectiveness, and personhood, rather than objectness and hopefully conclude with everyone agreeing that he should find someone else to play with (for I would remind all the adults reading more into this than there is that we are talking about 8-year old not 18-year olds here, and what he is expecting of the relationship likely significantly differs from what the mother is expecting of this relationship). 

I am still trying to decide if the author does actually understand this, but needed a hook to show off her research skills because the statistics by themselves are a little dry.

Just to be a little flippant, one could take a third-waver stance of power through sex, and tell her the story of Zelda Fitzgerald, offering her the opportunity to write a note encouraging the puppy love and have him do stuff for her, until he finally gets bored with it and moves on.  I know I am being rather dismissive of their theories but ever since I heard about it, I have thought that this Power Throught Objectification idea was antithetical to the struggles that their mothers went through to win them equality.  However, the fact remains that it is theory with popular proponents and to not offer her access to the full library of potential scripts is to deny her the agency to decide for herself how she wishes to negotiate sexual politics.


I think I might be particularly offended by this article because it hits on two of my sore points, the longstanding failure to communicate clearly in social situations, and my recent bugaboo that Children are Not Adults.   I feel we have evolved a bit from the repression of the Victorian Age when children were treated as little adults.   Maybe it is my bleeding heart liberalness that makes me think that children need to be gently taught how to live in society rather than imposing the extreme penalties that we impose on adults when they transgress.