Category Archives: Equality

The Impact of the Criminalization of HIV Non Disclosure on Women

Nov 9, 2011 Isabel GrantEquality

Isabel Grant

Over the past decade in Canada, and particularly over the past five years, we have seen an increase in the number of prosecutions of nondisclosure of HIV status. Most of these cases are prosecuted as aggravated sexual assault, our most serious sexual offence, punishable by life imprisonment. Unlike sexual assault generally, there has been a dearth of literature in Canada addressing this issue from the perspective of its impact on women.

This is an exceptionally difficult issue for the feminist legal movement. On the one hand, prosecutions of nondisclosure could be seen as protecting the sexual autonomy of women who are often the victims of men who fail to disclose their HIV-positive status. Expanding the notion of fraud negating consent could be seen as empowering women to choose the circumstances in which they consent to sexual activity. However, women are also potential accused persons in these cases. Sex workers, immigrant women and poor women may be particularly at risk of criminalization for failure to disclose. Recently a 17 year old girl in Edmonton was named publicly and charged with aggravated sexual assault for not disclosing her status to two men. Rates of HIV are increasing in young women in Canada and we need to ask whether criminalization, in the long run, will protect women from HIV or further marginalize and isolate this already highly stigmatized group. Continue reading "The Impact of the Criminalization of HIV Non Disclosure on Women"

Home Truths About Unintended Consequences

Oct 12, 2011 Toni WilliamsEquality

Toni Williams

One of the more unnerving aspects of the recent financial crisis is the speedy recovery of those large financial firms that survived the crash. Gifted with eye-watering sums of virtually free credit and liberated from the ‘toxic’ assets that their financial engineering created, global financial firms such as Goldman Sachs reported higher than ever earnings in 2009 and 2010. Elsewhere in the economy, the prospects of recovery are remote and receding. The reframing of the crisis as ‘fiscal’ rather than ‘financial’ has forced sovereign countries to take out unsustainable loans in order to appease their bondholders. Jobs, pensions, and public services have been slashed in the US and across Europe. US homes are being lost to foreclosures at an extraordinary rate (some reports estimating up to 10-13 million foreclosures) as the consequences of the crisis continue to rip through the economy. Compounding the direct dispossession of those whose homes are taken, foreclosure actions blight entire neighborhoods, exerting yet more pressure on whatever little equity in their homes residents may have sheltered from the predatory lenders.

The juxtaposition of business as usual on Wall Street and in the City of London with the destruction of homes, livelihoods and other means of economic security of workers and the unwaged, pensioners and children in the US and Europe shows that neoliberalism’s project of robbing the poor to give to the rich has survived the crisis, gathering strength in its wake. Martha McCluskey’s illuminating working paper, How the ‘Unintended Consequences’ Story Promotes Unjust Intent and Impact, analyses the persistence of upward redistribution in policy making and asks how one of its key supporting narratives can be resisted.  The paper provides an excellent overview of the crisis for equality theorists who are not specialists in the intricacies of neoliberal “financialization”. It explains some of the decisions within financial firms–and by some regulators–that created the crisis; and vividly illustrates the devastating impact of those decisions on US communities, particularly Communities of Colour. McCluskey uses the example of the financial crisis effectively to illustrate the argument that the “unintended consequences” narratives in policy discussions about egalitarian regulation serves to rationalize the legal underpinnings of upwardly redistributive measures and perpetuates “the ideology that law is powerless to disrupt a naturalized order of inequality outside of law” (P. 9). Continue reading "Home Truths About Unintended Consequences"

Battle of Hastings

Sep 9, 2011 Ruthann RobsonEquality

Ruthann Robson

The controversial decision of the United States Supreme Court last year in Christian Legal Society v. Martinez involved a dispute at Hastings College of Law.  On one side, the College of Law applied its blanket nondiscrimination policy as a prerequisite for recognition of student groups.  On the other side, the student organization Christian Legal Society, backed by the national organization, argued that a nondiscrimination policy that included sexual orientation infringed on its religious freedom.  Thus, the case can be easily understood as just another battle in the continuing war between equality (for sexual minorities) and liberty (of religious freedom) fought on the field of various First Amendment doctrines.  Too much of what I’ve read about the case succumbs to this reductive reading.

Professor Julie Nice, of the University of San Francisco School of Law, resists the easy renditions.  Her article is refreshing because she engages the theories, the doctrines, and the politics with equal urgency and depth.  It is also invigorating in its accessibility: Nice’s language does not obfuscate or overwhelm.  Moreover, while the article centers on a single case and was written for a symposium on CLS v. Martinez held by the Hastings Constitutional Law Quarterly, it looks backwards and forwards as well as sideways to illuminate the notions of “equality” and “discrimination.” Continue reading "Battle of Hastings"

Tracing the Roots of Inequalities: Why Scholars Need to Widen their Nets

Jul 21, 2011 Sonia LawrenceEquality

Sonia Lawrence

In Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, authors Janet Halley (Harvard) and Kerry Rittich (Toronto) offer a compelling way to think about the doctrinal areas which for so many of us are handy ways of  defining our area of scholarship.  The problem is that these “areas” are often less than helpful when trying to define the legal context of equality problems, and they are a positive danger when we move on to consider law reform options. Halley and Rittich take on these problems as they relate to “family law”.

Let me start by saying that even on its own terms, this article is fundamentally about equality questions. Halley and Rittich are clear that family law is about “distributional outcomes” (P. 755) and that the legally constituted family is closely linked to market distributions, even if those links are often masked. They argue that the family should be recognized as an “economic unit” and not only as an “affective unit”.  The authors encapsulate this idea in their use of the term, “economic family,” signaling that they would put “the family and the market, family law and contract, back into contiguity” (P. 758), resisting the claim that the “economic character of the family” has disappeared in modern and postmodern times. Key to this resistance is accepting that the household is (still) a critical economic unit. Continue reading "Tracing the Roots of Inequalities: Why Scholars Need to Widen their Nets"

Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System

Jun 13, 2011 Kim BrooksEquality

Kim Brooks

Long overdue, in 2010 Canada ratified the United Nations Convention on the Rights of Persons with Disabilities.  (The United States has yet to ratify the Convention.)  While countries can ratify conventions at the international level, it is often the case that only in translation to our domestic, sometimes even local, contexts do we see the real effects of our commitments.

Judge Anne Derrick’s piece, a report on the death of Howard Hyde ordered by Nova Scotia’s Minister of Justice, pushes at the boundaries of what most of us would consider scholarship; yet, it is the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months.  It provides a marvellous illustration of the values reflected in the Convention played out against one very specific set of facts. Continue reading "Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System"

Meet the Editors

Jun 12, 2011 JotwellEquality

Meet the Editors

Jun 12, 2011 JotwellEquality

Call for Papers

Jun 8, 2011 JotwellEquality

Call for Papers

Jun 8, 2011 JotwellEquality

Jotwell Mission Statement

Jun 8, 2011 JotwellEquality