Remembering the great-uncle I never knew, Donald Young-Leslie, who enlisted Dec 30, 1914, served in the 24th Battalion Canadian Expeditionary Forces’ “Victoria Rifles” (Infantry, Québec Regiment) and was killed May 18, 1917 “in the trenches north of Fresnoy”.

Donald died one month after his, and his twin brother Norman’s, 23th birthday, and a bit more than a month after the Battle of Vimy Ridge (April 9, 1917). Vimy is important in Canadian war memorializing because it was the first occasion on which all four divisions of the Canadian Expeditionary Forces attacked as a single formation, and had tremendous success in terms of terrain, enemy soldiers and weapons captured. It was also an event in which 10,602 Canadians were injured and 3,598 died.

Donald’s name is recorded on the Vimy Memorial, and on a memorial in Picton, Ontario, but there is no known grave. France has many places with the name “Fresnoy”, within a 2 day’s march from Vimy, so it’s hard to know which one he died at. We don’t know how he was killed. Was it injuries sustained at Vimy? Was he a sniper who was killed by a bomb? We don’t know.

I’m grateful to my daughter, who went to Vimy in 2018, and found Donald’s name on the memorial.

I’m also remembering Donald’s younger brother, my grandfather Archibald Young-Leslie, who enlisted but did not serve overseas, because of spinal scoliosis. After the war, Arch had a promising career with Ontario Hydro, which he cut short, dismayed by their adoption of nuclear power generation. He found it unconscionable to use nuclear energy, after the horror of Nagasaki and Hiroshima. I wonder what he would say today, as fossil fuel created climate change makes nuclear power more appealing again.

Grateful that I have so few family to list on Remembrance Day.

Aghast that despite all these years of poppy-wearing and #LestWeForget, we still have war, atrocities, ethnic cleansing — WWII, Vietnam, Bosnia, Rwanda, Ukraine, Palestine, Türkiye, Syria, Sudan, West Papua…. 💔

Going to the Ceasefire for Palestine rally at the Legislature tomorrow. But more for solidarity with my neighbours and public grieving than hope that yet another peace rally will be effective at swaying the decisions of colonists, Zionists, settlers, fascists and corrupt politicians like Netanyahu, or rid the world of vile organizations like Hamas and Islamic State (created as they are by that stupid decision of Israel 1948, ongoing craven self-interests, occupation, geopolitical violence).

Then I’m going to buy and read R.H. Thompson’s new book. Listen to his thoughtful, magical, optimism-generating answers to The Next Chapter’s version of The Proust Questionnaire.

June 14 2021: ANTICIPATION….

I’m at the @GoAHealth immunization clinic at 12:35, for a 13:10 appointment. Parking lot full. Queue around the building. I join the queue, take the fresh medical mask & wait. “We are serving 12:40 appointments” says the announcer. I wait. At 13:10, she invites 12:50 people. 

The queue is calm, orderly. But it’s hot & there’s not much shade. People all around the parking lot, in shade puddles, waiting for their time’s announcement. @ 13:17, she invites 13:00 (1pm) appointments. 

The queue takes approx 20 mins to move around the building. Once in the queue, some people are facing the dilemma: wait & hope the new time is announced before reaching the door? Or get into the shade?
I feel like we’ve already had the dress rehearsal for this with Dose 1. 

I’m back in my car, waiting. I’m wondering who scheduled these appointments?
It is 13:28: still serving 13:00 appointments.

Wondering: should I rejoin the queue? 

13:29: “We are serving 13:10“.

I’m back in the queue, which now is only 2 sides of the building long.

Anticipation mounting!

13:41 and I’m in the door!

It’s air-conditioned inside, which is lovely. After a shot of sanitizer gel, I’m back in another queue. I’m having airport flashbacks!

13:48
Checked-in! Easier than a flight, by far. I just had to confirm health card number, type of vaccine for Dose 2, address, birth date, and then it’s a third queue.

The queue divides (unzips?) for Moderna & Pfizer. I get to watch a vaccinator on casters and a helper speak to someone with their arm ready.

Patient confidentiality preserved by this photographer (not by clinic set-up)…

14:04.
VACCINATED!!
The RN of AHS refused to allow me to photograph the shot going in. Not even with her out of the shot. She wouldn’t even hold the empty syringe against my arm for a posed / faked shot. See that red spot on my freckled arm? That’s my injection site. Her technique was impeccable.

I have to wait 15 mins.
Using the time to enroll in the Covid19 Vaccine Safety Survey. It’s this, or stare at all the other post-jab people sitting in lonely cubicles.

Actually, I’m not eligible to participate. The criteria is: enrol within 8 days of Dose 1. Not accepting study participants at Dose 2.

When I had my 1st jab (at a pharmacy), I was not invited to enroll. This is unfortunate. I wonder whether it’s just mine, or all the pharmacies were not participating as recruiting sites?

14:27 Released!
Now, to see whether I’ll be one of those who experience Covid19-symptoms as my immune responders spot the novel corona virus spike protein….

June 15, 07:00
Good morning Day 1 of Dose 2 vaxed!

So far, just a very sore arm. Feels like I was punched (and, for the record, Marissa-the-Vaccinator’s technique was impeccable). 

June 15, afternoon:
Starting to feel ache-y, fuzzy brain. Is it end of a long day or am I feeling my immune response kicking in? 

Summary: Monday, PM: very sleepy about one pm, post-jab. Tuesday AM, arm felt punched, some swelling at injection. 15 hrs later: achy, skin felt tight, couldn’t focus on screens; 20 hrs= chilled, wrapped up in blankets. Wed AM= fuzzy; Wed afternoon, ok, but short of breath on easy exercise. Wed evening: AOK!!


June 28th: My #OptimismDay! Two weeks post dose 2. I’m as vaccinated as I can be.

This does not mean I will stop protecting myself & others. We have the DeltaVariant in Alberta. Fewer than 37% are fully vaccinated, as yet. Only 71% of Albertans have had dose one. So: I’ll still #mask indoors & in public where I can’t physically distance. And I’ll continue to hand-wash, while reciting the Star Trek intro.

 #FullyVaccinated

Originally posted 20 December, 2020 by Arts Squared. Since first published, the University of Alberta’s General Faculties Council rejected the ‘Executive Dean’. However the position was still created, just with the title “Interim College Dean”. The “interim” part of the job title fell into disuse in about one week.

This was not intended to be an essay, not even a blog post. This began as a set of briefing notes collated for colleagues at the University of Alberta, prior to the now historic General Faculties Council meeting of 7 December 2020. That was the meeting where the university’s statutory and PSLA–mandated body was to consider the Provost’s proposal for academic restructuring, a proposal that included bundling faculties into “Colleges” and the creation of a new academic administrator position, that of “Executive Deans” who would lead the Colleges. In the days prior to the GFC meeting, the idea that the university might create Executive Deans was highly controversial. The role of an Executive Dean, as proposed by the Provost, would be to drive cost savings, and manage the shared administrative and fiscal aspects of the Colleges, while each faculty’s Academic Dean would manage their Faculty’s research and teaching affairs. Many members of the UAlberta community, academics, administrators and support staff alike, had reservations about the proposal for Executive Deans, but did not seem to understand what was driving this particular model for the restructure and cost-savings. These notes were my attempt to understand where the Provost’s idea of Executive Deans was coming from, and how the restructuring model was understood by those promoting it. They were also my attempt to draw on feedback from colleagues elsewhere who have experienced similar restructurings, similar governmental agendas for restructuring (austerity, reduction of public sector services), and similar, if not exactly the same, consultancy firms (i.e., the NOUS Group and McKinsey & Company). As an anthropologist, where the research goal prioritizes understanding “the other,” my approach was to begin by looking the horse in the mouth, so to speak. To do this, I read NOUS and McKinsey & Co.’s advisory and promotional materials, especially those referring to universities. That led me to read about McKinsey & Co. in greater detail. 

Executive Deans: Understanding the “transformation” and “organizational effectiveness” backdrop 

Much of the rhetoric that we have been hearing at the University of Alberta is that the university needs urgent “fundamental systemic reform,” in order to achieve the “organizational effectiveness” necessary to drive dramatic cost savings, while also “setting a bold new direction for the university of tomorrow” (see “U of A for Tomorrow”). Fundamental organizational transformation is a dramatic agenda, and UAlberta’s administration has contracted the NOUS Group to guide and manage the transformation process. The NOUS Group have a close relationship to global management consulting giant, McKinsey & Company. NOUS Group founder Tim Orton was a consultant with McKinsey & Co, and several others of the NOUS Group’s leadership came there from McKinsey & Co. (for example, directors Karen Lenane and Nikita Weickhardt, principal Gregg Joffe, and consultant Jack Marozzi appear in an easy Google search). Much of what we at UAlberta see and hear about restructuring can be traced to advice from McKinsey & Co.

McKinsey & Co. recognize that large scale organizational transformation fails about seventy percent of the time. They advise that universities often fail to transform because university leaders fail to hold the course. In their view, while university leaders may be “gifted educators, researchers, fundraisers, and academics,” they

“have little experience leading the transformation of a large, complex enterprise. Complicating matters, stakeholders often cling to deep sentiments about their institutions and their school traditions, which impedes change. And the shared governance structures at most universities makes it even more difficult to act quickly and decisively. When leaders encounter inevitable resistance, it’s not surprising that they often relent, and the project stalls, is abandoned, or becomes mired in a long implementation with poor results”. (See McKinsey, “Transformation 101.”)

In this perspective, Executive Deans are considered efficient because they evince —on paper— the “clear chain of command” that any general would appreciate. They make an organizational chart look neat and tidy. Business people speak of this “chain of command” as a way of assuring accountability. McKinsey & Co. have recommendations for “managerial spans of control” (number of direct reports) based on archetypes of managerial roles and work complexity—by time, standardization, variety, and skills needed. At the University of Alberta we are familiar with this type of task accounting in the form of the Hay points currently used to determine the ranks and salaries of administrative staff. More recently, we have been hearing about benchmarking data being provided to a company called UniForum, which UAlberta has contracted to help drive administrative restructuring and ‘savings of scale’ by reducing duplication of tasks across multiple units.

According to McKinsey & Co. the typical number of direct reports for a corporate Vice-President is three to five, and for the role beneath the V-P, six to seven. So when the Provost speaks of a scenario with a linear chain of command consisting of three Executive Deans and three Faculty Deans as his direct reports, it seems he is revealing the influence of McKinsey’s organizational thinking on his idea of the ‘right number’ of Faculties.  

McKinsey & Co. claim that “rightsizing” —i.e., changing the type of manager or spans of control— “can eliminate subsize teams, help to break down silos, increase information flow, and reduce duplication of work …. [It will also] decrease the amount of micromanagement in the organization, [and create] more autonomy, faster decision making, and more professional development for team members.”

The promise is that for UAlberta, “rightsizing” will, in addition to cost savings, offer a pathway to “nimbleness” and “interdisciplinarity,” and may be good for career growth and job satisfaction. However, is rightsizing the right process for UAlberta? And at what cost?

Executive Deans: Understanding the structural pushes and challenges

The same McKinsey article that recognizes that large scale transformation tends to fail most of the time and that university leaders have a tendency to resist such transformation out of preference for things like collegial governance, also advises that “[a] key finding of our work is that while a reasonable degree of cost management is usually necessary, it’s more important to focus on improving student outcomes and identifying new ways to diversify and grow revenues” (emphasis added). We, in the opening salvos of restructuring at UAlberta have heard little about ways to diversify or grow revenues. Frankly, in the Canadian public universities system, “growing revenues” has limited options. Our post-secondary education system was designed to benefit the public, not generate profits within the universities themselves. The profits are accrued to society, with a better educated populace who, in knowing how to think critically and analytically, are better at self-governing, bring intelligence and reflection to their roles, earn better salaries, pay more taxes, and engage more civilly. The appeal of a company like McKinsey & Co. to a government seeking to reduce spending on universities lies in its provision of “strategies . . . that can help universities reduce their dependence on the typical two largest sources of revenue —tuition and government grants.”

Ironically, while McKinsey & Co. advocate a fairly shallow organizational hierarchy with a decreased distance from senior leaders to the front line, the organizational structure they promote actually creates a bimodal hierarchy that separates the senior leadership from those who actually produce value (the professoriate), by eliminating the middle managers (Associate Deans, for example). This leaves the highest echelon free to dictate decisions (or “be nimble”) and, coincidentally, to amass the bulk of an organization’s remuneration. This form of bimodal hierarchy, and McKinsey & Co.’s position in promoting it, has recently been blamed for destroying the middle class of North America (Markovits, 2020).

The Executive Dean model involves a structural hierarchy where authority derives from the top. Loyalty is therefore necessarily aligned with the Provost, President and Board of Governors, not, expressly, with the professoriate, nor even the students of the Colleges the Executive Deans would lead. This hierarchy is expressly anti-collegial in its governance model. Anyone who has studied chiefly social systems knows that good chiefs are those who recognize their dependence on their people, and who actively redistribute wealth. But with too much hierarchy, distance from the base, limited numbers of people with direct access to the “chief” and few with similar rank or authority (i.e., with no “middle”) comes more autocratic control. In UAlberta’s case, that greater autocratic control will come from the Provost’s office. Leadership will become more top-down, even less democratic, less a cohort of peers. In other words, corporatized.  

When coupled with performance-based funding and key performance indicators (“KPIs”), we end up with no investment on the part of the senior leadership to resist the corporatized direction, and leaders who prefer to think of themselves not as academics but as CEOs. With Executive Deans we would see an expansion of the senior administrative leadership. Examples from other locales demonstrate actually this mode gainsays the goals of cost-saving and organizational effectiveness UAlberta is purportedly seeking.

I am quoting here from a recent research report on British and Australian senior leadership salaries:

The shift in the UK and Australian universities from collegial to more corporate forms of operating has engendered a corresponding shift in governance from stewardship to the agency. Professional management functions have come to the fore in the pursuit of business objectives and VCs [Vice Chancellors or the equivalent of university Presidents in Canada] both see themselves and are seen by others, including governments and government agencies, as chief executive officers. A significant uptick in V-Cs’ remuneration has occurred relative to other academic salaries. Market-based salary setting mechanisms, such as benchmarking, appear to drive these increases. (Boden and Rowlands, 2020)

See a synopsis of Boden and Rowlands’ argument in The Conversation, Australia.

The Australian and United Kingdom Experience

According to one Aussie colleague, “In Australia, the executive academics (Heads of department and up) do not teach and have no research expectations. They are contracted on a bonus based system. There is zero transparency about remuneration: nobody knows what anybody’s agreement is and there are many backdoor deals done” (Name withheld for confidentiality). My Aussie colleague describes this as another way of undermining any collegiality.

With Executive Deans, in fact all of the senior leadership, unless the executives’ performance indicators and budget structures are carefully wrought, there is little in the way of structural mechanisms to keep Executive Deans from becoming more like Provosts, less like colleagues, not even Deputy Provosts or Associate VPs. Boden and Rowlands (2020) recommend “maximum fixed ratios between vice-chancellors’ remuneration and average academic salaries.” But who in the UAlberta structure would or could make that happen? The Provost? Not the Executive Deans. It is doubtful that even this Board of Governors, despite their concern with austerity, would adopt that remuneration model.  

Following from the McKinsey & Co. material on Chief Transformation Officers, and the experience of academic restructuring in Australia and the UK, Executive Dean positions will be filled by executives who have ceased to be primus inter pares (first among equals) and have become, rather like university presidents in Canada are now, former academics who behave like corporate CEOs. With that, there is great risk that Executive Deans will became more and more expensive. 

The expense of Executive Deans will not necessarily be because they are great managers for their institution, colleagues, and students. Research from the UK has demonstrated that managerial efficiency fails as a determinant of Vice-Chancellors’ remuneration. Factors like student participation and research grants success don’t explain the remuneration increases either. See Bachan and Reilly, 2015. Surprise, surprise, age, size, and reputation of the institution are more reliable predictors of V-C pay. See Virmani, 2020.

With performance measures that focus on annual rankings and corporate fund-raising rather than faculty, staff and student satisfaction, you end up with a cohort of executives whose career path is not based on growing within a university community to which they are dedicated. Instead, these senior academic administrators flit from one university to another, increasing their remuneration as they move up the ladder in terms of institution reputation and size. (That’s one way to understand the imperative to “be nimble.”)

The Outlook for University of Alberta for Tomorrow

Whence will come the cost savings UAlberta needs? They’ll come from draconian measures, such as vertical cuts, but beginning with cuts of academic teaching and support staff positions, and downward pressure on the professoriate via managerial mechanisms such as the Faculty Evaluation Committees, algorithms that determine academic performance, and Key Performance Indicators. A colleague shared a real prof’s workload evaluation spreadsheet, from a major Australian university. I’ve redacted the name.

My colleague sent the Australian prof’s workload summary with this note:

Hi Heather,
This was provided by a colleague. Read and weep.
Note in the research tab how different research publications are weighted as “points”. A minimum number of points must be achieved each year or the algorithm under the teaching calculation is changed to ensure additional teaching hours are performed. So for an ordinary senior lecturer (not a prof) to keep your research allocation at 40% (a typical 40-40-20 workload distribution) you would need to produce 7 research points a year – that is 7 book chapters, or 1 book and 2 chapters, and so on. A prof would be expected to achieve 11 points – so two books and a book chapter. Obviously none of this is sustainable if even possible. So the effect is that everybody does a LOT of teaching (70-10-20)…
This is what is really meant by “performance-based” universities.
Cheers
[name withheld]

Buzzwords Decoded

It is unfortunate that two wonderful concepts—nimbleness and interdisciplinary— have been captured by the Provostial rhetoric and transformed into buzzwords.

“Nimbleness” is code for the freedom to expand the precariate and make vertical cuts.

“Interdisciplinarity” is code for merging departments.  

Recently, those of us observing the UAlberta’s Board of Governors’ meeting on 11 December 2020 were offered another buzzword to consider: “Laser focus.” This is less difficult to interpret. Laser focus is code for relentless inflexibility, autocracy, and hatchet-wielding, all in the name of KPIs. Actions associated with laser focus include denying collegial governance, breaking collective agreements, pitting departments and colleagues against each other, creating chilly workplaces, and hailing the hatchet-wielding executives with titles such as “Chief Transformation Officer.” 

The McKinsey Touch

Look soon to see McKinsey-inspired expansion of the mandates for the Board of Governors.

For more background on McKinsey & Co. I recommend Duff McDonald’s The Firm (2014), and investigative journalism in The New York Times and The Independent. 

After learning all this, I have one or two questions more. Why is it that management consulting firms only offer universities one model for organizational effectiveness, leadership, and transformation, a model based on a capitalist corporation? Instead of accepting a huge failure rate in transformations, why not offer universities an organizational structure more similar to what a university is? Yes, our university has to change. But does it need to be corporatized? Why aren’t our current leaders demanding —of themselves— expertise, higher degrees, MBAs even, in co-operative management? Why are they not demanding of the consultants they hire —NOUS, McKinsey— something that respects the collegial governance system and its longue durée of successful production and sharing of innovation, creativity, critical thinking, and knowledge?

The answer to these questions may lie far from the Alberta prairies, at Harvard’s Business School.

Finally, for more on McKinsey & Co, listen here:

Police violence at a #BlackLivesMatter protest in New York City. Overshadowed by a different sort of violence, a vigilante-payback murderous sort of protest, in Dallas.

Heartbreak. Horror. Anger. Shock. 

Obviously, there will be lots of palaver about what needs to change. Gun culture for example. Prosecuting those who abuse the power of their position, who fail to serve / protect. Training (re-training) (better training) (anti-racism-training) of police.

And maybe before the training,  recruitment, but:

How to entice better recruits? What sane person wants to work in a racist, sexist, phobic organization?

And while we in Canada may subtly congratulate ourselves for not having the (scale of) problems that they have in America, let’s not forget we too have discrimination and sexism

Our RCMP are but one recent example.

*A Screed is a song of protest, of vilification. 

(Re-blog from PressProgress.ca)

A Toronto court heard final arguments Thursday in the trial of former CBC Radio host Jian Ghomeshi.
Ghomeshi is charged with four counts of sexual assault and one count of choking to overcome resistance related to allegations brought forward by three female complainants.

While the defendent’s guilt or innocence will be determined by a judge based on evidence presented in court, Ghomeshi’s defence strategy has been widely criticized, with suggestions the aggressive cross-examination of witnesses in the high-profile trial is revictimizing the complainants and discourages women from reporting sexual assaults in the future.

Now, some question if Canada’s criminal justice system is “structurally ill-suited” to deal with sexual assault cases?
Here’s what experts and observers have to say about five of the more dangerous myths the Ghomeshi trial has pushed into the public square:

1. “Consent can be implied, retroactively”
Throughout the trial, Ghomeshi’s lawyer, Marie Heinen, has sought to raise doubts about the relationship between the complainants and her client after the alleged assaults took place.

In all of this, Macleans’ Anne Kingston observes, “the defence appears to be trying to establish some sort of retroactive implied consent, which, of course, is moot: at the time of the alleged assault, the future hadn’t occurred.”
However, Canadian law is quite clear that this is ultimately irrelevant to the issue of ‘consent’.

“If you examine this [Ghomeshi] trial,” says University of Ottawa law professor Constance Backhouse, “basically because the victims gave consent to some things — before, during and after the alleged non-consensual behaviour — we’re all making assessments that they are not believable about the non-consensual part.”

And in the eyes of the law, none of this may matter: “the Supreme Court has said that a person cannot consent to an assault that causes bodily harm,” says University of Toronto law professor Brenda Cossman. “If a sexual activity causes bodily harm, a person cannot consent to it.”
Recent polling done by the Canadian Women’s Foundation found that while 96% of Canadians agree sexual activity between partners must be consensual, over two-thirds of Canadians (67%) do not understand the legal definition of ‘consent’.

2. “Survivors go directly to police after an assault”

Heinen also questioned why one complainant did not go directly to police after the alleged assault.

“I didn’t go to the police because I wanted to go home,” the woman answered. “I didn’t go to police because I didn’t want – this,” referring to testimony before the court.

That response is consistent with statistics on sexual assaults in Canada. In 2014, Statistics Canada reported only 5% of all sexual assaults in Canada are reported to police.

“Sexual assaults perpetrated by someone other than a spouse were least likely to come to the attention of police,” another report from Statistics Canada adds, with “nine in ten non-spousal sexual assaults were never reported to police.”

3. “Survivors never go back to their abuser”

Heinen introduced evidence suggesting one complainant’s contact with Ghomeshi after the alleged assault challenged the credibility of the allegation itself.

This isn’t necessarily surprising, experts say. Survivors of abuse typically “manage the violence” through a range of responses to a traumatic experience, including “denial” and “self-blame” before they actively seek help.

“Many leave and return several times before their final separation,” reads literature prepared by the BC government for victim service workers. Some reasons include emotional attachments to the abuser, emotional abuse, threats or fears of continued violence, social and cultural pressures, or financial dependence, to name only a few.
As Keetha Mercer of the Canadian Women’s Foundation told Chatelaine:
“There are many reasons why a survivor would contact her abuser. These may include wanting to get closure or addressing what happened. Many survivors struggle to break off contact with their abuser because the nature of abuse includes undermining their self-esteem and confidence. They may feel controlled by their abuser, which is a hard feeling to shake even after they have left.”

4. “Women lie about being sexually assaulted for fame and attention”

Ghomeshi’s lawyer suggested one complainant’s allegations were motivated by fame and attention, stating she was “reveling in the attention” and pointing out how her number of Twitter followers had “skyrocketed.”

Except the trial process is arduous, often re-victimizing survivors. And as Toronto lawyer David Butts points out, the current system is “basically trial by war,” so who would volunteer to put themselves through such a distressful process?
“That is probably the worst thing to do to complainants who are coming forward to talk about very intimate and distressing violations of their sexual integrity … Moving away from an adversarial model, I think, is going to be necessary because look at the Ghomeshi trial — who would voluntarily put themselves through that?”
Not only that, but only 42% of sexual assault trials end in a conviction. 47% see charges stayed or withdrawn.

5. The stereotype of the “perfect” victim 
Ghomeshi’s defence has also attracted criticism for its “extreme focus on inconsistencies” in the complainants accounts of events, “including information that may appear to some as irrelevant,” and using these to suggest complainants are stricken with “false memories.”

Macleans’ Anne Kingston says this strategy of asking “very personal questions” is “pretty extraneous but just poked holes in issues that should have nothing to do with the charges at hand.”

“It’s totally irrelevant to whether she wanted to be punched in the face,” says UBC law professor Isabel Grant, who says the focus on inconsistencies is irrelevant to the issue of consent, but instead plays into stereotypes about women’s sexuality.

Canadian novelist Kathryn Kuitenbrouwer observes that Heinen’s cross-examination implies “that the woman has to be this hygienic, innocent, perfect bystander in these cases” – constructing an impossibly unrealistic image of what a credible victim looks and sounds like, irrelevant of the facts of the case.

“She seems to articulate that they wanted it, that they produced the violence,” Kuitenbrower adds. “And then when it happened, they came back for more.

 Tags: #Sexual Assault #Violence Against Women #feminism #Jian Ghomeshi #gender equality #Criminal courts

Source:

http://www.pressprogress.ca/5_dangerous_myths_about_sexual_assault_perpetuated_by_the_jian_ghomeshi_trial

[Feb 9, 2016. Some thoughts on the Ghomeshi trial, as the third complainant’s testimony and examination is completed, and as we wait for Judge Horkins to rule on admissibility of a fourth witness]

We knew that the complainants alleging assault and other charges against Jian Ghomeshi would face severe, rigorous questioning intended to discredit their testimony, from highly credentialed and skilled lawyer Marie Henein. As a dear friend and one-time courts reporter has pointed out to me, society needs this to happen. We want a defense lawyer to be vigilant and ardent; a person’s liberty is at stake. We don’t want to live in a society where a state lawyer does not have to prove beyond a shadow of a doubt that an accused should be convicted.

However there is questioning to discredit testimony and there is “whacking”. The latter is a nefarious tactic which occurs almost exclusively in sexual assault cases. It depends on aggressive, verbal accusations, double-negatives and sexist stereotypes. The goal is to confuse and intimidate a witness so that what they say isn’t what they mean or want to say. There are many who are questioning the ethics of this tactic, noting that it is something that, like torture, fails to provide actual truths. Whacking also depends on the legal system’s assumptions that linear, chronological testimonies can be elicited from participants in traumatic events and that such ‘clear’ testimonies are more credible. Therefore, if a witness’ verbal re-telling of a traumatic event can be deconstructed, it is likely false, or exaggerated. This expectation is based on false assumptions rather than research evidence about how traumatic memory actually works and how women often react during assault. It depends on negative stereotypes about women and victims of sexual assault in particular.

So, to recap, whacking is a courtroom tactic of intimidation particularly popular in defense of sexual assault, which is intended to discredit a witnesses’ and complainant’s testimony.

Ghomeshi’s lawyer, the brilliant and fearless Marie Henein, is renowned for her whacking skill. In the Ghomeshi case however, I think Henein’s intention is to do more than just discredit the testimony through intimidation. There seem to be three key legal points that the case hinges on (I’m not a lawyer, but this is what I understand from reading the criminal code, and various pundits and researchers): First, was the violence consensual, from the beginning and during; second, is there a pattern, i.e.: ‘similar facts’ that can be permitted to weigh in a verdict; third, were the ‘serious harm’ actions really severe enough to be the kind of harms our criminal code says we cannot actually give consent to? I think what lawyer Henien’s strategy is a five-part smoke and mirror trick designed to address these three points of law, and one point of judicial hubris:

1) She is trying to imply that Lucy Decoutere and the two other complainants gave on-going consent, that they welcomed and therefore participated in the hitting, choking, hair-pulling, etc. This is intended to distract the judge from the point that there is no evidence of prior consent in the first instances.

2) She is trying to prevent the judge (and public) from recognizing and believing the complicated psychology of how the brain reacts to and processes trauma, including how women post-assault may seek approval from the aggressor or try to remediate a sense of  their unacceptable ‘victimhood’ by choosing ‘participanthood’ post-hoc. This does not gainsay the fact that prior and/or on-going consent had to have been given, and that failure to deny consent is not the same as giving consent.

3) Significantly, Henien seems to be trying to elide the point that Canadian law doesn’t actually permit us to consent to serious harm.

4) She is also trying to circumvent the ‘celebrity as authority figure’ factor that Ghomeshi represented for the complainants: the fact that he was a highly regarded personality with influence in the media-arts-entertainment industry and the women were in early-career stages with aspirations in that business meant that Ghomeshi’s actions were extra compelling, in both his potential and effect as a perpetrator. He had the glamour (in the old Celtic sense of disguising evil with beauty). I wonder if Monica Lewinsky might not have something to say about the complicated emotions that happen when one thinks of one’s idol as a friend, or even romantic partner?

5) More speculatively however, and this is where the mirrors become truly smokey, I think Henien is playing a long head-game with Judge Horkins. I think she is trying to trade on the rather fuzzy boundaries as to what actually consists of consentable sexual violence, and to push the judge into fearing making a ruling that establishes a new precedent, but could be overturned on appeal. Judges hate having rulings overturned and Henein is trying to make the judge concerned about his own legacy.

In the latter (5), I suspect Henien could succeed, simply because Ghomeshi and his past ‘intimate partners’ do not seem to me to be credible as exemplars of a BDSM community. So if Judge Horkins makes the ruling that Ghomeshi is guiltyon the grounds that Lucy Decoutere could not give Ghomeshi permission to choke her as part of sexual ‘play’, I would expect that ruling could be contested, simply because there are very likely members of the BDSM community who could make the legal argument that choking can be legally consentable; orgasm via temporary asphyxiation, for example.

In the former (1 – 4), While Henien seems to be going for a determination of on-going consent to ‘rough sex’, I suspect that she could fail, simply on points of law – no judge can fail to note lack of evidence of initial consent, implied or otherwise, permissible or otherwise, and because there is similar fact evidence that Henien has not successfully contested

As yet.

As I write this, Henein has begun trying to discredit the ‘similar fact’ evidence; complainant 3 and 2 have been shown to have shared their stories, as women, and victims often tend to do as a part of processing a trauma. But in the eyes of the law, that story-comparing leaves Henein scope for the argument that the 3 women colluded in their testimony, thus devaluing the strength of ‘similar facts’ evidence.

At this point, as I see it, it comes down to two things: Is Judge Horkins susceptible to Henein’s smoke and mirrors? and does Crown Attorney Gallagher have some Windex up his sleeve?

Some links very much worth reading: 

re: Traumatic Memory & Sexual Assault

https://storify.com/empathywarrior/to-understand-the-ghomeshi-trial-we-also-need-to-u

http://nij.gov/multimedia/presenter/presenter-campbell/pages/presenter-campbell-transcript.aspx

http://time.com/3625414/rape-trauma-brain-memory/

The Neuroscience of Trauma from Sexual Assault

http://www.cbc.ca/news/technology/trauma-brain-memory-neuroscience-1.3431059

Re: Giving testimony as a sexual assault complainant:

http://canadalandshow.com/article/when-your-friend-stand-ghomeshi-trial

re: Marie Henein

Canada’s Top Litigation Boutique Law Firm

http://www.cbc.ca/news/canada/meet-marie-henein-the-fearless-and-brilliant-lawyer-defending-jian-ghomeshi-1.2851592

re: Whacking

https://www.uwindsor.ca/law/667/whack-no-more-infusing-equality-ethics-defence-lawyering-sexual-assault-cases

http://www.winnipegfreepress.com/opinion/columnists/whacking-the-complainant-367563261.html

http://www.theglobeandmail.com/news/toronto/jian-ghomeshis-sexual-assault-trial-fuels-debate-over-defence-lawyering/article28548535/

re: Canadian Criminal Code, and Consent to Harm

http://laws-lois.justice.gc.ca/eng/acts/C-46/page-63.html#docCont

http://news.nationalpost.com/news/canada/canadian-law-imposes-some-limits-on-freedom-to-consent-to-violent-sexual-activity

 There are so many types of “refugees” and many ways to describe them. We have used terms like Displaced Persons (“DPs”), Victims of War, Illegal Immigrants, Asylum Seekers, Émigrés; each label is polysemic, encoding semantic and political trajectories backwards and forwards in time. Compare the representation of Elsa, the heroine of Casablanca, as she bends legal and moral rules in order to escape Morocco under Nazi control, with representation of contemporary Khurds or Syrians as they flee the war front which has taken over their doorsteps. Or compare the representation of heroic Rick, who condones Elsa’s and Victor’s attempts to escape and conives with the shady Signor Ferrari, with contemporary human traffickers. 

However labelled and represented, refugees are the subject of much professional expertise, policy, surveillance and document-anxiety. The United Nations has an entire bureaucratic directorate, a High Commission -the UNHCR- devoted to the fact that refugees exist. People who are called refugees (or DPs or illegal immigrants, etc.) are characterized by their nation of origin, by their sex, gender, religion, age, education, medical needs, income-potential, work experience; sometimes we characterize refugees by their experience with violence and/or hunger; sometimes we recognize a refugee by how long they have been in limbo, that physical and psychological state of deterritorrialization also known as a ‘refugee camp’; a place which itself might actually be a town in everything but official municipal policy and potential for its residents to plan a future for themselves.  

No matter how it is described, being a refugee sucks. As poet Warsan Shire says, no one flees home unless “home is the mouth of a shark”. 

In Canada these days,  we are saying “Refugees Welcome” and congratulating ourselves on having Canada back. We say “refugees welcome” in sympathy with the middle-class seeming people currently fleeing the Syrian conflict, but also in  opposition to what we see and hear from the bombastic rhetoric of  American presidential candidate-wannabes; and we feel very good about ourselves. 

But our much-lauded new government, while aiming to put a dent in the current disaster of asylum-seekers’ deaths and bring some 20,000 refugees to Canada, and in simultaneously seeking to defray racist fear-mongering about ‘extremist Muslims’, is prioritizing ‘safe refugees’ – those vetted by the UNHCR. So those receiving Canadian welcomes are privately sponsored, or coming from long-term, well-provided camps in Lebanon & Turkey. We are delayed in meeting our national target partly because those acceptable to Canada are themselves sometimes reluctant to relocate so far from their home terrains. They are not the people we see being rescued from boats in the Mediterranean, pressed against yet another border fence in Hungary, or rushing trucks heading into the Chunnel.   

I bet some of the 3000+ people sinking and freezing in the French winter-mud of the Dunkirk suburb/fenced refugee camp of Grande Synthe (AKA ‘The Jungle’) or squatting in a refugee hell on Lesvos would be happy to accept a Canadian welcome. 

We could meet our goal of 20,000 and more if we actually welcomed #refugees. 

  
*Photo credit @Msf_Sea http://bit.ly/1Dwhxjc

Follow suggestion: Mohammed Ghannam @MohGhn, https://www.facebook.com/MSF.VoicesFromTheRoad/ (Jan 10, 2016).