The Person’s Case, Rapechants and Consequences

by Sasha Wiley

The case of Edwards v. Canada (Attorney General) was decided in 1929, after going through what was at that time the highest court with jurisdiction in Canada, Britain’s Juridical Committee of the Privy Council (JCPC). Those who aren’t Canadian legal history buffs most likely know that case as “the Person’s Case,” where women in Canada were finally recognized as people before the law – and competent people at that, which was the legal requirement for senate membership in Canada. T the case began when Emily Murphy was put forward as a candidate for the Senate, only to be told by Prime Minister Borden that she was ineligible due to being a woman and thus not a “competent person.” On October 18 of that year, the JCPC reached a decision, that read, in part, “the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word ‘persons’ should include females, the obvious answer is, why should it not?”

I try to do something to celebrate Person’s Day every year, but this fall, recent events on Canadian university campuses, including my own alma matter, UBC, have me debating to what extent that decision has withstood the test of time – to what extent women are “people” in Canada today. Since mass chants promoting rape are apparently a normal part of university orientations, as confirmed by past students at UBC’s Sauder School of Business, who note that the YOUNG chant has been used for some 20 yearsi, it’s clear that women are still excluded in provision of even the most basic of human rights.

Under Article 7 of Canada’s Charter of Rights and Freedoms, all people have the right to “security of person.” Similar provisions appear in the Universal Declaration of Human Rights and in the basic rights provisions in nearly all countries; it is this right that protects people from violations of their safety or bodily integrity. How many of the women in the incoming class at the Sauder School of Business were experiencing security of person during a mass chant promoting violence against women – promoting rape? In a country where the stats are that about 1 in 4 women is sexually assaulted (or up to 47%, in BC)ii, how many rape survivors were in that group? What was their experience of “security of person”? Human rights apply to all people, but as this incident shows us, “people” does not always include women. To be a person is to have your right to personhood protected, after all.

I’ve been glued to the internet reading every article and development on this story, and none have considered the denial of women’s personhood that is at the core of this kind of misogyny. As of today, September 9, I’ve read about the Commerce Undergraduate Students Association (CUS) FROSH week co-chairs stepping down after Jacqueline Chen came under fire for her comments suggesting that the problem was not the chant but the failure to keep it “private”iii, but the President and Vice President of the CUS, Enzo Woo and Gilliang On, who made similar comments and denials, remain in their positions, having avoided the spotlight. Dean Robert Helsley released a statement claiming he is taking the matter very seriously, but he opened by characterizing the chant as “endorsing non-consensual sex.”iv Every time we soften the idea of rape by calling it something like “non-consensual sex,” we contribute to a tendency to view rape and “non-consensual sex” as two different things instead of as a serious crime and its definition, which then leads to victim blaming (see, for instance, Subenville), the normalizing of sexualized violence, and hence, a further denial of women’s rights to security of person – and thus to personhood. If those with the authority to address this incident have such a poor understanding of the problem, of rape culture and its dangers, there is little hope that they will take real action to provide the women at UBC with any real security of person.

As with any right that the state is constitutionally required to provide its citizens, the right to security of person is backed up by legislation that prescribes limits on behaviour and imposes penalties for transgressions; prohibitions against violence and harassment through the Criminal Code describe assault, sexual assault, uttering threats, and criminal harassment, all of which are measures to protect security of person. Criminal harassment is when the actions of a person make another person reasonably fear for their security of person, and assault and sexual assault laws include provisions for threatening to commit those crimes. If the CUS, the Dean, or UBC at large were taking this incident as seriously as they should – as serious as it is for the women whom it targeted – we would see discussions with police about laying charges, or at the very least, discussion of forced resignations and expulsions. Instead, they will look into whether there should be punishments for “non-academic misconduct,”v which is university judicial jargon for a slap on the wrist that is sure to include no enduring record of any sort, nor any academic repercussions. We’ve seen similar short-sightedness from post-secondary institutions across the continent.

Until university administrators themselves understand – on the deepest level, right down to unpacking their subconscious social programming – that women are people who are entitled to all the rights and protections of any other person, they will not address these issues appropriately. The male Dean of the business school does not have the expertise needed to address this problem, nor does the school’s (male) President, Stephen Toope. They’ve made this amply clear by their (lack of) actions already. If they want their school to maintain a reputation as anything other than a safe haven for rape culture, they need to step back and put some real experts, of whom they have many at hand, in the driver’s seat and empower them to impose actual and appropriate consequences. Let’s see expulsions. Let’s see FROSH week cancelled and replaced with a sexual assault prevention week wholly focused on how not to promote or perpetrate sexual assault. [Ed. FROSH week has been cancelled but unsurprisingly, nothing like Sasha is calling out for here has been instituted in place of it vi] Moments like this are when the most serious actions must be taken if we ever want to live in a world where the word people really does include women, as the JCPC ruled almost a century ago. To paraphrase their words, accepting violations of women’s safety should be a relic of days more barbarous than ours, but the truth is that we will never get there until we learn to treat such transgressions with the necessary gravity. We must start now, and we must proceed quickly; the lives of women depend on it.

Sasha Wiley is a Vancouver teacher, activist and grad student.