By Joshua Sealy-Harrington
For this edition’s “Unsung Hero” column, I sat down with Daniel Del Gobbo, an S.J.D. candidate at the University of Toronto Faculty of Law. His research explores feminist contestations over the use of alternative dispute resolution and restorative justice in campus sexual violence cases. I met Daniel last fall when he was a visiting scholar at the Center for Gender and Sexuality Law at Columbia Law School. As a Trudeau Scholar, CBA Viscount Bennett Fellow, and SSHRC Doctoral Fellow, Daniel is, without a doubt, a rising star in Canadian legal academia, and an unsung hero engaging with critical feminist and queer approaches to legal theory and law reform, including discussion regarding this edition’s theme: the #MeToo movement.
Acknowledging the breadth of this question, what are your thoughts on whether #MeToo has had a net positive or negative impact on societal discourse around sexual misconduct and sexual expression?
Overall, the #MeToo movement has had extremely positive impacts. The #MeToo movement confirmed that which many of us have known for years: sexual violence is not a rare or isolated phenomenon, but a pattern of sexual abuse that has beat down upon women and some men for decades. By the bravery of survivors who stood up in solidarity, identified a problem, and publicly named their attackers where the courts of law had failed them, a reckoning was finally upon us. It was a transformative moment in popular feminism. There had emerged a cultural zeitgeist that regarded the severity of the problem in a profoundly different way than our society had before. If there was ever a policy window – a moment in our country’s history to mobilize support for workable solutions to end sexual violence once and for all – that window had opened.
How do you think #MeToo has reshaped discourse surrounding ADR in the context of sexual misconduct?
In my view, the #MeToo movement has served as a catalyst for important and challenging conversations about the realities of sexual violence. However, the political intensity of the movement has legitimately divided feminists about how the legal system can and should to respond to the problem, including whether ADR and restorative justice may be appropriate in some cases.
Can you elaborate on that divide? I think it’s a critical question confronting feminist discourse around #MeToo.
Psychically and affectively, many feminists responded to the fact of yet another incident of campus “rape culture,” yet another report of sexual harassment and assault, yet another person who bravely stood up to identify herself as a survivor in the #MeToo movement. The revelations were totally consuming. Many of our reactions were to feel some combination of profound sadness, interminable frustration, sapping fear, and increasingly sheer rage. These collectively generated public feelings led many of us to formulate swift and impassioned law and policy responses that ignited and inflamed our political positions on these issues. I would argue that feminist law and policy debates in the #MeToo movement have been consumed by a particular orthodoxy about what “taking sexual abuse seriously” requires as a matter of legal and political process. Generally speaking, that is naming, blaming, and shaming as a precursor to demanding criminal justice remedies or institutional discipline. These formalistic and legalistic trends within the #MeToo movement have entailed a principled resistance to, and sometimes categorical rejection of ADR and restorative justice as politically “unfeminist.” I think this view is short-sighted.
Multiple commentators have noted the cyclic nature of sex discourse, e.g. “Sex Wars 2.0”, #MeToo being the latest “Sex Panic”, etc. And this cyclical nature seems to suggest that our discourse around sexuality follows a trajectory of pendular swings, oscillating between complacency and overcompensation. Ideally, do you think these cycles should be avoided, or do you view them as a necessary catalyst for change in response to political complacency?
I cannot pretend to know the answer to this question with any certainty, but I think that having a multiplicity of feminist and other critical voices in the conversation about sexual justice is extremely useful. It’s difficult to imagine a productive negotiation of sexual justice that lacks some meaningful consideration and principled give-and-take between conflicting feminist positions. This is not to say that conflicting feminist views about the #MeToo movement have equal merit, necessarily, but simply that each side’s views may be enhanced by recognizing the contingency of our social and cultural frames of argument.
The #MeToo debate is often mischaracterized, in my view, as having “two sides”, e.g., women’s safety vs. men’s due process. Is there a middle ground here that better reflects the nature of the problem?
This is a false choice. Feminists on both “sides” of the #MeToo debate, as you’ve framed it, should be equally committed to the causes of promoting women’s safety and combatting the problem of sexual violence in Canada. However, these feminist commitments can and should be pursued in a manner consistent with feminist commitments to procedural fairness in administrative procedure as well as the presumption of innocence and the state’s burden and standard of proof in criminal justice – what American legal commentators have called “due process” in this context. Precisely how feminists should strike the balance between these commitments remains an open legal and political question, but I think it’s unhelpful and potentially dangerous to frame them as “either/or” propositions.
What strikes you as the next emerging questions of sexual justice worthy of further exploration in light of the #MeToo movement?
The #MeToo movement raises so many interesting questions of sexual justice, but I’ve been thinking a lot lately about the role of public emotions and affect in feminist legal responses to sexual violence.
On the one hand, emotions have been a particularly effective means of political mobilization and cultural belonging for many survivors of sexual violence as well as survivors’ families and other intimates in progressive social movements. Emotions have made it possible for many women to speak as a class that is linked and identified through a shared ethical commitment to eradicating sexual violence on the basis that many women’s “anger” or “trauma” characterizes the harms that have followed from men’s sexual victimization of women throughout history.
On the other hand, it strikes me that parts of the #MeToo movement have effectively compelled survivors to confess their sexual victimhood to produce transformative testimony and therefore become part of the “solution.” As I explained previously, mainstream campaigns against sexual violence have tended to use naming and blaming and shaming as a precursor to demanding punitive and criminal justice remedies as a primary response.
I think it is often easier to moralize than to historicize about sexuality, easier to punish a few “bad apples” who have abused their power advantage in sex than to challenge the structural conditions which have distributed power unequally in our society, often but not always along gender-based lines, which can feel more complicated and less immediately gratifying to many of us. How might feminists negotiate the paradoxes of sexual violence in a less exclusionary and more efficacious fashion than we have done in the past? How might emotions and affect be more productively and redemptively directed toward challenging the structural conditions of gender inequality in our society without recourse to punitive and criminal justice? How might feminists account for the lingering effect of our traumatic histories in the #MeToo movement while at the same time seeking to prevent, address, or resolve complaints of sexual violence in the future, whether by law or otherwise?
Do you know an Unsung Hero? Tell us about them. If you know a lawyer who deserves to be recognized, please send us an email to firstname.lastname@example.org with the lawyer’s name and the reasons why you believe they are an “unsung hero”. The only formal requirements for nomination are that our “unsung hero” be an Alberta Lawyer and a CBA member.
JOSHUA SEALY-HARRINGTON is a doctoral student at Columbia Law School and public law lawyer at Power Law. His research and practice centres on marginalized communities, particularly sexual, gender, and racial minorities. He is a former Supreme Court of Canada and Federal Court law clerk.