(This post first appeared on IntLawGrrls website on 27 October 2020. It is an excerpt from a longer forthcoming article on ‘How to Litigate an International Criminal Case’)
It should be uncontested that for a defence counsel to do her/his job effectively, it is necessary to put aside whatever prejudices and pre-conceived notions s/he may have about the charged crimes. Counsel must separate her or his subjective feelings about the charged crimes from the task of defending against the charges: this is essential to mounting an effective defence for the client. In short, in order to “think like a lawyer,” s/he has to recognize what prejudices s/he may be harboring and struggle to ensure that they do not interfere with the representation of the client. This process is generic to effective defence work: it must be undertaken, in different forms, regardless of who the counsel is and her or his characteristics. And the process is ongoing: counsel must engage, and often re-engage, in it throughout every case.
The necessity of this process is plainly illustrated in the case of male counsel and the defence of sexual and gender based crimes (sgbc). I have singled out the role of male counsel because I believe that the difficulties and obstructions associated with male supremacy are the main obstacles when defending against these crimes, and also have a spill-over effect on a team’s working conditions.
I would not conclude that women counsel, because of gender, are immune from prejudices or pre-conceived notions about sgbc – but these prejudices and notions are within a different framework. We are still operating in a society where men generally exercise (or strive to exercise) power over women, and not vice versa.
I also recognize that the gender criterion in sgbc, in some circumstances, applies to crimes against boys and men. This makes perfect sense: it is a logical extension of the premise that male supremacy, which targets – in the first instance – women, also results in conduct that attacks men.
LastIy, I have directed this note to Defence teams. Male supremacy is obviously not limited to Defence teams – it is found in all aspects of the judicial processes, and among all parties. I believe that if the Defence struggles on the issue of male supremacy within a team, the defence team will become stronger, and will be better positioned to deal with the issue of male supremacy in other parts of the judicial system and the court processes.
1. Sexual and gender based crimes are the most highly charged allegations for all parties involved in an international criminal case.
As heinous as other criminal allegations are, and as difficult as they may be to defend against, sexual and gender based crimes are the crimes that evoke passion, emotion and subjectivity to the greatest degree.
Sexual and gender based crimes (sgbc), in some ways, are the most intimate and personal of crimes. They involve violations which occur simply because of one single fundamental part of one’s identity: one’s gender. While not all sgbc involve sexual conduct or acts, per se, the alleged criminal conduct is based on the sexual identity of the victim (usually, but not exclusively, women).
Sexual and gender-based crimes are also the most universally familiar of crimes: to one degree or another, many of the elements of the crimes have become “part and parcel” of daily life for countless women (and men).
Yet, most of the conduct involved in sgbc never makes it into a courtroom….and it is dealt with by women, alone and in private.
But because of the ubiquitous nature of these crimes in societies, it is almost a “spontaneous” reflex for someone to identify with the victim, or, in some instances, with the perpetrator of male supremacy.
2. Counsel understands the charges and interprets them against his own view of, and practice with, women.
This means that when a counsel is defending a client against sgbc, it is not unusual for him to analyze the crimes from a subjective point of view: his analysis of the crimes charged is tainted by the counsel’s own values, societal or cultural influences, and experiences in his personal life – most particularly in respect to women.
For male counsel who are fighting male supremacy and are fair to women and treat them as equal partners, there is no problem – they take the lead in formulating the theory of the case in respect to sgbc, and identifying key issues.
But for male counsel who operate as privileged and show disrespect toward women….the effects can be destructive to the client’s defence. If he views women from a lens of male entitlement or privilege, he may not necessarily view alleged criminal conduct against the accused as being criminal. For example, if a client is charged with rape, a counsel who views women as sexual objects for the pleasure of men, will not be able to understand the elements which have to be defended against….because he conceives of the conduct as “normal” for a man, i.e., it is not a crime.
3. This means that the predicate to effectively defending sgbc crimes is to identify and recognize the prejudices on the Defence team, especially from counsel and make conscious efforts to overcome these prejudices.
This is much easier said than done, obviously. This process demands an awareness or consciousness of one’s views and opinions. Levels of awareness or consciousness, especially about biases, vary among individuals.
A male counsel, especially if he has perfected his attitudes toward women for decades, does not (and perhaps, cannot) easily leave sexist baggage at the door.
A lawyer who treats women as sexual objects cannot develop a coherent and comprehensive strategy for defending against sgbc. The counsel becomes an “apologist” for the alleged criminal acts, in some cases. Or, the counsel may rely on his interpretation of his own cultural background to justify his view of women. Within different cultures, there is an ongoing struggle for equality and respect for women, often led by women. This means that the counsel’s use of culture may not accurately reflect the view of women in the same culture.
And, the person who has the most to lose is the client, who is charged with these crimes.
In essence, this male “blindspot” makes it impossible for counsel to mount an effective defence for the client and counsel is vulnerable to being compromised by his prejudices.
4. The Spill-over Effects
There is a “spill over” effect between the personal and professional: a misogynist world view affects how one treats women colleagues in a work setting i.e. are they compensated at an equal rate or are they given “less,” based on a notion that a woman may have “less” expenses because she lives with a man; are women colleagues’ ideas acknowledged and addressed, or are the ideas and suggestions ignored or dismissed, as if the women are invisible?
This “spill-over” of male supremacy is not contained: it seeps into the treatment of male colleagues on a defence team. A counsel who fails to appreciate the contributions of women, also, most likely, will fail to appreciate the contributions of men who may not express themselves or act in a manner that the counsel understands men should act. If a counsel presents a viewpoint in an aggressive and vociferous manner, a male colleague whose style or manner is less aggressive or less vociferous can be side-lined, or dismissed, or, in other words, treated as the women are treated.
This kind of behaviour creates a toxic work atmosphere for everyone – men and women. It erodes morale and can even result in unnecessary trauma on a Defence team. For a number of reasons, including the inequality of resources with the Prosecution, a defence team is a pressurized environment for its members. When the pervasive and incessant male supremacy of a counsel is added to this, the result is toxic: team members can spend too much energy dealing with these sexist abuses. The male supremacy poisons the work environment and constantly competes for attention, distracting the team from the tasks at hand.
In sum, counsel plays a key role in a defence team: counsel sets the standard for lawyering and leads the team in framing the issues and implementing an effective defence. The quality of this leadership becomes one of the key indices for how effectively the team can mount a defence against charges of sgbc. If the sgbc are not taken seriously from the beginning, and recognized – in some cases – as the charges on which the client may be the most vulnerable, it is unlikely that a coherent and comprehensive strategy to defend against these criminal allegations will be developed, and implemented. At stake, then, is not simply the individual male supremacist practices of a particular counsel…..it is much more: whether the client’s right to an effective defence will be realized.