Scholars of color have been instrumental in advancing nursing knowledge development but find limited spaces where one can authentically share their philosophical perspective. Although there is a call for antiracism in nursing and making way for more diverse and inclusive theories and philosophies, our voices remain at the margins of nursing theory and philosophy. In nursing philosophy, there continues to be a lack of racial diversity in those who are given the platform to share their scholarship. Five nurse scholars of (...) color attended the International Nursing Philosophy Conference in August 2022. We established a collective system of support by sharing our experiences as researchers, scholars, and educators with each other. The theory of emancipatory nursing praxis informed this process. In this dialogue, we reflected on what it is like to present at and attend predominantly white nursing conferences. We shared our experiences of how we exist as nurse scholars, our philosophical views, and our thoughts on how we create spaces where scholars of color can feel welcomed and acknowledged for their contributions to advancing nursing knowledge. (shrink)

Increasing numbers of news organizations have formal codes of ethics for their personnel. This paper looks at the content of media ethics codes, how these codes are written and what comprises a news organization's fixed value system. Results show that many written policies were devised in recent years, and a noticeable number of other news organizations said they have firmly established unwritten policies. The written codes represented in this survey clearly draw lines around certain activities and label them as acceptable (...) or unacceptable for journalists. Teaching, unpaid appearances (such as on a television talk show), and participation in charitable activities are outside interests more acceptable than political activities in behalf of another person, or holding elected or appointed office. Certain activities which remain as unfinished business include: uniformity of enforcement, management ethics, financial interests, and spouse or friend conflict of interest. (shrink)

What can the "Lotus Sūtra" teach us about social responsibility? This question is explored through the lens of gender by examining the specifically female-gendered images in the "Lotus Sūtra" in order to assess its messages regarding normative gender relations, and the implications of these messages for gender justice in the contemporary world. First, gender imagery in the Lotus is explored. Second, these images are compared with those found elsewhere in the Buddhist tradition in order to provide a clearer assessment of (...) how representative the "Lotus'" messages are regarding gender in Buddhism more generally. Measuring the gender imagery in the "Lotus Sūtra" against that in comparable Buddhist texts reinforces an assessment that this text reflects somewhat ambivalent and contradictory messages regarding women's capacity for Enlightenment. (shrink)

In the United States, there is a long history of racial disparities in maternal health, with Black women disproportionately representing poor maternal health outcomes. Black women are three to four times more likely to die from a pregnancy‐related complication and twice as likely to experience severe maternal morbidity when compared to white women. Where are nurses in the development of knowledge to improve maternal health outcomes among Black birthing people? This dialogue discusses how decolonizing nursing can occur by examining the (...) history of Black maternal health in the United States and using the works of nursing scholars of color to inform nursing education, research, and clinical practice. (shrink)

The reasons for judgment by the Supreme Court of Canada on the appeal in Mabior (2012 SCC 47) fail to address or resolve a number of significant questions. The reasons acknowledge the fundamental role of sexual consent in protecting sexual autonomy, equality, and human dignity, but do not use the law of consent as a tool to assist the Court in crafting a fresh approach to the issue on appeal. Instead the Court adopts the same general approach to analysis of (...) the elements of aggravated sexual assault committed by fraud it used in 1998 in Cuerrier. Fifteen years later, it should be possible to re-conceptualize the problem in a more straightforward manner that reflects Charter values, fundamental common law principles, recent developments in sexual assault law, and the limitations and uncertainties of current HIV treatment and diagnosis. -/- Ironically, the two pronged legal test ultimately proposed by the Court -- non-disclosure of HIV-positive status and a “realistic possibility of transmission,” is likely to give false confidence to individuals who adhere to a regime of anti-retroviral treatment, use good quality latex condoms, and routinely conceal their HIV-positive status from their sexual partners. Research shows that HIV viral loads fluctuate widely in response to a myriad of factors. An inevitable consequence of reliance on the Mabior test will be accused who are shocked to find themselves charged under s. 273, charges that would not apply had they disclosed their HIV-positive status to their sexual partner(s). There are further practical consequences. Non-disclosure will tend to increase the risk of transmission because non-HIV-positive sexual partner(s) will not fully appreciate the actual hazards of improper condom use. As a direct result, careless sexual practices will be more common. And finally, the decision will not contribute to reducing the social stigma that haunts the lives of those who are HIV-positive -- even those who are skilled at deceit. That stigma will not be reduced or eliminated by a ruling that can be seen as tacitly validating stigmatization and fear by appearing to permit infected individuals to pretend they are not HIV-positive when they know or suspect this to be false. Deceit harms the human dignity of the deceived and deceiver alike, and does nothing to build authentic social trust and cohesion. For all these reasons, the problem on appeal in Mabior requires a different approach. This article proposes one. (shrink)

The so-called “war on terror” launched by the United States following 9/11 is only the latest in an ongoing strategy of responding to conflict around the world with military violence and armed force. These interventions appear to be premised on a belief that there is no alternative to using violence and armed force to resolve conflicts because human beings have fixed and unchanging identities which are either “with us or against us,” “friends or enemies,” “good or evil.” In contrast, despite (...) the pervasiveness of violent conflict, suffering and human rights violations in their homelands, it is striking to note how a number of prominent Buddhist political and spiritual leaders remain optimistic about the possibilities of positive peace in the world. In exploring the reasons for these differences, I will focus on the views of His Holiness the Dalai Lama, the spiritual and political leader of the government of Tibet in exile and the recipient of the Nobel Peace Prize as well as the congressional gold medal, as well as those of two other Buddhist leaders: Daw Aung Sang Suu Kyi, the democratically elected leader of Burma who has been held under house arrest by the ruling military junta for several years since her election in 1989, and the Vietnamese Buddhist Thich Nhat Hanh, who has worked for peace in his country since the start of the Vietnam War. As I will show, their views reflect starkly different assumptions about human beings, “enemies” in particular, that provide a more constructive framework for resolving conflict situations than those evident in the seemingly automatic resort to armed violence employed by US leaders. (shrink)

Ender’s Game, Orson Scott Card’s award-winning 1985 novel, has been discovered and rediscovered by generations of science fiction fans, even being adopted as reading by the U.S. Marine Corps. Ender's Game and its sequels explore rich themes — the violence and cruelty of children, the role of empathy in war, and the balance of individual dignity and the social good — with compelling elements of a coming-of-age story. Ender’s Game and Philosophy brings together over 30 philosophers to engage in wide-ranging (...) discussion on issues such as: the justifiability of pre-emptive strikes; how Ender’s disconnected and dispassionate violence is mirrored in today’s drone warfare; whether the end of saving the species can justify the most brutal means; the justifiability of lies and deception in wartime, and how military schools produce training in virtue. The authors of Ender’s Game and Philosophy challenge readers to confront the challenges that Ender’s Game presents, bringing new insights to the idea of a just war, the virtues of the soldier, the nature of childhood, and the serious work of playing games. (shrink)

This piece proposes amendments to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992 and revised in 2018, specifies circumstances in which belief in consent is not a defence to sexual assault. The amendments proposed here are designed to ensure that the wording of this statutory provision properly reflects the significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the original enactment of section 273.2 (...) in 1992. Revisions to the Model Jury Instructions posted by the National Judicial Institute are also considered. (shrink)

Black women are 3–4 times more likely to die from a pregnancy‐related complication and twice as likely to experience severe maternal morbidity when compared to white women in the United States. The risks for pregnancy‐related maternal mortality are well documented, yet Black women's experiences of life‐threatening morbidity are essentially absent in the nursing literature. The purpose of this interpretive phenomenological study was to understand the experiences of Black women who developed severe maternal morbidity. Face‐to‐face, one‐to‐one, in‐depth conversational interviews were conducted (...) with nine Black women who experienced life‐threatening complications during childbirth or postpartum. Five essential themes emerged (1) I Only Know What I Know; (2) How You Cared for Me; (3) Race Matters; (4) Faced with Uncertainty; and (5) Still Healing. These themes illuminate the complexity of Black women's subjective interpretations of severe maternal morbidity, and reveal ways in which racism, not race, places Black women at risk for poor maternal health outcomes. The author envisions greater equity for Black mothers entrusted to nursing care, guided by nursing theories informed by these study findings. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather (...) than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

The tensions between monarchy and republicanism are a dominant feature of Machiavelli’s political works, and both the so-called ‘monarchical’ work, The Prince, and the more overtly republican Discourses laud the benefits of republicanism and warn against relying on hereditary monarchy. This article compares Machiavelli’s proposals, advanced in 1520, for a mixed constitution for the city of Florence with those of his younger compatriot, Donato Giannotti, who became secretary to the Ten in the last Florentine republican government of 1527-30. As the (...) historical context changed, and Florence progressed from republic to absolutist duchy under the later Medici, Giannotti was exiled from the city and the article examines how his proposed reforms of 1528 and then his major work, Della republica fiorentina, drafted and redrafted between 1531 and 1538 as the politics of Florence changed, reinforce and expand Machiavelli’s views of politico vivere in a republican polity like Florence whose constitution was being dramatically rewritten. (shrink)

In early visits to Lothlorien—which is a loosely Pagan community of environmentalists in Indiana—I was confounded by attempts to categorize either the place or the people. As one of the founders said, “I tend to run from labels so I don't know what I am. It's safer that way.” In this paper I explore four members’ narratives about the emotional high points in their lives, where they often cross the usual boundaries of self and other. At the same time the (...) subjectivity at the core of these experiences is something that is felt and that cannot be dismissed as a discursive construct. Through these narratives I attempt to understand selfhood as a process—experientially inescapable but essentially in flux. I see a strong case for anthropologists moving beyond an overly neat, overly dichotomized view of “Western” and “non-Western” senses of self. (shrink)

Recent efforts to talk about the self in a postmodern dialect have created a dilemma: How can one conceptualize the human self as multiple, fluid, contextual, and radically relational while also maintaining that it is intentional, private, focused, and accountable? Creative Dwelling weaves elements of feminist psychology and process theology into a dynamic interdiscplinary dialogue about human subjectivity. The result brings a new coherence and vitality to our search for more inclusive and adequate ways of understanding our humanity. The theologicl (...) implications are profound: the dynamics of empathy and clarity impel the author to reframe characteristics of the divine nature, sin, salvation, and spirituality. The book culminates in a study of "dwelling" as a new, iconoclastic, and visionary metaphor for our experiences of the ever-emerging self. (shrink)

Several arguments have been put forward about the benefits of young people carrying out their own social science research in terms of empowering their voices and their participation. Much less attention has been paid to investigating the understandings young people develop about the research process itself. Seven twelve-year olds carried out self-directed social science research into a topic of their choice. Towards the end of their six months experience, we used a questionnaire and follow-up semi-structured interviews to investigate, from a (...) sociocultural perspective, what the young people thought about being a researcher. Thematic analysis of the interviews identified three themes and eight subthemes suggesting that they were aware of: the need to demonstrate researcher/research integrity ; the need for good interpersonal skills and standards, and good self-management skills (be resilient, agentic, committed and go... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Buddhist-Christian Studies 20 (2000) 278-282 [Access article in PDF] Book Review Buddhist Women Across Cultures: Realizations Buddhist Women Across Cultures: Realizations. Edited by Karma Lekshe Tsomo. Albany: State University of New York Press, 1999. Pp. viii + 326. This collection of essays on women in Buddhism largely succeeds in fulfilling Tsomo's goal of documenting "Buddhist women's actual involvement" in the Buddhist tradition (p. 1). Her introduction provides a very (...) informative and well-supported description of the history and current status of Buddhist women around the world, focusing on Asia but including the West as well. In the introduction and in her essays on women in the Tibetan and Himalayan region and in Buddhist and Christian traditions, she provides a feminist critique of gender discrimination in the Buddhist tradition as well as prescriptions for transforming the existing tradition in ways that would make it more egalitarian. These include "consciously validating women's accomplishments," reinterpreting religious texts with gender sensitive lenses, and the ordination of women (pp. 256-257). The essays in the volume as a whole carry forward Tsomo's examination of both sides of the equation of women and Buddhism--that is, how the Buddhist tradition has treated women overall as well as how women have responded to and are working to alter Buddhism, what Tsomo characterizes as "the ongoing process of women transforming and being transformed by, the tradition" (p. 1). The essays highlight a number of dichotomies in the experiences of Buddhist women, the primary one being that of gender disparities in the status and experience of women. Several essays in the collection detail the hardships that Buddhist women encounter because of gender inequalities that persist to the present day, even in Western cultures. Tsomo's essay comparing the experiences of Buddhist and Christian women in particular illustrates that in most areas, gender-based inequalities are more pronounced in Buddhist contexts than in Christian ones. Tsomo observes that [End Page 278] both traditions have fallen short of their egalitarian ideals, expressed within Christianity as the imago dei (creation in the image of God) and in Buddhism as tathagathagarbha (the seed or essence of Enlightenment present in all sentient beings). While noting that both traditions in general permit women to participate in religious practices on an equal basis with men, that neither legally mandates an inferior status for women, and that the highest stage of religious attainment is the same for both genders, Tsomo finds gender discrimination still functioning in both religions: both Buddhism and Christianity traditionally have assigned subordinate roles to women (especially with respect to monastic life), depict females negatively in scriptures, and generally ignore women's contributions to religious life.Despite these similarities, Tsomo thinks that in most respects Christian women have made more progress in securing equal rights to participate in the religious life of their faith than have Buddhist women. The only reason she provides for the greater extent of change in Christianity is that "Christian women have been far more active than Buddhists" (p. 253). Yet she fails to probe the possible reasons for this disparity in respect to the broader cultural, social, and economic differences in Christian and Buddhist contexts that have fostered a more activist and socially acceptable feminism in the former. The greater gender discrimination in Buddhist cultures has less to do with differences between Christianity and Buddhism per se than it does with other aspects of culture. Unfortunately, Tsomo does not develop the thesis she presents in the introduction to this essay that "Christian women have much to learn from the Buddhist tradition with respect to meditation and that Buddhist women have much to learn from Christian women with respect to service to society" (p. 241). Indeed, it is difficult to understand the basis for the latter claim, given Buddhist women's primary roles as service providers in most Buddhist cultures, unless she is speaking of the so-called socially engaged religious movement. If so, then as other scholars have noted, there are impediments to social action within certain interpretations of the Buddhist teachings themselves that would need to be resolved first. A... (shrink)

This essay illustrates the potential of religion to both oppress and empower women, focusing on the role of Buddhism in Thailand in relation to the trafficking of women for the sex industry. After describing a number of ways that traditional Thai Buddhist culture functions to legitimate the trafficking industry, and thereby deny the human rights of women involved in sexual slavery, I draw on the analogy of Christianity in relation to slavery in the ante-bellum American South to make the case (...) that Buddhist teachings have the potential to oppose and condemn practices of sexual slavery as well as to justify and legitimate them. The essay concludes by discussing what are perhaps the most effective sources for empowering women involved in trafficking within the Thai Buddhist tradition. (shrink)

The debate over religious lawmaking pits respect for religious pluralism against moral identity. Peach contends that both sides of the argument are fundamentally flawed and that neither has addressed the gender-based disparities of religious lawmaking. The book offers a pragmatic solution which will respect religious pluralism, moral identity, and gender differences.

Scholars have recently suggested the desirability of moving the migrant female subject to the center of the analysis of sex trafficking and other forms of women’s cross-border migration. At first glance, this seems to be a progressive move forward in empowering women and protecting their human rights, especially those who have been trafficked for the sex trade or have otherwise migrated for work in the sex industry. However, putting the victim of trafficking into the center of trafficking analysis also creates (...) new problems, especially for the formulation and implementation of law and public policy. In this paper, I will first discuss some of the factors that favor putting the female migrant subject at the center of anti-trafficking, such as recognition and respect for the autonomy of the person that is at the center of trafficking. I will then discuss some of the problems that such a reconfiguration would entail. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

In 1987, apprehension that “unreasonable mistakes of fact” might negative mens rea in sexual assault cases led the Canadian Parliament to enact “reasonable steps” requirements for mistakes of fact with respect to the age of complainants. The role and operation of the “reasonable steps” provisions in ss. 150.1(4) and (5) and, to a lesser extent, s. 273.2 of the Criminal Code, must be reassessed. Mistakes of fact are now largely addressed at common law by jurisprudence that has re-invigorated judicial awareness (...) of the evidentiary requirements for the availability of defences at common law and explicitly defines “honest belief” as a belief that is neither reckless nor willfully blind. As a consequence of these common law developments, the defence of mistake of fact with respect to age is rarely available as a matter of law. Properly used, these common law analytic tools afford minors and under-age sex-workers better legal protection from sexual exploitation than has often been achieved in practice over the last 25 years with the “reasonable steps” requirement under ss. 150.1(4) and (5). -/- Socio-economic inequalities ensure that aboriginal children and youth are disproportionately affected by the non-enforcement, under-enforcement, and selective enforcement of laws enacted to protect minors against sexual assault and participation in sex work. Continued reliance by prosecutors and judges on out-moded jurisprudence in the screening, prosecution, and disposition of these cases in the criminal justice system reinforces existing patterns of inequality and disadvantage and violates basic principles of human rights. (shrink)

Only rarely have feminist theorists addressed the adequacy of just -war theory, a set of principles developed over hundreds of years to assess the justice of going to war and the morality of conduct in war. Recently, a few feminist scholars have found just -war theory inadequate, yet their own counterproposals are also deficient. I assess feminist contributions to just -war theorizing and suggest ways of strengthening, rather than abandoning, this moral approach to war.

From the early modern period to well into the eighteenth century, cattle plagues, murrains, or what were called “great cattle mortalities” were often analogized to bubonic plague; felling animals in devastating numbers, these catastrophes likewise afflicted living creatures on a grand scale. Three Enlightenment cattle pandemics (1709–1720, 1742–1760, and 1768–1786) propelled governments across Europe to enact harsh regulatory measures, including widespread slaughters, quarantines, and major disruptions of trade. This article examines works by Theophilus Lobb, Richard Bradley, Nathaniel Hodges, and Daniel (...) Defoe, among other writers and physicians, who responded differently to the ways in which human and animal health were biophysically and imaginatively linked. (shrink)

This thesis challenges prevailing approaches to religiously-based or influenced laws , and proposes an alternative model that makes religious pluralism, gender, and moral identity central considerations. I focus my analysis around abortion as a case study in order to analyze the gendered dimensions of the issue in addition to other, more well-recognized problems with religious lawmaking. ;My overarching thesis is that the prevalent approaches to religious lawmaking in the Supreme Court's jurisprudence, as well as in liberal and communitarian moral and (...) legal theory, are inadequate. Liberal approaches tend to protect religious pluralism at the expense of the religious identity of lawmakers, whereas communitarian proposals protect the religious morality of lawmakers at the expense of respect for religious pluralism. Both approaches are also inadequate, I contend, because they are premised upon faulty conceptions of moral identity, and fail to adequately consider the potential of religious lawmaking to perpetuate inequalities based on gender as well as religion. My arguments regarding deficiencies in these approaches are reinforced with empirical evidence regarding abortion views held by American religious groups, as well as the self-descriptions of a number of lawmakers regarding the influence of religion in their decision making. ;In developing alternative ethical and legal frameworks for addressing religious lawmaking, my analysis proceeds along both theoretical and practical lines. On the theoretical level, I propose that the conceptions of the social self and role-based morality developed by the twentieth century pragmatist philosopher George Herbert Mead, as supplemented by feminist and poststructuralist perspectives, provide the basis for a preferable ethical approach to religious lawmaking. ;On the practical level, I develop a legal framework that requires government in qualified challenges to religious lawmaking to show that the law can be fully supported on the basis of publicly accessible reasons and, in some instances, also by a compelling state interest. I explain how this proposal can accommodate the interests of religious lawmakers in relying on their religious convictions in their political and legal decision making, while insuring that the citizenship rights of their constituents are not thereby harmed. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Portraits of Buddhist WomenLucinda PeachPortraits of Buddhist Women. By Ranjini Obeyesekere. Albany: State University of New York Press, 2001. 231 pp.This book is a translation of part of the Saddharmaratnavaliya (Jewel Garland of the True Doctrine; hereafter SR ), a thirteenth-century Sinhala translation of the Dhammapada (hereafter DA ), a fifth-century Buddhist text. Out of the entire collection of 360 stories contained in the SR, this book includes (...) twenty-six that have women as central characters.The author succeeds in part with her stated purpose to "illuminate the position of women in the early-medieval Buddhist worlds of India and Sri Lanka" as well as to "provide insights into shifting stances over time on issues of sexuality and gender" (p. 1), despite the lack of any necessary correlation between gender images and the actual status of women in a particular social location. As Obeyesekere points out, although the stories themselves are not focused on gender, their contexts in the "everyday world" of their fifth- and thirteenth-century authors do shed light on women's lives and social status. The stories she has selected for the volume portray women in a wide range of roles, including not only the ideal normative ones of wives and mothers, but also those of daughters, courtesans, servants, queens, nuns, and wandering ascetics.Obeyesekere claims that the particularities in these narratives "reflect the status, intelligence, management, and organizational skills of women that were permitted full play in the social worlds to which they belonged" (p. 11). This claim is borne out by several passages in the text, such as the narrative of Kundalakesi, which has a deity state that "it is not men who always have the best stratagems.... [In] certain situations women too know what to do" (p. 120).Furthermore, women's capabilities and talents are sometimes recognized by the men in the narratives. Visakha's grandfather chooses her to escort the Buddha and arrange accommodations for the enormous entourage that accompanied her betrothed. Samavati's adopted father, Ghosaka, unquestioningly accepts her advice on how to organize an alms-hall (to prevent quarreling) and how to deal with the King's (unreasonable) demands. After she has "shed the three evils of belief in self, doubts, and erroneous beliefs and practices," Khujjuttara preaches a sermon "exactly as the Buddha has done" (p. 63) and becomes the teacher of Samavati and her five hundred attendants.However, Obeyesekere also notes the antifeminist elements that are sprinkled throughout the text. The statements in the narrative of Visakha that "women who run are most unattractive" and will meet with criticism and ridicule for having no feminine grace and acting in a manner not befitting for a woman (pp. 84-85) reveals how restrictive gender-role norms were in thirteenth-century Sri Lanka. A woman's body is described as a polluted lump of flesh in the Udeni cycle (a collection [End Page 289] of five related narratives); here the Buddha is said to describe woman's body as a "container with its nine orifices filled with feces and urine" that "I would be disgusted even to wipe my feet on... as I would on a door mat" (p. 12; see also p. 54). Comparisons to women are used to criticize men, as when King Udeni tells King Candapajjota's guards (after the latter king has locked up the former seemingly indefinitely after capturing him) that "Your kind does what even women would not do..." (p. 48). This comparison indicates that women are not honorable and trustworthy, but willing to impose extended and unnecessary suffering on their victims.Other antifeminist elements in the SR include the backhanded compliment to Visakha that "though born a woman (and women are of limited vision), and though forced to associate with people who were of the right caste but held wrong beliefs, yet she herself did not lack vision" (pp. 14, 79). This sentiment about women in general is consistent with the widespread belief in popular Buddhism that men are more highly evolved on the cosmic chain than are women.This view is illustrated in the narrative of Soreyya, who transforms from a male to a female form when he... (shrink)

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and are grounds for removal from the bench. Examples analysed are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier in R (...) v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five year old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen year old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged. (shrink)

The exculpatory rhetorical power of the term “honest belief” continues to invite reliance on the bare credibility of belief in consent to determine culpability in sexual assault. In law, however, only a comprehensive analysis of mens rea, including an examination of the material facts and circumstances of which the accused was aware, demonstrates whether a “belief” in consent was or was not reckless or wilfully blind. An accused's “honest belief” routinely begs this question, leading to a truncated analysis of criminal (...) responsibility, and error. The problem illustrates how easily old rhetoric perpetuates assumptions that no longer have a place in Canadian law. (shrink)

This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a collective societal (...) responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length (...) in “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

Despite amendments to the sexual assault provisions in the Criminal Code, decisions about the availability and operation of the defence of belief in consent remain vulnerable to the influence of legally extraneous considerations. The author proposes an approach designed to limit the influence of such considerations.

This is a review and critical commentary on Michael Plaxton's 2015 book, Implied Consent and Sexual Assault, in which he proposes that the legal definition of sexual consent be amended to permit sexual partners to define the terms and conditions of sexual consent in accordance with private "normative commitments" between themselves. The proposed "reform" is intended to permit an individual to agree to be a party to sexual activity that would otherwise constitute sexual assault under Canadian law. For reasons explained (...) in the review, this reviewer concludes that Plaxton's proposal and the rationale he presents in support of its adoption are unpersuasive. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether (...) a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

The practice of screening potential users of reproductive services is of profound social and political significance. Access screening is inconsistent with the principles of equality and self-determination, and violates individual and group human rights. Communities that strive to function in accord with those principles should not permit access screening, even screening that purports to be a benign exercise of professional discretion. Because reproductive choice is controversial, regulation by law may be required in most jurisdictions to provide effective protection for reproductive (...) rights. In Canada, for example, equal access can, and should be, guaranteed by federal regulations imposing strict conditions on the licences of fertility clinics. (shrink)

Jacob Böhme (1575–1624) has been recognized as one of the internationally most influential German authors of the Early Modern period. Even today, his writings continue to impact fields as diverse as literature, philosophy, religion and art. Yet Böhme and his reception remain understudied. As a lay author, his works were often suppressed and circulated underground. Borrowing Böhme’s idea of “three worlds” or planes of existence, this volume traces the transmission of his thought through three stations: from his first underground readers (...) in Central and Eastern Europe, to the Netherlands, where most of his writings were first published, to Britain, where early translations made him a popular author for generations to come. Drawing on the work of both established and younger researchers from around the world, this volume charts new territory. It fills many lacunae and reveals a number of exciting discoveries, especially regarding the production and diffusion of manuscripts and previously overlooked sites of engagement. This book will be of interest to a wide range of scholars interested in the development of philosophical, religious, literary and artistic thought from the 17th century to the present day. (shrink)

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded on (...) sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are (...) worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)