Lessons from India on Sex-Selective Abortions?

Thursday, May 19, 2016


Sex-selective abortion has received some media attention recently because of a study that found some couples in Canada are practicing prenatal sex selection, that is, aborting female fetuses because of a preference for male children.[1] Related studies, published in the Canadian Medical Association Journal found a higher-than-expected ratio of boys to girls born to immigrants from India over the past two decades. Researchers linked this phenomenon to preceding abortions.[2] This gender imbalance was particularly striking among families that already had two daughters.[3]

This observation has prompted some to call for legislation banning sex-selective abortions.[4] While I lament the idea of a female fetus being aborted simply because of a desire to have a male child, I find it hard to restrict abortion for whatever reason in a country where feminists have fought hard for a woman’s right to control her body. There may be lessons that Canada can learn from India where sex-selective abortions have been legally prohibited since 1994.[5]  

In India, the fight for a woman’s right to abortion has never existed because abortion has been available since 1971 as a desired method of population control imposed by the Indian government. Indeed the Indian women’s movement has fought vigorously for a woman’s right to control her body, which has manifested itself in the right to be free from untested and dangerous contraceptive measures and unwanted sterilization. In spite of its notable achievements, the Indian women’s movement remains predominantly urban and middle class. Despite a certain degree of awareness of women’s internal differences as a group, the Indian feminist movement has assumed that the occurrence of patriarchy in all women’s lives has been experienced similarly. This resulted in a feminist campaign to legally prohibit sex-selective abortion that, in my view, seriously undermines the position of poor Indian women by insisting upon a broader project of feminine emancipation that has consistently obstructed and repressed their choices.[6] 

Poor Indian women and Indian feminists are not necessarily in agreement on all issues of empowerment. The distinction between caste and class privilege among women is a significant variance that obscures any single and clear route to a politics that is both liberatory and anti-patriarchal. In 1996, the government of India outlawed pre-natal sex determination tests making it illegal to advertise or perform these tests (with a few exceptions), and punishing doctors, relatives who encourage the tests and the woman herself with fines from ten to fifty thousand rupees (nearly two hundred to one thousand Canadian dollars) and jail terms from three to five years.[7]

Such legal measures have been shown to be mostly ineffective as the offence cannot be easily proven because the woman, her husband and other family members would not disclose the facts easily. The medical practitioner would similarly not co-operate in an investigation where s/he would also be prosecuted. The impact of such legislation has been the greatest on the poor. The rich can pay for discreet clinics and abortions, while poor women will either be forced to bear unwanted children or prenatal sex determination will be pushed underground. Indeed clinics have sprung up in working class areas and slums offering prenatal sex determination at “cut-rate prices” and playing on the fear of dowry with such slogans as “Better 500 rupees now than 500,000 later”.[8] Legal prohibition has had the negative effect of promoting prenatal sex testing as a justifiable form of profit making.  

Many Indian feminists view this restrictive legislation as an important and progressive strategy toward social change. A political implication that remains however, is that the law necessarily entails limiting a woman’s right to abortion, hence her ability to have control of her body.

Because Indian women are hailed and appreciated upon bearing male offspring, in choosing to abort female fetuses they are in fact, making the rational choice to protect their dignity and bodily integrity. Indian women are faced not only with intense emotional pressure and hostility from their in-laws to produce male offspring, but they are additionally threatened by the prospect of divorce, being thrown out of their homes or being beaten by their husbands if they produce yet another daughter or fail to conceive a son. Prenatal sex determination may for these women be the lesser of two evils. If Indian women have a found a solution, albeit temporary, to avoiding the immediate threat of physical harm, social disapproval and alienation, and they cannot be offered a safer and more fruitful alternative, why should they willing give up their right to imagine themselves as they see fit, with or without female children?  

The limited context of choice for poor Indian women, which leaves them few options for subversive action, may well justify the sex-selective abortion of female fetuses. This is not to suggest that the feminist position on the selective abortion of female fetuses is unjustifiable, but that the women’s movement must fundamentally revisit the method of its campaign against women’s oppression on this issue.

The key to preventing sex-selective abortion lies not in banning prenatal sex determination tests but in improving the status of women generally. What is critical is changing attitudes and the value of women in society. This is not a “law and order” problem, but a larger more difficult emancipatory project. We must utilize non-legislative methods of combating female feticide and improving women’s actual lived conditions, a strategy that entails empowering women through accessible health care and education, employment opportunities and social security. This would be more effective in battling age-old prejudices against young girls but would also not infringe upon women’s right to control their own bodies.

The kind of transformation that Indian feminists have sought, namely the revaluation of the feminine cannot be found merely in the law.[9] That kind of fundamental change must simultaneously be sought in alternatives to the legal discourse. Feminists must engage in a dialogue with their poorer sisters. To impose a legal ban that prohibits and punishes their actions is to ignore the nuances of class and to disregard the real life circumstances under which these women struggle.

Canadians may wish to consider the Indian experience before imposing heavy-handed restrictions that curtail a woman’s physical and mental security and do little to change deep-rooted beliefs. It is possible to be against the practice of female feticide because it preserves the devaluation of the feminine and not agree that women’s control over their bodies should be restricted. My proposal is not one of relativistic resignation; instead it proposes a challenge of politically convincing women not to abort their female fetuses while simultaneously accepting the decisions and rights of all women to control their own bodies.

Front line workers in Canada have already seen signs of shifting attitudes and behaviours. Ninu Kange of Mosaic, an immigrant and refugee settlement organization in Vancouver has found that the preference for male children decreases as families recognize that females have greater opportunities and are more empowered in Canadian society.[10] Other communities are proactively challenging male preference by for example, celebrating the Punjabi festival of Lohri, which is traditionally held by some in honour of the birth of a boy, for their daughters as well.[11] 

A narrow eye toward a broader vision of greater good may in fact unconsciously duplicate oppression. We must vigorously oppose the oppression and devaluation of women, but not in a way that thwarts women’s control of their own bodies.

[1] Despite a lack of conclusive Canadian figures, many health experts agree female feticide is a small, but serious, problem among some immigrant groups. Wendy Leung, “Some couples in Canada practising prenatal sex selection in favour of male fetuses, studies suggest” The Globe and Mail (11 April 2016), online: Globe and Mail <http://www.theglobeandmail.com/life/health-and-fitness/health/some-couples-in-canada-practising-prenatal-sex-selection-in-favour-of-male-fetuses-studies-show/article29583670/>.
[2] See Marcelo L. Urquia et al., “Sex ratios at birth after induced abortion” (2016) Canadian Medical Association Journal doi: 10.1503/cmaj.151074, online: CMAJ <http://www.cmaj.ca/content/early/2016/04/12/cmaj.151074.full.pdf+html>;
[3] Among Indian-born mothers, the proportion of males increased with the number of children born. By the third birth, 138 boys were born to Indian-born mothers for every 100 girls, and by the fourth birth, 166 boys were born to every 100 girls. Supra note 1.
[4] In-vitro sex selection is banned in Canada, but in utero or sex selective abortion is not. Dr. Rajendra Kale has stated that Canada should ban fetal sex disclosure to all pregnant women before seven months, when it is too late for an abortion. Michel Viatteau, “Keep sex of fetuses a secret to prevent selective abortion of girls: Canadian Medical Association Journal” National Post (16 Jan 2012), online: National Post <http://news.nationalpost.com/news/canada/canada-is-haven-for-parents-seeking-sex-selective-abortions-medical-journal>.
[5] Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, Parliament of India, Act No. 57 of 1994, 20 September 1994. The act was amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act to improve the regulation of the technology used in sex selection. It brought ultrasound and the technique of preconception sex selection within its ambit.
[6] Natasha Bakht, (Re)Producing Reproduction: The New Feminist Politics of Sex-Selective Abortions in India (MA Thesis, Queen’s University Political Studies, 1998) [unpublished].
[7] The criminalization of women in this context is particularly problematic as much of the evidence suggests that women are not necessarily the ones seeking sex-selective abortion, but may feel pressured to do so by their families. In India see for example: Odessa Gorman Stapleton, “Prohibiting Amniocentesis in India: A Solution to the Problem of Female Infanticide or a Problem to the Solution of Prenatal Diagnosis” (1990) 14 ILSA Journal of International Law 23. In Canada see, Shree Mulay supra note 1 and Interview of Kripa Sekhar, executive director of the South Asian Women’s Centre by Anna-Maria Tremonti (13 April 2016) on The Current, CBC Radio, Toronto, CBC Radio Archives, online: <http://www.cbc.ca/radio/thecurrent/the-current-for-april-13-2016-1.3533281/indo-canadian-couples-choosing-sons-over-daughters-study-1.3533292>.
[8] The preference for sons in India is strongly linked to the practice of dowry, which enforces that daughters be seen as liabilities and sons viewed as assets. Though the giving of dowry has been legally forbidden since 1961, it is common knowledge that an economically crippling price is expected, frequently named and ruthlessly exacted from the parents of the bride with threats of violence to their daughter if it is not.
[9] The feminist movement in India has appreciated the potential role of the law in seeking a broad strategy for challenging the inferior position of women. Indeed the symbolic potential of the law in people’s lives has ensured that the issues of rape and dowry have become matters of public and political interest. However, this same approach when applied to the situation of sex-selective abortion results in a politically contradictory, philosophically incoherent and legally dangerous strategy.
[10] Supra note 1.  
[11] Interview of Simi Gill, found of Lohri for Her celebration by Anna-Maria Tremonti (13 April 2016) on The Current, CBC Radio, Toronto, CBC Radio Archives, online: <http://www.cbc.ca/radio/thecurrent/the-current-for-april-13-2016-1.3533281/indo-canadian-couples-choosing-sons-over-daughters-study-1.3533292>.

#Jordansprinciple action tomorrow

Monday, May 9, 2016

As you know, on January 26th, 2016, the Canadian Human Rights Tribunal released a historic decision finding that the government of Canada was racially discriminating against 163 000 First Nations kids in its provision of child welfare services on reserves and in the Yukon. It also found that jurisdictional disputes between and within different levels of governments cause First Nations kids, like Jordan Anderson, to be denied or experience delays when seeking to access essential government services other Canadians take for granted and that this amounts to discrimination under the Canadian Human Rights Act. (You can read about Jordan's tragic story here) In its January 26 decision, the Tribunal ordered the government to cease discriminating against First Nations kids immediately. 

In a subsequent Doucet-Boudreau style order issued on April 26, 2016, the Tribunal reminded the government of Canada of its January 26 order and asked it to report back in two weeks - on May 10th - on what it has done to ensure that First Nations kids no longer experienced discrimination as a result of jurisdictional disputes. The Caring Society is organizing a campaign to mark this historic day. This Tuesday May 10, to commemorate Jordan's memory and support the implementation of Jordan's Principle, we ask you to Bear Witness by taking your favorite teddy bear to school or work. If you are on twitter or Facebook, please share your pictures of you and your bear using hashtag #Jordansprinciple If you aren't on social media, you can make a difference by telling your coworkers and colleagues about Jordan's Principle and sharing this email to help spread the word. 

Here is more information:  www.jordansprinciple.ca

Thanks in advance for your support! It means the world to us! 

In solidarity, 

Anne Levesque

The Ghomeshi decision: Justice Horkin earns a C on this law school exam

Tuesday, May 3, 2016

The Ghomeshi decision:  Justice Horkin earns a C on this law school exam!

There has been much written about the impact of the decision in R v Ghomeshi  on the brave women who came forward in that case, on sexual assault complainants generally and on the attractiveness (or lack thereof) of a criminal justice response to the pervasive crime of sexual assault.  At uOttawa’s Faculty of Law I teach both Sexual Assault law and first year Criminal law.  I thought it useful to look at the written reasons for judgment by Justice Horkins and assess them not for their dire consequences for sexual assault law generally, but more specifically as reasons for judgment – reasons for HIS judgment.  How did he come to the decision he did?  He had much to say about the complainants’ credibility, but how specifically did their failings affect his legal analysis? This is in other words—“Criminal law 101” of sexual assault.  Assuming Jian Ghomeshi’s actions were the hypothetical in a first year law school exam, how would I grade the effort?

The only bits of law offered by the Judge are a definition of what makes an assault a “sexual assault” and a description of what constitutes reasonable doubt. 

No where in his judgment does he lay out the constituent pieces of what makes a “sexual assault”.  That is:

The Actus Reus:
-that there was touching of a sexual nature
-without the subjective consent of the complainant;

and the Mens Rea:
-that the accused intended to touch and did so knowing, or being reckless, or willfully blind to the complainant’s lack of consent.

These are the basic, core components of a sexual assault.  None were addressed in Judge Horkin’s set of reasons.  Let us first consider his approach to the Actus Reus of the crime:  the criminal act.  He seems to accept that the touching was, at face value, sexualized.  He never suggests outright that sexualized touching did not happen.  Therefore, the first step in establishing the criminal act of sexual assault is present.  But he never addresses whether in his mind the complainants’ (any of the three of them) were subjectively consenting to the touching.  He comes to no conclusion on whether the criminal act occurred (or not) because he does not consider the second part of the test. 

I assume—and it is not good when one has to make assumptions from a written set of reasons, but still, I assume that the Judge had reasonable doubt around the complainants’ subjective lack of consent to the touching.  That makes the most sense given his obsession with their post-incident conduct with Ghomeshi.  It is worth emphasizing that while many other instances of sexualized contact were referred to by the judge (and elicited from the complainants in cross-examination), the Judge should NOT have considered whether the complainant’s subsequent sexual contact (for example the “hand job” performed by complainant SD) had any bearing whatsoever on whether she consented to the subject-incident of the charge—ie. Whether Ghomeshi choked her while kissing her on a bench at a baseball diamond). 

If the judge had forced himself to stick to the incidents that were the subject of the charges, he should have directed his mind to the subjectivity of their consent to the specific allegations:

-that SD was choked while also being kissed on a bench at a baseball park
-that Lucy DeCoutere was choked and slapped after an “out of the blue” kiss
-that LR’s hair was yanked both in Ghomeshi’s car and on a different occasion she was punched in the head several times and pushed (Or pulled) to her knees at Ghomeshi’s home. 

Only once in the judgement does the Judge offer any opinion as to whether the complainants were credible on the specific descriptions they offered.    At paragraph 106 of his reasons, he reviews the description offered by SD, specifically illustrating her “lack of precision, in responding to a question about how long Ghomeshi’s hands were around her neck, she offered “Seconds, A few seconds, Ten seconds…It’s hard to know.”  To Judge Horkin’s this was damning “imprecision”. 

That is all that the Judge had to say in questioning the complainants’ specific descriptions of their assaults.  Does he doubt either that they had been struck or pushed or pulled; or does he doubt that they objected to it??  Does he have reasonable doubt that if they consented to this conduct, it did not therefore rise to a level of bodily harm that one cannot legally consent to?   We don’t know from this set of reasons.
All of them described that the acts happened suddenly, randomly, “out of the blue”, in a flash of rage—ie. In a context where they could not have been given a chance to object or consent.  The Judge does not address this issue.

I acknowledge that the entire set of reasons is ultimately based on the judge’s decision the women are liars.  The cumulative impact of the 24 pages is a devastating indictment of the woman as deceptive, insincere media hounds.  He thinks they are liars and so therefore, they could have lied about the attacks.  It is true that they could be women who have lied—haven’t we all.  But I think that it was incumbent on him to point to the lies they told about the specific allegations.  As far as I can tell, no one ever shook them from their stories of violence at the hands of Jian Ghomeshi.  Not even Marie Heinan was able to get them to recant the core allegations that formed the basis for the charges. This means that the actus reus of the charge should have been substantiated.  If it wasn’t, the Judge should have specifically raised his doubts about what elements of the violence he believes did not happen. 

It also concerns me that in discussing the flowers Lucy DeCoutere sent Ghomeshi, Judge Horkin’s admonishes that this was “clearly relevant and material information in the context of a sexual assault allegation”.   Relevance and materiality are at the core of a Court’s definition of admissible evidence.  How do we define these concepts in law?  
As follows:
Relevance: “does the evidence make a fact in issue more or less likely to be true?”
Materiality: is the evidence “directed at a matter in issue in the case?”

I think it is certainly legally debatable whether it is relevant and admissible to whether Lucy Decoutere was choked and slapped that she sent him flowers after the fact.  How do the flowers make the “fact at issue”—ie the choking or hitting, more or less likely to be true?  How does that go to her subjective consent to that act at the time such that it is material to the issue of actus reus?  But even if a good defence lawyer argued it, the Judge insists that Decoutere herself should have known the flowers were relevant and material (even as he acknowledges it might not be “unusual” behaviour to have sent them).  How could she be presumed to know about admissibility of evidence standards?  If it isn’t something he is willing to call “unusual” (which he is careful to avoid for fear of being accused of stereotyping victims), than how could she have known it was “relevant and material”. 

There are many other objectionable pieces in the judgment that I would have criticized in a law school exam—the focus on animus for example is disturbing and suggests the judge thought the women should not have hated Ghomeshi for what he did to them.  I find it odd that given the Judge’s obsession with the complainants’ post-incident conduct, he did not come to the opposite conclusion that animus proved Ghomeshi must have have assaulted them!  If after-the-fact they hated him that much, by the Judge’s reasoning, that should have been probative. 

I would also argue that had the judge come to the conclusion that the criminal act occurred—ie. that the elements of the actus reus were proven—he should then have turned his attention to the state of mind of the accused.  Did Ghomeshi know he did not have consent to hit, push and pull the complainants?  Did he take reasonable steps to ascertain whether the women were consenting to his violence?  And is it even possible, in law, for someone to consent to violence that causes bodily harm?  These are important legal questions that should have been answered in the set of reasons.   Justice Horkins is fuzzy enough in terms of Criminal law doctrine to have earned at best a C from me on a law school exam. 

Designed by Rachel Gold.