Language, Law and Social Power: Seaboyer; Gayme v. R. and a Critical Theory of Ideology

MICHAEL D. SMITH

ABSTRACT

Over the last 20 years, the issue of male sexual violence has been a crucial point of mobilization for the women's movement, and law has been one of the important sites for this struggle. Although feminist agitation for the reform of sexual assault law has met with periodic success, legislative victories have often been nullified in subsequent litigation. This pattern suggests that judicial conservatism remains a significant impediment to progressive social change. To illustrate this point, the author considers the approach taken by the Supreme Court of Canada in Seaboyer; Gayme v. R., the controversial "rape shield" decision. Drawing on critical social theory, the author uses the concept of ideology to demonstrate how the majority judgment, as a form of ideological discourse, serves to reinforce the subordinate status of women. By challenging the legitimacy of the common-sensical assumptions and discursive strategies embedded in this legal text, the author seeks to undermine the presumptive authority and factitious neutrality that commonly mystify the judicial manufacture of truth.

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Citation: (1993) 51(1) U.T. Fac. L. Rev. 118.
Copyright © 1993. University of Toronto Faculty of Law Review.
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