Remembering Judge Himel: Bold assertions and inflammatory language not useful to the court

Last week I spent most of a day watching the Supreme Court’s hearing of arguments on Canadian prostitution law, the upshot of four years of legal battling since the Ontario Superior Court of Justice’s 2010 decision that it was unconstitutional. (I tweeted the event, look here on 13 June). While studies of different kinds were sometimes mentioned at the Supreme Court, no so-called experts (on the basis of academic-style research) spoke. This contrasts with what happened at the original trial.

In October 2010 I ran excerpts from Judge Himel’s decision on her experience and understanding of opposing expert opinions about the harm of prostitution on society and the harm of the law on those who sell sex. I have the impression Judge Himel was appalled by some of the declaiming she heard, and I am surprised the anti-prostitution witnesses did not think about moderating their strident tone before appearing in a High Court. Before I write about the Supreme Court hearing, here again are the excerpts. Himel’s thinking is interesting to people interested in the idea of evidence – what qualifies, how it’s evaluated. Or read her full decision. Before discussing experts’ views she addresses conflicting evidence from women who sell sex.

Evidence from Prostitutes and Former Prostitutes

[85] The applicants submitted affidavits from eight witnesses who described their perceptions and experiences of working as prostitutes. During oral argument, the applicants’ counsel submitted that the purpose of these witnesses was to provide “corroborative voices” . . . [86] The affiants came from varied backgrounds and from across Canada, but largely shared the experience of finding prostitution in indoor venues generally safer than street prostitution (indeed, a few experienced no violence at all working indoors). . . they entered into prostitution without coercion (although financial constraints were a large factor) and most reported being addiction-free and working without a pimp.

[87] The respondent tendered nine affidavits from prostitutes and former prostitutes, whose stories painted a much different picture. The respondent’s witnesses gave detailed accounts of horrific violence in indoor locations and on the street, controlling and abusive pimps, and the rampant use of drugs and alcohol.

[88] While this evidence provided helpful background information, it is clear that there is no one person who can be said to be representative of prostitutes in Canada; the affiants are an extremely diverse group of people whose reasons for entry into prostitution, lifestyles, and experiences differ.

Expert Evidence

[99] While neither party disputed that the other party’s witnesses were, in fact, experts, a great deal of argument and evidence was devoted to criticizing these witnesses. Both parties alleged that certain experts were biased, that conclusions were generalized beyond the sample studied, that studies were methodologically flawed . . .  [114] The following factors are relevant to the consideration of the weight to be given to expert evidence:

  • a) Unwillingness of the expert to qualify an opinion or update it in the face of new facts provided (often in cross-examination);
  • b) Bold assertions without a properly outlined basis for the claim;
  • c) Refusal to restrict opinions to expertise or the expertise demarked by the judge as required by the court;
  • d) Lack of sufficient independence from the party proffering the expert; and
  • e) Prior history as an advocate on the topic.

[182] In reviewing the extensive record presented, I was struck by the fact that many of those proffered as experts to provide international evidence to this court had entered the realm of advocacy and had given evidence in a manner that was designed to persuade rather than assist the court. For example, some experts made bold assertions without properly outlined bases for their claims and were unwilling to qualify their opinions in the face of new facts provided. While it is natural for persons immersed in a field of study to begin to take positions as a result of their research over time, where these witnesses act primarily as advocates, their opinions are of lesser value to the court.

[183] The evidence from some of these witnesses tended to focus upon issues that are, in my view, incidental to the case at bar, including human trafficking, sex tourism, and child prostitution. While important, none of these issues are directly relevant to assessing potential violations of the Charter rights of the applicants.

[352] I find that some of the evidence tendered on this application did not meet the standards set by Canadian courts for the admission of expert evidence. The parties did not challenge the admissibility of evidence tendered but asked the court to afford little weight to the evidence of the other party.

[353] I found the evidence of Dr. Melissa Farley to be problematic. Although Dr. Farley has conducted a great deal of research on prostitution, her advocacy appears to have permeated her opinions. For example, Dr. Farley’s unqualified assertion in her affidavit that prostitution is inherently violent appears to contradict her own findings that prostitutes who work from indoor locations generally experience less violence. Furthermore, in her affidavit, she failed to qualify her opinion regarding the causal relationship between post-traumatic stress disorder and prostitution, namely that it could be caused by events unrelated to prostitution.

[354] Dr. Farley’s choice of language is at times inflammatory and detracts from her conclusions. For example, comments such as, “prostitution is to the community what incest is to the family,” and “just as pedophiles justify sexual assault of children….men who use prostitutes develop elaborate cognitive schemes to justify purchase and use of women” make her opinions less persuasive.

[355] Dr. Farley stated during cross-examination that some of her opinions on prostitution were formed prior to her research, including, “that prostitution is a terrible harm to women, that prostitution is abusive in its very nature, and that prostitution amounts to men paying a woman for the right to rape her.” [356] Accordingly, for these reasons, I assign less weight to Dr. Farley’s evidence.

[357] Similarly, I find that Drs. Raymond and Poulin were more like advocates than experts offering independent opinions to the court. At times, they made bold, sweeping statements that were not reflected in their research. For example, some of Dr. Raymond’s statements on prostitutes were based on her research on trafficked women. As well, during cross-examination, it was revealed that some of Dr. Poulin’s citations for his claim that the average age of recruitment into prostitution is 14 years old were misleading or incorrect. In his affidavit, Dr. Poulin suggested that there have been instances of serial killers targeting prostitutes who worked at indoor locations; however, his sources do not appear to support his assertion. I found it troubling that Dr. Poulin stated during cross-examination that it is not important for scholars to present information that contradicts their own findings (or findings which they support).

[358] The applicants’ witnesses are not immune to criticism. . . During cross-examination, Dr. Lowman expressed discontent with portions of his affidavit, citing “careless” language and “poorly reasoned argument.” Dr. Lowman rightly takes responsibility for the content of his affidavit, which was drafted for him by law students. In his affidavit, Dr. Lowman made a direct causal link between the Criminal Code provisions at issue and violence against prostitutes; however, during cross-examination he gave the opinion that there was, rather, an indirect causal relationship. Such inattentiveness on such a crucial issue is indeed concerning. During cross-examination, Dr. Lowman gave nuanced and qualified opinions, which more accurately reflect his research.

–Laura Agustín, the Naked Anthropologist

26 thoughts on “Remembering Judge Himel: Bold assertions and inflammatory language not useful to the court

  1. Pingback: Ontario | Prostitution Laws | Evidence | Research | Border … college university

  2. Dave

    I cannot fathom the concept that someone can advocate a ban on an activity that someone else wishes to voluntarily engage in by simply declaring that the activity cannot possibly be voluntary. In the new world where women are supposed to be empowered to make their own choices, why are there so many other women out there trying to restrict their options?

    It seems to me that laws that throw obstacles in the path of those trying to make a living in prostitution fall disproportionately hard on those who really want to obey the laws and barely affect those who regularly operate outside the law. These laws harshly impact those who are not being coerced in order to impose some small inconvenience on those who really do victimize women.

    Of course, if the ultimate goal is to stamp out all prostitution, then who gets hurt is inconsequential and the position of the law’s advocates makes perfect sense.

  3. Dave

    Maybe I’ll go to Sweden and start campaigning to turn their system around and make selling sex illegal and buying legal. I mean, who do these women think they are that they can prey off of a man’s sexual appetite for monetary gain? After all, the powerful male sex drive is a result of millions of years of evolution where that specific characteristic played a dominant roll in the very survival of the species. So, the way I see it, by a quirk of the evolutionary process, men are now being victimized by women who wantonly play off of that innate weakness to suck their bank accounts dry and leave them destitute. And on top of all that, women have actually convinced the world that it’s men who should be ashamed! Men are clearly being oppressed.

    So, what do you think are my chances for success with this bold plan? hahaha!

  4. Maxine Doogan

    I am not surprised that the anti-prostitution witnesses did not think strategically about moderating their strident tone before appearing in a court of law.

    Why should they have? For years it’s been that they’ve gotten away with their rancorous tone in public venue after public venue.

    Actually what they’ve done works in our favor, on several levels. In speaking to folks after they’ve been exposed to it, they all express the same sentiments; that there is something wrong with that person and what they’re saying. On the Prop K campaign trail, one of those researchers spoke at one of the first endorsement meetings in front of a San Francisco urban development group and was never seen again at other endorsement meetings.

    I hope they don’t completely go away. In this case as in others, they’re one of our best weapons to stop the oppression against us.

  5. Laura Agustín

    dave, you’ve described exactly what the system was *before* the prostitute was designated a victim, and that was only a couple of hundred years ago. and if you look at news items here with the africa tag you’ll see that in some parts of the world this idea is still alive and well.

    maxine, i just thought they were clever enough to put winning a court battle above venting their real feelings!

  6. Jill Brenneman

    It is so cliche, the rad fem strident aggressive verbiage in a false effort to show the world how committed and forceful they are as advocates. Farley and Raymond were likely to be shocked that their bs didn’t fly like it does in the US.

  7. Dave

    That’s an interesting link. I used to live in Nevada and know of the fences they put around brothels (at least the Mustang Ranch). It is indeed for the security of the people who work there and to suggest it was to keep the women in demonstrates that the witness was totally ignorant or he was willfully lying to the court hoping no one would notice. If these people had any interest in credibility they would be more inclined to verify their claims. I don’t think credibility matters to them because they are not appealing to people’s brains. They are targeting people’s emotions.

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  9. Maxine Doogan

    I have images in my movie, Legalization Sucks of the chain link fence with barbed wire and women sitting inside of it dressed in burka’s because that is the image the brothel worker described her work condition.

    The issue of who’s keeping who in and who’s keeping who out isn’t the issue.

    At issue is the lack of worker voices. At issue is the practice of researchers with political axes to grind on our asses at our expense, giving false and misleading testimony to a judge in a court proceeding.

  10. Pingback: Love Bites: Clarisse Thorn | Time Out Chicago » » Canadian judge actually has a rational opinion on sex work!

  11. Otro Baboso

    If I can be allowed to blather a bit before coming to a point: Priscilla Alexander pointed out in an essay that as women started win more rights and exercise more power, the restrictions on prostitutes increased. For example, the banning of brothels in the US west coincided with the rise of the woman’s suffrage movement.

    Some group of clever researchers recently published research that seemed to show that people choose their sexual morals based on their preferred reproductive strategy. Behavior isn’t driven by morals, but rather morals are a way of getting other people to act in ways that make your own reproductive strategy more successful. So if your reproductive strategy is to have a single sexual partner and to bind that partner to you in a way that makes them a reliable source of childrearing support and resources, then you don’t want other people choosing a strategy that involves having multiple sexual partners. A good way to do that is to make having multiple sexual partners immoral.

    And a final observation is that prostitutes are starting to have some success in challenging legal restrictions at a time when large numbers of women are becoming wealthy enough to consider raising children without support from a partner.

    t seems a reasonable hypothesis that a lot of the current legal restrictions on prostitution were created or supported by women who felt threatened, not because they were afraid that men would spend money on prostitutes that would otherwise have gone to support the family, but because women who support themselves by having sex with many people undermine the success of a monogamous reproductive strategy. At the same time, current feminist ideology makes it difficult to explicitly deny prostitutes the right to choose what to do with their bodies, so opposition to prostitution has to be supported on other grounds.

    A reproductive strategy isn’t just about reproduction. It is also a strategy for economic survival. If anti-prostitution activists are using the “prostitution = violence” argument as a screen for fears that their ideology prevents them from addressing directly, then the more strident they are going to be in responding to challenges and the less they will rely on evidence and logic. Obviously they will have no objection to a logic or evidence based defence if one is available, but they’re going to be perfectly willing to defend their position by other means. Being forced to defend their arguments will always make them insecure because their arguments don’t address their real concerns, so in defending their arguments they’re not actually dealing with their real concerns. And since their arguments are a false front, it doesn’t matter how the arguments are constructed.

    If the above is true, then I would expect anti-prostitution activists to respond to challenges with stridency, regardless of what logic or evidence is available. A legal challenge should result in a great deal of stridency, regardless of how off-putting a judge may find it.

  12. Laura Agustín

    baboso, this sounds perfectly logical, and also biological. but i did historical research on when and how the concept of the prostitute as victim was created and found that women who wanted to work but had some modicum of education and a desire for respectability were those designated as the proper ones to help and save victims. these women were often separated or divorced, non-conforming to the family model, spinsters, desiring independence. they were the basis for the social sector that is so enormous today.

    it is true that when they rescued prostitutes they trained them as domestic servants to proper married ladies and bourgeois families. but i think interesting and telling that the rescuers themselves were not acting to ‘protect’ their own marriage or family status but rather daringly opening up a new way for women to work on their own.


  13. Otro Baboso

    Sorry, I’m missing something. What’s the connection between my comment and yours?

  14. Laura Agustín

    to me it’s directly connected to ideas you state twice:

    ‘if your reproductive strategy is to have a single sexual partner and to bind that partner to you in a way that makes them a reliable source of childrearing support and resources, then you don’t want other people choosing a strategy that involves having multiple sexual partners. ‘ and

    ‘women who felt threatened, not because they were afraid that men would spend money on prostitutes that would otherwise have gone to support the family, but because women who support themselves by having sex with many people undermine the success of a monogamous reproductive strategy.’

    the historical research doesn’t bear the idea out.

  15. Otro Baboso

    OK. Now that I know what you are responding to, I may understand your argument. Or I may still be confused.

    You are obviously in a position to know more about the history than I am. For personal reasons, there was a time when I needed to try to understand prostitution, and now that the personal reason no longer pertains, what little I learned as an amateur is fading. However, my grandmother was one of those women who pioneered new careers for women. She never married or bore children. (She adopted my mother.) At the end of her life, she supported herself by teaching biblical Greek at a local college. When she was a young woman, she did social work among prostitutes. I think this would have been shortly after 1900, although I’m not sure. While she was perfectly capable of defining other people as victims in order to create work for herself, I don’t think anyone in the family doubts that she was trying to preserve the moral order by controlling other people’s behavior. Obviously, she’s a small and highly biased sample of the population we’re discussing, but I don’t think that creating new careers for women rules out other motives, or makes them unlikely.

    Also, independent women who needed careers were a minority. In order for the idea of victims as prostitutes to become generally accepted, other people would have to agree. The idea would have to do more than create jobs for independent women. And during the 19th century, many people who were opposed to prostitution viewed prostitutes as greedy or lazy, rather than victims. Outside of academia, there seems to be a good bit of that view alive today.

    At least in my limited knowledge of US social history, there’s no conflict between independent women creating careers in social work and women trying to restrict prostitution in order to strengthen a particular reproductive strategy.

    But how kind of you to ignore the most obvious weakness in my “reproductive strategy” theory, which is that it relies on a single unconfirmed piece of research for which I’ve read no evaluations, in a field in which I have no training. We’ll just continue to pretend that I know what I’m talking about.

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  18. Esther Shannon

    Hi Laura, saw your post re-posted on the FIRST list serve and am grateful to have such a succinct account of Himel’s concerns about the abolitionist’s testimony. You noted the absence of any testimony from academic experts at the Supreme Court hearing and it led me to wonder if you know that Canada’s Supreme Court does not re-consider the evidence brought forward on any given case. Rather, the SC accepts the findings on the evidence from lower court’s decisions. Having accepted that evidence, their rulings are based on determining whether a law is constitutionally sound.

    Hope all goes well with you and your work.


    1. laura agustin Post author

      Yes I know of course. I am reflecting on the very different experience of listening to expert-ideologues and not listening to them – thought that was clear.

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