Research Profile: Professor Janine Benedet

Associate Dean Dr. Janine Benedet

“Pornography and prostitution belong on the same continuum of sexual violence with sexual assail and sexual harassment”

Marking the occasion of her promotion to the rank of full Professor, Associate Dean Dr. Janine Benedet recently gave her inaugural lecture at Allard Hall titled “A Revindication of the Rights of Women”. It was a defining moment in Professor Benedet’s fruitful career as a legal scholar, and the latest personal achievement in her long engagement with the Allard School of Law.

Over the last two decades Professor Benedet’s research has focused on sexual violence against women, examining in particular the various ways in which such violence contributes to sex inequality. Initially, during her graduate days as a doctoral researcher, Professor Benedet concentrated on the use of pornography in workplaces as a form of sexual harassment in employment, an issue that was just starting to be recognized at the time. One of the main challenges around the issue came in a form of a pushback from people who argued for a formal equality approach, with the claim that the issue was not about women, because men and women alike had to see pornographic materials posted on the walls. Professor Benedet’s research also responded to claims that sexual harassment through pornography was constitutionally protected expression.

Professor Benedet’s research since these early days has concentrated on the criminal law of sexual assault. Most recently, she has focused on the ways in which the law defines boundaries of consent to sexual activity, especially in situations where the law might say that apparent consent is not real consent. This includes legal questions arising from the cases where a sexual assault victim was intoxicated by alcohol and/or drugs; cases of teenage complainants where the age of consent to sexual activity is at issue; and, in an extensive collaboration with colleague Professor Isabel Grant, in cases of sexual assaults of women with mental disabilities, reexamining the meaning of consent and capacity for this group of women.

Throughout her research, Professor Benedet has been interested in exploring and exposing the ways in which stereotypes can reemerge in the laws on sexual assault at different points in the process. “We did a lot of reform of our rape law in the 1980s and 1990s, so the substantive law is quite good, but even if the law is applied well there are other moments for the old attitudes to remerge,” Professor Benedet explains. She has written, for example, about the sex offender registry (a step that occurs after conviction), noting a tendency for judges to grant exemptions from registration based on reasoning that has been discredited in other contexts. Her current work addresses some of the unintended consequences of mandatory minimum sentences for sexual offences against young people, with research showing that mandatory minimum sentences, while looking like a tough response to sexual assault against children, actually have some negative consequences. “It is starting to emerge from my research that judges who dislike mandatory penalties and do not see sexual assault of young people as warranting such sentences simply do not convict at all,” Professor Benedet explains.

Professor Benedet is also one of the only Canadian legal scholars who has researched and published on the relationship between pornography, prostitution and sex inequality. With most of the scholarly work in Canada focused on the pros and cons of criminalizing either pornography or prostitution using a freedom of expression lens, Professor Benedet’s work draws useful parallels between pornography, prostitution and sexual violence against women, arguing that pornography and prostitution belong on the same continuum of sexual violence with sexual assail and sexual harassment. “They have much more in common with each other then there are differences; when we think about what the law ought to say about those things, we should be doing it from that starting point,” Professor Benedet explains.

Beyond the Academy
For a number of years, Professor Benedet engaged in pro bono litigation in the area of prostitution laws, appearing before the Ontario Court of Appeal and the Supreme Court of Canada as co-counsel to a coalition of seven women’s groups as intervenor in a constitutional challenge to the current prostitution laws. Similarly, she was earlier involved in a case dealing with constitutional challenges to the Canada Customs’ treatment of gay and lesbian pornography. “I always tried to look for opportunities, particularly in the areas of prostitution and pornography, to use my analysis not only in my scholarship but also in litigation,” Professor Benedet adds. “There are not very many lawyers who are willing and equipped to take on those kinds of divisive and challenging issues from a sex equality perspective.”

For Professor Benedet, this is not only an important contribution; it has been at the core of her scholarly concerns. “Hopefully my scholarship is useful to women, as they formulate the positions that they want to take,” Professor Benedet reflects. “It comes from the advice that I received from my doctoral supervisor and prominent legal scholar Catharine MacKinnon, who once told me that unless my work is useful, unless it is responding to the real issues that women are rising, there is no point in doing it.” For Professor Benedet, this is the only true starting point – listening to what women have to say, and using that knowledge to ask the right questions and look at the right issues.

Professor Benedet has also worked extensively with the National Judicial Institute, delivering training and continuing legal education to Canadian judges. In April 2016 she will help lead the National Criminal Law Program on Sexual Assault in Toronto, attended by about one hundred judges. An important means to further disseminate her research findings, the invitation is also a reflection of the fact that she is perceived as a balanced and authoritative voice on the law of sexual assault.

Despite the fact that the legal challenge to the prostitution laws did not go the way her clients would have hoped at the time, Professor Benedet is pleased that it paved the way for a subsequent process of Canadian law reform. She was invited to speak as an expert witness before both the Parliamentary Committee and the Senate Committee on prostitution law reform. Eventually, the law that was produced mostly reflected the approach for which Professor Benedet’s clients were asking. She does not take the credit for being the only contributing voice, but the fact remains that the position for which she publicly spoke in favor for more than a decade has ultimately found its way into law, and she now has the opportunity to help bring similar kinds of laws to other countries. In April, she will travel to Taiwan to lecture about the model of prostitution law that has been passed in Canada, and discuss it as a possible framework for their own local reform.

Professor Janine Benedet

Professor Benedet’s areas of teaching expertise include criminal law, labor law, professional responsibility and anti-discrimination law. Her current research focuses on sexual violence against women, including prostitution, pornography and sexual assault. Professor Benedet joined the Allard School of Law at UBC as an Associate Professor in 2005, and was promoted to a full Professor in 2016. Her first stop after her L.L.B. graduation was a clerkship with fellow UBC alumnus Justice Frank Iacobucci at the Supreme Court of Canada. That was followed by graduate studies – leading to both an LL.M. and an S.J.D. – at the University of Michigan, where she also did some teaching as a Visiting Faculty Fellow. She practiced labor law in Toronto from 1997 to 1999, and was a member of faculty at Osgoode Hall Law School from 1999-2005. She is a member of the bar in both Ontario and British Columbia.

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