Ethics

The Winnipeg Free Press reported today (Here) that a new complaint has been filed against Manitoba Court of Queen's Bench Justice Lori Douglas at the Canadian Judicial Council.  Lori Douglas is the judge whose photographs were posted by her husband on the internet, and used by the husband to solicit sex from a client.  According to the WFP, the new allegation arises from Douglas's refusal to issue a prevention order to the wife in a divorce case.  The husband of the applicant for the order "admits to having an interest in bondage and sado-masochism and to being suspended by the Law Society of Alberta in 2007 for sexually harassing two women he worked with at the law firm".  The applicant had provided a psychiatrist report documenting the husband's interests in sado-masochistic sex and her own battered women's syndrome.  Justice Douglas declined to issue the order, noting her lack of faith in this expert's report ("I have read Dr. Shane's reports many a time, including this time and on another occasion and with exactly the same diagnosis with about as much evidence") and the lack of evidence other than that of the applicant wife.  She instead granted a "no contact or communication order".

What to make of this new complaint?

In my past posts on this topic I have emphasized the duty of disclosure when applying for a judicial position in Canada, and the racial stereotyping associated with the conduct of Douglas's husband.  This complaint raises, though, a broader question about the impact of the pictures themselves on the perceptions of Douglas as a judge.  The complaint suggests, presumably, that an interest in sado-masochistic sex (and some of the pictures of Douglas apparently had an S & M aspect) pre-disposed Douglas to discount the evidence against the husband (or created the reasonable apprehension that she would be so pre-disposed).

I don't know what I think about this argument.  Because of the history of using the stereotype of black male sexuality in legal cases, I am much more confident that association with those stereotypes creates an issue for a judge, and the ability of the judge to be perceived as fair.  

To the extent that caselaw reflects attitudes on S & M sex (and the only case that is coming to mind for me here is a UK case holding in a case of S & M sex that it is not possible to consent to criminal battery) I would guess that it is not an especially favourable or sympathetic one, and that if anything the prejudice in adjudication was against such sexual interests as normal.  I do not think that a judge having a positive attitude towards S & M sex in particular would necessarily predispose that judge to discount evidence of the type offered by the wife.

On the other hand, is it unreasonable for the wife to wonder about it?  To think that Douglas's apparent impatience with the expert report reflected an impatience with what she might see as an overly dramatic attitude towards the husband's preferences for S & M sex?  

I don't know.  All I know is that this isn't getting less complicated or messy.