At U of T, lawyer Marie Henein calls #MeToo a 'necessary social awakening'

To some, criminal lawyer Marie Henein may seem an unlikely ally of the #MeToo movement. 

The senior partner at Henein, Hutchinson LLP was herself the subject of much discussion when she successfully defended Jian Ghomeshi on charges of sexual assault in one of the most talked-about trials of the last decade.

Some accused her of betraying women for aggressively questioning and attacking the credibility of women who claimed to have been abused by Ghomeshi.

Others saw her as a role model, a woman at the top of a competitive field – “not just a boss, but the boss,” in the words of one columnist.

It was no surprise that spectators filled Hart House's Great Hall on Feb. 14 to hear Henein's thoughts on the #MeToo movement in a lecture organized by the Hart House Debates and Dialogue Committee.

Henein said she had avoided talking publicly about this topic out of fear that she would be misunderstood. “Now, I expect that many of you assume that I am somehow opposed to the #MeToo movement,” she said. “You could not be more wrong.”

She called the movement “a necessary social awakening” and a reminder of the ground that has yet to be made up to achieve equality for women. 

After her remarks, lawyer and U of T alumna Kim Stanton of Goldblatt Partners LLP joined her on stage for a question-and-answer period.

It was a homecoming of sorts for Henein, who went to U of T's St. Michael's College and studied English from 1984 to 1986, before attending law school at Osgoode Hall and Columbia University.

She told U of T News that as a student, she used to hang out at Hart House and the Sigmund Samuel Library (now the Gerstein Science Information Centre).

“The one recollection I have is feeling overwhelmed at the sheer magnitude of the place,” she said. “I wish I was there now. I would've definitely joined the Hart House Debates and Dialogue Committee and the million other opportunities that are available at the university. 

“Instead, I will have to settle for being inviting back from time to time.”

U of T News transcribed an excerpt of her speech. 

I truly don't know where to begin. I've been struggling with the things I want to say to you tonight. And I'm very conscious of the moment in which I am saying them. 

And I wonder: Am I here, was I invited as Marie Henein the defence lawyer or the business person or the feminist? Do I have to publicly reconcile those things when, in my mind, they are not inconsistent nor irreconcilable, nor inexplicable, nor incongruous?

Then it occurred to me. That's actually part of the problem, isn't it? That we women are never quite right, never quite whole. That some aspect or other of us needs explaining and reconciling, and none of that is particularly conducive to 140 characters or an 800-word newspaper article.

A full house in Hart House's Great Hall listened to Marie Henein's talk on the #MeToo movement (photo by Geoffrey Vendeville) 

Rather than look at things as a whole or in context, we are unfortunately prone to compartmentalizing and dichotomizing. And that's really the problem in the current climate and with the discussions around this movement. I think we are conflating discussions and issues. We assume things are mutually exclusive when they are not, when they can and need to coexist together, and even more when those things, those concepts, are actually symbiotic.

There is so extensive a conflation of issues when it comes to discussion of this movement that I think we have to start by trying to untangle it a little bit. 

I know many of you have heard and read the criticisms. On one hand, there are those who argue that this movement has had the effect of unnecessarily victimizing men, that it does away with concepts of due process or that sexual dynamics will forever be negatively impacted, that it's sexually puritanical in its approach. When people make these sorts of arguments in court, we call these types of the sky-is-falling arguments in terrorem arguments. And they are rarely persuasive to a court.

There is another side, and the other side is that this is a necessary moment, that it is an essential moment, that it is a bit of a new order and that it is emblematic of the fifth or sixth or seventh wave of feminism. I'm drowning in the number of feminist waves; I actually like plain old “feminist.”

So let's stop for a moment and try to untangle this and take these various things apart. And let's really start with the very first question we see a lot being written about and a lot of talking heads having opinions. And that is: Is the #MeToo movement a good thing or a bad thing?

That's a simplistic question but it does seem to be at the heart of what many people want to talk about. 

Look at all the hand-wringing over the Aziz Ansari story. How we had somehow reached a tipping point, people wrote. How this was outrageous. And it all, in my view, missed the point.

There will be stories that you choose to believe. Some that you do not. There will be some experiences that you find compelling and others that you do not. Some that you think are very clear as day, and others that when you look at them personally you find are grey. 

But those are personal judgments on the quality of the information that you are receiving. Those are judgments about how helpful or meaningful you personally find someone else's story. But none of that – none of that – implicates or undermines the purpose of this moment or this movement. 

Now I expect that many of you assume that I am somehow opposed to the #MeToo movement. You could not be more wrong. And if you think that it is because of the fundamental misunderstanding of the role of a lawyer in the criminal justice system, and the assumption that it is somehow inconsistent with being a female.

It is no different to me then asking me how can I be a mother and defend a person charged with child neglect. A lawyer defends a client. They do not defend the crime. I've acted on murder cases. That doesn't mean I am a proponent, supporter or facilitator of murder. 

Henein says movements like #MeToo and Black Lives Matter are "a reminder that as a society we cannot afford to be complacent because we have miles to go” (photo by Geoffrey Vendeville) 

I've acted for people charged with sexual assault. That does not mean I am a proponent, supporter or facilitator of sexual assault. That is the job of a criminal defence lawyer, even one who happens to be female. 

The #MeToo movement is, in my view, a necessary social awakening. It is one of the many things that it is reflecting an inescapable measure of where women's equality is at this point in North American society. In the same way that Black Lives Matter revealed and continues to reveal a very ugly reality, these movements are a necessary barometer. 

Think of it is as a social gut check. In Black Lives Matter, people involved in the criminal justice system, in particular, were keenly aware of the disproportionate representation of the Black community in jails. 

The abuse of public authorities directed at this particular community. And in Canada, that overrepresentation in prison populations relates substantially to minorities and particularly to the Indigenous community. The one unifying thread here is the overrepresentation of marginalized communities in the criminal justice system and that they are dealt with differentially by the state. 

For years, writers and activists and people engaged in the legal system were saying there's something fundamentally wrong. But it was swept under the rug. 

"Look how far we've come" was the answer but the problem is that it is not a particularly concerning statistic or indeed demographic to many people in positions of power.

But the problem is that it's not a particularly concerning statistic or indeed demographic to many people in positions of power. And that actually is true across political stripes.

In the United States, for example, it was Bill Clinton who was responsible for the Violent Crime Control and Law Enforcement Act of 1994, which was the largest crime bill in U.S. history. 

Here's the part you need to pay attention to: It had bipartisan support. It included increasing prisons, expanding the federal death penalty to cover about 60 offences, creating the three-strikes rule, which has imposed mandatory life imprisonment without possibility of parole for federal offenders. It doubled the maximum term of imprisonment on repeat sex offenders. It created new crimes and enhanced penalties and provided stronger penalties for violent crimes and drug trafficking crimes by gang members.

That was the Democratic legacy on criminal law. How else would you could you convince the public that you are not a bleeding-heart liberal? Sacrifice the poor, the marginalized, the rejected in society, the unpopular, the ones whose vote you don't really care a whole lot about and you don't need.

So I want to go back to this idea of the importance of social movements. What these social movements were, what Black Lives Matter was, what #MeToo is, are a wake-up call. A report card for us on the state of play. A reminder that as a society we cannot afford to be complacent because we have miles to go. 

And that is true of this particular movement. When you look at the context and history of women, from the suffragettes to the civil rights movement in the '60s to our sexual liberation in the '70s, I really think that some people thought we were all good in North America, it was all done. But the inequality was there, and it always has been. And once again, in this time in history, the barometer, the report card is not as good as we thought.

The most important contribution in my view of #MeToo is to shake us out of our complacency and to reveal the true state of affairs. That has been done in a number of ways. 

But the #MeToo movement falls on the heels of a number of events. It started actually before. 

We knew where we were when Hillary Clinton – as qualified a candidate as ever – had run in a presidential election and was criticized in every conceivable way. She was too harsh. Insufficiently warm and fuzzy. Untrustworthy. Her hair wasn't right. Her clothing wasn't right. Her tone of voice was grating. She stood by her husband. She didn't stand by her husband. She was just too ambitious.

Compare it to the opposition: a person with no experience and the archetype of male entitlement. Compare the things he said and got away with and the things he did. This isn't about political stripes. It's about looking at how she was dealt with publicly as a woman. That's the lesson there. 

Now she may not have shattered the glass ceiling, but she certainly shone a light on it. You couldn't ignore it. And here in Canada, as we seek comfort, as we often do, in our inherent politeness and decency, we should not forget that in this country, other than for a brief stint, we have never had a female prime minister. 

Feminist male leaders are fine, but female leaders are even better. I just wish rather than telling us how in touch they were with their feminist side, they would step aside. Just clear the road a little bit, and give up the power that you've held on for so long. 

Kim Stanton and Henein share the stage for a question-and-answer session after Henein's prepared remarks (photo by Geoffrey Vendeville) 

So in between this and the last American election and the subsequent march, something else happens. Women in positions of power, often in Hollywood, start unveiling what has long been a sexist culture. The breadth of the harassment that a woman faces, the inability to literally attend a work interview or to go to work and earn a living without being subjected to harassment or assault was put under the spotlight. It's ugly, not just the fact of it, the sheer breadth of it.

This moment has exposed that reality.

And the sheer breadth of it requires us as a society to rethink what normal is, what human interaction is tolerable and intolerable. This doesn't even require us to get into the hard questions because whatever the movement, whatever the issue, there's always going to be hard questions. And struggles about line drawing. There will always be factual situations that are grey. But the import of this movement doesn't rise and fall on any one event, or any one experience, or any one story. Some will be truthful, others not. None of this undermines, in my view, the essential purpose of this movement. That is that the baseline must be changed.

At its most basic, most fundamental, the one thing that no reasonable human being could conceivably disagree with is that women, half the population, must be entitled to go to work, to earn a living and to walk down the street without being sexualized.

[Henein goes on to address the oft-stated criticism of #MeToo, that the movement denies due process to those who are accused. She explains rights in a criminal court, and adds there is no due process in a court of public opinion “because this is no court at all”]

So where does the complaint about the failure to give due process really belong? At institutions. 

There are ways, for example, that an employer can choose to conduct an investigation when a complaint is levelled. A government or a political party can choose to conduct an investigation. But what happens if you take a pause and you respond in a meaningful and rational way, and not immediately send someone to the guillotine?

It means you may have to withstand some criticism, some nasty tweets, and potentially some disapproval.

Henein stayed behind after the event to speak with U of T students and autograph a few books (photo by Geoffrey Vendeville)

But that's where the fault lies: the failures of employers, of governments, of institutions to say, "We hear this. We have it. We will investigate it, and we will come back to you and we will act in a measured and appropriate way." 

Fault doesn't lie with the movement that exposes these things that need to be investigated, that need to be looked at, that require thought and consideration. The fault lies with the people failing to give it the requisite thought or consideration.  

So none of you get seduced by or gratified by the ‘off with his head’ response as though these are isolated single bad actors and now the cancer has been cut out and we can all go on our merry way. This is a ruse that has been used and pulled for a very long time. Do not fall for it. It is expeditious, easy and profoundly unfair. 

This is what Hollywood's response has largely been. The denunciation or removal of the actor or manager. But that doesn't address the bigger question: How is this allowed to go on and why? It's not only a question of complicity, but also of understanding the root of the problem and making meaningful changes.

But every large studio, every casting agency has been largely silent when it comes to answering the question: What institutional or corporate change is necessary? 

The issue is how and why these things are allowed to happen. How has the casting couch somehow become an acceptable term of art? So off with his head does nothing except perhaps satisfy a few people and a few angry tweeters. It doesn't ever advance a revolution to cut the king's head off – unless you have something to replace it with. 

It has to always be accompanied with meaningful inquiry and change. And that sadly has not happened.