‘Look,a Faggot!’

Abstract

This article utilizes Kendall Thomas’ psychoanalysis of judicial discourse to analyze the meaning and effect of two distinct judicial understandings of the homicide of Aaron Webster, a man who had been beaten to death by several young males in a Vancouver queer cruising area. In the reason for sentence in R. v. J.S., the judge gave a creative application to the law of enhanced sentencing when he acknowledged that the intended victims of the assault – ‘fucking voyeurs’ – could fall within the purview of ‘sexual orientation’. Striking a dissonant tone, the judge in the subsequent case, R. v. Cran, claimed that she found no evidence of hate motivation against gay men in the attack and that Webster’s reason for being in the park that night dressed only in his boots was literally unremarkable: ‘[Webster] was simply standing near a parking lot, smoking, naked’. By analyzing the trope of the scopic along with the instances of judicial dissonance, rhetorical excess and defensive posturing, claims of judicial rationality, neutrality and objectivity come under scrutiny.

Keywords

Judicial interpretation psychoanalysis surveillance voyeurism fetishism affect scopic economies gay bashing enhanced sentencing Aaron Webster

Introduction

Against the standard view, proponents of the ‘linguistic turn’ in legal scholarship have sought to demonstrate that a judicial opinion (or for that matter, any legal text) is something more (and other) than its juridic propositions (Thomas, 1993: 35).

In his analysis of the 1986 opinion of the United States Supreme Court in the case of Bowers v. Hardwick, Thomas (1993) brought together psychoanalysis, queer theory and law. In Bowers, the United States Supreme Court was asked to consider the constitutionality of a Georgia criminal statute prohibiting ‘sodomy’. However, as Thomas notes, despite the antisodomy law covering a broad range of private sexual practices between consenting adults, the Court took the view that ‘the only question properly before it [. . .] concerned the constitutionality of the Georgia law as applied to private sexual practice between consenting adults of the same sex’ (p. 34). The majority held that the due process clause and a fundamental right to privacy did not extend to ‘homosexual sodomy’. Appearing ‘exceedingly deferential’ (p. 38) to states’ rights and the expressed will of Georgia’s democratic majority, and framing its decision within the discourse of framers’ intent, the Court upheld the constitutionality of Georgia’s sodomy law when applied to homosexuals. Undertaking what he termed a ‘psychoanalysis of judicial discourse’ (Thomas, 1993: 36), Thomas challenged the traditional interpretive study of judicial decision-making by claiming the analysis of the figural and metaphorical language of the Court revealed unconscious elements and irrational desires. For Thomas, the majority opinion of the court as expressed by Justice White displayed ‘striking dissonance between the position of principled judicial restraint defended in Bowers v. Hardwick and the passionately unrestrained terms in which the defence was conducted’ (p. 38). At these instances of dissonance, defensive posturing and rhetorical excess, Thomas read the decision through a uniquely queer psychoanalytic lens producing a damning critique of judicial reasoning. Stressing that understanding of the case should not focus solely on the doctrinal elements of the decision nor on the ‘cool constitutional reason by which the Supreme Court claims to be bound’ (p. 45), his psychoanalytic analysis of the discursive strategies of the Court revealed that it did ‘not calmly reason about homosexuality, but rather rage[d] irrationally against it’ (p. 45).

The appearance of the irrational desires as theorized through psychoanalysis, however, cloaked in rhetorical excesses, instances of dissonance and defensive posturing, is an exceptional occurrence in the judicial pronouncement. As legal scholars and jurists note, judicial decision-making is fundamentally structured on and shaped by disciplined reasoning, a balancing of adherence to strict statutory interpretation and legal precedent, and principled decision-making (Case, 1997; Golding, 1963; Thomas, 2005; Wilson, 1986). This, of course, is not to say that other elements are not present in the judicial pronouncement. The ‘living tree’ doctrine of the Supreme Court of Canada exemplifies substantive concerns including adaptability and responsiveness. For example, the Ontario Court of Appeal in Halpern rejected the argument that ‘marriage’ as referenced under the Constitution Act, 1867 was a constitutionally entrenched term whose definition was fixed to whatever meaning it held in 1867. Citing the Supreme Court of Canada, it upheld the Canada’s jurisprudence of progressive constitutional interpretation noting that the constitution ‘must [. . .] be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers’ (Halpern v. Canada, [2003] O.J. No. 2268, para 42). Despite the strict adherence to reasons, sound principles and legal doctrine, as Thomas demonstrates, there are judgments that exceed these parameters. Adopting Thomas’ psychoanalysis of judicial discourse, this article probes two distinct reasons for the judgement surrounding the 2001 homicide of Aaron Webster, a gay man beaten to death in a cruising park in Vancouver. Taken together, the reasons for judgement in Regina v. JS and R v. Cran illustrate the presence of unconscious elements and irrational fears through the sustained trope of the scopic, the instinctual drive structured around ‘seeing’. Utilizing the psychoanalytic theories of the scopic, specifically those of voyeurism and fetishism, this article critically analyses law’s response to a deadly attack in a cruising park noting that what might be deemed as judicial activism and restraint, respectively, in these two judgements may also be read as the signs of unconscious elements and irrational desires.

In the early hours of November 17, 2001, Aaron Webster, naked except for his boots, was attacked and beaten to death by a group of young men in a popular cruising area of Stanley Park.¹ Friends of Webster reported to media that he liked to cruise naked and subsequent reports released by police verified his state of undress at the time of the homicide. After a lengthy police investigation and prolonged media scrutiny particularly by Xtra-West, Vancouver’s gay and lesbian newspaper, two youths, A.C. and J.S., and two adults, Ryan Cran and Danny Rao, were arrested and charged with manslaughter (Robertson, 2005). In a deal struck with the Crown, the two youths, who were 17 years old at the time of the offence, plead guilty in order to avoid being tried in adult court. Under Canadian law, in the cases involving youths committing serious crimes, such as murder and manslaughter, it is at the discretion of the Crown to elevate the case to adult court to seek a length of sentence more proportional to the severity of the offence. Of the two adult accused, Cran was found guilty and Rao was acquitted due to conflicting testimony against him. With respect to the respective sentencing, J.S. received the maximum for manslaughter that is permitted under the Youth Criminal Justice Act, being a period of 3 years, two thirds of which would be served in closed custody and the remaining one third in the community under conditional supervision. Ryan Cran received a sentence of 6 years in prison. Despite the attack having occurred upon a gay man in a known gay cruising area and a prominent police official publicly naming the attack a hate crime, the Crown did not seek the enhanced sentencing provision in any of these cases at the time of sentencing, as the accused denied of being motivated by homophobia.² Their motive, as offered to police under questioning, was to beat-up ‘peeping toms’ and ‘fucking voyeurs’.

Despite the absence of the Crown’s submission of hate motivation in this deadly attack, Judge Romilly of British Columbia’s Youth Court remarked, ‘I fail to see why it cannot be regarded as a ‘gay bashing’ (Regina v. J.S. 2003 BCPC 0442, para 50). ‘I find it incredible’, he stated, ‘that the accused and his friends who were obviously in the habit of visiting the park to beat-up ‘peeping toms’ and ‘voyeurs’ were so naive that they did not notice that this area was frequented by gays’ (para 50). Creatively eliding peeping toms and voyeurs within the purview of sexual orientation, a factor listed under the enhanced sentencing provision, Judge Romilly opined that the offence was ‘motivated by “bias, prejudice or hate based” on a factor similar to sexual orientation’ and thus was covered by the enhanced sentencing provision of the Canadian Criminal Code (para 50). It is noteworthy to remark that under current Canadian law, the meaning of ‘sexual orientation’ has been legally defined through various equality-seeking rights litigation and provincial human rights legislation to mean, and only mean, ‘heterosexuality, bisexuality, and homosexuality’. Striking a dissonant stance, in the subsequent sentencing of Ryan Cran, Madam Justice Humphries of the Supreme Court of British Columbia opined that there was ‘no evidence before the court of Mr. Webster’s sexual orientation [and] no evidence [. . .] that Mr. Cran’s motive for attacking Mr. Webster was his sexual orientation’ (R. v. Cran, 2005 BCSC 171, para 9). As a result of this opinion, Cran’s sentence did not consider hate as an aggravating factor at sentencing. Adopting a strict interpretativist stance, she remarked that the Crown had not referred to the enhanced sentencing provision. Taking issue with Judge Romilly’s nomination of the homicide as a ‘hate crime’, she remarked that he ‘stepped outside the sentencing provisions of the Youth Criminal Justice Act’ (para 4). Furthermore, citing impartiality, she noted that ‘[a] court cannot step outside the rule of law and base its decisions on matters reported in the media’ (para 6). Stating the motive remained ‘obscure’ (para 2), she noted that ‘[t]here is also no basis on the evidence before this court to equate “peeping toms and voyeurs” to gay people in the mind of Ryan Cran’ (para 10). Concluding this, she remarked, ‘[Webster] was simply standing near a parking lot, smoking, naked’ (my emphasis, para 12).

Had Madame Justice Humphries refrained from the adverb ‘simply’, the position of principled judicial restraint may have been taken at face value. Its presence, however, in her judgement creates a significant dissonance to a judicial script that shrouds itself in strict adherence to the law and to judicial objectivity. By invoking the commonly apparent and insignificant, the attentive judicial spectator and audience is called to take notice. Upon imagining the scene of the homicide at the moment of Webster’s death, we envision Webster in his nakedness smoking. Very little seems insignificant or ‘simple’ about this scenario. Moreover, the figures of peeping toms and fucking voyeurs, figures to which both Romilly and Humphries give prominence, structure the reason in both distinct and opposing judgements. For Romilly, these figures simultaneously index and metonymically act as substitutes for gay men; whereas, Humphries clearly distinguishes peeping toms and voyeurs from gay men. Where one might agree with Humphries’, literalist interpretation and commend her for such clear thinking, and where one might object to Romilly’s creative use of the law, this reading does not give insight into the odd defence of the accused, that being, they were at the park that infamous night to attack peeping toms and fucking voyeurs. Furthermore, one might argue that the defence lawyers suggested this strategy of evasion and denial in order to circumvent the enhanced sentencing provision. But what of these odd scopic figures? Why this choice of wording? The presence of these scopic figures, matched with the numerous turns of phrase and figures of speech made by both judges that connote the scopic – ‘I fail to see’, ‘did not notice’, ‘obscure’, ‘simply’ – and the dissonance between the two judgements require a different type of analysis that of Thomas’ psychoanalysis of judicial discourse.

The Scopic

Analysis of the scopic has figured most recently in the study and political theorization of surveillance. A product of Foucauldian fascination with the panopticon and other surveillance regimes and technologies of governance and social control, recent sociolegal scholarly interest in the scopic has produced a broad and rich literature on governmental surveillance, media and surveillance, the popular appeal of surveillance and the strategies that resist surveillance (Haggerty and Ericson, 2006; Lyon, 2003; Mathiesen, 1997; Norris and Armstrong, 1999; Norris, 2003). In this literature, the issue of who is surveilling whom has revealed a dynamic in-power relationships whereby, for the most part, the powerful surveil the less powerful and the disempowered.³ Insofar as the surveillance of populations by governments and corporations tend to surveil the citizen and the consumer more generally, often as a technology of neoliberal governance and social control (Barry et al., 1996; Coleman, 2003), the surveillance and monitoring of particular subjects who are assessed as being a threat to the nation state and the smooth working and security of a neo-liberal capitalist economy have focussed on the urban poor and racialized minorities, an example of which is the post-911 surveillant preoccupation with immigrant Muslim populations (Iafolla, 2006; Lyon, 2006; Razack, 2007).

Another subject of surveillance is that of the queer subject, particularly men who sex men in public spaces. The works of Humphreys (1970), Maynard (1994), Moran and McGhee (2001), Dalton (2006) and Cavanagh (2010) find commonality not only in the subject of the surveillance of men who have sex with men in public spaces as part of a regime of regulation but also in an awareness of surveillance as a libidinal activity, an activity charged with eroticism and sexuality in a scenario that is itself highly sexualized. Here, social control and the legal regulation of disruptive subjects and queer practices are woven back into the scene of disorder in which the watchers, at least implicitly and perhaps unconsciously, are caught up in the web of desire produced by looking and being looked at. As Humphreys noted of his ethnographic method of studying the tea room trade as a ‘participant-observer’, the sociologist had become ‘voyeur’ (Humphreys, 1970: 52). Moran and McGhee (2001) stress the irony of interest in London police in catching indecent acts between men in public spaces. They note that, in order to catch perpetrators in the act, police had to adopt surveillant methods that would allow them to blend in and to pass as an insider: ‘[p]erforming the perverse body is a condition of the possibility of the practices of police observation, analysis and representation’ (p. 107). Maynard (1994), in his analysis of police surveillance and homosexual subcultures in Toronto in early 20th century, observed that police were ‘preoccupied by the act of looking’ (p. 226). Citing court testimony in cases of indecency, Maynard (1994) draws his readers’ attention to the fine line between looking, required of police surveillance, and voyeurism by underscoring police testimony that displayed a curiosity and interest in the sexual acts themselves. The officers’ extended period of observation of various sexual acts between men and the excited utterance between officers – ‘look at this!’ – suggest that the act of surveilling was in itself a libidinally charged act for police bordering on excitement and disgust (p. 226). Interestingly, one of the unintended effects of the policing of sex and the publishing of these police crackdowns in local newspapers, argued Maynard, was the circulation of knowledge of popular cruising spots for men who were looking to have sex with other men. Naming it a ‘dialectics of discovery’, Maynard stated that this circulation of sexualized knowledge helped in the production of early Toronto queer community. From these studies of sexual surveillance, one may remark that the agents of surveillance are not simply powerful outsiders looking in, but are a part of that very eroticized economy of looking and being looked at.

Decades before Foucault and surveillance studies, the scopic found its place most prominently in psychoanalytic theory and case studies. Most notably, Freud’s castration complex and Lacan’s mirror stage are scopic mechanisms; in terms of case studies, Freud’s Wolf Man indexes the scopic as a voyeur of parental coitus a tergo (Lunny, 1999).In his theorization of the instincts and their perversion,⁴ Freud argued that the libidinal activity of looking (scopophilia) found perverse expression in voyeurism (the libidinal act of looking at a precise object, most notably another’s genitals), exhibitionism (the passive libidinal act to be looked at) and fetishism (a libidinal act of scopic disavowal) (Freud, 1977a, 1977b; 1984). For Freud, voyeurism is a deviation from the preparatory visual stimuli of the normal sexual aim; it supplants visual arousal leading to intercourse for the act of looking itself (Freud, 1977b). Claiming that voyeurism and exhibitionism were complementary opposites, Freud noted the dynamic correspondence of these two scopic perversions stating that ‘[e]very active perversion is thus accompanied by its passive counterpart: anyone who is an exhibitionist in his unconscious is at the same time a voyeur’ (Freud, 1977b: 81). With respect to fetishism, it is a part of the scopic regime as a kind of not-seeing. In Freud’s (1977a) article on fetishism, he argues that fetishism is a defensive formation against a perceived threat, in Freud’s case, the threat of castration. A neurotic perversion formed during the Oedipal complex, which Freud wrote that it is produced through the act of seeing and disavowing what has been seen. According to Freud, the little boy sees his mother naked, sees her threatening ‘castration wound’, shifts his glance in horror and settles it upon a ‘safe’ and displaced object (his classic reference is to a woman’s foot) that bears no such threat. It is not that the threat is not seen or perceived, but that it has been mollified by a denial of its threatening aspect. Disavowal, notes Freud, is not complete erasure. It is the active containment of threat, the psychic shielding against that threat in a manner that drains the threat of its significance. Insofar as the trauma is never wholly erased, the threatening perception persists and the fetishist must actively maintain its disavowal. This expenditure of psychic energy in resistance, claims Freud, indexes the very presence of the thing disavowed.

In case of the homicide of Aaron Webster, the scopic is ever-present and overdetermined in a psychoanalytic sense. Most obviously, it is in the admission of the killers that they were in a cruising park, not to beat-up gay men, but to beat-up voyeurs and peeping toms. It plays out in the act of cruising and is reproduced by those whom surveil the cruisers. It is brought to law, first, by the graphic description of the attack to police, and second, by this evidence’s introduction and presence in Judge Romilly’s reason for sentence. Linguistically, it peppers Judge Romilly’s interpretation of the crime, and most notably, it makes its appearance in Justice Humphries’ disavowal of Webster’s nakedness, the primary sign of his cruising. Overall, the homicide and the judicial readings of that homicide are inescapably tied to the scopic and its libidinal attachments.

The Scene of Sexuality, Violence and Surveillance

How does [the killer] understand himself, his victim and the scene at the fatal moment? With what sense and in what sensuality is he compelled to act? (Katz, 1988: 12)

At the heart of Judge Romilly’s reason for sentence is a verbatim account of J.S.’s testimony to police under questioning. Judge Romilly narrates as if he were J.S., an embodiment of J.S., recounting the story according to J.S.’s own words. This testimony, a rich dialogic exchange of that fatal night, is both a lengthy and prominent aspect of the judgement. For Judge Romilly, this testimony of the events generates his claim of ‘I fail to see why this cannot be regarded as a “gaybashing”’ (para 50). The narrative account of J.S.’s police interview is remarkably rich and offers a glimpse of what may have happened that early morning in Stanley Park. But, more than merely giving an account or time-line of events, J.S.’s confessional surrender to his involvement in Webster’s death is phenomenologically rich. It describes the rising excitement of the men who would beat Webster to death and it would demonstrate the constitutive power of the scopic and the fluidity of identity. The place of Judge Romilly within this scopic narrative situates him both within and outside of J.S’s experience allowing for this tale of the scopic to be read metonymically as a ‘gaybashing’.

According to police testimony from J.S., on November 17, 2001, he and four of his friends got drunk with a couple of girls. Deciding that it would be good ‘fun’ to beat someone up, they dumped the girls, armed themselves with aluminium baseball bats and headed to Stanley Park, a park, as Judge Romilly noted, ‘frequented by members of the gay community’ (para 3). It was not their first visit to the park. Under questioning by the police, J.S. openly admitted to having gone to Stanley Park with his friends regularly on Saturday nights looking for peeping toms and fucking voyeurs to beat-up (para 9). When asked by police whether he and his four friends went to the park to beat-up gay men, J.S. answered ‘no’, rather they went looking for ‘peeping tom guys who look in cars at guys making out’ (para 9). The most curious aspect of this testimony is J.S.’s insistence that he and his friends were not there to beat-up gay men. This, in and of itself, is not overly odd as it forms a strong defence to the issue of hate motivation. However, what is striking is whom J.S. said they were there to attack. According to J.S., they were at the park looking for ‘peeping tom guys who look in cars at guys making out’ and fucking voyeurs to beat-up. The statement, at best, is oblique if not absurd, as Webster’s killers literally position themselves as vigilant protectors of ‘guys making out’ in cars, that is, of men sexing other men. The phrase, nevertheless, opens up all sorts of dynamics that give meaning to this encounter beyond the literal one. How this vigilance actually played out within the space of the cruising ground heeds Fuss’s (1991) warning that identities, like borders, are notoriously unstable phenomena.

Looking for fucking voyeurs, from the bushes and from behind the trees, these attackers watched and waited for their victim. Through the bushes they spotted a man, naked except for his boots, walking toward them. The verbatim police transcription structures this encounter in a most particular way and deserves a full reiteration and mindfulness to the dynamic correspondence between the exhibitionist and the voyeur: ‘And then Aaron came out of nowhere, naked, walking here. And um him, he was kind of standing there for a while [//] Uh, I think he spotted us in the trees first and then he was kind of looking at us right, and we were looking at him and then I think he started walking. [//]We didn’t know what to do like we just, we were kind of shocked, right so I guess we all decided and then we started running after him’ (para 6, cited from page 12 of the police transcription).

In those moments of visual exchange, prolonged by the reading and misreading of bodies in nocturnal space, identities were constituted. Significantly, this description of the encounter, made even more intimate by the use of Webster’s first name ‘Aaron’, has the effect of reproducing the dynamic of cruising: an intense, eroticized sensory exchange – primarily visual – between subjects who are both viewer and viewed. Those who are looking for public sex find partners, to a large extent, by the exchange of visual codes and clues displaying sexual interest or not: a desirous glance, a piqued look of interest, a flash of skin, a smile, a nod and a sign of recognition. In that visual exchange between Webster and his killers, for example, bashers became cruisers, mistakenly caught up in the eroticized charge of the cruising exchange. If we read the act of ‘peeping’ as a covert act of eroticized surveillance, then the dynamism of lying in wait in the bushes in a cruising ground necessarily reproduces vigilantes as voyeurs. That is to say, the notable thing about this particular exchange between those hiding in the bushes, laying in wait for their prey, and Webster in the act of cruising is that, caught up in the cruising park’s economy of sex and surveillance, the bashers took on the very identity they apparently sought to punish: the ‘fucking voyeur’, that is, the voyeur who fucks.

By pairing Webster’s nakedness with the attacker’s hunt for fucking voyeurs, this fluid scene of sexuality and violence cannot be denied. This encounter as played out by the attackers in their vigilante pursuit of voyeurs and peeping toms dynamically fuses the surveillant economies of cruising and bashing. The cruising space itself is a nocturnal, fluid space of eroticized danger, where, as queer poet Vaughan notes, cruisers ‘decide/to fuck what frightens’ (p. 18-19). It is a liminal space constituted by risk, danger, sex and surveillance. Research on space, risk and sexual citizenship is, for the most part, a critical interrogation of neo-liberal governance and the notion of the responsibilized queer citizen charged with the self-management of risk and personal safety (Bell, 1995; Mason, 2002; Moran et al., 2004; Stanko and Curry, 1997). Despite the repressive regimes of ‘self-surveillance’ (p. 92) that queers practice and adhere to in order to minimize risk and ensure physical safety, Gail Mason notes that ‘subjects simultaneously defy this practice’ (p. 92) and balance safety and risk in order to reap potential rewards and pleasures. Cruising and cottaging are two of those defiant, risky and pleasurable practices. With respect to the argot of both cruising and bashing, sexuality and violence find instances of commonality and overlay in the metaphor of hunting. Paradoxically, insofar as ‘hunting is a common metaphor when cruisers do talk about their [sexual] experiences’ (Hollister, 1999: 65), bashers use the same language of hunting when talking about their violent acts of queer bashing (Perry, 2001). In case of the Webster homicide, the scene of cruising was simultaneously a scene of violence in which homicidal rage mixed with a libidinally charged scopic economy. In this account, the power of the scopic blends, alters and merges identities ever so briefly so that cruisers are voyeurs, voyeurs are bashers and bashers are cruisers.

Insightful Judgements

The second curious aspect of this case necessarily follows from this constitutional matrix of the cruiser–basher–voyeur. In his novel, if not startling judgement, Judge Romilly opined that the homicide met the consideration of section 718.2(a)(i), the enhanced sentencing provision, despite J.S.’s insistence that he and his friends were not in Stanley Park that night to beat-up gay men. This Criminal Code provision reads: ‘evidence that the offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor’ shall be deemed to be an aggravating factor at the time of sentence. In a move that elided ‘sexual orientation’ with ‘any similar factor’, Judge Romilly continued, stating ‘this section contemplates hatred against “peeping toms” and/or “voyeurs” as being within its purview’ (para 50). In this move that deviates from the literal and considers the figurative and dynamic, Judge Romilly expands the scope of the enumerated categories to include sexual orientations beyond the legally recognized ones of heterosexuality, homosexuality and bisexuality. Insofar, as that kind of expansion must be examined critically and warily, as it may further expand the violence of law and a politics of hate (Moran et al., 2004), this expansion by Judge Romilly was far more symbolic than punitive, as under Canadian law, the maximum penalty for manslaughter under the Youth Criminal Justice Act is a period of 3 years. Such expansion, interestingly, did not produce a leave to appeal, and other than Madame Justice Humphries’ admonishment in her judgement of Cran, no references were made to this expansion as an act of judicial activism.

This novel move of Judge Romilly is an affect of his engagement with the scopic economies of cruising and bashing produced by the reading of the police transcription as if J.S. at the time of sentence. The judicial gaze, like that of the surveillant undercover officer and the ethnographic participant-observer who gets caught up in the scopic economy of cruising, is woven into this scenario of sexuality and violence, and may be, strictly speaking, outside of codified law.

With respect to the consideration of hate motivation, Robertson (2005) argues that the law needs to ‘develop an optic sensitive to the socially constructed nature of space and the body’ (my emphasis, p. 483). He reminds law in its adjudication of hate-motivated offences to consider space as particular and temporal. That is, Webster’s homicide must be regarded within a nocturnal space in which bodies moved, cruised and fucked. As John Hollister notes, ‘cruising is not just a repertory of techniques. It cannot be separated from the locations where it takes place’ (p. 58). With respect to Judge Romilly’s decision, a law looked into that scenario of cruising and bashing through the dynamic testimony of J.S., and fell within its constitutive power of the libidinally charged scopic exchange. Judge Romilly’s excessive metaphoric and tropic references to the scopic, concluding with ‘I fail to see why it cannot be regarded as a gaybashing’, and his linguistic displacement in which he as judge speaks as if J.S. index an engagement in and investment with bodies in space and time. His judgement, while may be read as activist and outside of strict statutory interpretation, nonetheless saw beyond J.S.’s denials of homophobic motivation and surveilled a scene of sexualized space where men sex other men clandestinely and where violence seeks them out.

‘Look, a Faggot!’

In the sentencing of Ryan Cran, Madam Justice Humphries contended that there was ‘no evidence before the court of Mr. Webster’s sexual orientation [and] no evidence [. . .] that Mr. Cran’s motive for attacking Mr. Webster was his sexual orientation’. She went further stating that the motive for the deadly attack against Webster remained, to her, ‘obscure’. Her account of the scene of violence – where upon Cran and three of his friends, armed with baseball bats and golf clubs, came across a man, who was naked except for his boots, in Stanley Park at 2 a.m. and beat him to death – lacked the evidence that its motivation was homophobia. Describing the scene of violence moments before Cran and his friends fell upon Webster, she noted, ‘He [Webster] was simply [my emphasis] standing near a parking lot, smoking, naked. There is no evidence before the court to explain where his clothes were or why Aaron Webster was naked.’ Within her reason for judgement, I argue that there are two essential words that need to be examined critically: the adjective ‘obscure’ and the adverb ‘simply’. There are two metaphors at play here, both of which are scopic in nature. Despite Madame Justice Humphries’ contention, there is a dynamic tension between the notion of the ‘obscure’ and the obvious – as noted by her matter-of-fact application of ‘simply’. On one hand, her statement acknowledges the visually manifest, the in-your-face quality of Webster’s presence: he was simply standing there naked, and this action had no significance attached to it. On the other hand, what she fails to see, as denoted by the adjective ‘obscure’, what is before her – a naked man, casually smoking in an area known to be a cruising area at 2 a.m.. Such a presence, I argue, worked to incite the psychic defensive mechanism of disavowal, whereby the viewing subject, overcome by the visual presence of a threat, seeks the mitigation of that threat by displacing and disavowing it.

Fanon’s (1967) essay on the presence of the black male body as a threat to the colonial white subject leads itself well to a parallel phenomenological relationship of the queer male cruiser as a threat to the homophobe. I draw my reader’s attention to the powerful interpellation, ‘Look, a Negro!’ (p. 109). Within the context of racist colonialism, these words, as Fanon remarks, rip him from himself and reconstitute him as a ‘corporeal malediction’ (p. 111) cast into the world of objects as object. In that world of racialized objects, the black male body, argues Fanon, is ‘a stimulus to anxiety’, a ‘phobogenic object’ (p. 151) to the white subject. He is ‘fixed’ (p. 109) by the gaze of the white subject, reduced to a state of abject objectification. Taking Fanon’s insightful understanding of the constitutive power of the scopic and of the neurotic subject whose phobia ‘arouse[s] both fear and revulsion’, I consider the body of the gay male cruiser, with his disruptive sexuality, as a sight/site of phobic anxiety. To return to the deadly scene described by J.S. to police, in which he and his friends lay in wait and were confronted with the presence of Webster before them naked, I note that in that scenario sexuality and violence are overdetermined. Insofar that cruisers were voyeurs, voyeurs were bashers and bashers were cruisers, the instability of that constitutive scopic matrix came crashing down at the instant anxiety replaced desire. The scopic confrontation with the uncompromising nakedness of Webster for these young men, who intended violence, jarred them back into an anxious state of fear and homophobic revulsion. The eroticized surveillant exchange perhaps lasted a second or two and then was gone. In an instant, Webster was identified as the ‘corporeal malediction’ – he was the fucking voyeur, that is, a denigrated and despised gay male cruiser, by those who sought to do him harm. It was as if they announced, ‘Look, a faggot!’ ripping Webster from himself and casting him into a world of objects as object. Now cast as a stimulus, not of eroticism, but of anxiety, the gay male cruiser is akin to Fanon’s ‘phobogenic object’ for whom all homoeroticisation and subjecthood must be repudiated. The repudiation that followed was deadly.

Madame Justice Humphries’ response to Webster’s nakedness as signalled by the signifier ‘simply’ mirrors a similar state of anxiety, although well masked within a judicial performance of restraint and rationality. Returning to Freud’s description of the psychic mechanism of fetishistic defence, the state of disavowal is a kind of seeing-not-seeing. It is a visual displacement that works to contain and minimize threat. This containment needs to be actively maintained and is betrayed by disjuncture, dissonance and other signifiers that index affect. If space is indeed constitutive and bodies in space productive, then there is little ‘simple’ about Webster in the park that night. As evidenced by the murderous rage of the bashers, Webster’s presence signified affectively. For Madame Justice Humphries to deny the affect of such a sight, of such a disruptively eroticized presence in space/time, betrays the trauma of such a sight to the homophobic subject. Her fixation on the moment just before the bashers pull themselves from the phenomenological spell of the cruising exchange marks her active rejection of what came next. The reduction in that moment to the banal and inconsequential, as signified by the word ‘simply’, is the fetishistic moment, the moment of seeing the disruptive, threatening sexual subject and disavowing his significance. It is both a seeing and not-seeing. Like the pre-Oedipal boy, who sees his mother’s genitals and is confronted with the threat of castration, Madame Justice Humphries’ freezes the phenomenological moment just before the murderous violence by staging the scene of Webster’s nakedness as affectively void and insignificant. Having seen what the nakedness lead to – murderous rage – she must disavow the value of that particular state of being in that particular space and time. For her, there is no connection, signified by the repeated use of ‘little evidence’, between Webster’s state of nakedness – the primary sign of his cruising – at that moment and the deadly consequences thereafter.

There are a number of other strategies of defence at play in Madame Justice Humphries’ reason for sentence that give weight to the idea that her judgement betrays unconscious and irrational elements within this seemingly rational pronouncement. The following observations identify the psychic mechanisms of reversal and negation at play in her judgement. ‘Every judgement of the court’, she remarked, ‘should be subjected to scrutiny and informed criticism’ (para 7). Inviting the close inspection of the community, particularly the gay community, she appeals once more to the scopic and signals its phenomenological presence. In that she does this, she immediately reverses it by appealing to the confines and close interpretative scrutiny of law: ‘But judicial decisions must and will be made in accordance with the rule of law’ (para 7). ‘A court cannot’, she opined, ‘step outside the rule of law and base its decisions on the matters reported in the media’ (para 6). This strict scrutiny of law, for her, is the thing upon which justice rests. With respect to her address to Judge Romilly, she explicitly noted his decision to nominate the offence as a ‘hate crime,’ only to undercut it with a strict interpretativist position: ‘With the greatest respect to the youth court judge [Judge Romilly] who referred to this as a hate crime, I can say only that I am not aware of any authority in the Criminal Code or otherwise which would allow this court to declare a particular crime a “hate crime”’ (para 8). Rhetorically, by undercutting the potential of precedent, she gives presence in her court to the idea of hate crime only to dismiss it. Negation is a further defensive mechanism used by the court to turn away from the significance of Webster’s nakedness. Repeated threefold, Madame Justice Humphries insisted that there was ‘no evidence’ before the court of Webster’s sexual orientation, of his reasons for being in the park at that time of night, or the attackers’ motivation for the attack. Reread psychoanalytically in the affirmative, ‘no evidence’ reverses into ‘evidence’, not established by strict legal interpretation, but by a deeper insight into the libidinal power of looking.

Madame Justice Humphries’ disregard for particular bodies in particular spaces disavows the phenomenological power of looking – here, a looking produced by the economies of surveillance particular to both cruising and bashing. It denies the objectifying violence of the homophobic articulation, ‘Look, a faggot!’ Her failure – law’s failure – to acknowledge the motive for the deadly attack on Aaron Webster reproduces that very violence in its refusal to take judicial notice of that Fanonian moment when bashers constituted their phobogenic object. Madame Justice Humphries’ disavowal of the significance of Webster’s nakedness signals the horror of his very presence to a sensibility that would perceive the queer cruiser as a corporeal malediction. This judicial repudiation produced a manifestly different kind of violence than that of the bashers; in its negation of the violence as a crime motivated by hate, it reproduced the violence of hegemonic, heteronormative power relations.

Conclusion

The pairing of psychoanalysis with the study of law affords an insight into judicial discourse that exceeds the purely literal or doctrinal one. As another analytic tool in the critical study of law and judicial pronouncement, the psychoanalysis of judicial discourse unmasks law’s affective and psychic investments and exposes claims of rationality, strict legal adherence and neutrality as, at times, expressions of desire, identification, abjection and disavowal. Not all legal judgements will index the unconscious elements or the irrational desires. The reasons for sentence in Regina v. J.S. and R. v. Cran, however, do. The striking incongruent positions articulated by the judges in these two cases on the issue of hate motivation are significantly more than a differing of principled decision-making. From the dissonance afforded by these two reasons for sentence with respect to hate motivation to the multiple sites of rhetorical excess in which the scopic dominated, the presence of surveillant sexuality and violence and the affective responses of identification, disavowal, desire and phobia permeated not only the scene of cruising and bashing as recounted by J.S.’s testimony but also the discourse of judicial decision-making.

The judicial reasoning of the Webster homicide was structured around the denial of his attackers that they were not at Stanley Park that night to beat-up gay men, claiming instead to have armed themselves in vigilant pursuit of fucking voyeurs and peeping toms. More than simply a legal defence, this claim gives insight into the phenomenological and affective experience of surveillant bodies in fused space of cruising and bashing. Moreover, the figurative and identificatory aspects of this defence ground both Judge Romilly’s and Madame Justice Humphries’ understanding of the crime, respectively, as hate motivated and not motivated by homophobia. The richness of the trope of seeing as marked by figures of speech in the reasons for sentence underscores the affective impact and value of the scopic on legal agents who, at least formally, are represented as outside of the libidinal and the phobic and within the purview of the rational, the neutral and the objective.

Footnotes

Notes

References

Barry

Osbourne

Rose

(eds) (1996) Foucault and Political Reason: Liberalism, Neo-liberalism and Rationalities of Government. London, UK: UCL Press.

Bell

(1995) Pleasure and danger: The paradoxical spaces of sexual citizenship. Political Geography 14: 139–153.

Case

(1997) Understanding Judicial Reasoning: Controversies, Concepts and Cases. Toronto, ON: Thompson.

Cavanagh

(2010) Queering Bathrooms: Gender, Sexuality and the Hygienic Imagination. Toronto, ON: University of Toronto Press.

Coleman

(2003) Images from a neoliberal city: The state, surveillance and social control. Critical Criminology 12: 21–42.

Dalton

(2006) Surveying deviance, figuring disgust: Locating the homocriminal body in time and space. Social and Legal Studies 15: 277–299.

Fanon

(1967) Black Skin, White Masks. New York, NY: Grove Weidenfeld.

Freud

(1977a) Fetishism. In Richards

(ed) Sigmund Freud: 7. On Sexuality. London: Penguin Books.

Freud

(1977b) Three essays on the theory of sexuality. In Richards

(ed) Sigmund Freud: 7. On Sexuality. London: Penguin Books.

10.

Freud

(1984) Instincts and their vicissitudes. In: Richards

(ed) Sigmund Freud: 11. On Metapsychology: The Theory of Psychoanalysis. London, UK: Penguin Books.

11.

Fuss

(1991) Inside/Out. In: Fuss

(ed) Inside/Out: Lesbian Theories, Gay Theories. New York, NY: Routledge.

12.

Golding

(1963) Principled decision-making and the supreme court. Columbia Law Review 63: 35–58.

13.

Haggerty

Ericson

(2006) The new politics of surveillance and visibility. In: Haggerty

Ericson

(eds) The New Politics of Surveillance and Visibility. Toronto, ON: University of Toronto Press.

14.

Hollister

(1999) A highway rest area as a socially reproducible site. In: Leap

(ed) Public Sex/ Gay Space. New York, NY: Columbia University Press.

15.

Humphreys

(1970) Tearoom Trade: Impersonal Sex in Public Places. Chicago, IL: Aldine.

16.

Iafolla

(2006, May). This branch isn't like other branches: Money laundering and terrorist financing detection across the city. Audacity of Imagination session at the Canadian Law and Society Association annual meeting, Toronto.

17.

Katz

(1988) Seductions of Crime: The Moral and Sensual Attractions in Doing Evil. New York, NY: Basic Books.

18.

Lunny

(1999) Heimlich maneuvers: Freud's analytic seduction of the wolf man. GLQ: Journal of Lesbian and Gay Studies 5: 41–62.

19.

Lyon

(2003) Surveillance After September 11. London, UK: Polity.

20.

Lyon

(2006) Airport screening, surveillance, and social sorting: Canadian responses to 9/11 in context. Canadian Journal of Criminology and Criminal Justice 48: 397–411.

21.

Mason

(2002) The Spectacle of Violence: Homophobia, Gender and Knowledge. London, UK: Routledge.

22.

Mathiesen

(1997) The viewer society: Michel Foucault’s ‘panopticon’ revisited. Theoretical Criminology 1: 215–234.

23.

Maynard

(1994) Through a hole in the lavatory wall: Homosexual subcultures, police surveillance, and the dialectics of discovery, Toronto, 1890-1930. Journal of the History of Sexuality 5: 207–242.

24.

Moran

McGhee

(2001) Perverting London: The cartographic practices of law. In: Stychin

Herman

(eds) Law and Sexuality: The Global Arena. Minneapolis, MN: University of Minnesota Press.

25.

Moran

Skeggs

Tyrer

Corteen

(2004) Sexuality and the Politics of Violence. London, UK: Routledge.

26.

Norris

(2003) From personal to digital: CCTV, the panopticon, and the technological mediation of suspicion and social control. In: Lyon

(ed) Surveillance as Social Sorting: Privacy, Risk and Digital Discrimination. London, UK: Routledge.

27.

Norris

Armstrong

(1999) The Maximum Surveillance Society: The Rise of CCTV. Oxford, UK: Berg.

28.

Perry

(2001) In the Name of Hate: Understanding Hate Crimes. New York, NY: Routledge.

29.

Razack

(2007) ‘Your client has a profile’: Race and national security in Canada after 9/11. Studies in Law, Politics and Society 40: 3–40.

30.

Robertson

(2005) Spaces of exception in Canadian hate crimes legislation: Accounting for the effects of sexuality-based aggravation in R. v. Cran. Criminal Law Quarterly 50: 482–507.

31.

Stanko

Curry

(1997) Homophobic violence and the self 'at risk': Interrogating the boundaries. Social and Legal Studies 6: 513–532.

32.

Steele

(1993) Vancouver’s Famous Stanley Park: The Year-Round Playground. Vancouver, UK: Heritage House.

33.

Thomas

(2005) The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles. Cambridge, UK: Cambride University Press.

34.

Thomas

(1993) Corpus juris (hetero)sexualis: Doctrine, discourse, and desire in Bowers v. Hardwick. GLQ 1: 33–51.

35.

Vaughan

(1999) River Tom. In Invisible to Predators. Toronto, ON: ECW Press.

36.

Wilson

(1986) Decision-making in the supreme court. University of Toronto Law Journal 36: 227–248.

37.

Bowers v. Hardwick [1986] 478 US 186.

38.

Halpern v. Canada [2003] O.J. No. 2268.

39.

R. v. Cran [2005] BCSC 171.

40.

Regina v. J.S . [2003] BCPC 0442.