The Canadian justice system shows once again it is not ready for dealing with the online world.
The internet just became an even uglier place for Canadian women.
The verdict in what's believed to be Canada's first Twitter harassment trial was announced on Friday. In a precedent-setting move, the Ontario Court of Justice decided that harassing women online is not a crime.
Judge Brent Knazan found Gregory Alan Elliott not guilty of criminally harassing Toronto feminists Steph Guthrie and Heather Reilly. To many observers, Knazan's decision illustrated that the legal system does not fully understand violence against women nor the basic ways in which Canadians function online.
For background: Guthrie told police she felt harassed after several heated interactions with Elliott in the summer of 2012. Even after she blocked him, he continued to barrage her with tweets, and made it clear he had detailed knowledge of the neighbourhood she lived in. He would also co-opt hashtags she invented, aggressively inserting himself into conversations about her organization Women in Toronto Politics. (Full disclosure: I know Guthrie through Toronto's relatively small feminist circles, I admire her work, and we are friendly when we see each other both online and in person).
Meanwhile, Reilly was "concerned" because of extensive and misogynistic tweets from Elliott, and because he tweeted about the scene at the Cadillac Lounge, a popular bar in Toronto's Parkdale neighbourhood, on a night when she was there.
Both women blocked Elliott and told him not to contact them further.
Back to the verdict: In order for Elliott to be found guilty, it had to be proven that he knew he was harassing the women, and that they were fearful as a result. It also had to be proven that their fear was reasonable.
Knazan decided that Elliott was not aware he was harassing Guthrie, and that her fear was not reasonable. He decided that Elliott did know he was harassing Reilly.
But she didn't explicitly testify that she was "fearful"—instead, she said she was "concerned." Because of that, and because he deemed her fear unreasonable anyway, the charges against Elliott were dismissed.
Knazan did, however, rule that both women were harassed, and that some of Elliott's tweets were "vulgar" and "hurtful."
Many people are now asking why, then, was Elliott found not guilty? Further, why was someone who could never understand what it is to be terrorized in this way put in charge of gauging the legitimacy of women's fear?
This verdict is troubling. A precedent has now been set that if a person is harassed online, that harassment will not be deemed criminal unless a physical element is introduced, or unless the harasser repeatedly uses violent language.
"My reaction to that ruling was 'Great, it's open season on women now,'" Ontario NDP MPP Cheri DiNovo told VICE. "You can say whatever you will about whatever woman you want, it's just freedom of expression."
It's clear that Knazan does not understand the fear of violence women carry around with them, and at what point in an interaction with a man that fear begins to manifest. He repeatedly said that there were no physical or sexual threats made. But the women did feel threatened, and that's how violence begins: with threatening and controlling behaviour. Violence comes from those who ignore other people's boundaries. The internet is a largely unregulated space where people who ignore others' boundaries can flourish.
Knazan himself said "It is reasonable that fear can arise just from the fact of someone continuing to contact someone after being asked to stop. That behaviour could reasonably signify that the person who continued the contact was capable of anything since they ignored the request."
We live much of our lives online now, and as such, a person who trails a woman on the internet after being asked not to engage with her is guilty of virtual Peeping Tomism.
But that reality seems lost on Knazan. During the trial, Crown counsel asked Reilly to explain what she meant by Elliott's Cadillac Lounge tweet being "concerning." She said she had "no idea what his future intent could be if he had chosen to escalate the harassment from online to in-person."
She testified that the implication he was physically present at the Cadillac gave her "the impression that he was stalking me though my tweets, and could potentially be at any location I was, and I felt that that could eventually lead to a threat against my personal safety. This appeared to escalate from name calling through to potential...this could be physical harm to me.'"
How could someone be any more explicit that they were fearful? But Knazan decided that if she was fearful, her fear was not reasonable.
In Guthrie's case, Knazan claims Elliott did not know Guthrie was harassed. Blocking, he says, is not necessarily a sign of feeling harassed (even though women everywhere will tell you that yes, it is). Further, Guthrie retweeted tweets about Elliott after blocking him. Knazan blames Guthrie for this, saying her continued acknowledgement of his existence would negate, in Elliott's mind, the idea that she was harassed.
Guthrie's crime, it appears, was speaking up for herself. If she felt harassed and was afraid, she apparently should have kept quiet with her finger over the "block account" function rather than speak out. As Guthrie testified, there is no perfect victim, but the courts officially fail to realize that.
In short, the courts have just sanctioned men to say whatever they want to women.
DiNovo says in her view, harassing someone online is no different than harassing them on the phone, or even knocking on their door and screaming in their face. Either way, she says, it's abusive behaviour that needs to stop, and now, the courts have only exacerbated it.
"This is obviously going to allow these men—because that's who they are—to proliferate, and to get away with more of [this behaviour]."
Saira Muzaffar is a founding member of Tech Girls Canada, an NGO that connects women in STEM fields with the greater tech community. Part of her work involves leading advocacy campaigns about the treatment of marginalized people in the workforce. As she says, "This is victim blaming in full view of the Canadian public."
Not only does Knazan not understand violence against women, he also admitted that he is unfamiliar with the way Twitter functions. He spent a chunk of the first hour of the verdict reciting what he had learned about the platform since the beginning of the trial. His woeful ineptitude is highlighted by how he apparently attributed a homophobic tweet from an "Eliott" parody account (note the spelling) to Elliott himself. (Which numerous media organizations, including us, quoted from the judgment.)
"That was the entirety of the evidence, so how could he feel that he was knowledgeable enough to proceed with making a judgment?" Muzaffar wonders.
"He misattributed this tweet and it's in the public record. Is he going to face repercussions for it?"
Knazan made several references to "real life" and the absence of sexual violence and physical attacks in this case, the subtext being that Twitter is not real life.
But it is real life, especially for people like Guthrie. Twitter is the place where she connects with people for work, friendship, and allyship.
The laws, as Muzaffar says, are simply too outdated to account for modern day crimes. This verdict, she's sure, will be harmful for not just women, but all marginalized people on the internet.
DiNovo says that since people live online now, it's common sense that women should be able to occupy that space without expecting to be abused every few minutes.
"That's a different kind of assault," DiNovo says, "when people are kept off of social media. They're not allowed to use a tool that men are allowed to use because of fear of assault."
"If, anytime you're on social media, that means you open yourself up to a world of abuse, is that okay? And, quite frankly, the fact that women are much more the subject of this than men, is that okay?"
I ask DiNovo how to deal with this going forward if the justice system won't take responsibility for it. She says she's still processing, but she floats the idea of introducing a new bill to address online harassment of and verbal violence toward women. She also said people could potentially be charged with hate speech for harassing others online. Either way, she says, the bar has to be set a lot higher than the threat of physical violence.
Once again, a man's "freedom of expression" trumps a woman's right to feel safe and secure.
And once again, it's been proven that Canada's justice system cannot be expected to serve women. As usual, it's going to be up to women to find a way to fix the mess.
Follow Sarah Ratchford on Twitter.