The Sexual Offences Law Reporter
May/June 1999, Volume 4, Issue 6
Sexual Abuse by Employers in
The Works of Georges Simenon
Ontario Court of Justice (Provincial Division)
Submit to the present evil,
lest a greater one befall you
Phaedrus - Fables, Bk 1, Fable 2, 1. 31
In a recent publication, Professors Christine Boyle and Marilyn MacCrimmon observed that "For several decades now, criminal law relating to sexual violence in particular has been subject to criticism ... as facilitating male sexual access to [women] irrespective of their wishes."1 They further remarked that "Particular criticism was directed at the 'defence' of mistaken belief in consent, which ... even allowed [those wishing to have sexual contact with others] to substitute their own normative views of when sexual contact is permissible for legal norms.2 (emphasis added) Of interest, an example is provided of an abusive or predatory situation involving economic ascendancy and dependence: "an employer of a domestic worker may be totally insensitive to the precariousness of her situation in Canada and assume an ability to express non-consent in a forceful manner."3 In other words, there is not participation in sexual congress but submission borne of financial necessity; the present evil of unwanted sexual contact is preferred to the greater one of potential economic ruin. ...
Accordingly, what are the problems in the evaluation of sexual activity between two adults involved in an employer-employee relationship in which there is no objective evidence of consent?4 Under what circumstances may a defence of honest but mistaken belief in consent be appropriate? Ought there to be a proscription against sexual contact initiated, without invitation, by an employer with respect to an employee, in order to prevent exploitive participation resulting not from volition but submission borne of economic disadvantages?
As a general rule, it is unwise for judicial officers to comment on the law outside of the courtroom. Hence, the questions posed here must be answered by others. That is not to suggest however that no participation is possible in the identification of research material that may be of assistance to others in advancing a coherent response to this issue. The focus of this article is thus limited to setting out examples found in the prodigious world of fiction penned by Georges Simenon; fiction that may be useful in delineating the parameters of unlawful sexual exploitation of individuals who occupy an economically vulnerable position.
l) Fictional accounts: their value to legal analysis
What purpose is served by considering, even briefly, the world of fiction as opposed to the case reports? It is suggested that human behaviour is often responsive to direct suggestions (and to far more subtle cues) about various behaviours that are grounded in literature. For example, in The Merchant of Venice, Portia states, "in terms of choice I am not solely led By nice direction of a maiden's eyes: Besides, the lott'ry of my destiny Bars me the right of voluntary choosing. ..."5 Hence, a better understanding of these fictional accounts may provide a more fundamental insight into the reasons for objectionable conduct being considered to be lawful, on the one hand, and for the difficulties encountered by those whose economic vulnerability may make them appear to be greater to what is unwanted sexual contact, on the other. In addition, by its very nature, references to well known fictional characters and memorable scenes may best serve to underscore the lessons foremost in the minds of the authors. By way of limited example, who can forget the misery of Fantine in Les Miserables, forced to turn to prostitution to survive and to pay for the care of her chilld?6
2) Simenon's writings and the general theme of predatory employers:
I have commented elsewhere, and at length, on the instruction that Simenon provides to those interested in criminal law and procedure.7 Of particular interest to the subject matter at hand, Simenon's works include a signal number of sexual predators who exploit without mercy the women and female children who are employed by them, including the future Premier of the Republic.8 In fact, when an employer conducts himself honourably towards vulnerable female staff, special commendations are advanced.9
The first of these to be considered is the cynical owner of a hotel or other large establishment who employs many women and who sexually abuses his staff. The best example is found in Maigret and the Yellow Dog: "Of course, they're important people, and nobody would dare say anything to them. Still, they overdid it, corrupting the girls from the cannery. ... It's sad to say, but things are slow at the cannery. There's a lot of unemployment. So, if you've got a little money ... all those girls. ..."10 A further example is found in The Girl With a Squint11 in which we read of the hotel 'patron' who believes he is entitled to 'take advantage' of his employees simply by reason only of his employing them. The abuse occurs easily enough as each victim knows that there are many others able to assume her position within a matter of minutes.12 In fact, in that novel the guests also believe that they may abuse the staff without fear of refusal or reprisals: the employees know that if they complain, the guest will be importuned and will leave and the resulting financial loss to the owner will result in dismissal or other punitive measure. As one chambermaid13 commented at p. 69: "He didn't smile, he didn't even bother to talk me into it. He put his finger to his lips and pointed to the thin wall. He'd worked it all out, you see, and everything had to go according to plan."14 A further example of secondary exploitation by others who know that no complaint will be voiced, for fear of the loss of work is found in The Stain on the Snow. One young woman who becomes the inmate of a brothel in the hope of economic survival during the war years remarks that she probably has no choice but to have sex with the boss's son.15
In such cases, some of the questions to be debated include the reasonableness of any belief in consent owing to the time and place of the activity and the absence of any steps to ensure privacy and comfort, although there are rooms available.
A further question in such cases involves the merits of the lack of resistance by the subject employee. May an employer point to this passivity as honest belief in apparent consent? In this regard, note that one of Simenon's characters in Les Temoins16 is perplexed by the fact that her employer has yet to abuse her. In debating the point, it may be useful to note a passage from The Iron Staircase.17 Simenon writes that the employer had crept up the stairs without making a sound, and approached the employee from behind while she was preparing asparagus. Further, "Charlotte does not react, as if expecting this behaviour and merely leans forward and continues with her task during his attack." The unstated but evident understanding is that she remains responsible for the preparation of the meal according to schedule. ...18 Note as well the plight of the young, vulnerable employee working alone in an isolated area. A telling example is found in The Rich Man: a ward of the Children's Aid is placed in a lonely farm as a cook and is abused repeatedly. It never comes to her mind to complain, much less to resist. ...19 In Longs cours, the victim states that she did not dare resist her employer as she was too "bête", or foolish.20
On occassion, the employee's actions are telling. For example, in Le testament Donadieu, the secretary merely stiffened in response to the fondling. She looked away.21 It is therefore suggested that the trier of fact be invited to examine the response of the employee, together with the other factors noted herein and any others that are germane, in the evaluation of the reasonableness of any purported belief in consent.
Attention is now drawn to the issue of a person who is not an employer but who is a hierarchical superior, with the power to obtain the dismissal of those who are in subordinate positions. Simenon provides a compelling example of the easily imagined potential harm that may result in Maigret se trompe:22 It involves a brilliant surgeon who assaults many of the nurses, at one time or another and who seemingly never encounters any resistance. One nurse comments that the surgeon never says a word, that the action took place at the hospital, and that she and the others all hailed from modest rural backgrounds. In such a case, a great number of issues are raised; notably the importance of unequal economic and professional standing and the potential relevance of the background of those selected, leaving aside the obvious question of the lack of any attempt to ascertain interest in sexual activity, much less consent.
Should the background events to sexual activity in the workplace between employer and employee be examined for any clues as to the apparent reasonableness of mistaken belief? For example, in Les complices,23 a secretary is surprised by her boss in an embarrassing pose and is ordered to come to him; she complies in a docile fashion. If an employee is not docile, it may result in her being left alone; her more compliant colleagues may then be abused.24
A further factual scenario involves the employee who occupies a position without any semblance of the academic or technical achievements that are required. Is there not an implied sexual bargain that is predatory in nature? For example, in Maigret's Failure,25 the private secretary to a rich businessman exclaims: "But I'm not well brought up or educated. Men know what they want with me."
In closing, it will be useful to note that Simenon does provide examples, albeit rarely, of appropriate behaviour between an employer and an employee leading to a sexual relationship devoid of any notions of economic ascendancy. One case involves The Little Man from Archangel.26 "Even when, in the sunlight, her body almost naked under her dress, she used to move to and fro around him and he breathed her smell, he had never made a single ambiguous gesture." A better example of such appropriate conduct involving an individual who refrained from any form of abuse out of a sense of justice and respect, but who did enjoy sexual intercourse in time when it is was the wish of the employee, is found in W. Somerset Maugham's short story, The Treasure.27
Doubtless, it is true that "les femmes se donnent quand elles ont faim".28 The example of Fantine is a gripping reminder of this tragic reality. However, is it not correct as well that a principled analysis of sexual abuse involving employers and employees must take into account lesser economic inducements or obstacles to genuine consent? If so, the difficult question is to delineate the exact line at which economic vulnerability negates a legally acknowledged consent. And what of the demarcation of the boundaries of the defence of mistaken belief in consent? The fictional accounts selected in this article tend to underscore the vulnerability of individuals in the course of their employment. Clearly articulated and understood legal norms must be selected in which fundamental values of liberty, dignity, and privacy have priority.
What norms will come to be identified is left to others to debate, however.
See "The Constitutionality of Bill C-49: Analyzing Sexual Assault as if Equality Really Mattered" (1998), 41 C.L.O. 198-237, at p. 199. Ibid. In support of this proposition, an article by Prof. Lucinda Vandervort is cited, "Mistake of Law and Sexual Assault: Consent and Mens Rea" (198788), 2 Can. J. of Women and the Law 233. Ibid., at p. 218. An example of a prosecution of an employer who sexually assaulted a vulnerable employee in terms of both status and strength, and who was sentenced to an economic penalty payable not to the State but to the victim, is found in R.v.A. (1974), 26 C.C.C. (2d) 474 (H.C.J.). It is of course patent that in and of itself, silence is not consent notwithstanding the writings of Oliver Goldsmith. See "The Good-Natur'd Man", 1768, Act II. See Act 2, sc. 1, 1. 12-14. See, "With the Benefit of Modern American Laws and Competent Legal Representation, They Might Not Have Been Les Miserables", (1991), 30 Washburn L.J. 477-500. Dean Wigmore commented: "The lawyer must know human nature. [She] must deal understandingly with its types and motives. These [she] cannot all find close around . ... For this learning [she] must go to fiction which is the gallery of life's portraits". See "A List of One Hundred Legal Novels", (1922) 17 III. Law Rev. 26, at p. 31. See "Evidence of Demeanour: Some Instruction found in the Early Works of Georges Simenon", (1998) 21(4) Prov. J. Journal 5-23; "Identification Evidence: Cross-examination Inspired by Georges Simenon", Alan D. Gold's Netletter, (Database Quick Law Gold), Doc. No. 195, Adgn/RP-072; "The 'Third Degree' and Police Interrogations in the Novels of Georges Simenon", Alan D. Gold Netletter, (Database Quick Law Gold), Doc. No. 156, ADGN/98-063; "Disclosure of Information Prior to Police Interrogations: Guidance from the Novels of Georges Simenon", Skurka & Pringle Defence Archive, Issue # 5, June 5, 1998. (www.crimlaw.org/9806.html] See The Premier in Georges Simenon, London: William Heinemann Limited, 1978, at p.689. See Le president, Tout Simenon, Volume 9, [Paris: Presses de la Cité, 1989, at p. 577. p. 804 of Maigret Loses His Temper, in Georges Simenon, London: William Heinemann Limited, 1978. In French, see La colère de Maigret, Tout Simenon, Volume 12, Paris: Presses de la Cité, 1990, at pp. 27-28. San Diego: Harcourt Brace & Company, 1988, at p. 57. Translation by Linda Asher. See Le chien jaune, Tout Simenon, Volume 16, Paris: Presses de la Cité, 1991, at p. 313. New: Harcourt Brace Jovanovich, 1978, at pp. 6-7. Translation by Helen Thompson. See Marie qui louche, Tout Simenon, Volume 5, at pp. 645-6, Paris: Presses de la Cité, 1988. A further example is found in Le grand Bob, Tout Simenon, Volume 7, Paris: Presses de la Cité, 1989, at p. 767. I merely repeat the archaic and sexist descriptions contained in the novel. Refer to p. 665 in the original French version described at note 10. The related issue of exploitation by co-workers who are not in equal bargaining positions is not discussed herein, by reason of lack of space. See La boule noire, Tout Simenon, Volume 8 Presses de la Cité: Paris, 1989, at p. 143. See p. 121, Middlesex: Penguin Books, 1986. Translation by John Petrie. Or, La neige etait sale, Tout Simenon, Volume 3, Paris, Presses de la Cité, 1988, at p. 187. The book contains many examples of predatory sexual exploitation by wealthy individuals but not in the course of employment relationships. Limitations of space permit only one example: "He ran after girls from the gutter, especially the really poor ones, because they were easier game, and he always picked them very young." See p. 53, English, p. 144 French. See Tout Simenon, Volume 7, Paris: Presses dee la Cité, 1989, at p.648. New York: Harvest/HBL Book, 1981, at p. 36. Translated by Eileen Ellenbogen. L'escalier de fer, Tout Simenon, Volume 6, Paris: Presses de la Cité, 1989, at p. 665 The same type of scenerio is found in Maigret in Holland, San Diego: Harcourt Brace & Company, 1994, at p. 146. Translation by Geoffrey Sainsbury. Un crime en Hollande, Tout Simenon, Volume 16, Paris: Presses de la Cité, 1991, at p. 630. New York: Harcourt, Brace Jovanovich, Inc, 1971, at pp. 11-12. Translation by Jean Stewart. See Tout Simenon, Volume 15, Paris: Presses de la Cité, 1991, at pp. 13-14. It is a recurring theme. In The Suspect, a 12-year-old ward was abused by a farmer. See p. 81. New York: Harcourt Brace Jovanovich, Publishers, 1991. Translation by Stuart Gilbert. In French, see Le suspect, Tout Simenon, Volume 21, Paris: Presses de la Cité, 1992, at p. 134. Tout Simenon, Volume 19, Paris: Presses de la Cité, 1992, at p. 584. Tout Simenon, Volume 20, Paris: Presses de la Cité, 1992, at p. 184. Tout Simenon, Volume 7, Paris: Presses de la Cité, 1989, at p.39. At p. 40, note is made that he chose nurses who were not likely to make things difficult for him; at p. 57, we learn that he made no effort at seduction. Tout Simenon, Volume 8, Paris: Presses de la City, 1989, at p. 353. See Maigret and the Yellow Dog, San Diego: Harcourt Brace & Company, 1988, at p. 8. Translation by Linda Asher. In French, Le chien jaune, Tout Simenon, Volume 16, Paris: Presses de la Cité, 1991, at p. 282. See A Maigret Trio, New York: Harcourt Brace Jovanovich, Inc, 1973, translated by Daphne Woodward; See Un Échec de Maigret, Tout Simenon, Volume 8, [Paris: Presses de la Cité, 1989], at p. 569. See Georges Simenon, London: William Heinemann Limited, 1978, at p. 370. See Tout Simenon, Volume 8, Paris: Presses de la Cité, 1989, at p. 631. The Complete Short Stories of W. Somerset Maugham, Book 2, Garden City, N.Y.: Doubleday & Company, Inc, 1952, at pp. 648-663. "Women submit to sex when they are hungry", as set out in Les trois crimes de mes amis, Tout Simenon, Volume 21, Paris: Presses de la Cité 1992, at p. 56.
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