Opinion: Next frontiers

Can feminist strategies transform women’s experience of the law? How female lawyering and feminist judgments can bring positive change

Women generally appear in criminal justice systems in three main respects: as victims, as suspects and as jurists – lawyers and judges. Feminist efforts over time have changed law, practice and procedure to help facilitate the effective participation of women as victims in justice systems, particularly through the prosecution of domestic and sexual violence, gender-based violence, forced marriage, slavery and human trafficking. However, there are still debates over whether a woman complaining should be believed.

For suspects, the framework of criminal justice has developed to restrict defences based on personal circumstances: duress has been too tightly confined, there is no defence of coercive control (despite it now being an offence) and the defences for human trafficking victims who commit crime are limited by the exclusionary provisions of the Modern Slavery Act 2015. Similar defences in ASEAN are wider. In Australia, trafficking defences are non-existent but the scope for reduced criminal responsibility for women who kill an abusive partner is wider than the medical diagnosis of ‘battered woman syndrome’ required in England and Wales. This patchwork of inharmonious domestic responses to international commitments perhaps accounts, in part, for the incarceration of women who have multiple vulnerabilities. In the criminal justice context, women are exploited, abused and coerced by organised criminal traffickers and then again by States and Territories which continue to prioritise criminal justice concepts in draconian and inflexible traditional terms, some even imposing the death penalty. The dynamics of abuse, exploitation and coercion are more visible in the context of trafficking but the drivers are the same in a domestic context.

A place for feminist strategies?

Making these issues visible in criminal justice systems may well depend on legal argument and judicial interpretation. One example of the value of women in this context is the use of feminist judgments. This is more than just appointing women as judges, or having women in the judiciary emulate the ‘robust approach’ of the past, but to use lawyering to enable judges to make feminist-based decisions. Rosemary Hunter’s 2012 article, The Power of Feminist Judgments? analyses two feminist judgment-writing projects: The Women’s Court of Canada (WCC), and the Feminist Judgments Project (FJP) in England and considers feminism from a law reform perspective. Hunter concludes that:

‘Legal knowledge generated by feminist judges must remain contingent, contextualised, diverse, debated, open to critical scrutiny, and above all a collective enterprise. Differences within feminism must remain productive rather than destructive. And judicial authority and legal decision-making must continue to be deconstructed. The concept of deconstruction via reform, and reform via deconstruction, provides a useful image for the hybrid nature of feminist-judgment writing projects, and for their ambivalent relationship with Smart’s [Feminism and the Power of Law (1989)] critical and strategic contentions.’ Feminist Legal Studies 20 (2):135-148 (2012).

“Making these issues visible in criminal justice systems may well depend on legal argument and judicial interpretation”

In Yemshaw v LB Hounslow [2011] UKSC 3, feminist research was given legal effect by Lady Hale’s influence in a housing case. The meaning of ‘domestic violence’ in the statute concerned was interpreted to include ‘physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm...’ thus reflecting the reality of women’s lives in judicial decision-making. Lady Hale and Lord Kerr dissented in the matter of an application by the Northern Ireland Human Rights Commission on reproductive rights, although it took Lord Kerr to express the practical reality (Human Rights Commission for Judicial Review (Northern Ireland: Abortion) (Rev 1) [2018] UKSC 27 at [261]):

‘We need to be clear about what the current law requires of women in this context. It is not less than that they cede control of their bodies to the edict of legislation passed (in the case of the 1861 Act) more than 150 years ago and (in the case of the 1945 Act) almost 75 years ago. Binding the girls and women of Northern Ireland to that edict means that they may not assert their autonomy in their own country. They are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire. If, as well as the curtailment on their autonomy which this involves, they are carrying a foetus with a fatal abnormality or have been the victims of rape or incest, they are condemned, because legislation enacted in another era has decreed it, to endure untold suffering and desolation. What is that, if it is not humiliation and debasement?’

Change from within

The point here is that feminist change can occur from within the system. It is therefore incumbent upon jurists to consider what can be deconstructed or reformed or vice versa in any criminal justice system. Women are currently most visible in criminal law in the context of victimhood. Conversely, there remains little formal recognition of the plight of female defendants.

Teaching feminist legal theory can be useful to develop the next generation of lawyers and policy makers. One of my students recently observed: ‘Discrimination against women lawyers today remains a significant concern and is exemplified by the undeniable fact that despite the legal profession increasingly admitting more women than men annually, it continues to be “manifestly distorted” in favour of males at senior levels. Remarkably, while women account for two-thirds of law graduates, the pay gap between female lawyers and male lawyers is astounding.’

The difficult and confronting challenge is a re-analysis of criminal justice scholarship to remove the profound invisibility of women in justice systems. Feminist efforts over decades have changed law, practice and procedure to facilitate the effective participation of women in justice systems. In international criminal law this has led to recognition of sexual violence in conflict zones and the very particular effects of gender-based violence, forced marriage, slavery and human trafficking to name a few. Here the progress we have seen for women is from violated property into victimhood. Visibility coming with the cost of presumed vulnerability.

Women were and still are rarely seen as defendants. Between 2-9% of offenders are women and yet, rather than treat such a case as exceptional, the culture of judicial shaming (particularly of mothers) perpetuates so the women move to visibility in the paradigm of shame, over-criminalisation and incarceration.

From a systems standpoint, it remains rare to find women as visible actors in the legal profession or in the judiciary. Numbers are rising but attrition is endemic and working practices prohibitive and stubbornly discriminatory. Progress is far too slow despite significant improvements in diversity in legal education.

The next frontier is not merely to improve the numbers of women lawyers and judges who can be seen but to challenge the very foundations of the scholarship of law. The answer is not just legislative responses to the horrors of gender-based violence and sexual offending but to re-examine the very basis of law, practice and procedure. From substantive law, through evidence and procedure to sentencing, the foundational approach is cultural and actual change which is capable of being led by feminist judgments to reduce victimhood, particularly in the dock through legislative and political change and by improving judicial understanding through feminist lawyering by visible senior women to facilitate feminist judgments.   

 

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Felicity Gerry QC

Professor Felicity Gerry QC LLB, GCUTL, LLM is at Carmelite Chambers, London and Crockett Chambers, Melbourne and is Professor of Legal Practice at Deakin University.