Tài liệu FEMINIST PERSPECTIVES ON CRIMINAL LAW docx

FEMINIST PERSPECTIVES

ON CRIMINAL LAW

Cavendish

Publishing

Limited

London • Sydney

FEMINIST PERSPECTIVES

ON CRIMINAL LAW

Edited by

Donald Nicolson, BA, LLB, PhD

Lecturer in Law, University of Bristol

and

Lois Bibbings, LLB, MPhil

Lecturer in Law, University of Bristol

Cavendish

Publishing

Limited

London • Sydney

First published in Great Britain 2000 by Cavendish Publishing Limited,

The Glass House, Wharton Street, London WC1X 9PX, United Kingdom

Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080

Email: [email protected]

Website: www.cavendishpublishing.com

© Cavendish Publishing 2000

All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system, or transmitted, in any form or by any means, electronic,

mechanical, photocopying, recording, scanning or otherwise, except under the

terms of the Copyright Designs and Patents Act 1988 or under the terms of a

licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,

London W1P 9HE, UK, without the permission in writing of the publisher.

British Library Cataloguing in Publication Data

Bibbings, Lois

Feminist perspectives on criminal law—(Feminist perspectives series)

1 Criminal law—England 2 Criminal law—Wales

I Title II Nicolson, Donald

345.4'2

ISBN 1 85941 526 1

Printed and bound in Great Britain

v

FOREWORD

The publication of Feminist Perspectives on Criminal Law is an event to be

celebrated. It is proof that a vibrant and rigorous feminist jurisprudence

now exists to inform and illuminate our criminal law and practice. Most of

the authors have been a source of inspiration and support to me in my own

work in the courts over the years, providing me with the overview and

analysis which is so often beyond the reach of practitioners. When the

professional demand is to secure the best outcome for your individual client

within the prevailing legal framework, it is not always easy to see the bigger

picture or understand developing trends. For me, the work of colleagues in

the academic world has sustained me, helping me at times to step back and

see with fresh eyes that which can become invisible because of close

proximity. To see the subject matter of so many stimulating discussions and

seminars gathered together in all their glory is a triumph and I have no

doubt that this book will be a vital resource, especially to new generations

of lawyers.

In the early 1980s, when I would give talks on women and the law, I

would often start with the query ‘is the law male?’. The question invariably

divided the audience between those who thought it was a statement of the

obvious and those who were mystified by the very premise.

The idea that the law reflected a male world view and did not include a

female perspective was not a conspiracy theory about men in long wigs

gathering in smoke-filled rooms to plot the subservience of women. However,

in those days, any of us who questioned the orthodoxy that the law was an

objective set of rules were considered iconoclastic to say the least. I, like

others, thought I was stating a simple reality about the nature of the law.

Since our system is based on precedents passed down by male judges, drawing

on the wisdom of male legal commentators or laid down in statutes created

by largely male politicians legislating in Parliament, it was not surprising that

the legal subject was made in their own image and likeness.

Where I got it wrong was that, although I thought the law’s claim to

neutrality was bogus, I still believed then that if we reformed the law and the

judges, we could make the system genuinely fair and equal.

I was one of that generation of women who came to adulthood during the

second wave of feminism. I qualified at the Bar in 1972. Women were

enjoying greater educational opportunities and greater sexual freedom. Our

hopes and aspirations were radically changing and we began to turn our

attention to the ways in which social and political institutions maintained

inequality. We wanted to change the law and, on the whole, struggled to do

so within the parameters already set. We did not take sufficient account of the

fact that our legal cultures were premised on notions which are themselves

excluding rather than including.

As Professor Nicola Lacey explains (see Chapter 5), women have been

implicitly or explicitly excluded from membership of the community of legal

subjects. Whilst explicit discrimination—such as exclusion of women from

Foreword

vi

political suffrage, the universities, the professions and from rights of

ownership—had been successfully challenged by previous generations, women

now pointed out the subtler, more indirect ways in which legal rules and

categories excluded or discriminated against their sex.

Since previous discrimination had always been justified by claiming that

the different characteristics of women made them inherently unsuited to a

career in medicine or the law or to fulfil the onerous responsibilities of voting,

women lawyers saw any concession to difference as something to be avoided.

The ‘persons’ cases taught women a lot about legal neutrality. The judges, at

that time, intellectually honest to a man, maintained that the word ‘person’

did not include women.

Understandably, in the wake of that sort of thinking, my generation

saw the pitfalls in admitting to any form of difference. Of course, there

were biological differences, such as women’s birth-giving properties,

which would require different exceptional treatment, but otherwise, sex

difference was argued as unimportant and socially constructed. Therefore,

gender ought to be no barrier to a neutral conception of citizenship and

legal subjecthood.

Women lawyers began to show how the law in relation to employment

disadvantaged women, particularly in relation to part time work; how

women’s work within and outside the home was undervalued in pay disputes

and in the distribution of assets on the breakdown of marriage, how the

defining of sexual offences denied or distorted female sexuality. One of our

most senior women judges, Dame Brenda Hale, was at the fore of many of

these struggles.

What we imagined was that positing the ideal of gender neutrality would

engender sexual equality, but, of course, treating as equal those who are, in

fact, unequal does not produce equality, especially if there is no

acknowledgment of the world beyond the courtroom door.

However, in the beginning, we were true to our belief in law’s reforming

power and, whenever any deficit for women was identified, we sought law

reform. It was not always wholly successful, because, of course, law itself was

part of the problem.

Male violence is one of those areas to which women have directed

particular attention. There was recognition that violence is the ultimate

denial of equality and there was growing concern about the sexual double￾standard which operated in the courtroom, measuring women by very

different criteria from those which assessed male conduct. Rape cases

became the central battleground of sexual politics. The guiding principles of

rape trials seemed to be that men were victims of their own libidos and that

women led men on.

Many jurisdictions introduced law reform to limit cross-examination about

a woman’s sexual history. In Britain, we too changed the law, but left the

judiciary with the discretion as to when such questioning should be allowed.

Foreword

vii

Sentencing guidelines were issued to prevent courts dealing with rape as they

would theft of a bicycle or minor assault. More recently, legislation has

removed the traditional corroboration requirement and changed the language

of the direction to the jury, which informed them that it was well known that

women brought such charges falsely and juries had, therefore, to exercise

caution about the complainant’s testimony. Yet, despite such changes, the

conviction rate for rape in Britain is still the lowest for all serious crime and

despite increased reporting of rape, the convictions are falling. Over the past

decade, the numbers of reported rapes have doubled. Research has shown

that British judges who were supposed to prevent invasive, irrelevant cross￾examination of sexual history have interpreted their discretion widely and

admit irrelevant and prejudicial questioning. The scandal has now led to new

statutory law to further restrict cross-examination in rape cases. However, the

law’s failure has challenged our optimistic belief that legal reform would

relegate injustice to the past.

Domestic violence was another area which exposed how blunt the law

can be as an instrument for social change. Fortunately, the law no longer

recognises a private realm or ‘no go’ area in which a man is free to beat his

wife. Domestic violence is now regarded as a social evil which may

eventually have fatal results (in 38% of homicides involving female victims

in 1992, the victim was the spouse, cohabitee or former partner). Figures

from the recent British Crime Survey show that domestic violence forms the

largest single category of violent crime (20%). Home Office figures suggest

25%. Recent academic research from Bristol University puts the local figure

there at 46%, based upon Bristol Police assault files. When domestic

violence came to be dealt with in the courts, the gender-neutral rule that no

prosecutor should proceed with a case unless there is a real chance of

securing a conviction meant the dropping of significant numbers of

prosecutions where the female complainant expressed unwillingness to

testify. The supposedly gender-neutral law in relation to a provocation

based upon a sudden and temporary loss of self-control in the face of

provoking words or actions seemed to fail women who reacted not to one

provoking act, but the slow burn of cumulative abuse. It has only been after

a series of miscarriages of justice that the judges began to interpret the word

‘sudden’ more generously. As a result of our experience in the courts over

many years, we have had to ask ourselves whether the process of

assimilation really works. Equalisation has almost invariably been towards

a male norm. The public standards already in place were assumed to be

valid, so, instead of attempting to order our world differently, women have

been expected to shape up—whether as lawyers or as women using or

experiencing the law.

In characterising the law’s shortcomings, I am aware that powerful cultural

forces are at work. It is claimed that the law only reflects public attitudes

which are prejudicial to women. However, we are entitled to expect more

Foreword

viii

from the law. The law transmits powerful messages about men and women,

which construct and underpin our social reflections. It is important that those

messages do not reinforce stereotypical images of womanhood and

appropriate femininity or endorse notions of masculinity which are

detrimental to women and, indeed, negative to men. Ideally, the law should

be capable of transcending difference by first acknowledging it.

In the areas where straightforward gender neutrality has not worked, new

strategies have been adopted in pursuit of justice for women, but they have

involved a return to that worrying zone, which we have struggled so hard to

avoid, namely, a recognition of sexual or gender difference. Those of us

defending in the cases of battered women who kill have sought to bring the

reality of the battered woman’s life into the courtroom, to contextualise her

act of killing. In cases of self-defence and provocation, we have called expert

testimony to answer the current familiar question: ‘If it was so bad, why

didn’t she leave?’

People criticise the battered women’s syndrome as pathologising women or

special pleading. They see it as a return to difference. All I can say is that

women facing a conviction for murder do not become picky about feminist

principles or theory and nor should their lawyers. Whilst it is our duty to

avoid colluding in stereotypes or reducing the human dignity of our clients,

we also have to secure the best outcome as they see it.

However, if we are careful, we need not return to those notions of

difference which have been a cul de sac for women, but should develop this

idea of ‘context’. The move towards context means we are seeing the

development of ameliorative or substantive rights, as has already started to

happen in other jurisdictions like Canada. This means that when, for

example, assets are being distributed after divorce, account is taken of the

career sacrifices women have made and their reduced chances of finding

decent employment in the job market. Although I share some of the worries

expressed by Aileen McColgan, I believe that the Human Rights Act 1998

could play an important role in fostering substantive equality in place of

formal equality.

The genuine inclusion of women within the legal system would change the

law materially. The great advance is that so many wonderful women are now

entering the law and that most contemporary legal education also alerts men

to the issues. Participation by women in legal discourse at every level will

have an enormous impact. However, the undervaluing of women’s skill is

central to their absence in the highest echelons, whether in the judiciary, the

academy or amongst law partners and Queen’s Counsel. The explanation is

peddled that women are not present in these elite groups because of the

extraordinary nature of achievement necessary for such appointments. This

fiction that the tests of excellence are neutral and that merit is an objective

assessment are perpetually fostered.

We have also been distracted by the numbers game of trying to expand

Foreword

ix

access to the institutions without recognising that, once ‘inside’ these worlds,

their cultures operate curiously consistently to remind us that the female

participant is other than the participant around which the subject has been

structured. However, I remain an optimist that the law is changing. The

contribution by academic lawyers has been fundamental to that process and I

pay tribute to all of them for the challenges they pose and the solutions they

present.

Helena Kennedy QC

October 2000

xi

SERIES EDITORS’ PREFACE

In the past few years, criminal law has proven to be a rich area for feminist

work. This volume reflects the advances that have been made in feminist

scholarship and contains contributions from many of the leading scholars in

the area. As such, it is an invaluable exercise in both a stocktaking of the

work to date and, even more importantly, brings together material and ideas

that indicate the way in which the scholarship is developing.

We have no doubt that it will prove to be a very useful resource for anyone

working in this area of law, as well as a source of inspiration to feminist

scholars working on law more broadly.

The past year has, yet again, thrown up major issues in terms of

proposals for law reform in this area, as well as contentious House of

Lords’ decisions, which are replete with gender issues. It has also been a

year in which it has become clear that both the law reform bodies and the

senior judiciary have become more aware that they ignore gender at their

peril—avenues of influence on the legal process are becoming more

sharply delineated. It is perhaps, though, not surprising that, as such

avenues open, we have become more aware of the complexities involved in

offering a gender perspective, as well as more sharply critical of any real

potential for change in a subject area so riven by gender difference. It is an

exciting time and, as such, very good timing for such a book as this one to

be published. This volume not only challenges a lack of gender

perspective, but is also honest in exploring the many difficulties in

building such (a) perspective(s). Building on this richness of difference and

the teasing out of complexity within any one of the approaches taken is

the difficult but also necessary task for any feminist who does not shy

away from being engaged in the issues of criminal law and specifically of

criminal law reform. There is much in this volume to make us think, very

carefully, about the difficulties of such a task, as well as to recognise that

we cannot afford but to engage in it.

One of us was very recently in a seminar in which we were asked whether

we supported gender-neutral laws in sexual offences: anyone reading this

volume will begin to realise how impossible it is to give a glib answer to such

a vast question. We know from our own experiences how popular criminal

law is as a subject amongst law students as a body, as well as amongst those

taking women and law courses. This volume will, we are sure, provide such

students with a great deal to think about. For teachers of criminal law who

have gestured towards feminist work in their courses, this volume will be an

insight into the depth and breadth of such work and a demand that more

than a gesture is needed.

Series Editors’ Preface

xii

We hope it will also be read (and used!) by non-lawyers who have an

interest either in the area of criminal justice, or in law more broadly, or in the

development of feminist theoretical work. There is important and useful

material for all of them in this volume.

We have no doubt that this collection will have a very real impact on how

feminists think about this area of law, as well as on how others perceive the

work of feminist scholars. We are very grateful to the editors for bringing

these contributors together and for all the work they have done in producing

the volume. As ever, our thanks to the team at Cavendish for all their work—

another volume we can all be proud of!

Anne Bottomley and Sally Sheldon

xiii

CONTRIBUTORS

Lois Bibbings is Lecturer in Law at Bristol University. She is the founder and a

convenor of the Centre for Law and Gender Studies at Bristol. She is also an

Associate Editor of the Journal of Law and Society and a member of the

Executive of the Socio-Legal Studies Association. Her research interests

include criminal law, human rights and law and the body, but her work

focuses upon gender issues and law.

Pat Carlen is Professor of Sociology at Bath University and has published 14

books on the relationships between social and criminal justice, including

Magistrates’ Justice (1976); Women’s Imprisonment (1983); Women, Crime

and Poverty (1988); Jigsaw—A Political Criminology of Youth Homelessness

(1996); and Sledgehammer: Women’s Imprisonment at the Millennium

(1998). In 1997, she received the Sellin-Glueck Award from the American

Society of Criminology for international contributions to criminology.

Mary Childs is Lecturer in Law at the University of Manchester. She has

previously practised law in Canada. Her research and teaching interests

include criminal law, evidence, and feminist theory. She is co-editor of

Feminist Perspectives on Evidence, also published by Cavendish this year.

Marie Fox is Senior Lecturer in Law at Manchester University. Her main

research interests are in feminist theory, healthcare law and criminal law. She

is currently working (with Jean McHale) on an analysis of the legal status of

bodies and body products, to be published as Framing the Clinical Body.

Caroline Keenan is Lecturer in Law at University of Bristol. She is currently a

visiting scholar at the University of Waikato, New Zealand and Visiting

Professor at the University of Washburn, Kansas, USA. Her main research

interests are in the operation of the child protection and criminal justice

system. She has published articles on the investigation and prosecution of

child abuse and on sex offender registration laws. She has recently advised the

Home Office on the reform of sexual offences against children. She is

currently writing a book which analyses the legal responses to child abuse.

Nicola Lacey is Professor of Criminal Law at the London School of

Economics. Her publications include State Punishment (1988); Unspeakable

Subjects—Feminist Essays in Social and Legal Theory (1998); with Elizabeth

Frazer, The Politics of Community: A Feminist Analysis of the Liberal￾Communitarian Debate, 1993; and, with Celia Wells, Reconstructing

Criminal Law (1998).

Contributors

xiv

Aileen McColgan is Reader in Law at King’s College, London. Her research

interests are primarily in discrimination law, labour law and human rights

law, though she also dabbles in criminal law. Her recent publications include

Equal Pay: Just Wages for Women (1997); Women Under the Law: The False

Promise of Human Rights (1999); and Discrimination Law: Text, Cases and

Materials (2000).

Donald Nicolson is currently a Lecturer in Law at the University of Bristol,

but will take up a Chair in Law in Strathclyde in 2001. He has published

articles on the South African judiciary, civil liberties in criminal law, battered

women who kill their abusers, the philosophy and teaching of fact-finding in

law and professional legal ethics. He recently co-wrote, with Julian S Webb,

Professional Legal Ethics: Critical Interrogations (1999). He is also the

founder and Director of the University of Bristol Law Clinic and a founder

and convenor of the Centre for Law and Gender Studies at Bristol.

Jennifer Temkin is Professor in Law at the University of Sussex. She is the

author of Rape and the Legal Process (1987), numerous articles on criminal

law and criminal justice and the editor of Rape and the Criminal Justice

System (1995). She was a member of the Home Office Advisory Group on the

use of Video Recordings in Criminal Proceedings (the Pigot Committee,

1989–90), the National Children’s Home Committee of Enquiry into

Children Who Abuse Other Children (1990–92) and Patron of the Standing

Committee on Sexually Abused Children. Most recently, she was a member of

and produced the working draft on rape and sexual assault for the Home

Office Sex Offences Review (2000).

Matthew Rollinson is undertaking a PhD at the University of Bristol, writing

a thesis on the politics of the mental element in criminal law. He obtained an

LLB from the University of Lancaster and a Diploma in Legal Practice from

Nottingham Law School. He is currently also working on the mental element

in football-related crime.

Celia Wells is Professor of Law at the University of Wales, Cardiff, where she

has taught and researched in law since 1986. Her research has mainly focused

on criminal law, in particular, the criminal liability of corporations

(Corporations and Criminal Responsibility, 1993). More recently, she has

published a study of the law relating to disasters (Negotiating Tragedy, 1995),

which reflects her interest in the issues of risk and blame. With Nicola Lacey,

she is co-author of Reconstructing Criminal Law, which adopts an explicitly

feminist perspective.