Episode 18: Jane Bailey

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In this episode of the Scarlet Letter, I chat with Professor Jane Bailey of the University of Ottawa. Professor Bailey’s area of expertise is the intersection of law, technology and equality. She also co-leads The eQuality Project, which examines the impact of online commercial profiling on children’s identities and social relationships. We discuss her important work in this area, as well as her recent appearance before the Supreme Court of Canada in the Jarvis voyeurism case.

Check out the latest episode of our podcast, the Scarlet Letter.

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Sexual assault Victims: Helpless before the Law

by Sarah Tan

This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.

I would not put myself through that again. I was the one that was put on trial. That’s not right… It tears [victims] apart… It’s not compulsory for [the Defendant] to be cross examined at any point… they can just sit there and watch.’

  • Tanya, victim of rape and assault

 BACKGROUND

Sexual assault trials are widely known for being one of the most difficult offences to prosecute. Since the 1970s, reform work has been undertaken to revamp the Australian approach to dealing with sexual offences. Nonetheless, research has shown that at least 85 per cent of sexual assault cases do not reach the criminal justice system. With victim groups still describing the criminal justice process as ‘disempowering, counter-therapeutic, costly and delayed’, it is evident that the recent Victorian law reforms have had not much of a practical effect. Although the issue of sexual assault cannot be addressed solely by legislative change, it can be argued that the adversarial system actively harms sexual assault victims due to its need for victims to be cross-examined, the passive role victims play in the adversarial system, and the use of sexual history evidence.

woman on ground

Trigger 3: Awake In A Nightmare by Michelle Robinson CC BY-NC-ND 2.0

CROSS-EXAMINATION

In any adversarial system, the cross-examination of witnesses is an essential feature. Through cross-examination, a witness’s evidence is scrutinised for inconsistencies that may render it unreliable. In a bid to protect sexual assault victims, courts utilise a variety of protective procedures including the giving of a victim’s evidence via a closed-circuit television at a remote facility. However, sexual assault victims are still fearful of the trauma of the legal process. Victims are often subject to an aggressive and traumatising cross-examination, till the extent that many describe it as ‘a second rape’. Under such circumstances, the adversarial criminal trial process is ground for secondary victimisation as sexual assault victims are required to recount the trauma of their original experience.

Furthermore, more often than not, many prosecutors do not do enough to prevent the unfair cross-examination of sexual assault victims. With defence lawyers having a duty to present their client’s case ‘fearlessly with vigour and determination’, victims are often unfairly cross-examined. As a result, victims tend to perceive themselves as being on trial and may develop a belief that they were victims due to their own faults.

PASSIVE ROLE

The adversarial system also actively harms sexual assault victims due to the passive roles victims are given. Under an adversarial system, victims are positioned as spectators and are unable to present their views except when questioned as a witness. The passive role allocated to victims may result in feelings of frustration and alienation which may aggravate the traumatic impact of the sexual assault itself.

Furthermore, given their inability to give directions to prosecutors and their inactive role in proceedings, victims perceive a lack of transparency in the decision-making process. Victims will also feel dissatisfied with the trial process as they do not feel included. Under such circumstances, victims may regard sexual assault trials as being unfair, biased, and ineffective as they are prevented from voicing out the circumstances of the crime in a meaningful way for them.

Victims want to have a role in the court as they have an interest in the judgement of the court. This is especially the case for sexual assault trials where the defence of consent is commonly argued – a verdict of guilty will allow the victim to feel he/she was believed, whereas a not guilty verdict may lead to dire psychological consequences, resulting in the victim having an unjustified stigma.  By having a voice in the process, victims are heard and have the opportunity to have their experiences acknowledged as hurtful and wrong. Such validation is supported by victim interviewees who have described the opportunity to speak as a validation of one’s suffering.

SEXUAL HISTORY EVIDENCE

Another key feature of the adversarial system that actively harms sexual assault victims is the use of sexual history evidence. Although reformations in Victoria have been made such that evidence of a victim-complainant’s sexual history is not permitted subject to the leave of the court, the practical reality is such that this evidence is widely used. Even where applications are made to allow the use of sexual history evidence, the applications are often purely formal and technical. With such a premise, sexual assault victims are actively harmed as they may be perceived as untruthful and unreliable due to their sexual history.

A TOTAL SHIFT?

Nevertheless, caution should be taken when abandoning the adversarial process – the adversarial system is beneficial in its own right. Through cross-examination, inconsistencies in testimonies are revealed. The strict rules of evidence and procedure also prevent unreliable evidence from being heard and ensure greater continuity in court process. In order to improve the criminal justice process for sexual assault victims, legal representation for sexual assault victims and the use of non-adversarial principles should be advocated.

By introducing legal representation for sexual assault victims, victims will have greater support, feel more confident, and feel less traumatised. Acting as a bridge between the victim and courts, the victim through the legal representative, will be able to present views and concerns without having the ultimate decision-making power. Although such a reformation goes against adversarial principles which disregards victim participation through a legal representative, this mechanism will enable victims to be more participative in court. Nevertheless, legislators should ensure that the legal representation of sexual assault victims are only permitted based on narrow participation rights. By limiting the legal representatives’ rights to safeguarding the victims’ rights when testifying, the role of the legal representative can be likened to an amicus curiae, assisting the court in presenting the views of the victim. With recent proponents arguing for the possibility of legal representation for sexual assault victims within clearly defined parameters, it is likely that legal representation be afforded to victims whilst maintaining and balancing the rights of the accused.

In recent years, there has been a diversion from traditional adversarial criminal justice processes to non-adversarial approaches. Rather than considering non-adversarial processes as a soft alternative, principles such as restorative justice and therapeutic jurisprudence can be utilised to fill in the gaps that are lacking in a purely adversarial system. Given the varied proceedings involved in sexual assault cases, the ‘one size fits all adversarial system’ is limited in its effectiveness.

An example can be demonstrated in the use of restorative justice conferencing; by incorporating the values of communication and participation in a discursive and non-adversarial process, victims are given a voice and do not need to combat the fear of reliving the original experience at trial. Furthermore, as conferencing provides a greater emphasis on the accountability of the offender, the victim-focused process provides victims with the opportunity to receive unanswered answers about the offending, thereby allowing victims to better cope with the repercussions of the assault. In addition, as restorative justice conferencing usually occurs after an admission of some type, victims will not need to undergo the disabling experience of feeling that they, and not the Defendant, is the one on trial.

CONCLUSION

The adversarial system actively harms sexual assault victims due to the need for a traumatic experience of cross-examination, the passive role of victims and the use of sexual history evidence. Nevertheless, rather than dispensing with the adversarial system as a whole, reforms should be taken to mitigate such effects. Only if a balance is struck between the use of adversarial and non-adversarial process can the needs of sexual assault victims be met.

Sarah Tan is a third year Bachelor of Laws (Hons) student who will be completing her studies next year. Having grown up in Singapore, she has a keen interest in international arbitration. She is currently a seasonal clerk at Cornwall Stodart and hopes to pursue her passion for alternative dispute resolution prospects in the commercial law context. Sarah has also been involved in pro bono work at the Monash Oakleigh Legal Services and Law Society of Singapore Pro Bono Services Office.

Bibliography

  • Articles/ Books/ Reports

Braun, Kerstin, ‘Legal Representation for Sexual Assault Victims — Possibilities for Law Reform?’ (2014) 25(3) Current Issues in Criminal Justice 819

Bowden, Phoebe, Henning, Terese and Platter, David, ‘Balancing fairness to victims, city and defendants in the cross-examination of vulnerable witnesses: an impossible triangulation?’ [2014] 37 Melbourne University Law Review 539

Caenegem, William van, ‘Advantages and disadvantages of the adversarial system in criminal proceedings’ (1999) Bond University law Faculty Publications 69

Daly, Kathleen, ‘Restorative Justice and Sexual Assault: An Archival Study of Court and Conference Case’ (2006) 46(2) The British Journal of Criminology 334

Feldthusen, Bruce, Hankivsky, Olena and Greaves, Lorraine, ‘Therapeutic Consequences of Civil Actions for Damages and Compensation Claims by Victims of Sexual Abuse’ (2000) 12(1) Canadian Journal of Women and the Law 66

Garkawe, Sam, ‘The role of the victim during criminal court proceedings’ (1994) 17(2) UNSW Law Journal 595

Heath, Mary, The Law and Sexual Offences against Adults in Australia (Australian Centre for the Study of Sexual Assault, Issues No 4, 2005)

Lievore, Denise, ‘Trends & Issues in crime and criminal justice – Victim credibility in adult sexual assault cases’ (2004) 228 Australian Institute of Criminology

Naylor, Bronwyn, ‘Effective Justice for Victims of Sexual Assault: Taking up the debate on alternative pathways’ (2010) 33(3) UNSW Law Journal 662

Zajac, Rachel and Cannan, Paula, ‘Cross-Examination of Sexual Assault Complainants: A Developmental Comparison’ (2009) 16 Psychiatry, Psychology and Law 36

 

  • Legislation

Criminal Procedure Act 2009 (Vic)

 

  • Other

Australian Law Reform Commission, Examination and Cross-Examination of Witnesses, Uniform Evidence Law Report 02 (8 February 2006)

Australian Women Against Violence Alliance, Sexual violence: Law reform and access to justice issues paper (17 May 2017) <http://apo.org.au/system/files/99951/apo-nid99951-405141.pdf&gt;

Booker, Chloe and Perkins, Miki, ‘Top judges defend Victorian courts’ handling of child sex assault cases’, The Age (online), 23 March 2017 <https://www.theage.com.au/national/victoria/top-judges-defend-victorian-courts-handling-of-child-sex-assault-cases-20170323-gv4alj.html&gt;

Centre for Innovative Justice, ‘Innovative justice responses to sexual offending – pathways to better outcomes for victims, offenders and the community’ (Discussion Paper, RMIT University, May 2014)

Clark, Haley Catherine, A fair way to go – Criminal justice for victim/survivors of sexual assault (PhD Thesis, University of Melbourne, 2011)

 Fileborn, Bianca, ‘Sexual assault laws in Australia’ (Resource Sheet No. 1, Australian Centre for the Study of Sexual Assault, February 2011)

Hulls, Rob, ‘Adversarial Justice: Pure Gold or Fool’s Gold?’ (Paper presented at Broadening Restorative Perspectives: An International Conference, MCG, 18 June 2013)

Hulls, Rob, ‘Justice reform: a better way to deal with sexual assault’, The Conversation (online), 23 November 2013 <https://theconversation.com/justice-reform-a-better-way-to-deal-with-sexual-assault-19692&gt;

Robertson, Josh, ‘Ex-wife of former One Nation adviser says being grilled over her rape ‘re-traumatised’ her’, ABC News (online), 17 July 2018 <http://www.abc.net.au/news/2018-07-17/ex-wife-of-former-one-nation-adviser-shares-rape-trial-trauma/9994238&gt;

Victorian Law Reform Commission, The history of the common law adversarial criminal trial and the experiences and needs of victims of crime, Victims of Crime: Consultation Paper (20 September 2015)

Victorian Law Reform Commission, The role of victims in the trial, Victims of Crime: Consultation Paper (20 September 2015)

Recap of Our First Public Event: International Feminist Perspectives on Family Violence and Family Law

On 5 December 2018 we hosted our first Feminist Legal Studies Group public event: ‘International Feminist Perspectives on Family Violence and Family Law’. The event included seminars by the brilliant Cate Sumner, Ibu Nani Zulminarni and Jennifer Koshan that explored the concepts of family law and family violence in Indonesia and Canada.

FLSG event photo

Seminar One: Feminist Perspectives on Family Law and Child Marriage Cases in the Courts of Indonesia

In our first seminar of the day, Cate Sumner and Ibu Nani Zulminarni delved into women’s access to justice in Indonesia and the ways in which PEKKA and its legal clinics have changed women’s lives and those of their children in a somewhat unorthodox way.

Women head of households often struggle in a patriarchal system in Indonesian society, and in turn in 2001 Ibu Nani founded PEKKA, the largest organisation that works with women heads of households in Indonesia. PEKKA has worked towards ensuring the accessibility of public services for women, with a particular focus on the legal sphere.

Women in Indonesia often face similar barriers to access to justice as women in Australia. First, there is the initial obstacle of understanding that you have a legal issue. Once this is recognised, there remains an ongoing battle with the distance to travel to obtain information or resolve a legal issue, the costs of travel, work forgone and court filing fees, and then the complexity of legal and court processes. In response to the alarmingly lack of women bringing their cases to courts in Indonesia, PEKKA has been working towards providing women with access to justice.

In addition to developing a legal empowerment programme, PEKKA established its KLIK legal aid clinic and collaborated with universities across Indonesia. Throughout the process of establishing paralegal clinics, PEKKA collaborated with the Monash University Law Faculty’s Family Law Assistance Program (FLAP), a student legal clinic, which served as a source of inspiration. Through observing FLAP at the Dandenong Federal Circuit Court, PEKKA was provided with an example of clinics meeting women’s legal needs in Circuit Court cases and assisting women’s access to justice.

Following PEKKA’s collaboration with FLAP, five university family law clinics at district courts were established. Monash LLB student, Jazmine Elmolla, had the opportunity to undertake a two week research visit in 2015 to the Universitas Islam Negeri legal clinic. She observed from her visit that the legal clinics paralleled Monash in regards to process, goals and enthusiasm of students, yet lacked equivalent resources and support.

This connection between Monash University, Indonesian universities and PEKKA legal clinics benefits both Australian and Indonesian legal communities. Indeed, visiting other countries and understanding their legal needs helps us understand our own countries and their legal needs.

Through establishing these clinics and training over 2000 women as paralegals, PEKKA has been able to provide over 125,000 women and their children with access to legal assistance. PEKKA paralegals have assisted clients from the PEKKA community with a variety of legal issues, including assisting many clients obtain birth, marriage and divorce certificates. PEKKA paralegals also provide assistance and information to women whose husbands have claimed that they are not serving them and therefore take other wives. Other legal needs that the clinics have helped meet are legal identity document issues as well as access to health insurance and education scholarships.

Through training PEKKA and university paralegals, establishing clinics and waiving fees, women in Indonesia have been able to access legal assistance and courts. More than one million women have access to justice in Indonesia. Alongside its work in the legal sphere, PEKKA has focused on women’s economic empowerment and also established the Akademi Paradigta, a village leadership program, to allow women to nominate for village leadership. By improving women’s access to Family Law Courts, PEKKA has created a dynamic of intergenerational change and opportunity for their girls and boys.

To learn more about women’s access to justice in Indonesia, read Cate Sumner and Ibu Nani Zulminarni’s most recent publication The Second Decade – Looking Forward: Women’s Access to Religious Courts of Indonesia No 16 (2018).

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Seminar Two: Family Violence Before the Canadian Courts: The Exclusion of Intersections, Impacts and Identities

In our second seminar, Professor Jennifer Koshan discussed the complexities of navigating the Canadian legal system in family violence matters. Her presentation was based on research being conducted in conjunction with Professor Janet Mosher and Professor Wanda Weigers.

Family violence rates in Canada are high. In 2016, 28% of all reported violent crime against adults resulted from family violence, while 79% of police reported intimate partner violence was against women. Further, reporting abuse to police remains low, with only 19% of victims abused by their spouse filing police reports in 2014.

Despite these high rates of family violence, accessing justice in Canada is challenging. This is particularly the case where litigants are required to navigate multiple legal systems. Like Australia, Canada is a federation which means the legal system is split between provincial and federal systems. This complexity is compounded by the multiple levels of courts within each system.

The Canadian layered and intersecting legal systems can result in conflicting regimes. For example, in Alberta, family violence is defined differently under the Residential Tenancies Act and Civil Protection Act. People who have experienced family violence may therefore be unable to prove violence has occurred in order to break their lease. Further, provinces differ in their treatment of family violence. For example, 68.5% of family violence cases in Ontario having child protection involvement, compared to only around 16% of cases in Alberta.

In turn, parties affected by family violence can experience unique access to justice issues. Indeed, parties must navigate the obstacles of facing numerous laws including criminal, family, child protection, housing, social assistance, immigration and refugee laws, which each have their own legal processes. For Indigenous persons who experience family violence in Canada there is a particularly complex jurisdictional picture given the different levels of government regulation.

These contradictions posed by Canadian legal systems may cause litigants to encounter competing demands in conducting themselves in response to the violence and the laws and processes governing the violence. Such contradictions also leave open space for (ex)partners to mobilise laws and legal systems against their partners, exacerbating the family violence.

These challenges faced by people seeking to access justice for family violence cases are not adequately considered in Canada. Judges often fail to recognise the difficulties and dangers arising from interacting laws and legal systems. Research has indicated that judges ignore these challenges and instead proceed on problematic assumptions about other laws and processes. The particular complexities that arise from litigants’ identities, such as their Indigeneity or immigration status, also remain unaddressed. Further, civil protection orders in Canada have been found to make little different to family law cases. Rather than being a distinct subject for analysis, family violence is treated as background to family law cases.

In moving forward, Professor Koshan suggests that integrated family violence courts might be a better way at handling intersections of jurisdictions in cases of family violence.

Until next time…

We look forward to seeing you at our next event in the series of ‘Feminist Perspectives on…’. More information about our upcoming events to be announced!

Nani Zulminarni, is the founder and Director of the largest female heads of household organisation in Indonesia – PEKKA. For over 17 years, PEKKA has changed the way women heads of households are considered and the public services they can access for themselves and their children. In 2006 PEKKA developed a legal empowerment program in response to the marriage and family issues faced by the PEKKA community. Since then, PEKKA has trained over 2000 women as paralegals who, in turn, have assisted over 125,000 women and children with their legal issues. In 2014, PEKKA launched its legal aid clinics (KLIK), through which it provides legal advisory services to individuals at village level. Ibu Nani has received many awards in Indonesia and internationally. In 2014, she received the Lotus Leadership Award in the US for her commitment to improving the lives of young women in Asia.

For 25 years, Cate Sumner has worked in the Middle East, Asia and the Pacific, focusing on access to justice, legal identity, human rights and judicial reform. Her career spans work with the international law firm Baker & McKenzie in Cairo, the United Nations (as a Refugee Affairs Officer in the Gaza Strip and as Legal Officer in Jerusalem) and the International Development Law Organisation in their offices in Manila and Sydney. Cate established Law & Development Partners in 2005 to bring together law and development specialists working in Asia and the Pacific. Its focus is on improving access to justice for women, people with a disability, and vulnerable children. A particular focus has been how these groups are able to access the formal justice system and civil registration systems. Cate has worked in Indonesia since 2005 as an adviser on access to justice and legal identity programmes and has contributed analytical and policy papers to a range of international organisations and policy think-tanks ranging from UN Women, the World Bank Justice for the Poor Series, the Centre for Global Development and the Lowy Institute for International Policy.

Professor Jennifer Koshan joined the Faculty of Law at the University of Calgary in 2000 after practising as Crown counsel in the Northwest Territories and serving as the Legal Director of West Coast LEAF, the British Columbia branch of the Women’s Legal Education and Action Fund (LEAF). Her teaching and research are in the areas of constitutional law, equality and human rights, state responses to violence, and feminist legal theory / activism. In 2016, Jennifer was awarded a Social Sciences and Humanities Research Council (SSHRC) Insight Grant and leads a team of five researchers studying access to justice in domestic violence cases at the intersection of multiple legal systems (with co-investigators Wendy Chan (Simon Fraser University), Michaela Keet and Wanda Wiegers (University of Saskatchewan) and Janet Mosher (Osgoode Hall Law School)). Jennifer is a founding member of the Women’s Court of Canada feminist judgments project and continues to contribute to the legal work of LEAF.

University and Community Paralegal Clinics: A Decade of Collaboration between Indonesia and Australia

by Cate Sumner, Director, Law & Development Partners.

Cate Sumner and Nani Zulminarni, National Coordinator, PEKKA, Empowering Women Headed Households CSO, presented at the first of our public events on 5 December 2018 on  FEMINIST PERSPECTIVES ON FAMILY LAW AND CHILD MARRIAGES CASES IN THE COURTS OF INDONESIA. Cate and Nani  also presented at the University and Community Paralegal clinics in Indonesia at the International Journal of Clinical Legal Education Conference hosted by Monash University 28-30 November 2018. A more detailed analysis of women’s access to the family law courts in Indonesia can be seen at: The Second Decade – Looking Back, Looking Forward: Women’s Access to the Religious Courts of Indonesia, Centre for Indonesian Law, Islam and Society, Faculty of Law,  Melbourne University The Second Decade – Looking Back, Looking Forward: Women’s Access to the Religious Courts of Indonesia No 16 (2018) by Cate Sumner with Nani ZulminarniThis blog post draws from their presentations. 

sumner

Cate Sumner, Nani Zulminarni and Rachel Spencer at Monash University’s newest law clinic in Melbourne’s CBD.

 

The hosting by Monash University of the International Conference on Clinical Legal Education and the first symposium of the Feminist Legal Studies  Group were occasions to reflect on how Monash University’s Law Clinics have contributed to improving women’s access to the family courts in Indonesia over the last decade in partnership with DFAT’s Australia Indonesia Partnership for Justice.

This year Monash University celebrates 43 years of running legal clinics that simultaneously support clinical legal education opportunities for students while delivering legal advisory services to thousands of citizens who would otherwise not be able to afford a lawyer. In November 2005, Monash University’s Family Law Assistance Programme (FLAP) legal clinic at the Dandenong Family Court of Australia welcomed judges and court administrators from Indonesia’s family courts for its Muslim citizens, the Religious Courts, for the first time.

Fast forward to 2010 and a visit to the Monash FLAP clinic from Indonesia’s Supreme Court Vice Chief Justice, judges, officials from Indonesia’s Agency for National Development Planning  and CSO activists involved in drafting a Supreme Court practice direction that provided the legal basis for legal aid posts in the Religious Courts. By 2018, the number of Religious Courts with legal aid posts has risen to 229  and the number of clients assisted at these legal aid posts in 2017 alone is over 185,000 women and men. As women are applicants in seven out of 10 cases brought to the Religious Courts, these legal aid posts are a service supporting women’s access to the courts for their family law cases, along with circuit court services in remote areas and the waiver of court fees for women and men facing financial disadvantage.  These legal aid posts have been funded through the Indonesian national budget process since 2011 and the numbers of women and men assisted will soon reach over a million people.

In 2014 and 2015, a number of Monash University Law Faculty travelled to Indonesia to collaborate with their peers from twelve Indonesian law schools to discuss clinical legal education methods and materials. This collaboration included the community paralegal clinics run by PEKKA, the largest female heads of household CSO in Indonesia. When PEKKA was established in 2001, it aimed to address the multi-faceted poverty women heads of household face in Indonesia, particularly in conflict areas, and initially focused on women’s economic empowerment. In 2006, PEKKA began its legal empowerment programme in response to the range of legal identity and family issues faced by the PEKKA community and in 2014 commenced its community legal clinics (Klinik Hukum or KLIK). Twelve years on, PEKKA paralegals have assisted over 150,000 women and children with birth and marriage certificates, other legal identity documents as well as support to access health insurance and education scholarships.

Nani Zulminarni, founder and Director of PEKKA, emphasised at the first symposium of the Feminist Legal Studies Group that, ”The Monash University student clinics as well as Women’s Legal Services Victoria were very important examples for PEKKA to observe as we thought about how to establish a community paralegal service in Indonesia five years ago.”

With more than a decade of collaboration and exchange between Indonesian university legal clinics, PEKKA community paralegal clinics and Monash University, a range of student mobility scholarships now open up new possibilities for knowledge sharing and research. Law students undertaking a research subject as part of their degree can apply for Monash University travel scholarships to enable them to undertake primary research overseas. Both the New Colombo Plan and ACICS Law Professional Practicuum  enable students to combine clinical legal interests and exchanges in Indonesia. 125 New Colombo Plan scholarship recipients were announced for 2019, including 14 students who will be based in Indonesia:

As Jazmine Elmolla, a recent Law graduate from Monash University commented on her time in Indonesia: “The most important thing was it gave me the opportunity  to see how research is carried out in the field. I observed that the process of conducting student legal clinics at the UIN [Universitas Islam Negeri] was the same as at Monash University but carried out with fewer resources. Same process, same goal, same enthusiasm.

 Connecting Monash University’s Law Clinics and student mobility grants, aimed at providing students with a global perspective and network, should enable new multi-disciplinary exchanges that benefit communities both in Australia and Indonesia. The next decade of collaboration between Indonesian and Australian universities and CSOs will probably explore technology solutions that will bridge the gap between student clinics offered in state/ provincial capital cities and community paralegals, like those working in PEKKA’s clinics, at village level. The Australia Indonesia Partnership for Justice supports a Women and the Law programme as part of its five-year collaboration with government and CSO partners in Indonesia.

 

Nani Zulminarni is the founder and Director of the largest female heads of household
organisation in Indonesia – PEKKA. For over 17 years, PEKKA has changed the way women heads of households are considered and the public services they can access for themselves and their children. In 2006 PEKKA developed a legal empowerment program in response to the marriage and family issues faced by the PEKKA community. Since then, PEKKA has trained over 2000 women as paralegals who, in turn, have assisted over 125,000 women and children with their legal issues. In 2014, PEKKA launched its legal aid clinics (KLIK), through which it provides legal advisory services to individuals at village level. Ibu Nani has received many awards in Indonesia and internationally. In 2014, she received the Lotus Leadership Award in the US for her commitment to improving the lives of young women in Asia.

 
For 25 years, Cate Sumner has worked in the Middle East, Asia and the Pacifc, focusing on access to justice, legal identity, human rights and judicial reform. Her career spans work with the international law frm Baker &amp; McKenzie in Cairo, the United Nations (as a Refugee Affairs Offcer in the Gaza Strip and as Legal Offcer in Jerusalem) and the International Development Law Organisation in their offices in Manila and Sydney. Cate established Law & Development Partners in 2005 to bring together law and development specialists working in Asia and the Pacifc. Its focus is on improving access to justice for women, people with a disability, and vulnerable children. A particular focus has been how these groups are able to access the formal justice system and civil registration systems. Cate has worked in Indonesia since 2005 as an adviser on access to justice and legal identity programmes and has contributed analytical and policy papers to a range of international organisations and policy think-tanks ranging from UN Women, the World Bank Justice for the Poor Series, the Centre for Global Development and the Lowy Institute for International Policy.

 

Episode 17: Ashley Chow and Christian Lane

In this episode of the Scarlet Letter, I chat with two of our current Monash Law students, Ashley Chow and Christian Lane. Ashley and Christian have recently been involved in setting up a new resource for law students called A Reasonable Standard: Wellbeing for Law Students (https://reasonable-standard.com). A Reasonable Standard features student-created content centring around mental health and wellbeing, and aims to combat the stigma surrounding mental health, failure and the isolation experienced by many students.

Check out the latest episode of our podcast, the Scarlet Letter.

Family Violence, Gender Equality and Sustainable Development at Monash University

On World Human Rights Day, the last day of 16 days of activism against gender-based violence, I wanted to share with you the text of the keynote address I gave at Monash University on the International Day for the Elimination of Violence Against Women, on 27 November 2018.

This piece was published in Monash Lens today.

I’m keen to hear your thoughts, please comment below. Thanks!

Gender equality: it’s everyone’s business

On 6 December 1989, Marc Lépine walked into an engineering class at École Polytechnique de l’Université de Montréal. He separated women from the men in class and shouted to the women, “You are all feminists” as he shot the women, killing 14 and injuring 13. He then killed himself. Lépine, it appears, was disgruntled at how he perceived women were able to advance at the expense of men.

The anniversary of this event falls in what we now recognise in the 16 Days of Activism against Gender-Based Violence Campaign. These 16 days are a UN campaign run from 25 November, the International Day for the Elimination of Violence against Women, to 10 December, Human Rights Day. These are the days when we galvanise action to end violence against women and girls around the world.

I want to be clear about what gender equality is. Gender equality means that women, men and gender-diverse people are able to participate fully in all spheres of Australian life, contributing to an inclusive and democratic society.

Gendered violence

Globally, the first systemic international review of the prevalence of violence against women found that gendered violence affected more than one third of all women. An average of 137 women across the world are killed by a partner or family member every day.

Across Australia, one in three Australian women have experienced physical violence since the age of 15. More than one in six women in Australia (16 per cent) aged over 18 has experienced physical violence at the hands of a current or former intimate partner since the age of 15 years. This compares with one in 17 men.

So far this year, 66 Australian women have died from violence, far more than the often-quoted figure of one women per week. In case you thought things were getting better, in 2017 this was 53 deaths. Aboriginal and Torres Strait Islander women are 3.1 times more likely to report experiencing violence than non-Indigenous women. A disabled woman in Australia is twice as likely to experience violence from a cohabiting partner than a woman without a disability.

On university campuses, the picture does not, unfortunately, look better. The Australian Human Rights Commission showed us that about half of all university students in Australia reported being sexually harassed at least once in 2016, and 6.9 per cent of students were sexually assaulted on at least one occasion in 2015 or 2016. Female students were almost twice as likely to be harassed and more than three times as likely to be sexually assaulted than male students.

Men were most likely to be the perpetrators. Very disturbingly, students who identified as Aboriginal and Torres Strait Islander were more likely than women who did not identify as Indigenous to be sexually assaulted or harassed at university. Students with a disability and those who identify as bisexual or gay, lesbian or homosexual were more likely to report sexual harassment or assault in university settings than other students.

Students reported knowing the perpetrator about half of the time. Where they knew the perpetrator, more than two thirds of those harassed said that the perpetrator(s) of the most recent incident was a student from their university.

And these numbers, we know, do not represent the true picture of family violence; 82 per cent of women and a whopping 95 per cent of men who experienced violence by a current partner have never reported it to police.

Gender equality

In 2015, I worked as a policy and research officer at the Royal Commission into Family Violence. There I led the commission’s work on the intersection of family violence with family law and child protection. The commission produced a blueprint for identifying, responding to and reducing family violence in Victoria. The Victorian government has committed to an ambitious whole-of-government reform agenda to create the most comprehensive response to family violence in any jurisdiction, ever.

At the royal commission I learnt about the connection between family violence and gender inequality. In his opening address, counsel assisting the royal commission Mark Moshinsky stated:

“What causes family violence? … Some things are clearly known, and they can be a useful starting point. In the context of intimate partner violence against women, multi-country surveys indicate that in countries where men and women have more equal relationships, the prevalence of intimate partner violence against women is measurably lower. This suggests a strong correlation between gender imbalances and violence against women.”

In other words, there is a clear causal link between family and sexual violence and gender inequality. We tend to look at the causes of violence against women from a range of perspectives, including individual, relationship, community and societal level risk factors that led women to experience intimate partner and sexual violence (known as the “ecological model“).

Focusing on the big picture, what are the causes of family violence on the community and societal level?

At a community level, factors that support violence against women include:

  • weak community sanctions against violence;
  • limited access to sanctuary for abused women; and
  • poverty.

At a societal level, factors that support violence against women include:

  • where men are viewed by society as superior and of higher social status compared to women;
  • where men are socialised to believe that they are superior to women, should dominate their partners and endorse traditional gender roles;
  • where men have economic and decision-making power in households;
  • where women do not have easy access to divorce; and
  • where adults routinely resort to violence to resolve their conflicts.

These factors point us in the clear direction of gender equality when we as a community are trying to think about family and sexual violence prevention. If we want to make our community feel and be safer for women, it can’t just be gender and women’s specialists who do the work.

Nor can we see violence against women solely as a women’s issue. The same social structures that enable men to harm women also restrict men. Last month, the Men’s Project realised the first comprehensive study on the attitudes to manhood and the behaviours of young Australian men aged 18 to 30.

They found that among these young men, a set of beliefs that they brilliantly termed “The Man Box” is alive and well in Australia today. This set of beliefs within and across society places pressure on men to be a certain way:

Young men who most strongly agree with these rules reported poorer levels of mental health, engaged in risky drinking, were more likely to be in car accidents and to report committing acts of violence, online bullying and sexual harassment.

We need to think about the problems that men and women face not as competing priorities for change but as part of the same toxic social problem.

It’s all of our job to fix this.

Global evidence gathered to date clearly demonstrates that improvements in gender equality accrue significant economic benefits, including greater productivity, higher GDP and reduced government spending. Every day that we fail to deliver gender equality, we pay the economic price.

Sustainable development

Sustainable development connects and balances environment sustainability, social inequality and economic development. Sustainable development does address living within our environmental means, but it’s much more than that. It also enables us to consider what we need to create strong, healthy and just societies that meet the needs of diverse people. The 17 Sustainable Development Goals adopted by United Nations members in 2015 aim to promote economic prosperity and a fair go for all while safeguarding a thriving environment.

Sustainable development holds great potential for us in thinking about our most difficult social problems, including gender inequality and violence against women and girls.

We can look at gender equality across all of the 17 Sustainable Development Goals. Additionally, goal five relates specifically to gender equality and requires us to “achieve gender equality and empower all women and girls”. The goal has nine targets associated with it:

What I think is most remarkable about sustainable development is that it requires us to work in interdisciplinary ways. By connecting social inequality with environmental sustainability and economic development, we have to think big and beyond the traditional disciplinary boundaries that tend to thrive within universities.

No matter what you do or who you are, it is your job to make our community safer for all of us, regardless of gender, sexuality, race or disability.

We can no longer claim that the task of addressing gender is someone else’s business. We need to be the change we want to see in the world.

This is an edited extract of a speech delivered by Dr Becky Batagol at the International Day For the Elimination of Violence Against Women, at Monash University.

This article was first published on Monash Lens. Read the original article

The Masculine Nature of Legal Practice

Last month, Anne-Marie Rice was named as the 2018 Leneen Ford AC Woman Lawyer of the Year at the Women Lawyers Association of Queensland’s 40th Anniversary Gala Dinner. Her acceptance speech attracted an overwhelming response from lawyers who resonated with her confession of being ‘tired’ from practising law through an inherently masculine lens.

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rawpixel.com Flickr via Compfightcc (CC BY 2.0)

In her acceptance speech, Anne-Marie discussed the fact that legal practice was initially developed in a male dominated space, which led to its one dimensional and aggressive nature. Through emphasising winning the fight and inflaming issues in the process, adversarialism has been understood as the key to successful lawyering. This prism has continued despite women’s immersion in the legal profession for many years now. Rather than influence a cultural change, women have been expected to wear the aggressive armour of legal practice even though it may not be a natural fit. Anne-Marie shared her exhaustion that emanated from embodying a masculine lens that is inconsistent with her inherent being. Although she is a highly successful lawyer, she shared that the one-dimensional nature of law has dimmed her light. This tiredness has seen women leave the legal profession, as wearing armour that is fundamentally uncomfortable is unsustainable.

Anne-Marie called for a change in legal practice towards one that is multidimensional and sustainable. All people in the legal profession have the responsibility to challenge the current practice of law which sees those with responsibilities outside the law depleted of resources and women in particular required to reconfigure their thinking. Anne-Marie stated that she used to think that her role in the legal profession was not of importance given that previous trail blazers already founded opportunities for women within the legal sphere. However, she now recognises the exciting weight of responsibility that women and men in the legal profession at this time have to redefine what it means to practise law. In an age of increased discussions of the wellbeing of those within the legal profession, it is apt to consider how the law can be practised through a lens that is healthier for lawyers.

The massive feedback that Anne-Marie’s acceptance speech received makes it clear that many lawyers are ready to stop being tired and create a new lens for lawyering.

You can read Anne Marie Rice’s speech here.