Women’s Legal Landmarks

‘Women’s Legal Landmarks: Celebrating 100 Years of Women and Law in the UK and Ireland, edited by Erika Rackley and Rosemary Auchmuty, is a new book exploring key legal landmarks in women’s legal history.

97817822597701

With 2019 marking the centenary of women’s admission into the legal profession in the UK and Ireland, Women’s Legal Landmarks takes the opportunity to look back at women’s engagement with the law and law reform over the last century through key legal landmarks. Together, the landmarks form the path of feminist legal history and demonstrate women’s agency and activism in the achievement of law reform and justice.

The landmarks cover a wide range of topics, including matrimonial property, the right to vote, prostitution, surrogacy and assisted reproduction, rape, domestic violence, FGM, equal pay, abortion, image-based sexual abuse, and the ordination of women bishops, as well as the life stories of women who were the first to undertake key legal roles and positions.

Women’s Legal Landmarks is the first scholarly anthology of its kind. With the work of over 80 feminist legal and history scholars, the book fills a gap in academic work on women’s legal history in the UK and Ireland and is set to significantly contribute to academic literature in feminist legal history.

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

Erika Rackley is a Professor of Law at the University of Kent.

Rosemary Auchmuty is a Professor of Law at the University of Reading.

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.

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.