Abortion in limited cases finally legalised in Chile

In 2011, I published a piece in the journal Human Rights Quarterly where I presented a rebuttal of a book arguing that abortion is prohibited under international law under all circumstances. In my review I concluded that the book
calls repeatedly for principled analysis, intellectual integrity and an end to revisionist interpretation yet fails to meet its own challenge. A principled analysis might have acknowledged that the core human rights instruments do not coincide with [the author’s] philosophical position and explored her vision for the development of international law, including means of addressing conflicts of rights.
Until August 2017, Chile was one of just 6 countries in the world that had a complete ban on all abortions (even where the mother’s or baby’s life was at stake), jailing both the woman and the doctor involved in the procedure. This law was put into place in 1989 under during the dictatorship of General Augusto Pinochet.
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Pro Choice March, Santiago, July 2013. Photo: Santaigo Times, by Ashoka Jegroo Creative commons

When the first female President of Chile, Michelle Bachelet was re-elected in 2014 (after previously serving as President from 2006 to 2010), she declared reproductive rights an important focus of her tenure.  The Bachelet government put forward a bill  in 2015 which legalised abortion in cases of rape, foetal disability, and danger to the life of the mother.

That bill has been the subject of two years of political wrangling and debate, and was challenged in Chile’s Constitutional Court. On 21 August 2017 the Court upheld the constitutionality of the bill, meaning that abortion will be lawful when the pregnancy results from rape, when the pregnancy endangers the mother’s life and when the foetus is not viable.

A short YouTube video about the change to Chile’s abortion laws and the case can be found here. The quote included from Pinochet’s advisor is especially chilling.

In 2016, I was in Santiago, Chile, and met with Lidia Casas Baccera, a lawyer who was involved in the case. She asked me whether she could use a review I had written in Human Rights Quarterly . Of course I agreed and the review was translated and included in the materials put before the court scrutinising the Bachelet amendment. It is really exciting that the court has upheld the Bachelet amendment.

Between her two presidential terms, Bachelet served as the inaugural executive director of UN Women.  Her government has now succeeded in bringing an end to unjust laws that have punished and endangered women while denuding them of autonomy and rights. She will finish her term as president in March next year, leaving a proud legacy of advancing women’s equality.

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Eddie McGuire, Caroline Wilson and when ‘playful banter’ goes very, very wrong

By Dr Kate Seear, Senior Lecturer, Faculty of Law, Monash University

This article was originally published in The Conversation on 20 June 2016.

An article about the background story to this article can be found here. Kate is a member of the Outer Sanctum podcast team, which first broke this story. 

 

Image 20160620 9516 65803yEddie McGuire caused a furore by suggesting the drowning of prominent sports journalist Caroline Wilson.

AAP/Tracey Nearmy

 

Kate Seear, Monash University

In March 2016, five female friends and I began The Outer Sanctum podcast, a weekly show where we discuss the big footy issues of the day. Through interviews we also aim to provide a platform for voices not usually heard in conventional sports media.

As six passionate female footy fans, we hoped we could disrupt the conversation by showing that women, too, are passionate and knowledgeable about footy, but also by exploring some of the bigger social and cultural aspects of the game.

A major footy story

Over the last couple of days, we have somehow suddenly found ourselves at the centre of a major footy story.

On this week’s podcast we explored controversial comments that two AFL club presidents, Eddie McGuire and James Brayshaw, had made with others on Triple M radio. They laughed about drowning prominent Fairfax sports journalist Caroline Wilson to raise money for charity. I recommend listening to the audio in full, because both the language and the atmosphere are important.

We were surprised that this hadn’t been a much bigger story during the week. No major news media had run with it.

Over the weekend, however, listeners to our little podcast started to take notice: the story began to spread on social media, was eventually picked up by freelance sports writer Erin Riley, independent podcaster and blogger Josh Pinn and, eventually, The Age, Herald Sun, The Guardian, ABC and others.

The AFL has since publicly condemned the comments. Ironically, they came in an historic week for women in the game: it launched the inaugural women’s league, held a special themed game to support the anti-violence charity White Ribbon, and partnered with Our Watch, an organisation that aims to raise awareness about violence against women.

It also comes at a time when prominent AFL footballer Jimmy Bartel is running a season-long campaign to raise awareness about violence against women through his #FaceUpToDV campaign.

It feels like we have taken one step forward and two steps back.

These events raise important questions about footy culture

There are two particularly important questions to emerge from this series of events.

First, what might this “casual sexism” and “blokey banter” tell us about the culture of AFL football specifically, and society more broadly? Wilson has herself suggested that it’s a rebuke for being a strong, opinionated and tough woman who routinely holds the big boys of AFL to account.

The impact on Wilson is clear – she is hurt and offended. But on radio talkback and social media around the country she is already being criticised for lacking a sense of humour and for “bringing it on herself”. This is language that bears dangerous and uncomfortable parallels with victim-blaming language so often used in the context of rape.

Language matters. As Our Watch points out, there are important links between the use of disrespectful language towards women, the language of violence, and the occurrence of violence.When prominent men with a major media platform use disrespectful language towards women, it risks reinforcing the notion that women are inferior to men.

As media commentator Patrick Smith noted:

What’s happening is the football community is going exactly the same route that racism went through. We had to learn that there are no throwaway lines in racism, that nothing is funny. There’s no throwaway lines in domestic violence. So whatever you think is funny, is not funny.

Patterns of speech can also constitute, in some contexts, a form of actual family violence, a point explicitly recognised in legislation defining family violence.

The need for education and respect

The Victorian Royal Commission into Family Violence’s final, seven-volume report directly acknowledged the importance of education, language and socialisation in the treatment of women.

Among its 227 recommendations for change, the commission emphasised prevention, including the need for schools to educate young children on respectful relationships.

The commission’s report also stresses the need for supportive workplaces. Let us not forget, then, that these comments were made in a workplace, where the capacity to cause hurt and offence should be at the forefront of people’s minds.

They were also made on a major media platform with a wide audience. The Commercial Radio Australia rules explicitly state that media should not broadcast material “which condones or incites violence against women”. Although I am not suggesting that was the intention or the effect here, it’s another pointed reminder of the need to speak with care.

The importance of new voices and diverse media

The second question we need to ask is this: why was this story not picked up by the mainstream media? Why did it take our podcast, and our listeners, to generate this conversation?

Wilson believes that people are scared of McGuire and reluctant to stand up to him. This might drive a culture of non-reporting and fear that journalists who challenge powerful figures risk losing their AFL accreditation.

It may be that some mainstream AFL journalists thought nothing of the exchange because the language of casual sexism is so commonplace that it might just seem no normal to them. But that’s what makes this an even bigger story: McGuire, Brayshaw and their colleagues are powerful media figures, with extraordinary reach and clout. It’s incumbent upon them to be careful when they speak, because what they say carries enormous weight.

Needless to say, there are questions to be asked and answered by some of the biggest names in the game. In a media landscape that has long been dominated by certain groups (primarily white men), this story offers a stark reminder of the importance of new voices and diverse media.

These voices “from the outer” are sparking new conversations: some painful and long overdue, but they are conversations that will ultimately only enrich the game we love, and our society.

And as we continue to be reminded that one woman dies from violence per week in this country, let us hope that this is the start of a new conversation, rather than the end of one.


The ConversationKate Seear, Academic Director of Springvale Monash Legal Service & Senior Lecturer in Law, Monash University

This article was originally published on The Conversation. Read the original article.

No simple solution when families meet the law

By Dr Renata Alexander, Senior Lecturer in Law, Monash University

This article was originally published in The Conversation on June 1, 2016 as part of the CHANGING FAMILIES  ten-part series where authors examine some major changes in family and relationships, and how that might in turn reshape law, policy and our idea of ourselves.

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Families going through breakdown need understanding, but so do lawmakers trying to find fair outcomes from complex laws.
Shutterstock

It has often been said that when Australia’s white Anglo-Saxon founding fathers drafted the Constitution in 1901, they could not have foreseen how family constellations would change over the next century and how family law would (or would not) keep abreast of those changes.

We now have many different types of families. We have families with and without children, single parents and blended or step families. We have heterosexual and same-sex de facto couples; separated, divorced and widowed couples. We also have families with children born through assisted reproductive technology or altruistically “acquired” through surrogacy, adoption or foster care.

All these are well depicted in popular culture including a plethora of television shows dating back to Batman and his ward Robin, and the ever-happy blended Brady Bunch through to the contemporary How I Met Your Mother and comic Modern Family.

The truth is, however, that the Old and New Testaments hold numerous examples of precursors to the traditional nuclear family of a father, mother and two children.

Adam and Eve had two sons and then one son killed his brother, transforming their dynamic to a one-child family. Moses was abandoned and raised by strangers. Rachel could not conceive and added a child to her family through a surrogate. Ruth and Naomi were both widowed and childless but made a life together. Jesus Christ was a product of an immaculate conception and brought up by foster parents.

Given these examples, it has taken millennia for the law to catch up.

The complex web of family law

In Australia’s family law system, each of these configurations is regulated by co-existing and sometimes conflicting legislation. The Family Law Act was only the second significant piece of family law legislation enacted since the Constitution that endowed the federal parliament with powers to legislate about divorce and matrimonial matters.

However, many family law areas come under both federal and state laws, or state laws alone.

A good example of the overlap is the area of child welfare and child protection. Australia’s family law courts (namely the Family Court and the Federal Circuit Court) are specialist federal courts. Their job is to determine with whom a child should live, how much time a child spends with the other parent, and other issues about the child’s long-term welfare.

But child protection and welfare cases are also heard in state courts under state laws involving state-mandated child protection agencies. So, one family can find itself embroiled at once in lengthy, expensive and emotionally taxing proceedings in different courts with different jurisdictions.

Each of these state and federal courts houses discrete hierarchies exercising different powers and applying different tests to determine the “best interests of the child”.

Judicial discretion is not unfettered and each piece of relevant legislation provides some guidance and predictability. But as former High Court justice Michael Kirby once opined, decision-making is:

… a complex function combining logic and emotion, rational application of intelligence and reason, intuitive responses to experience.

Not only are decision-makers influenced by their own views and experiences, they are informed and influenced by a burgeoning body of research in many fields of social and medical sciences. It is increasingly difficult to navigate through the vast oceans of research material available and to differentiate between “good” and “bad” research.

For example, in the early history of the Family Law Act in the 1970s, the Family Court often applied the “tender years” and “maternal preference” presumptions.

These deemed it preferable for young children up to the age of seven years to live with their mothers upon the break-up of the traditional heterosexual nuclear family. They were not prescribed by the statute itself, but rather a vestige of judicial attitudes that decided custody cases before the Family Law Act was introduced with its specialist Family Court.

Changing attitudes to family violence

Another example of the shift in judicial and community attitudes relates to the relevance of family violence in parenting cases. Historically, family law courts quarantined family violence as unrelated to parenting capacity and child welfare. A man could be “a violent husband but a good father”.

This attitude did not shift substantially until the 1990s, when both society and the courts started to recognise that witnessing family violence could cause long-term damage to children.

Another issue is whether our adversarial system of intra-family dispute resolution (another legacy of the Commonwealth) is suitable to multicultural Australia. Certainly alternative forms of dispute resolution, such as counselling and mediation, may assist. But, often, decisions supposedly reached by the disputing parties themselves are made after “bargaining in the shadow of the law” or in the shadow of gendered or culturally specific beliefs and practices.

Also, if a resolution is not reached or is not honoured and complied with, a decision needs to be made and imposed by a third party. Under our system, that third party is a judge, but the question again arises as to how judicial discretion is exercised.

Family law is a complex area without simple solutions. There are many participants and stakeholders, not least of whom are the adults and children involved.

We need to be sensitive to their needs and best interests. We also need to be respectful of those who are the decision-makers, while at the same time continuing to scrutinise and review the decision-making processes to ensure a just system.


The ConversationRead the other instalments in the Changing Families series here.

Renata Alexander, Senior Lecturer in Law, Monash University

This article was originally published on The Conversation. Read the original article.

Mia Freedman et al are wrong: being drunk doesn’t cause rape

by Dr Kate Seear, Senior Lecturer, Faculty of Law, Monash University

by Professor Suzanne Fraser, Professor and Project Leader, National Drug Research Institute, Curtin University

This article was originally published in The Conversation on 12 November, 2013.

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Media commentators have linked alcohol use with sexual assault.
FLICKR/Monkey Boy42

Controversy over rape, alcohol consumption, and responsibility reignited last month when US columnist Emily Yoffe penned an article provocatively titled College women: stop getting drunk. But the link between alcohol use and sexual assault is less certain than it may seem.

Yoffe argued that alcohol is often a “common denominator” in rape, quoting a 2009 US survey showing 20% of college women reported having been sexually assaulted since commencing their studies, and that 80% of these cases “involved” alcohol.

According to Yoffe, alcohol both enables sexual predators and renders women vulnerable to assault. She concluded that female college students should “start moderating their drinking”.

Despite some references to men, her focus was overwhelmingly on what women could do to avoid rape – ideas that were echoed by Australian columnist Mia Freedman.

The public response to both columns was swift and overwhelmingly critical.

Many feminists raised concerns that these messages appear to blame rape victims for attacks, which may cause further distress to women who often already blame themselves. The focus of the columns was unfairly and disproportionately on women’s actions, with too little attention paid to the actions of men.

What’s more, most rapes don’t occur in the circumstances these columnists describe – much higher rates of sexual assault occur at the hands of partners, family members, workmates, and friends.

Drugs, alcohol and crime

But Yoffe and Freedman’s assumptions about alcohol, and about cause and effect have been largely overlooked.

Two claims have been especially prominent. The first is that alcohol disorients women and makes them more vulnerable to attack. The second is that alcohol somehow makes men more impulsive and emboldens them to rape.

Such claims falter in the face of reality.

Recent research challenges the claim that alcohol and other drugs cause crime in the absence of other factors. We know most people drink alcohol (even in large volumes) but don’t perpetrate rape.

Although it’s common practice to ascribe a set of social problems or crimes to drug use, these effects are nowhere near as widely experienced as we assume.

Indeed, as sociologists of drugs and addiction already know, claims like these reveal less about drugs and more about our hopes and fears about individuals and societies.

While it might comfort us to think of rape and other violent crimes as the product of a single, controllable substance, it makes little sense to single alcohol out.

Rape is a complex phenomenon. Of course, it’s also a gendered one – men are overwhelmingly the main perpetrators and women the main victims. These factors demand a more careful and unflinching look at many issues implicated in rape, including gender discourses and practices.

There’s also a central paradox at the heart of both the columns that started this controversy.

Apparently, although alcohol has certain stable “effects”, these differ by gender. Alcohol renders women more passive and increases their physical vulnerability; it makes men more aggressive and physically powerful. These effects are compounded, Yoffe claims, by biological differences between the sexes.

Both these ideas are grounded in outdated, unproven ideas about gender differences. They reveal much about our historical cultural fantasies of heterosexual submission and domination.

Beyond simplistic approaches

We need to take care when making claims about the “causes” of rape. We also need to avoid simplistic claims about what drugs like alcohol do to people. While alcohol may sometimes be present in rape, there’s no simple, predictable, stable and consistent causal connection.

It’s essential that we face this uncomfortable reality when devising policy responses and educational strategies. If we don’t, policies and other measures for “addressing” the problem of rape may instead exacerbate it.

In particular, measures guided by simplistic assumptions may lead us to neglect other relevant issues, foster complacency, or encourage the belief that rape is a simple problem with simple solutions.

Most troublingly, we risk perpetuating a logic of rape as natural human behaviour. When alcohol “unleashes” men’s “natural” sexual aggression and magnifies women’s “natural” passivity, rape becomes a dynamic embedded in us all.

The ConversationIf we imagine that sexual violence is a part of our essential humanity, any attempt to eradicate it is unlikely to succeed.

Kate Seear, Research Fellow in the Social Studies of Addiction Concepts program at the National Drug Research Institute, Curtin University and Suzanne Fraser, Associate Professor, Curtin University

This article was originally published on The Conversation. Read the original article.