Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
Patricia Easteal[*]
The interactions between gender and law focusing on context and models for change.
The model of women[1] — as defendants, victims, complainants and practitioners — and the legal system that I present in Less than Equal — Women and the Australian Legal System involves several philosophical underpinnings or beliefs. First, the legal system and women are regarded holistically, as parts of a far larger organism called society that has impact on them and their interaction, and on which they impact. Second, I see each of us as the holders of assumptions about reality learned through enculturation or socialisation. These are lessons about our culture’s way of being, seeing, doing and believing. It follows that little if anything is inherently ‘natural’ or ‘normal’ within a model of enculturation as omnipotent and omnipresent. Yet, overtime we forget that we learned something (cultural amnesia). We do not forget what we learned but we do not remember those positive and negative sanctions that produced a culturally desired way of being or seeing in the world. Thus, we end up conceptualising a dichotomy between natural and unnatural. We are convinced that our assumptions are, or should be, shared by everybody and that our ‘reality’ is the only proper ‘reality’ as reflected by Kant and his followers’ espousal of an ‘objective, universally valid’ epistemology.[2]
Thus, we look at the world around us — including the law — through filters or assumptions about ‘reality’. I use the concept of a ‘kaleidoscope’ to illustrate this idea: that when we observe anything or anybody, say a rape victim testifying on the stand, our perception is the outcome of a multitude of filters that twist and turn according to our own individual experiences and knowledge to create a picture at the end of the kaleidoscope cylinder. Given our historical antecedents and the current domination of Australian society by Anglo-Saxon males and a holistic view of culture, it is my contention that the images pervading the principal social structures and organisations, such as law, tend to be focused by the perspectives of the dominants: I label this as the dominocentric reality.
The dominocentric reality of western liberal law is built on tradition (aka precedent) with its ubiquitous legal concepts or ‘sacred cows’. Immutable, intimidating, revered and by their acceptance, almost an invisible part of the landscape, they are seen as ‘natural’ and ‘normal’ as eating filet mignon instead of witchetty grubs. At the core of the paradigm is the liberal, autonomous and rational individual who is for the most part an able-bodied (as defined by his peers) Anglo, middle class and certainly ‘straight’ male. Law’s alleged objectivity and ‘reasonable’ or ‘ordinary’ person is embodied in that individual.
Hence, one must place oneself outside of the system — an ‘outlaw’ — in order first to make the dominocentric assumptions visible and second, to remove them from one’s kaleidoscope of reality. Our corrected vision then identifies a need to query and reform some of these ‘truths’.
For instance, take the alleged neutrality of the ‘gatekeepers’. In the context of a holistic perspective and an understanding of socialisation’s power, this is an absurd premise, but it is a myth in itself and myths are potent and persistent. Are legal gatekeepers immune from enculturation? On the contrary — in fact, they are doubly programmed with legal education and professions that run archaic value-booster immunisation programming. Thus, as described through many researchers’ work reported in Less Than Equal, we witness a lack of neutrality permeating all categories of courts and (interpretation of) laws.
This ‘truth’ of impartiality plus so-called objective evidentiary standards contribute to a dominocentric image of law as an ‘even playing field’. It is within such a context that justice can be conceived of as a scale with the rights of the accused to a fair trial balanced against the rights of the victim. Indeed, with that picture at the end of dominant reality, issues of fairness to the accused and the need to exercise consistent rules concerning admissibility and testing of evidence and standard of proof are raised when feminists (and others) critique rape law reform.
But, so-called neutral evidentiary requirements or tests are born and fit holistically within a cultural backdrop that is not a blank slate receptive to the experiences, knowledge and language of all but is loaded with the dominocentrically derived mythology about women’s roles, sexuality, personality traits, rape, violence, and relationships with men. The quintessential essence of dominocentric legal substance and process runs in diametrical opposition to woman as she is enculturated in our society and to the female victim socialised to believe in her own apportion of responsibility for the crime. Set within an uneven playing field, the scales of justice are ‘heavily weighted with a ballast of masculine reality and masculine values which is derived and a part of the legal process, history and context’[3] and therefore the ‘balancing approach is structurally skewed in favour of the accused’.[4]
So, it is not surprising that embedded in cultural norms, values and roles, such an imbalance has become largely camouflaged by laws’ principles, precedents and players. Social order is maintained by the sanctions on offer, and in industrialised countries, the principal sanctions are the laws. They keep the system from fragmenting into chaos and in my ‘reality’, that is a social order created and perpetuated by those who have dominated in the society.
The big question that emerges is this: how do we lift the legal realm from this self-perpetuating quagmire of assumptions about reality? Can change from within the legal kaleidoscope occur in part by legislative reform?
Certainly the law, through reinterpretation of its key concepts, does have a definite place in facilitating recognition of difference and precipitating social change. After all, if the legal system has traditionally contributed to forming and perpetuating men’s dominance over women, the acceptability of violence in the home, and women’s responsibility for men’s sexuality, then, because of this role and power, it can do the opposite. Over time, law can challenge social norms and myths that populate the social (and legal) landscapes.
Numerous reforms aimed at meeting women’s individual needs have been undertaken. We can observe some conceptual changes in how women who deviate are seen. At the least, there is some recognition that gender and victimisation must be understood as part of the context for some women who commit certain crimes. There has been acknowledgment of the need for greater victims’ rights in the area of domestic violence, sexual assault, sex discrimination and sexual harassment. To some unknown but undoubtedly limited extent, black letter law changes have helped to reconstruct assumptions.
There is ample opportunity though for more reform. For a few examples, let’s look at the area of violence against women (for example, domestic violence, sexual assault, sexual harassment).[5]
Given substantive laws’ greyness (like a sieve) through which dominant values diffuse, wherever possible, law’s indeterminacy could be ameliorated by decreasing potential for ambiguity and (mis)interpretation. The following possible means of doing so conflict with existing ‘sacred cows’. (Be prepared to baulk!)
• To bolster marital rape legislation, either vitiation of consent could be defined more broadly to include the type of intimidation that can be generated in a (violent) marital relationship or a separate offence could be enacted for marital rape.
• Tests or standards of ‘reasonable’, ‘ordinary’ and ‘relevant’ could be changed to either entirely subjective, or to a two-tiered test, with an objective and a subjective component.
• In sexual harassment, the focus is on the individual’s perception of the experience rather than the intention behind it. This could be integrated into legislation pertaining to rape, where currently the perpetrators often argue ‘mistaken belief’ in consent.
• Laws could be made more directive, with judges required ‘to make an explicit positive statement to a jury that one witness, if believed, is sufficient to prove a fact’.[6]
It could be legislated that certain antecedents (not allegations) need to be present before a judge can question the credibility of a witness in a sexual assault case; that ‘there must be a specific, unique feature or circumstance of the case’.[7]
Further, it has been recommended that victim cross-examination ordeals could be ameliorated by enacting laws that require the prosecution and defence to decide what the relevant issues are before the trial commences. This practice would make complainants’ time in the witness box shorter and give judges more defined boundaries of relevance in questioning.[8]
In the context of violence against women in the home, we must also consider how it is named. Existing labels minimise the nature of what has taken place. Even the phrase ‘domestic violence’ has its limitations. Although the violence is named as such, the word ‘domestic’ places it in the private sphere and therefore as less serious than violence in the public domain. (Note: If the division between public and private were eradicated, the problem would be moot.)
The application of any definition that uses an objective or subjective standard must be prefaced with the court’s receipt of relevant information. Much empirical work has illustrated the need to educate the court about victims’ responses to violence. The dynamics of domestic violence, its manifestations and effects are essential in understanding some cases of homicide, social security fraud, marital rape and a victim’s perceived need for a domestic violence order. Also, in sexual assault and harassment cases, the question of delay in reporting and other actions that do not match the responses of the ‘good’ victim must be presented through the victim’s kaleidoscope, albeit via an interpreter. Experts can help decision makers in identifying their own unconscious perceptual biases. Through showing the court exactly how an action which intuitively seems alien, does in fact fit within someone else’s ‘reality’, the expert can redefine what is ‘reasonable’ or ‘ordinary’ behaviour for specific individuals.
Of course, future lawyers and judges could be educated earlier while obtaining their degrees. Currently, the male domination and sexism in legal education and relevant occupational sub-cultures make legal practitioners’ knowledge change a Herculean feat.[9] Law school (and College of Law) curriculum must mainstream gender and other intersectionality issues into their core subjects. Further, workshops on these subjects should be a part of ongoing accreditation programs with mandatory attendance. The last is of course problematic since it violates unwritten tenets of independence and elitism.
It is axiomatic that the dominocentric legal process favours those with resources and those who are best equipped and skilled to play its ‘games’. Women dealing with an adversarial situation lack the credibility of men in a process that encapsulates and exalts the traits that we continue to associate as ideal for males.[10] Those who have been victimised by violence and those who are further marginalised by race, ethnicity or other demographic or life choice variables, are generally even less able either to harness or ‘work’ the legal system.
Existing processes, however, can be made more suitable with the recognition that gender, violence, and other specific life history issues are potential obstacles in accessing ‘justice’. Alternative dispute resolution might be more ‘user-friendly’ for women, but the inherent inequality between a perpetrator and survivor of violence needs to be recognised and the process adjusted accordingly.
Creating alternatives is not enough though. Availability in theory does not necessarily equate with employment. For instance, in Victoria, theoretically (or substantively) victims now have options to testify from another room or from behind a protective screen and to have defence counsel remain seated while questioning them, as well as to have a support person present. These were intended to make testifying less traumatic. In ‘real’ terms, however, research reveals that these mechanisms have been used in just over a quarter of trials with judges not exercising their discretion to order it.[11]
Limitations of such micro-lens adjustment point to the need for an accompanying societal transformation.
Law is only one small part of the whole culture and therefore it is affected and constrained by parts of the social system. Unwritten social sub-texts (experienced by both males and females from their exposure to the dominocentric kaleidoscope) incorporate and are enmeshed with gendered personalities, sexuality, roles and the public/private (domestic) divide (ménage à quatre).
Not surprisingly given differential gender roles, enculturation, cross-culturally, almost always differentiates by gender. In numerous ways, little girls may learn for instance that it is okay for them to cry and to feel sad but that anger is a definite ‘no no’. In contrast, from verbal and non-verbal cues and by the role modelling of males, boys may be taught that they are allowed to be angry and express it but that tears are relatively taboo.
However, some would deny that we continue to have this continuum of ideal ‘feminine’ and ‘masculine’ personality, sexuality and roles in Australia despite their obvious presence in legal interpretation.[12]
Yet, if we look at the current generation of children and the powerful enculturators they are exposed to, it is hard to miss. First, they have their role models. Women continue as the primary cleaners, cooks, child minders and doers of other domestic tasks that are perceived as less important than those conducted in the public arena. In 1997, women employed full-time outside of the home spent two hours on domestic tasks as compared to the 75 minutes put in to the home (and outdoor home activities like gardening) by men. Of those working part-time, males put in 77 minutes in contrast to their female counterparts’ 169 minutes. This reflects little change from 1992. [13]
Figure 1:
The current divide and masculine standard
of equality
Due holistically to that domestic division of labour, female public sphere employment tends to be part time or casual in the lower-paying sectors. Although in 1999 women made up 43.8% of the Australian workforce, they were only about one-third of full-time workers but almost three-quarters of part-timers.[14] Indeed, allocation of task delegation and time by gender within the home contributes to the difficulties encountered in legislating for equality between the sexes in the public domain and in overcoming systemic discrimination.[15] Significant changes in ‘sexual relations cannot take place without addressing the anomalies which exist in the private sphere in the sense of family’.[16] So, discrimination laws’ efficacy is limited by the gender roles in the domestic.
In addition to gendered caretaker models, there is school:
They go off to school, where everything, from playground rhymes to fairy tales, mateship, teachers and toys teaches them that boys and girls are not the same and are expected to behave differently too.[17]
Girls learn to be more co-operative and sharing and think in terms of caretaking, while boys’ games involve more ‘doing’ and expression of assertion and aggression.
Perhaps the primary socialiser of many of our children is television. It reinforces gendered traits and behaviour. Particularly in the advertising segments, one continues to see marked stereotyping by sex. Boys go ‘rmmmm rmmmmm’ with trucks and girls gently nurture their dolls. Women clean the toilet bowl and anguish over the cleanliness of their laundry, kitchen floors and skin while men drive fast cars, drink beer and play other ‘manly’ roles.
In turn these beliefs about roles and temperament converge to form the ideal nuclear family which in turn perpetuates the public/private dichotomy and the gender role mandates. That ideal family has a mum and a dad as implied by the government and church’s response to single women’s access to assisted reproduction.[18] And this is not just any mum and dad but as tacitly encouraged by the goods and services tax (GST) introduced in July 2000 (with other tax reforms) a mum who stays at home cooking the family meals without the use of pre-packaged food or take-away.
Thus, the interaction of women and the law is greatly affected by this ménage à quatre and can only be addressed by wide-scale, full-on social change. The mirrors of the dominant kaleidoscope must be adjusted to reflect a context more conducive to gender equality. But what does that last phrase even mean? Equality to what or to whom? Let’s look at a few answers.
Figure 2 represents a metamorphosis model that embraces gender personality differences. The public/private divide also remains. What changes is their perception and stratification by the dominant kaleidoscope.
Figure 2:
Minimising gender differences in power:
equality as differences
Post-egalitarian feminists reject equality as the only goal of feminist legal theory and call for a more explicit focus on diversity.[19] The paradigm illustrated in Figure 2 does just that by regarding activities of the private sphere as equally important as those within the public. Intrinsic beliefs about those two spheres clearly would have to be transformed to absorb fully gender differences with universal recognition that women as childbearers have different rights and needs which should be integrated into the formulae for upward mobility within the public domain.
One example of this recognition by the criminal justice system could be the implementation of a ‘different but equal’ response to female offenders. The existing judicial or correctional responses not only equate female offenders with males but also, to some unknown extent, are guided by the particular beliefs about female criminality that exist in a masculocentric society.[20]
When conducting interviews with female inmates, I have wondered ‘Why is this woman here? Why isn’t she doing community service or home detention?’[21] Community-based alternatives are particularly suited to women. After all, many neither have prior nor violent records but do have dependent children. Given they they do not seem to be a threat to society and the financial costs to the taxpayer for gaoling them ($40,000 to $60,000 a year), it would be fiscally and morally sensible, particularly if their offence involved money, to replace gaol with a restorative-type scheme. Alternatively, home detention or electronic surveillance, bail hostels, increased use of fines, probation, probation hostels geared towards drug rehabilitation or specific indigenous concerns, community service orders (unavailable for those from rural areas), periodic detention orders and Drug Court orders may be other distinct possibilities better suited to address the ‘differences’ between male and female backgrounds, life circumstances and criminal histories.
Figure 3 below represents both the concepts depicted in Figure 2, plus a number of other possibilities. Each could contribute to a ‘big picture’ reduction in gender stratification and ultimately, to less bias amongst the rest of the society including the legal system.
Figure 3:
Minimising gender differences in power:
an integrative model
Imagine that all of the parts in the diagram are both dynamic and expanding. With change taking place throughout the culture at a faster and more consistent rate than the status quo is holding on; the existing gender roles are deconstructing. If we focus on the XXs (women), they either retain their ‘feminine’ characteristics or a more androgynous personality emerges. The XXs could move into the public domain, stay in the private, or the society could de-fission over time with a merging of the two spheres.
The last is more of a potential reality holistically in the context of the electronic information technology revolution. For many, their office can be wherever they open their laptop or use their combined mobile phone and personal digital assistant. Instantaneously, with the Internet and broad-band cabling, they are linked to their networks (in both senses). For many, this could take place within the residential dwelling. So, as the public and the domestic converge, the family unit can lose its walls or boundaries. Additionally, marriage as a legal category could be abolished and replaced with relationships of dependency with an emphasis on caretaking. That activity, as a consequence, could become more valued.[22]
There are many other potential reconstructions of the holistic whole; the two presented do not necessarily represent my personal choice of a Utopian future — just ideas. Some feminists would object to both models given the somewhat deterministic presumption of ‘femininity’ and ‘masculinity’. (Note: There is more than one feminist kaleidoscope.)
Awareness through thinking outside of the box is the first step.
But, entities based on power inequity cannot afford to have the status quo questioned. If we equate the dominocentric culture with an abusive family, replete with oppression of others, we can understand (at least intellectually) the systems’ homeostasis with radical approaches seen as a threat and consequently as something to be denigrated.
These problems with questioning the status quo are exacerbated when writing from a feminist perspective. One is liable to be labelled as ‘other’ by non-feminists looking at the analyses through their traditional lenses of truths. (Note: The use of the term ‘theorem’ in headings was a deliberate attempt to legitimise the discussion by using mathematical language thus evoking ‘masculine’ rationality etc.) Only the already ‘converted’ have the kaleidoscope lenses that can see past or through the distortion of conventional knowledge. The need to recognise the cultural context holistically and the power of enculturation and assumptions in our thinking are essential. Without such comprehension, the feminist kaleidoscope and the traditional ones will continue to collide. The victims’ voices stay unheard or muted, while feminist analyses and efforts to change laws will remain a treadmill giving the illusion that we are getting somewhere when in fact we are standing still.
It is like the classic conundrum of the ‘box inside of the box’. One way to escape this paradox is to encourage people to ‘think outside of the box(es)’. That has been and continues to be my intent.
[*] Patricia Easteal is Adjunct Professor of Law at the University of Canberra.
The bulk of this article is drawn from chapter 12 of Patricia Easteal, Less than Equal — Women and the Australian Legal System, Butterworths, Sydney, 2001.
©2001 Patricia Easteal (text)
[1] ‘Women’ have been essentialised or seen as uniform in this article. Being non-dominants, all women do share some commonalities. However, intersecting variables such as Aboriginality, disability, ethnicity and sexuality result in even more deviation from the dominant kaleidoscope. Some are discussed in Chapter 10 of Less than Equal.
[2] Discussed by Naffine, N., Feminism and Criminology, Allen and Unwin, 1997, in the context of historical and current focus of criminology.
[3] Easteal, P., ‘Beyond Reform’, in P. Easteal (ed.), Balancing The Scales: Rape, Law Reform and Australian Culture, Federation Press, 1998, p.208.
[4] Bronitt, S., ‘No Records. No Time, No Reason’, (1996) 8(2) Current Issues in Criminal Justice 130.
[5] See chapter 3, 6, 7 and 9 of Less Than Equal, above, ref 1.
[6] Mack, K., ‘You Should Scrutinise her Evidence with Great Care’: Corroboration of Women’s Testimony About Sexual Assault,’ in P. Easteal (ed.), above, ref 3, p.73.
[7] Mack, K., above, ref 6.
[8] Heenan, M. and McKelvie, H., ‘The Crimes (Rape) Act 1991: An Evaluation Report No 2’, 1997, p.53, Attorney General’s Legislation and Policy Branch, Department of Justice, Melbourne.
[9] See chapter 11 of Less than Equal, above, ref 1, for a review of the literature in Australia.
[10] In Less Than Equal, this is shown in a variety of contexts both through my own empirical research and that of many others.
[11] Heenan and McKelvie, above, ref 8, pp.20-4.
[12] Less Than Equal shows their persistence from sentencing to treatment of victims and women legal practitioners.
[13] Derived from data in Australian Bureau of Statistics, ‘How Australians Use Their Time’, Catalogue no 4153.0, Australian Bureau of Statistics, Canberra, 1999, p.17.
[14] Office of the Status of Women, ‘Labour Market Analysis’, using ABS statistics found at <http://www.dpmc.gov.au/osw/content/policy/ labour/market_analysis.html#2> .
[15] See chapter 8 of Less Than Equal for an in-depth discussion.
[16] Thornton, M., The Liberal Promise: Anti-Discrimination Legislation in Australia, Oxford University Press, 1990, p.102.
[17] Porter, R., ‘Girls Are Weak — Boys Are Strong: Constructing Gender in the Primary School’, in M. O’Loughlin and V. Foster (eds), Through Girls Eyes: Australian Research, Policy and Curriculum in the 1990s, Faculty of Education, University of Sydney,1992.
[18] As a consequence of McBain v State of Victoria [2000] FCA 1009, per Sundberg J, the High Court has heard an application from Australia’s Catholic bishops seeking to have that decision quashed and the government has proposed adding another exemption to the Sex Discrimination Act 1984; that State legislation that limits reproductive services to married women will not be covered by the SDA.
[19] Fineman, M., The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies, Routledge, 1995.
[20] See chapters 2 and 5 of Less Than Equal.
[21] As discussed in chapter 5 of Less Than Equal.
[22] Fineman, above, ref 19.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2001/103.html