How law constructs gender and vice versa

Professor Marcia Neave, Women Barrister’s Association Annual Dinner, 30 August 2001

 Thank you for inviting me to speak at the Women Barrister’s Association Annual Dinner. When I was a law student I interviewed Joan Rosanove QC for a law student magazine. At that time she was one of only two women practising as a barrister in Victoria. In the course of the interview I told her I was thinking of going to the Bar. Joan told me that the only reason she had survived as a barrister was that she had practised as an amalgam for many years before she went to the Bar. Her advice to me was that I would face enormous obstacles and that I would be wise to abandon my plan. In many ways I regret the fact that I took that advice.

The large number of women here tonight shows how things have changed since I was a law student. The Report on Equal Opportunity for Women at the Bar made recommendations for further changes to improve the situation of women barristers, though I understand that not all of them have yet been implemented. We should celebrate the advances of Australian women in the past 30 years. But at the same time we need to recognise that we still have a long way to go.

Justice Michael Kirby’s recent Lesbia Harford Oration focused on the numerical position of women in the legal profession. For some years around 50% of law graduates have been women. However, we are still under-represented at the Bar, in the judiciary and in legal partnerships. The Victorian statistics on women in the judiciary have improved as the result of the Attorney-General’s recent appointments to the magistracy and the County Court. However, the position of women lawyers mirrors the position of Australian women generally. The 1992 House of Representatives Standing Committee Report Half Way to Equal and the 1994 Australian Law Reform Commission Report, on Equality Before the Law, show that gender continues to affect destiny. Men predominate in politics, in the senior ranks of business and the professions, while women are disproportionately represented among survivors of domestic abuse and sexual assault. The distribution of responsibility for household work remains largely unchanged, despite the increasing involvement of women with children in paid work. The gender gap in wages has widened in the 1990s since the introduction of enterprise bargaining. In May 2001, adult women’s total full-time earnings were 81.2% of men’s total full-time earnings. (1)

An analysis of numbers of the kind undertaken by Justice Kirby is an important measure of the extent of women’s progress towards sexual equality. But we must go further. It is necessary to understand and uncover how gendered assumptions are built into language, culture and into the structures of knowledge. We have to unpick how gender biases affect what is recognised as ‘truth’ and how beliefs about men and women affect the way men and women are seen and treated by law.

The gendered nature of knowledge has been recognised in areas such as history, philosophy and sociology much longer than in law. Historians (2) and philosophers (3) have shown that what counts as ‘truth’ is usually based on the experience of men, although this knowledge is often seen as gender neutral. Medical research provides a good illustration. In the past, the results of drug trials using only male subjects, were often assumed to apply to women. Later research showed that findings based on men’s physiological reactions were often inapplicable to women. I am sure that when these trials were conducted, those responsible believed they were reporting the objective truth. Legal scholars are beginning to show that similar processes operate within the law. In the early 1990s the distinguished American legal scholar, Catherine MacKinnon argued that the law sees and treats women in the way that men see and treat women. (4) Other legal philosophers have examined how the structures and content of particular areas of law have been affected by the personal experience of those who shape it, who until recently were almost entirely men. (5)

The purpose of my talk is to look at how women’s historical exclusion from law and our current under-representation at senior levels of the legal profession has shaped thenature of law and how in turn law contributes to the shaping of ideas about gender. This theme is elegantly expressed in the title of Professor Regina Graycar and Professor Jenny Morgan’s important book, the Hidden Gender of Law. (6)

 As many reformers have observed, law has contradictory characteristics. On the one hand, people who are powerless often look to law for a remedy. Sometimes, as in theMabo Case, (7) a judicial decision can result in recognition of and redress for historic injustice. On the other hand, we know from history that law is often an instrument for thepreservation of the status quo. The “Persons Cases” which were decided by common law courts in Canada, Australia, England and the United States in the late nineteenth and early twentieth century are a good example. In case after case, male judges held that women were not “persons” within the language of legislation which determined eligibility to be elected, to vote, to be take out a university degree or to be admitted to legal practice. In the Kitson Case, (8)Mary Kitson had been admitted to legal practice under legislation passed by the South Australian Parliament, to overcome uncertainty about whether women were “persons” for the purposes of admission to legal practice. In 1920 she applied for admission as a public notary. Not surprisingly she believed that because she was a person for the purposes of admission to legal practice, she was also a ‘person’ within the Public Notaries Act. The Supreme Court of South Australia interpreted the word ‘person’ to mean ‘man’, in spite of statutory interpretation legislation which provided that masculine expressions included the feminine.

The case is not just an historical curio. It shows that ideas about gender can prevail in the face of the clear words of legislation. Some of you may be resistant to the idea that law today has a “hidden gender”. After all, most of the rules which excluded women from participating in the professions and public life were abolished many years ago. Anti-discrimination laws have been in force in most States and at federal level for nearly three decades. Surely law now operates gender neutrally and fairly?

I believe that this response reflects the stake which all lawyers have in upholding the legitimacy of law. If we accept that law is affected by gendered assumptions (and by racist and heterosexist assumptions as well) how can we defend what we do? Exposing subtle and hidden gender assumptions in the legal system conflicts with the socialisation that many of us received in law school. Until recently legal education was largely a formalistic process in which we were taught that the “correct” legal solution was produced by the identification of relevant facts, the selection of the correct legal principle and the application of the law to the facts. Many lawyers still believe that law is an objective science. This belief was reflected in a letter written to the Vice Chancellor of Melbourne University by a senior legal practitioner, who complained about the inclusion of courses dealing with law and gender in the law school curriculum. Clearly the letter writer believed that laws which have historically protected the interests of men are gender neutral and objective. By contrast, he thought that identifying ways in which gender influences the content of law and the structure of legal thought was simply “indoctrination”.

Because law is portrayed as rational and objective it is often difficult to recognise the extent to which it is gendered, particularly for those who are working within the legal system. However I believe it is easy to disprove claims about gender-neutral and objective nature of law. Sexual offences law provides many examples of the way that law reflects ideas about the characteristics and proper roles of men and women. It was not until 1991 that the High Court overruled the principle that women irrevocably consent to intercourse when they marry, (9) although conventional legal research shows that the doctrinal foundations of the principle were extremely shaky. (10)

Similarly, the idea that prior sexual experience is relevant to the credibility of a woman who reports that she has been raped, reflects the sexual double standard by which women were judged until well into the twentieth century. (11) Although this principle was first modified by Victorian legislation in 1976, (12) empirical research suggests that it still influences legal practice. Research by Melanie Heenan and Helen McKelvie in 1997 shows that in 1992 and 1993 rape trials, almost 40% of complainants who gave evidence were questioned about their prior sexual history with the accused or others with the leave of the court and a further 30% of complainants were questioned about their sexual history without leave of the court, in other words in breach of the statutory provisions. (13)

The situations in which leave was sought to admit sexual history evidence also revealed gendered assumptions on the part of both prosecution and defence lawyers. The prosecution sought to use evidence about lack of sexual history to support the complainant’s evidence that she had not consented to penetration. The defence sought to show that the woman’s sexual history made it likely that she had consented or that the accused believed she had consented. (14) Clearly both the prosecution and the defence believed there was a link between sexual experience and truthfulness, though I am unaware of any evidence that women who have had sex lie more or less frequently than women who are virgins.

Since McKelvie and Heenan’s study there have been further statutory reforms to deal with sexual history evidence. (15) It remains to be seen whether these formal legal changes have actually altered the practice of trial lawyers and judges. The assumption that rape allegations are easy to make and difficult to disprove still seems to be alive and well in the minds of many lawyers, though it is unsupported by empirical evidence. (16) Just as in the Kitson case, where the Court ignored the clear words of the legislation, substantive law reform may not affect how the law applies in practice.

Examples of gendered assumptions are not confined to criminal law. Another example is the assumption that women are normally dependent on male breadwinners, which was reflected in labour law and family law until the 1970s, and in social security and income tax law until very recently.

There are still many areas in which the substantive law reflects ideas about gender. Let me give you two more examples. The first example is the way that law deals with work. The categories of legal knowledge differentiate between ‘paid work’ which is the subject of labour law, and unpaid domestic work, which is largely invisible to law. Historically, even women who did paid work at home were not treated like other workers under employment law. I suspect that this is one of the factors which has historically contributed to the disadvantages experienced by outworkers, many of whom are women working at home.

Family law is the only area of law which gives some recognition to the value of domestic labour. Interestingly a comparison of cases under s 79 of the Family Law Act and under Part IX of the Property Law Act shows that wives’ domestic labour is more valuable than the domestic labour of de facto wives. (17) Now that Part IX has been extended to same-sex couples it will be fascinating to see how the value of a gay man’s domestic labour is compared with the work done by a wife.

The difference between real work, and unpaid domestic work, which is usually not seen by law as work at all, is also reflected in the principles of assessment of damages for personal injury. At common law, loss of ability to do housework or care for children is not treated as an economic loss suffered by the person who does such work. Instead, it is equated to the non-economic loss suffered by a person who can no longer play amateur football or go ice-skating. (18) You will recall that the common law gave husbands an action for loss of consortium if they were deprived of the wives’ domestic and sexual services. The law focused on the economic loss of the husband, rather than that of the wife who was no longer able to do domestic work. Some Australian states have now extended the right to sue for loss of consortium to wives, and some have abolished it altogether. In the former case the loss is still seen as that of the partner, rather than that of the injured person. (19)

The invisibility and under-valuation of domestic work is also reflected in contract law doctrine. In contract law the performance of domestic work does not usually give rise to an inference of a contract that the worker would be paid. Even if there is clear evidence of a contract that a women will be given an interest in property in return for her work, doing the work does not amount to part performance of the contract. This is because it is assumed that domestic labour is done “for love” without any expectation of reward. (20)

My second example involves a comparison of two English cases decided in the 1990s, which dealt with the question of whether a person could consent to an assault causing bodily harm. In R v Wilson, (21) the English Court of Appeal held that a woman could validly consent to her husband branding his initials on her buttocks with a hot knife. The Court said that it was contrary to the public interest to interfere in the consensual activities of husbands and wives. By contrast, in R v Brown, (22) the House of Lords held that gay men who had voluntarily gone to a venue where they had participated in sadomasochistic activities could not consent to assault. It seems to me that the consent of the gay men was much more likely to have been free and voluntary than the consent of the wife. When one goes behind the technical legal reasoning in the cases, Wilsonreflects assumptions about the appropriate relationship of husbands and wives, while Brown reflects homophobia.

My argument that law is gendered has important implications for women. It is of course a matter of simple justice that women lawyers should have equality of opportunity with men. But there is an even more important reason why we want more women lawyers at senior levels of the profession. Law, along with money, is both an instrument of power and a means of entrenching powerlessness.

The situation of women in situations of disadvantage is more likely to be addressed if we have more senior women barristers, judges and law reformers. Because women lawyers tend to come from middle-class backgrounds, their personal experiences will often differ from those of indigenous and working class and women from non-English speaking backgrounds. Despite these limitations, women lawyers have a noble history of pro bono work and of campaigning for changes which will improve the situation of all women.

We are unlikely to have a legal system which redresses gender injustice unless women are involved in shaping the law. Women lawyers have the power to put issues on the policy agenda and to shape the questions which law deals with as well as the answers that it provides. In Canada, the Women’s Legal Action and Education Foundation has participated in many test cases which are significant for women. In Australia, greater use of amicus briefs could draw on the skills of women barristers. Australian Women Lawyers, to which the Women Barristers’ Association sends a delegate, has made submissions to various governments on mandatory sentencing, human rights, and industrial law. Women lawyers have also been involved in working with law reform commissions to improve the law for women.

This brings me to the role that the Victorian Law Reform Commission could play in exposing and redressing the gendered nature of law. The Victorian Government established the commission on 6 April this year. One of the advantages of having a new Victorian Law Reform Commission is that it is independent from party political and bureaucratic processes. Because the Commission does not have to respond to immediate political crises, or advise the Attorney-General on day-to-day legal issues, it can consider broader, structural issues which underpin the operations of the legal system. In Australia, law reform commissions have, in the past, addressed many issues of concern to women. I have already mentioned the Australian Law Reform Commission’s Report on Equality Before the Law. In that report, the Commission was able to examine legal structures and principles in a broad range of areas and could also look at the way in which different legal rules interacted. Similarly, the work of the former Law Reform Commission of Victoria on sexual offences, led to important changes in Victorian criminal law.

The Attorney-General has already given the commission two references which affect women. The first is on sexual offences law. One of the issues we have been asked to consider concerns the responsiveness of the law to the needs of complainants in sexual offence cases. The second relates to disputes between co-owners. The co-ownership reference is primarily concerned with technical legal matters. However, the submission we have received from the Victorian Community Council Against Violence points out the implications of this reference for women in violent relationships, who co-own property with other family members. The Attorney-General has also asked us to advise on priorities for reform in the area of privacy law. In considering privacy issues we will need to think about whether the principles that we recommend have a differential impact on men and women and whether that is justified.

To conclude, I would like to ‘verbal’ the editors of the Victorian Bar News. In the autumn edition they commented that “perception provides the ultimate reality. As perception changes that reality changes”. My speech has argued that law has traditionally reflected the perception and reality of men. The Women Barristers’ Association can play an important role in changing that reality. It is to be congratulated for providing women barristers with a voice which can be used to improve the situation of women in Victoria.

Endnotes

1. Australian Bureau of Statistics, Average Weekly Earnings Cat 6302.0, May 2001.

2. See, for example, J Scott, “Gender: A Useful Category of Analysis” (1986) 91 American Historical Review 1053.

3. See, for example, S M Okin, Women in Western Political Thought (1980).

4. See, for example, C MacKinnon, Towards a Feminist Theory of the State (1989) 242; C MacKinnon, “Feminism, Marxism, Method and the State: An Agenda for Theory” 1982)Signs 515.

5. See, for example, N Naffine and R Owen (eds), Sexing the Subject of Law (1997); P Easteal, Less Than Equal Women and the Legal System (2001).

6. 1990, Federation Press, Sydney.

7. Mabo v Queensland(1992) 175 CLR 1.

8. Re Kitson [1920] SASR 230; see also Re Edith Haynes (1904) 6 WALR 209 and M J Mossman,“Feminism and Legal Method: The Difference it Makes” (1986) 3 Australian Journal of Law and Society 30.

9. R v L (1991) 174 CLR 379. The principle was also overruled in England in R v R [1991] 4 All ER 481.

10. See K O’Donovan, Family Law Matters (1993) Ch 1.

11. See N Naffine “Windows on the Legal Mind: the Evocation of Rape in Legal Writings” (1992) 18 MULR 741, 744 ff.

12. Rape Offences (Proceedings) Act 1976 (Vic) which inserted s 37A in the Evidence Act 1958. Section 37A has been amended several times since.

13. Evidence Act 1958 s 37A. The legislation restricts the admissibility of evidence relating to the complainant’s sexual activity either with the accused or another person. It requires an application to examine or cross-examine the complainant in relation to her sexual history. The Crimes (Rape) Act 1991 – An Evaluation Report, Executive Summary34, M Heenan and H McKelvie.

14. Ibid.

15. See Crimes (Amendment) Act 1997.

16. R Hunter and K Mack “Exclusion and Silence” in Sexing the Subject of Law (1997) 171 ff.

17. For discussion see M Neave “Property Disputes in De Facto Relationships – Can Equity Still Play a Role” in M Cope (ed) Equity Issues and Trials, (1995) 213, 215 ff.

18. R Graycar and J Morgan, The Hidden Gender of Law (1990) 80 and see Ch 5.

19. J Fleming The Law of Torts (9th ed) at 265 and 728.

20. See for example Ogilvie v Ryan [1976] 2 NSWLR 504.

21. (1996) 3 WLR 125. The Court said that the wife not only consented but ‘instigated’ the action and that the husband’s intention was to assist her in obtaining ‘a personal adornment’.

22. [1994] 1 AC 212.

Date published: 
30 Aug 2001

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