Reconfiguring the law to provide justice for women

Helena Kennedy, barrister at the English bar, member of the House of Lords and head of the IBAHRI, talks us through gender bias in law.

Helena Kennedy

Barrister, Bonavero Institute of Human Rights, University of Oxford.

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Helena Kennedy

Barrister, Bonavero Institute of Human Rights, University of Oxford.

02 Jul 2021

Key Points

Women everywhere make up a very small percentage of those who come before the court. Women on the whole are less inclined to criminal activity.
In every country, the impunity that there is for violence against women is still a very serious problem.
It’s only been in comparatively recent times that we’ve started to challenge the assumption that women will lie about matters to do with sex.
The way to address inequality is to bring it into curriculums, particularly in our law schools, and to make sure that we have a much more diverse judiciary in common law systems.

The law is male

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The law operates a very real fiction everywhere: that the law is neutral and will apply fairly to everybody. Of course, we know that isn’t true. It certainly isn’t true in class terms but it’s also not true in relation to women. The law is male. The nature of law is that it’s been created by the powerful in society and, until comparatively recently, that did not mean women. Law in our nations has often come out of religion and the elders, priests, bishops and those who have created the laws of our church – and the basis on which societies work was created by men.

Law has been a product of a male experience of the world and as such it often fails women. I saw that when I started practising as a criminal lawyer and started putting the spotlight on how the law was actually affecting the women I represented. Women everywhere make up a very small percentage of those who come before the court. Women on the whole are less inclined to criminal activity.

How has the law traditionally failed women?

The whole way in which law worked was to fail to acknowledge the lives that women led and the way in which, for example, women experienced high levels of violence and sexual violation. It’s true in every jurisdiction that the law has traditionally failed women.

We’ve only recently really started to put the screws on law, to ask what it is doing with regard to the issue of gender. We see it everywhere. In relation to domestic violence, we’ve been experiencing a pandemic, with the need for people to spend much more time enclosed in their homes, in limited space, not able to associate, not able to converse and take their problems to others. As a result, of course, we’ve seen a huge escalation of domestic violence. That has probably always been the case, but the difference now is, the idea that we can communicate by mobile phone and so on is making it much more possible to have a sense of the levels of this. Domestic violence is one of the issues. Wherever I go, women around the world talk about the ways in which they experience this. It’s about controlling women and women’s behaviour and making sure that women behave in ways that are considered appropriate to womanhood.

The gendered nature of law

When I talk about the gendered nature of law, it’s about basing our attitudes towards women in the stereotypes and the myths that exist about womanhood and about women’s sexuality, about the need to constrain women, the ways in which it is assumed that women will manipulate and lie and the ways in which women will be honest about their own sexual longings and behaviour. The very idea that women have sexual longings has often been denied in law. I did cases involving women who had been raped and sexually abused. The sexual harassment that women experience in their daily lives has been a long, hard job for us as lawyers to have addressed seriously by the courts. We’re only now really getting to grips with it. But in every country, the impunity that there is for violence against women is still a very serious problem.

Breaking the silence

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The Me Too movement, where women using social media were able to give voice to their experiences, has in many ways been a very transformative moment because it has allowed women to break the silence. What happened was that women were made to feel ashamed if they were at the receiving end of domestic violence, because the assumption was you mustn’t be fulfilling your role as a woman, as a daughter, as a wife, as what is expected of you in your society as a good woman. Therefore, punishment seemed appropriate and assumptions were made that it was appropriate for women to be disciplined in some way by their male partner, even until fairly recently.

Slapping seemed acceptable; women not being believed in most legal systems. There are problems around the credibility of women – the assumption that women will lie and therefore contrive to make men responsible for things that take place. We were brought up with this kind of thinking. In court systems around the world, there is a need for corroboration in sexual matters directed towards the believability of the evidence of women. We’ve started to challenge the assumption that women will lie about matters to do with sex. You have to ask yourself why that is.

A slap in the face of justice

There is a general acceptance that the patriarchy in which we’ve all lived has meant that women have been kept in their place by the rules of society and that the law became the manifestation of that. When you start looking at the rules that were created, they were often made from a male perspective and therefore would fail women when they arrived in the courts.

I’ve acted for women, who, after years of abuse, ended up killing their husbands. The rules don’t work for women because the test on provocation usually requires a snapping in the face of some event so that if a man finds his wife or his lover in the arms of another man, then if he snaps and kills one or both of them, it’s a crime of passion and it’s somehow understandable, and we could imagine putting ourselves into the shoes of that person.

It’s much more difficult for a woman, especially if she knows that she’s ready to be beaten by her husband yet again. She rushes to the kitchen and gets herself a knife because she’s using a weapon in the face of someone who’s without a weapon. That moment of having time to go and get yourself armed denies her the defence of provocation, denies her the defence of self-defence because she’s used disproportionate force against her abuser. Those tests were created without women in mind. It’s not some grand conspiracy; it’s just the nature of our world. So, now, we’re having to reconfigure law to provide justice for women.

Throwing a brick through the window

One of the things that’s happened recently, because women have been kept silent for so long, is that suddenly with social media, women are experiencing a real downside in the ways that they are harassed and in the ways that they are at the receiving end of hate crime. But women have also used it as a way of giving voice to their experiences. They’ve thrown a brick through the windows of the legal systems around the world by talking about going to the police, to the authorities, to people for help when they had been sexually abused, violated, had experienced discrimination and so on but nobody acting or taking their side. They’re now finding their voice and we’re breaking the silence.

One of the other things that we’ve recognised is that there’s a sort of interconnection between ways in which people experience discrimination. You can be a white woman experiencing discrimination, violence and abuse, but to be a Black woman experiencing that, or to be a woman who’s working class and Black and possibly even having a disability, many of those interconnections, that intersectionality, absolutely aggravates the experience of women. Poor women around the world, of course, are the most vulnerable. We know that from sex trafficking, exploitation and sweat factories and so on.

Putting inequality on the law school curriculum

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The way to address this is to bring it into the curriculums in our schools, particularly in our law schools, and to make sure that we have a much more diverse judiciary in common law systems. The judges are very instrumental in the making and in the development of law. If you don’t have people from different backgrounds, ethnicities and religions, and women as well as men, if you don’t have people of different sexuality, if you don’t have that variety of people on your benches making decisions, then you will not have a law that will deliver well for your society. So, you have to reform your processes of creating judges, of creating lawyers and of making law, and our parliaments have to reform to create law that is not, if you like, skewered to a male perspective. You have to introduce that variety of people within all those different elements that are involved in the making of law.