Criminal Law

By Dr Dan Newman author of Legal Aid Lawyers and the Quest for Justice (2013) Hart.

Research into gender and criminal law covers a wide array of subjects, relating to the doctrine and application of the law. Such scholarship can include examinations of competing male/female values in legal systems, as influenced by the work of Carol Gilligan, or constructed male and female ideal types experienced through the law, as outlined by Nicola Lacey. In this section, though, we provide an overview of three salient contemporary issues by way of an introduction as to the need for a gendered understanding of criminal law.

The Regulation of Sex Work

Phil Hubbard, Roger Matthews and Jane Scoular have shown that empirical research into the regulation of sex work reveals how different approaches within criminal law have similar effects. They find common ground in the impact of criminal remedies even among superficially oppositional positions such as prohibitionism and legalisation. All such legal regulation tends to marginalise a large degree of prostitution and drives those women who cannot conform to the ideal type of sex worker into hidden forms of sex work with more dangerous working conditions to avoid the reach of the criminal law. It is in such circumstances that Laura Augstin has questioned the relevance of law to the regulation of sex work, concluding that law does not matter due to the prevalence of sex work that occurs, despite its legal status. Her analysis suggests that, the fact that competing legal systems are all characterised by non-compliance, means the role of the law in controlling commercial sex is largely symbolic. The downgrading of law, of course, would have significant consequences for the states that seek to tackle the often identified ‘problem’ of sex work as it would for those campaigners who seek ‘justice’ for the women involved.

In contrast, Scoular argues that law does matter, which actually can be understood by acknowledging the similarity of differing approaches. She uses the common results of laws to contest the understanding of law as sovereign expression – rules outlined by the judiciary or legislature and then applied by the police as agents of the executive – as overly positivistic and too narrowly focused on formal criminality. Rather, Scoular follows Foucault’s governmentality thesis to argue that legal power in neo-liberal capitalist society is more significantly exercised through extra-juridical means. Powerful sets of social norms are communicated across society that encourages individuals to make judgments that lead to the regulation of their own lives in line with generally accepted standards of acceptability. Different approaches in criminal law all encourage self-governance that works to exclude the more vulnerable sex worker with the most chaotic lives who cannot or will not meet the bureaucratic expectations and associated costs required in licencing-based regulatory approaches such as the Swedish criminalisation of purchase rather than sale or the permitting of selling sex in brothels within the Netherlands. The result of such moral engineering is that many of the women who continue to sell sex are considered ever more deviant and are thus forced to hide themselves from public view while similarly giving up rights to be considered fellow citizens worthy of respect. As this underclass has been taught to render itself invisible from mainstream sensibilities, wider society is rendered content and can thus ignore whatever dangerous and degrading situations they find themselves in.

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The power of Scoular’s position on sex work is that it still allows some potential for using the law to bring about progressive transformation to improve the lives of the women involved in sex work. The norms involved in self-governance are an expression of power and, recognising the continued power of legal regulation in this way, also opens up the possibility that such standards can be resisted. Debates around the best position to take with regards to the place of sex work within the law continue with disagreement among feminists, as reflected in the recent discussion prompted by the suggestions by the leader of the Labour Party, that decriminalisation might be the fairest option for the women involved. Sex workers and Amnesty International share this belief in taking sex work out of the criminal law as it holds the prospect of keeping workers in public view and allowing better relations with the police thus keeping them safer from abuse. As such, prostitution remains a live issue when discussing the intersection of gender and criminal law.

Provocation and Intimate Partner Violence

One of the most controversial areas of common law over recent decades has been, for Kate Fitz-Gibbon, the provocation defence and the way it has highlighted the gendered operation of the law of homicide. The gender bias of homicide law has particularly been seen with regards to male-perpetrated intimate homicides and the concomitantly inadequate response of the law to those situations in which battered women kill. The defence was found in the Homicide Act 1957 and based on the 1949 case of R v Duffy whereby ‘provocation is some act, done by the dead man to the accused, which would cause in any reasonable man a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him not master of his mind’. As Jeremy Horder noted, the provocation defence has provided an excuse for those who act in anger, through spontaneous retaliation, but did not also allow for those that were acting through as a result of being fearful of the victim.

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Such a discrepancy long rewarded male reactions of jealousy as to their cheating partners over female experiences in reacting to domestic violence. In 1707, R v Mawgridge outlined several sets of circumstances in which a murder conviction should be reduced to manslaughter including ‘where a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer or knock out his brains this is bare manslaughter: for jealousy is the rage of man and adultery is the highest invasion of property’. Here, the man’s wife has been clearly deemed to be his property and the provocation defence has allowed such discriminatory norms to be reinforced. At the same time, women who have killed abusive partners after months or years of suffering have traditionally found it difficult to mount a defence, with self-defence often unavailable due to the requirements for such actions to be undertaken in the face of an imminent danger and, thereon, to be considered proportionate. For this reason, provocation has often been turned to as a potential solution but this partial defence had tended to deny such ‘slow-burn’ reactions as those that present in battered woman cases, where the accumulated pressure of elongated periods of abuse suddenly becomes unbearable, perhaps as a rare opportune moment to retaliate and escape presents itself. In the 1993 case of R v Ahluwalia, a wife experienced many years of abuse from her husband and, one night, poured petrol over him while he slept and set him on fire. He died from the burns but her attempt to use provocation as a defence failed as it was not deemed sudden enough and, rather, represented a considered plan. Under provocation, then, men’s anger at having their possession of women challenged was given priority over women’s fear of being abused by men.

In 2004, the Law Commission offered proposals to improve the partial defences, in part influenced by the need to eradicate the gender imbalance of provocation. There duly emerged a new partial defence of loss of control to replace provocation under the Coroners and Justice Act 2009. Though this new offence did away with the need for the act to be sudden, introduced provisions against use for sexual fidelity and offered a new trigger of fear, it maintained the notion of losing control, against the Law Commission’s wishes, and thus implied the need for immediacy. The Court of Appeal soon compromised on the ability of defendants to raise sexual infidelity as a trigger in R v Clinton in 2012 and Horder and Fitz-Gibbon have shown that the courts have failed to adapt to the spirit of the reforms by continuing to treat the new defence as they did the old provocation, thus providing an excuse for violent male reactions to infidelity. For Fitz-Gibbon, there remains a crisis in intimate violence as a result. As the loss of control defence has not properly rectified the gendered problems of provocation in the manner intended by the reform proposals it remains sexist, meaning that the criminal law’s treatment of intimate partner violence must be considered an on-going issue of concern in need of further change to give women’s experience a comparable status to that of men.

Pornography and Resisting Sexual Violence

For Catharine MacKinnon, ‘pornography, in the feminist view, is a form of forced sex, a practice of sexual politics, and institution of gender inequality’. By this line, pornography provides casual encouragement and justification of sexual violence against women. Men expropriate women’s sexuality and pornography acts to increase the sexual appeal of subordination of women by commodifying them as sexual objects to be used and abused for pleasure. If the subordination of women is rendered alluring then the domination-subordination dynamic is eroticised and thus attitudes that dehumanise women in this way are normalised as a means of acceptable male gratification. MacKinnon opposed the US Constitution’s First Amendment interpretation of pornography as protected speech and, rather, considered it a form of hate speech – and one that had practical applications in that it could reasonably be expected to result in the rape and murder of women. MacKinnon sought to protect those women who might be victims of porn but, in so doing, was keen to avoid the obscenity route to banning pornography, which ‘cares more about whether men blush than whether women bleed’.

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Restricting pornography through obscenity law had been pursued in England and Wales in the Obscene Publications Act 1959, and across the Commonwealth through common law legal systems but, by this analysis, was only ever designed to suppress pornography and not eradicate it: the criminal law in this realm would not hold pornographers accountable for promoting such bigoted values and was not able to empower the victims of the oppressive practices. More valuable than criminal law, then, MacKinnon and Andrea Dworkin would pursue an approach to pornography that provided a civil remedy to those who were harmed. MacKinnon and Dworkin developed an Anti-Pornography Civil Rights Ordinance, which was first proposed in Minneapolis and thereafter passed in several other US cities in the early 1980s. Under these proposals, pornography would be seen as a violation of women’s civil rights meaning that the women who claimed harm from pornography were able to sue producers and distributors in civil court for damages. This approach, then, went beyond the censorship of many criminal sanctions, which were considered male-framed laws that only serve to empower the police, instead using the civil courts to transform the position of women within the dynamics of the law. Though these ordinances would soon be overturned by the courts on First Amendment grounds of violating freedom of speech, they offered an important principle that the women who are hurt by such commercialised sexual violence should be able to hold those responsible for hurting them to account. Here the legal system was invoked but this was not a simple matter of changing the law to better regulate pornography but, rather, to change the way pornography was understood as an infringement of women’s civil rights and use this to enact a wider social change. It was not considered simply a regulatory measure but a step toward a fundamental transformation of the relations between men and women hence using civil not criminal law.

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The opposition to pornography expressed in the ordinances remains controversial even among feminists, with some prominent figures such as Susie Bright criticising the MacKinnon-Dworkin approach for offering a stance that appears to be somewhat conservative for verging on the borders of censorship, while also ignoring the experiences of those women who make and consume pornography as they claim to enjoy it and feel empowered in so doing. With England and Wales’ Audiovisual Media Services Regulation 2014 controversially restricting many types of online pornography such as the depiction of female (but not male) ejaculation, at the same time as we see the rise of feminist pornography, how pornography should be dealt with by criminal law must be a matter for continued debate.