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Feminist Challenges to the Constraints of Law: Donning Uncomfortable Robes?

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Abstract

Legal judgment writing mobilises a process of story-telling, drawing on existing judicial discourses, precedents and practices to create a narrative relevant to the specific case that is articulated by the presiding judge. In the Feminist Judgments projects feminist scholars and activists have sought to challenge and reinterpret legal judgments that have disadvantaged, discriminated against or denied women’s experiences. This paper reflects on the process of writing as a feminist judge in the Australian Project, in an intimate homicide case, R v Middendorp. Drawing on the work of Judith Butler on intelligibility, iterability and the communality of violence and vulnerability, this article argues that feminist judgments necessarily require some uncomfortable compromises with unjust gendered institutions. While ‘donning the robes’ may be an uncomfortable process, a feminist re-articulation of the law’s carceral power serves to unsettle and challenge some aspects of gendered oppression, even though it cannot unsettle the operation of the institution. The article concludes that effective feminist interventions by members of the judiciary may require donning robes that are not entirely comfortable in order to persuade and advocate for change.

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Notes

  1. R v Middendorp (2010) VSC 202 (19 May 2010). This case was finalised in the Victorian Supreme Court, which is the highest court for the state of Victoria.

  2. Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic). The Act came into effect from 1 November 2014. See Fitz-Gibbon (2015) for further discussion of the abolition of defensive homicide.

  3. This focus was largely driven by the work of Jenny Morgan (2002).

  4. For further analysis of the nine-year operation of the offence of defensive homicide, see Fitz-Gibbon (2012, 2014, 2015), Fitz-Gibbon and Pickering (2012), Toole (2013) and Tyson (2011, 2013).

  5. The terms of the FVO required that Middendorp did not “assault, harass, threaten or intimidate” Jade Bownds (Middendorp, per Byrne J at 4).

  6. At the time this was the longest sentence to be imposed in a defensive homicide case.

  7. Regardless of the Middendorp case, the VLRC (2004) had recommended that a review of the law be conducted five years following the introduction of the reforms.

  8. R v Ramage [2004] VSC 508 (9 December 2004). For further discussion of victim blaming and the provocation defence, see further Fitz-Gibbon (2014, 56–65).

  9. Ramage, per Osborn J at 22.

  10. Middendorp, per Bryne J at 17.

  11. The first six Canadian judgments were published in 2008 in the Canadian Journal of Women and the Law (vol.18). The judgments are also available from the Women’s Court of Canada website: www.thecourt.ca/decisions-of-the-womens-court-of-canada/. Accessed 1 February 2015.

  12. The outcomes of the project have been published in a range of contexts in each jurisdiction, see Hunter et al. (2010) and Douglas et al. (2014a, b, c) respectively.

  13. Details of the Northern/Irish Feminist Judgments can be accessed online: http://www.feministjudging.ie. Accessed 1 February 2015.

  14. Details of the Australian Wild Law Judgments project can be accessed online: http://www.earthlaws.org.au/events/wild-law-judgment-project/. Accessed 1 February 2015.

  15. Details of the Children’s Rights Judgments Project can be accessed online: http://www.liv.ac.uk/law/research/european-childrens-rights-unit/childrens-rights-judgments/. Accessed 1 February 2015.

  16. See further Fitz-Gibbon et al. (2014), Maher (2014).

  17. In the volume, Irene Watson’s “response to Kartinyeri (Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337) is not written as a judgment as she contends that white man’s law would not be adequate” (McLouglin 2015).

  18. Williams was sentenced to a maximum term of 8 years with a non-parole period of 5 years imprisonment [DPP v Williams (2014) VSC 304].

  19. Our ‘team’ included Danielle Tyson and Jude McCulloch.

  20. Over the course of the project judgment and commentary writers met with the project leaders in various Australian states to workshop key issues and draft. See Douglas et al (2014b: 10–13).

References

  • Butler, Judith. 2007. Precarious life: The power of mourning and violence. New York: Routledge.

    Google Scholar 

  • Butler, Judith. 2004. Undoing gender. New York: Routledge.

    Google Scholar 

  • Butler, Judith. 1993. Bodies that matter: On the discursive limits of ‘sex’. New York: Routledge.

    Google Scholar 

  • Butler, Judith. 1986. Sex and gender in Simone de Beauvoir’s second sex. Yale French Studies 72: 35–49.

    Article  Google Scholar 

  • Capper, Sarah and Mary Crooks. 2010. New homicide laws have proved indefensible. The Sunday Age, 23 May.

  • Carline, Anna, and Patricia Easteal. 2014. Shades of grey—Domestic and sexual violence against women: Law reform and society. Oxon: Routledge.

    Google Scholar 

  • Davies, Margaret. 2011. Feminism and the idea of law. Feminists@Law 1(1): 1–7.

    Google Scholar 

  • Department of Justice. 2010. Review of the offence of defensive homicide: Discussion paper. Melbourne: Department of Justice.

    Google Scholar 

  • Douglas, Heather. 2008. The criminal law’s response to domestic violence: What’s going on? Sydney Law Review 30(3): 439–469.

    Google Scholar 

  • Douglas, Heather. 2012. A consideration of the merits of specialised homicide offences and defences for battered women. Australian and New Zealand Journal of Criminology 45(3): 367–382.

    Article  Google Scholar 

  • Douglas, Heather, Francesca Bartlett, Trish Luker, and Rosemary Hunter (eds.). 2014a. Australian feminist judgments: Righting and re-writing law. Oxford: Hart Publishing.

    Google Scholar 

  • Douglas, Heather, Francesca Bartlett, Trish Luker, and Rosemary Hunter. 2014b. Reflections on rewriting the law. In Australian feminist judgments: Righting and re-writing law, ed. Heather Douglas, Francesca Bartlett, Trish Luker, and Rosemary Hunter, 19–36. Oxford: Hart Publishing.

    Google Scholar 

  • Douglas, Heather, Francesca Bartlett, Trish Luker, and Rosemary Hunter. 2014c. Introduction: Righting Australian Law. In Australian feminist judgments: Righting and re-writing law, ed. Heather Douglas, Francesca Bartlett, Trish Luker, and Rosemary Hunter, 1–17. Oxford: Hart Publishing.

    Google Scholar 

  • Duhacek, Dasa Gordana. 2014. The women’s court: A feminist approach to in/justice. European Journal of Women’s Studies 22(2): 159–176. doi:10.1177/1350506814544913.

    Article  Google Scholar 

  • Easteal, Patricia. 1998. The culture context of rape and reform. In Balancing the scales: Rape, law reform, and Australian culture, ed. Patricia Easteal, 1–12. Sydney: The Federation Press.

    Google Scholar 

  • Easteal, Patricia. 2001. Less Than Equal: Women and the Australian Legal System. Victoria: Butterworths.

  • Erez, Edna, and Linda Rogers. 1999. Victim impact statements and sentencing outcomes and processes: The perspectives of legal professionals. British Journal of Criminology 39(2): 216–239.

    Article  Google Scholar 

  • Fitz-Gibbon, Kate. 2012. The Victorian operation of defensive homicide: Examining the delegitimisation of victims in the criminal justice system. Griffith Law Review 21(2): 555–581.

    Article  Google Scholar 

  • Fitz-Gibbon, Kate. 2014. Homicide law reform, gender and the provocation defence: A comparative perspective. Hampshire: Palgrave Macmillan.

    Book  Google Scholar 

  • Fitz-Gibbon, Kate. 2015. The offence of defensive homicide: Lessons Learned from failed law reform. In Homicide law reform in Victoria: Retrospect and prospects, ed. Kate Fitz-Gibbon, and Arie Freiberg. Sydney: The Federation Press.

    Google Scholar 

  • Fitz-Gibbon, Kate, and Sharon Pickering. 2012. Homicide law reform in Victoria, Australia: From provocation to defensive homicide and beyond. British Journal of Criminology 52(1): 159–180.

    Article  Google Scholar 

  • Fitz-Gibbon, Kate, Danielle Tyson, and Jude McCulloch. 2014. R v Middendorp: Judgment. In Australian feminist judgments: Righting and re-writing law, ed. Heather Douglas, Francesca Bartlett, Trish Luker, and Rosemary Hunter, 329–338. Oxford: Hart Publishing.

    Google Scholar 

  • Friedman, Lawrence M. 1969. Legal culture and social development. Law & Society Review 4(1): 29–44.

    Article  Google Scholar 

  • Fyfe, Melissa. 2010. Young male killers using defence law. The Age, 8 August.

  • Gill, Aisha, and Hannah Mason-Bish. 2013. Addressing violence against women as a hate crime: Limitations and possibilities. Feminist Review 105(1): 1–20.

    Article  Google Scholar 

  • Graycar, Regina, and Jenny Morgan. 2002. The hidden gender of the law. Sydney: The Federation Press.

    Google Scholar 

  • Grosz, Elizabeth. 1986. Conclusion: What is feminist theory? In Feminist challenges: Social and political theory, ed. Carol Pateman, and Elizabeth Grosz, 190–204. Sydney: Allen and Unwin.

    Google Scholar 

  • Hampel, Felicity. 2015. Legal culture, professional education and homicide law reform. In Homicide law reform in Victoria: Retrospect and prospects, ed. Kate Fitz-Gibbon, and Arie Freiberg. Sydney: The Federation Press.

    Google Scholar 

  • Hodge, Jessica. 2011. Gendered Hate: Exploring gender in hate crime law. Boston: Northeastern University Press.

    Google Scholar 

  • Howe, Adrian. 2004. Provocation in crisis: Law’s passion at the crossroads? New directions for feminist strategies. Australian Feminist Law Journal 21(1): 55–75.

    Article  Google Scholar 

  • Howe, Adrian. 2010. Another name for murder. Sydney Morning Herald, 24 May.

  • Hudson, Barbara. 2006. Beyond white man’s justice: Race, gender and justice in late modernity. Theoretical Criminology 10(1): 29–47.

    Article  Google Scholar 

  • Hunter, Rosemary. 2012a. The power of feminist judgments? Feminist Legal Studies 20(2): 135–148.

    Article  Google Scholar 

  • Hunter, Rosemary. 2012b. Introduction: Feminist judgments as teaching resources. The Law Teacher 46(3): 214–226.

    Article  Google Scholar 

  • Hunter, Rosemary, Clare McGlynn, and Erika Rackley (eds.). 2010. Feminist judgments: From theory to practice. Oxford: Hart Publishing.

    Google Scholar 

  • Lloyd, Moya. 2007. Judith Butler: From norms to politics. Cambridge: Polity.

    Google Scholar 

  • Lloyd, Moya. 2013. Heteronormativity and/as violence: The ‘sexing’ of Gwen Arauj. Hypatia 28(4): 818–834.

    Article  Google Scholar 

  • Loizidou, Elena. 2007. Judith Butler: Ethics, law, politics. London: Routledge-Cavendish.

    Google Scholar 

  • Maher, Jane Maree. 2014. R v Middendorp: Commentary. In Australian feminist judgments: Righting and re-writing law, ed. Heather Douglas, Francesca Bartlett, Trish Luker, and Rosemary Hunter, 325–328. Oxford: Hart Publishing.

    Google Scholar 

  • Mahoney, Martha R. 1991. Legal images of battered women: Redefining the issue of separation. Michigan Law Reform 90(1): 1–94.

    Article  Google Scholar 

  • McLouglin, Kcasey. 2015. Review: Australian Feminist Judgements: Righting and rewriting the law. Alternative Law Journal 40(2): 144.

    Google Scholar 

  • McNeilly, Kathryn. 2014. Gendered violence and international human rights: Thinking non-discrimination beyond the sex binary. Feminist Legal Studies 22(3): 263–283.

    Article  Google Scholar 

  • Morgan, Jenny. 1997. Provocation law and facts: Dead women tell no tales, tales are told about them. Melbourne University Law Review 21(1): 237–276.

    Google Scholar 

  • Morgan, Jenny. 2002. Who kills whom and why: Looking beyond legal categories. Victoria: Victorian Law Reform Commission.

  • Rackley, Erika. 2012. Why feminist legal scholars should write judgments: Reflections on the feminist judgments project in England and Wales. Canadian Journal of Women and the Law 24(2): 389–413.

    Article  Google Scholar 

  • Rackley, Erika. 2010. The art and craft of writing judgments: Notes on the Feminist Judgment Project. In Feminist judgments: From theory to practice, ed. Rosemary Hunter, Clare McGlynn, and Erika Rackley, 44–56. Oxford: Hart Publishing.

    Google Scholar 

  • Smart, Carol. 1989. Feminism and the power of law. London: Routledge.

    Book  Google Scholar 

  • Stanko, Elizabeth. 2001. Re-conceptualising the policing of hatred: Confessions and worrying dilemmas of a consultant. Law and Critique 12(3): 309–329.

    Article  Google Scholar 

  • Toole, Kellie. 2013. Defensive homicide on trial in Victoria. Monash University Law Review 39(2): 473–505.

    Google Scholar 

  • Tyson, Danielle. 2011. Victoria’s new homicide laws: Provocative reforms or more stories of women’s asking for it? Current Issues in Criminal Justice 23(2): 203–233.

    Google Scholar 

  • Tyson, Danielle. 2013. Sex, culpability and the defence of provocation. London: Routledge.

    Google Scholar 

  • Victorian Law Reform Commission. 2004. Defences to homicide: Final report. Victoria: Victorian Law Reform Commission.

  • Walkate, Sandra. 2008. What is to be done about violence against women? British Journal of Criminology 48(1): 39–54.

    Article  Google Scholar 

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Acknowledgments

Our reflections on the process of feminist judging are undoubtedly richer for the collaborative conversations had with Jude McCulloch and Danielle Tyson throughout the rewriting of the Middendorp judgment. The School of Social Sciences at Monash University supported our participation in the Australian Feminist Judgment Project workshops.

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Authors and Affiliations

  1. School of Humanities and Social Sciences, Faculty of Arts and Education, Deakin University, Melbourne, VIC, Australia

    Kate Fitz-Gibbon

  2. Centre for Women’s Studies and Gender Research, Sociology, School of Social Sciences, Monash University, Melbourne, VIC, Australia

    JaneMaree Maher

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  1. Kate Fitz-Gibbon
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  2. JaneMaree Maher
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Correspondence to Kate Fitz-Gibbon.

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Fitz-Gibbon, K., Maher, J. Feminist Challenges to the Constraints of Law: Donning Uncomfortable Robes?. Fem Leg Stud 23, 253–271 (2015). https://doi.org/10.1007/s10691-015-9292-6

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