Threads: An Undergraduate Journal (Summer 2015)

University College Feminists

‘Threads’: An Undergraduate Journal

Summer 2015 / Issue 2 0

Threads: An Undergraduate Journal Editors, Threads:

Published by:

Naoise Murphy, (Undergraduate: Combined Honours in Arts, University College, Durham University)

University College Feminists, Durham University © 2015

Sofia Ropek Hewson (St Chad’s College, Durham University)

Articles may be quoted, downloaded or printed freely for academic or not-for-profit purposes provided that due acknowledgement is made to authors or copyright holders and to Threads

For enquiries and further information please contact universitycollegefeminists@gmail.com Cover Photograph © Maria Zaikina, 2015

Threads: The essays featured in Threads were presented at University College Feminists’ second annual undergraduate conference on 5th June, 2015 at University College, Durham.

Founded by University College Feminists, Threads is a peer-reviewed, interdisciplinary journal that celebrates the work of undergraduates exploring feminist, gender and queer theory in their university work.

University College Feminists: University College Feminists is a collegiate society based at University College, Durham University. Recently featured in international publications, it is the first society of its kind in the university and provides a platform for feminist discussion for individuals from all colleges. Established in 2012, the society welcomes speakers on a regular basis and engages in feminist activism within Durham University and further afield.

Presidents: Sofia Ropek Hewson and Naoise Murphy Secretary: Jen Cannon Treasurers: Virut Hemnilrat and Maria Zaikina

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Contents:

The Cohabitant’s Right to the Family Home: a Question of Common Intention or Unjust Enrichment? A Comparative Analysis of Judicial Development in England and Wales, and Canada.

4

Nun Shall Pass: Transgressing the boundaries of normative behaviour for women in colonial Latin America in the lives of Catalina de Erauso and Catarina de San Juan.

32

‘Celebrate Chaste Soldiers’? Gender Roles in Early Monasticism: The Possibility of a Third Gender in Anglo-Saxon Society, c. 600-850

37

Imogen Eddleston

Understanding Mormon Attitudes to Abortion

78

Jana Cattien

Reforming German Rape Law: Towards a Feminist Account of Rape

104

Imogen Rolfe

A patriarchal divinity or his son is exactly not in a position to save us from the horrors of a patriarchal world: a feminist critique of Graham Ward’s Christology.

Andrew Loucks

Ellie Herman

Helen Bradshaw

Jessica Savery

122

Marriage Law and the Status of Women in Post-colonial Kenya, 1963-2014

127

How useful is the corporeal turn in understanding early modern Europe history?

173

Najeehah HajiAbdul-Hamid

Embodiment and Social Theory: On Skin Whitening

183

Sophie Lambert

‘It’s not rape if…’: Female Students’ Everyday Experiences of Lad Culture at Durham University

192

Elliot Frederick Grogan

The rehabilitation of Marie-Antoinette within selected literature from the Age of Revolution

213

Imogen Jones

The Effect of Rape Myths on Rape Trials and Possible Reforms

230

Oriana Frame

The paternalism of doctors under the Abortion Act 1967: unnecessary and unacceptable.

263

Zaynab Seedat

In some versions of her story the Brynhildr figure is a valkyrie; in others she is not. How appropriate is it for her to be given the nature of a valkyrie?

274

Transgender and Consent in Sexual Offence Cases

280

Megan Smith

Sophie Hicks

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Editors' note Naoise Murphy is a second-year student at University College, Durham University, reading for a degree in English Literature and French.

Sofia Ropek Hewson is a postgraduate student at St Chad's College, Durham University, working on contemporary French literature and sexual/ political theory.

The title of this journal comes from an image from Dr Ruth Lewis in her keynote speech at our inaugural conference in 2014. She described feminism as a tapestry, a more fitting image than the usual idea of ‘waves’, which implies discord. We hope that the essays collected here contribute some ‘threads’ to the rich tapestry of feminist study and continue the work of ‘teaching to transgress’ that forms the basis of University College Feminists.

2014/2015 has been another successful academic year for UCF. We have held events ranging from academic talks to workshops on sexual violence and parliamentary hustings with the candidates for Durham City. Our activities culminated in our second undergraduate conference in June, where we welcomed speakers from across the university, celebrating the fantastic work of Durham undergraduates in all areas of feminist scholarship.

We would like to thank our keynote speakers, Dr Gerald Moore, Dr Kimberly Jamie, Dr Rebecca Ferreboeuf, Dr Aoife O’Donoghue and Ms Máiréad Enright for their inspiring and informative talks, together with our wonderful undergraduate speakers and all who attended and took part in our discussions. We would also like to thank our dedicated peer review panel.

We hope you enjoy the second issue of ‘Threads’ and we look forward to building on this year’s success with many more events and campaigns in the next academic year.

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The Cohabitant’s Right to the Family Home: a Question of Common Intention or Unjust Enrichment? A Comparative Analysis of Judicial Development in England and Wales, and Canada.

Andrew Loucks is a third year law student at Grey College, Durham University. After graduation he will be returning to Canada to practice law in Ontario. This paper was prepared as his dissertation under the guidance of Dr Henry Jones.

Introduction In England and Wales, there has been a significant increase in the number of unmarried cohabitants in recent decades.1 Statutory property regimes exist for married couples and civil partners.2 Yet contrary to popular belief,3 there is no equivalent for unmarried cohabitants on relationship breakdown; common-law marriage is thus a myth in England and Wales.4 In the wake of such an increase in cohabitation and coupled with Parliamentary inaction, the House of Lords and subsequently the Supreme Court have developed a legal framework to resolve disputes over family property between cohabitants. In particular the common intention constructive trust (hereafter ‘C.I.C.T.’) has been developed to resolve disputes over the family home between un-married cohabitants. This development has occurred on the basis of trusts principles, whereby the claimant asserts their right to an existing beneficial interest to the family home.5 While acknowledging recent developments in other areas of the United Kingdom, particularly in Scotland,6 the focus of this dissertation is the development of the C.I.C.T. in England and Wales.

Meanwhile, there also has been a great increase in the number of unmarried cohabitants in Canada.7 Similarly, there was, until recently, no statutory regime in existence through which the rights of 1

Robert George, ‘The View from the Bar’ [2015] 45 Fam. L.J. 249.

Matrimonial Causes Act 1973; Civil Partnership Act 2004.

3 Office for National Statistics, ‘Families and Households, 2014’ (Statistical Bulletin, 28 January 2015) <http://www.ons.gov.uk/ons/rel/family-demography/families-and-households/2012/cohabitation-rpt.html> accessed 16 April 2015.

4 Rebecca Probert, ‘The evolution of the common-law marriage myth’ [2011] 41 Fam. L.J. 283; Rebecca Probert, ‘Common-law marriage: myths and misunderstandings’ [2008] 20 CFLQ 1, 13-14.

5 Anne Bottomley, ‘Our Property in Trust: things to make and do’ in Susan Scott-Hunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001) 281-282.

6 Family Law (Scotland) Act 2006; Gow v Grant [2012] UKSC 29.

7 ‘Portrait of Families and Livings Arrangements in Canada’ (Statistics Canada, 14 January 2014) <http://www12.statcan.ca/census-recensement/2011/as-sa/98-312-x/98-312-x2011001-eng.cfm#a2> accessed 16 April 2015; ‘Fifty Years of families in Canada: 1961 to 2011’ (Statistics Canada, 18 December 2013) 2

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cohabitants to family property were governed. Here too, the Supreme Court developed a framework based on trusts principles through which cohabitants could claim their right to an existing beneficial interest in the family home. Notably the ‘common intention resulting trust’ was developed. 8 Doctrinally flawed9 and based on a misinterpretation of English case law,10 the Supreme Court has discontinued its use.11 In its stead, the doctrine of unjust enrichment has been developed by the Supreme Court of Canada to resolve disputes between cohabitants over family property.12 This legal framework is remedial; the focus of the court is not solely on the proprietary rights of the cohabitants, but rather on providing restitution for unjust enrichment, which may involve a remedial constructive trust over the home.13 Unjust enrichment claims are not restricted to the family home, and may reflect wealth generated during the cohabitation as well as non-financial contributions by cohabitants to the home and family.14 While developed by the Supreme Court, this approach has become further entrenched in some sub-national jurisdictions through provincial or territorial legislation.15 The analysis of unjust enrichment in the Canadian context will be limited to the judicial activism of the Supreme Court; this dissertation does not have the scope to give full consideration to all sub-national legislative instruments.

This dissertation will therefore analyse and contrast the judicial development of cohabitants’ rights to the family home by the House of Lords and subsequently the Supreme Court in England and Wales to that of the Supreme Court of Canada. Chapter I considers the development of the C.I.C.T. in England and Wales. Chapter II considers the development of the doctrine of unjust enrichment by the Supreme Court of Canada and the concept of the ‘joint family venture’. Chapter III contrasts both legal frameworks from a feminist perspective, where it is submitted that the Supreme Court of Canada’s development of unjust enrichment provides female cohabitants with greater substantive equality.

Finally, proposed legislation in England and Wales will be considered. Chapter IV provides a conclusion.

Chapter I: Judicial development in England and Wales <http://www12.statcan.ca/census-recensement/2011/as-sa/98-312-x/98-312-x2011003_1-eng.cfm> accessed 16 April 2015; ‘Figure 1: Distribution (in percentage) of census families by family structure, Canada, 1961 to 2011’ (Statistics Canada, 6 January 2013) <http://www12.statcan.ca/census-recensement/2011/as-sa/98-312x/2011003/fig/fig3_1-1-eng.cfm> accessed 16 April 2015 8 Murdoch v Murdoch [1975] 1 SCR 423, (1973) 41 DLR (3d) 367; Rathwell v Rathwell [1978] 2 SCR 436, (1978) 83 DLR (3d) 289.

9 Donovan Waters, ‘Comment’ (1975), 53 Can. Bar Rev. 366, 36; Mitchell McInnes, The Canadian Law of Unjust Enrichment (LexisNexis Canada 2014) 1180; Timothy Youdan, ‘Resulting and Constructive Trusts’ in Special Lectures of the Law Society of Upper Canada, 1993 Family law: Roles, Fairness and Equality (Carswell, Scarborough 1994) 188.

10 Albert. H. Oosterhoff, Oosterhoff on Trusts: Text, Commentary and Materials (7th edn, Carswell 2009) 642; Donovan Waters, Waters’ Law of Trusts in Canada (4th edn, Carswell 2012) 843.

11 Kerr v Baranow, 2011 SCC 10 at para 19, [2011] 1 SCR 269, 328 DLR (4 th) 577.

12 Peter v Beblow, [1993] 1 SCR 980, [1993] 3 WWR 337; Kerr v Baranow, 2011 SCC 10 at para 36 – 45, [2011] 1 SCR 269; Albert. H. Oosterhoff, Oosterhoff on Trusts: Text, Commentary and Materials (7th edn, Carswell 2009) 728.

13 Kerr v Baranow, 2011 SCC 10 at para 50, [2011] 1 SCR 269.

14 Ibid. 128.

15 For example: Family Law Act, RSO 1990 Ch. F.3 (Ontario); Family Property Act, CCSM c F25 (Manitoba); Family Law Act, SBC 2011, c 25 (British Columbia).

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In England and Wales, trusts principles are employed to settle disputes over the family home. The Privy Council,16 and later the Supreme Court,17 have identified the C.I.C.T. as the primary device for the resolution of disputes over the family home. The evolution of the C.I.C.T. has been gradual; it is context specific,18 having no application outside the family home.19 As Mee identifies, the court is effectively applying very specific principles, only applicable in a ‘domestic context’.20 As such, this chapter will consider the development of the C.I.C.T. in England and Wales, with particular emphasis given to the possible inequality it creates for female cohabitants.

1.1

The Common Intention Constructive Trust

In England and Wales, a cohabitant may claim a beneficial interest in the family home on the basis of a C.I.C.T.; the claim is based in property rights,21 where the claimant asserts their existing right to a beneficial interest in the home.22 In effect, this enables the identification of beneficial interest in the family home in two situations.

First, non-titled cohabitants may make a C.I.C.T. claim. In doing so, the claimant must establish that they have acquired a beneficial interest in the family home, after which the court must identify the size of the claimant’s interest based on the parties’ common intention. The concept of common intention gives the court wide discretion when quantifying beneficial interest. Therefore, the application of a C.I.C.T. claim affords the claimant the possibility of a greater beneficial interest in the home than would otherwise be available under resulting trust principles.

Secondly, a cohabitant who has joint legal title to the family home may also make a C.I.C.T. claim. In such circumstances the court has the discretion to move away from traditional maxims such as ‘equity is equality’, or ‘equity follows the law’, which would otherwise dictate equal sharing of property between those who have joint legal title. It is submitted that this is a positive development in family law, enabling allocation of beneficial interest in the family home that better reflects the realities of individual relationships. However, the process that the courts have developed to identify when a beneficial interest arises and how to determine the extent of such an interest is the topic of much debate, and will be analysed here.

16

Abbott v Abbott [2007] UKPC 53 [4] (Baroness Hale).

17

Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776 [24] (Lady Hale and Walker LJ).

18

As opposed to context-neutral, see: Hopkins, ‘Regulating Trusts of the Home: Private Law and Social Policy’ (2009) 125 L.Q.R. 310, 311.

19 John Dewar, ‘Land, Law, and the Family Home’ in Susan Bright and John Dewar, Land Law: Themes and Perspectives (OUP 1998) 327, 327-328, 331.

20 John Mee, ‘Jones v Kernott: Inferring and Imputing in Essex’ [2012] Conv. 167, 179.

21 Shazia Choudhry and Jonathan Herring, ‘European Human Rights and Family Law’ (Hart Publishing, Oxford 2010) 417-418.

22 Anne Bottomley, ‘Our Property in Trust: things to make and do’ in Susan Scott-Hunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001) 257, 281.

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1.2

Acquiring a beneficial interest in the family home

For a successful C.I.C.T. claim, the claimant must have acquired a beneficial interest in the family home. Cohabitants with joint legal title are presumed at law to be entitled to equal division of property,23 so the acquisition requirement is automatically satisfied. It remains more difficult for nontitled cohabitants to establish acquisition of a beneficial interest in the family home.

1.2.1 Acquiring beneficial interest in the family home: non-titled cohabitants The seminal case on acquisition of a beneficial interest in the family home by a non-titled cohabitant is Lloyds Bank plc v Rosset24 (herein Rosset). Rosset establishes that to satisfy the acquisition requirement, so as to identify the existence of a beneficial interest, the non-titled cohabitant must have made direct financial contributions to purchase price of the property in question or contributed to mortgage payments thereafter.25 In the view of Lord Bridge, ‘it is extremely doubtful if anything less will do.’26 While widely criticized,27 the test put forward in Rosset remains authority.28 Notably, Baroness Hale stated in the House of Lords decision of Stack v Dowden, that the Rosset test is ‘rather too high.’29 While the Supreme Court in Jones v Kernott30 further developed the decision in Stack v Dowden, this was generally with respect of the court’s ability to impute common intention within the quantification analysis (discussed below). Subsequent Court of Appeal cases clarify that the court cannot impute common intention at the acquisition stage.31 Prior to the Jones v Kernott decision, Gardner and Davidson opined that this appeal would be an great opportunity for the Supreme Court to reconsider the current law on cohabitants rights to the family home, suggesting the possibility of a judicially developed single regime to govern all trusts of the family home cases.32 Unfortunately, such development did not come into fruition; acquisition of a beneficial interest and the continued use of the Rosset test was not considered by the Supreme Court in Jones v Kernott. As such, for a non-tilted 23

Ibid.

24

[1990] UKHL 14, [1991] AC 107.

25

Lloyds Bank plc v Rosset [1990] UKHL 14, [1991] AC 107 [133] (Lord Bridge). ibid.

27 Law Commission, ‘Sharing Homes’ (Law Com No 278, 2002) [4.24]; Law Commission, ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ (Law Com No 307, 2007) [A.33 – A.35]; Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 [63] (Baroness Hale); Kevin Gray and Susan Gray, Land Law (4th edn OUP, Oxford 2011) 358, 363-366.

28 Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 [62] (Baroness Hale).

29 Ibid.

30 [2011] UKSC 53, [2012] 1 AC 776.

26

31 32

Geary v Rankine [2012] EWCA Civ 555; Thompson v Hurst [2012] EWCA Civ 1752.

Simon Gardner and Katherine Davidson, ‘The future of Stack v Dowden’ [2011] 127 LQR 13.

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cohabitant to acquire a beneficial interest in the family home, she / he must make some financial contribution to the purchase price or contribute to the mortgage installments, as established in Rosset.33

1.2.2 Acquiring beneficial interest in the family home: cohabitants with joint legal title It should be noted that in Stack v Dowden34 and Jones v Kernott35 the cohabitants had joint legal title to the property in question. These cases, identifying un-equal beneficial ownership, infact entrench the concept that with joint legal ownership comes the presumption of equal beneficial ownership; unequal contributions to the acquisition of the family home is not, in itself, enough to rebut this presumption. 36 The presumption of equal sharing in cases of joint legal ownership has also been affirmed in the Privy Council.37

1.2.3 Criticism of Lloyd’s Bank plc v Rosset [1990] UKHL 14 The emphasis on financial contributions in the acquisition test established in Rosset is problematic. It is submitted that the requirements for acquisition establishes an artificially high threshold that in effect discriminates against female cohabitants.38 Some argue that this high threshold, or acquisition hurdle, enables legal certainty39 and promotes individual autonomy.40 Bottomley argues that the current system, whereby parties declare their legal interest to the family home promotes legal certainty through respect for individual autonomy, and this in turn promotes equality between cohabitants.41 In the alternative, it is argued – in the view of this author, correctly – that this high hurdle does not reflect the changing social or economic realities of modern cohabitational relationships. The acquisition test established in Rosset creates vulnerability for cohabitants engaged in domestic work or child-raising within the family home. This in turn has disproportionate and discriminatory consequences for women. First, the focus on direct financial contributions automatically

33 34 35

[1990] UKHL 14, [1991] AC 107.

[2007] UKHL 17, [2007] 2 AC 432.

[2011] UKSC 53, [2012] 1 AC 776.

36

Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776 [11], [25]; Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 [58], [68] (Baroness Hale), [98], [109] (Neuberger LJ).

37 Abbott v Abbott [2007] UKPC 53.

38 Rosemary Auchmuty, ‘Unfair Share for Women: The Rhetoric of Equality and the Reality of Inequality’ in Hilary Lim and Anne Bottomley Feminist Perspectives on Land Law (Routledge-Cavendish, Oxford, 2007)189.

39

Graham Battersby, ‘Oxley v Hiscock in the Court of Appeal’ [2005] 17(2) CFLQ 259, 263; Martin Dixon, ‘A Case Too Far?’ [1997] Conv. 66.

40

Hansard HL vol 757 col 2072-2076 (Baroness Deech); Anne Bottomley, ‘Our Property in Trust: things to make and do’ in Susan Scott-Hunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001).

41 Anne Bottomley, ‘Women and Trust(s): Portraying the Family in the Gallery of Law’ in Susan Bright and John Dewar Land Law: Themes and Perspectives (OUP, Oxford 1998) 22.

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disadvantages women. General economic inequality between men and women in society42 makes it more difficult for women to make such contributions. Secondly, the Rosset test ignores the value of domestic work within the home.43 It is submitted that this further engrains what, L'Heureux-Dubé J. in the Supreme Court of Canada referred to as the ‘feminization of poverty’.44 Through the exclusion of domestic work and child-raising as the basis of acquiring a beneficial interest in the family home, the Rosset test presumes that such domestic services are expected to be provided by women and further that they are not worthy of valuation or compensation. In contrast, the Supreme Court of Canada has made clear that ‘it is no longer arguable that unremunerated work done by one partner in a relationship is, in some sense a gift or that public policy dictates that such work and services shall not give rise to equitable remedies.’45 Thus, it is submitted that as the Rosset test ignores contributions of domestic work within the home it discriminates against female cohabitants.

Clearly Rosset must be reconsidered. It places far too great an emphasis on direct financial contributions, putting those cohabitants engaged in domestic and child raising work at a serious disadvantage. This disadvantage has a disproportionate effect on women; the acquisition requirements entrenched in Rosset, while protecting property law principles produce substantive inequality for female cohabitants. The acquisition test must be re-conceptualized so that it includes those cohabitants who make significant non-financial contributions to the family home.

1.3

Quantification of beneficial interest in the family home

Where a cohabitant can establish that she / he has acquired a beneficial interest in the family home, the parties’ common intention as to the extent of that interest must be quantified. The presumption of equal division of beneficial interest in situations of joint ownership may be rebutted at this stage. In either case, the court must determine the common intention of the parties with respect to beneficial ownership, and that the claimant detrimentally relied upon this intention.46 This is particularly problematic. The parties’ common intention is objectively assessed by the court in light of the parties’ whole course of conduct with respect to the property.47 The concept of ‘common intention’ through which the court identifies a beneficial interest in the family home may rectify situations of injustice, but it also creates difficulties with respect to legal certainty, 48 a problem notably articulated by Lord Neuberger (dissenting) in Stack v Dowden.49 Furthermore, the recent developments at the House of

42

Simone Wong, ‘Property Rights for Home-Sharers: Equity Versus a Legislative Framework?’ in Susan ScottHunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001).

43 Alison Diduck and Felicity Kaganas, Family Law, Gender and the State: Text Cases and Materials (Hart, Oxford 2012) 265 44 Moge v Moge,[1992] 3 SCR 813, [1992] SCJ No. 107.

45

Donovan Waters, Waters’ Law of Trusts in Canada (4th edn, Carswell 2012) 471.

Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 [124] (Neuberger LJ).

47 Ibid, [61] (Baroness Hale).

48 Andrew Dyson, ‘All’s fair in low and law: an analysis of the common intention constructive trust’ [2008] CSLR 149, 156.

49 Ibid. [142]–[146] (Lord Neuberger).

46

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Lords,50 the Supreme Court,51 and the Privy Council,52 have created confusion as to the extent of judicial discretion when quantifying a beneficial interest in the family home.

The Court of Appeal in Oxley v Hiscock53 applied a holistic approach to the quantification of a beneficial interest, asking ‘what would be a fair share for each party having regard to the whole of dealing between them in relation to the property?’ Although restricted to the course of dealings between parties with respect to the property, this approach has been criticized for the vague concept of fairness. In particular Battersby argues that this approach would create situations of ‘palm tree justice’.54 The notion of fairness, and the discretion with which the court would have to impose its view thereof, would undermine legal certainty and exacerbate litigation.55 Further, the House of Lords articulated this concern; Baroness Hale in Stack v Dowden56 rejected the application the Oxley farness test altogether. There, Baroness Hale outlined a new approach to quantification; the test is not based on fairness, but rather the court must ‘ascertain the parties shared intentions, actual, implied, inferred, or imputed, with respect to the property in the light of the their whole course of conduct in relation to it.’57 While generally following Stack v Dowden, the Supreme Court decision of Jones v Kernott actually represents a revival, albeit restricted, of the holistic approach as originally established in Oxley v Hiscock. The Supreme Court allowed the application of the fairness test as a residual option for the court where common intention cannot be identified or inferred, and must be imputed.58 In Jones v Kernott, Lady Hale and Lord Walker identify that with respect to the quantification of the beneficial interest in the family home, the court must first look to identify the actual or inferred intention of the cohabitants.59 Where this can be established, the court must give effect to the cohabitants’ common intentions, fairness is not a consideration.60 However, where such intention cannot be deduced, the court will have no alternative but to make an objective assessment as to the parties intentions; this is meant to be fall back position, which exists only to enable the court to come to some conclusion in difficult disputes before it.61 As such, it is apparent that the court may impute to the parties what it considers fair.62

It is submitted, in accordance with Pawlowski, that this is both practical and

50

Ibid.

Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776.

52 Abbott v Abbott [2007] UKPC 53.

53 [2004] EWCA Civ 546, [2004] 3 All ER 703 (CA) [69].

51

54

Graham Battersby, ‘Oxley v Hiscock in the Court of Appeal’ [2005] 17(2) CFLQ 259.

Ibid, 263.

56 [2007] UKHL 17, [2007] 2 AC 432 [61] (Baroness Hale).

57 Ibid, [61] (Baroness Hale).

55

58

Andrew Hayward ‘Judicial Discretion in Ownership Disputes over the Family Home’ (DPhil thesis, Durham University 2013) 222.

59 [2011] UKSC 53, [2012] 1 AC 776 [51] (Lady Hale and Walker LJ).

60 Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 [61] (Baroness Hale).

61 Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776 [47].

62

Andrew Hayward ‘Judicial Discretion in Ownership Disputes over the Family Home’ (DPhil thesis, Durham University 2013) 232.

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sensible;63 such a residual option enables the court to come to a conclusion as to quantification, no matter what the circumstances are. Moreover, this restricted application of a fairness test is a predictable confirmation of earlier trends in case law.64 As such, it is submitted that this is a positive development for female cohabitants, as the fairness approach will inevitably consider non-financial and indirect contributions to the family home such as domestic work or child-raising. This development has even been referred to as the process of ‘familialisation of property law’, reflecting a more family-centric distribution of beneficial ownership in the family home when compared to that which would arise under traditional trusts doctrine.65 Nonetheless, the original criticisms of the holistic approach remain applicable, namely those advanced

by Battersby66 and Dixon67 that the application of a fairness test will produce situations of ‘palm tree justice’. In Stack v Dowden, Lord Neuberger’s dissenting opinion outlined the problems associated with imputing intention with respect to legal certainty. 68 While acknowledging that cohabitation has ‘increased substantially over the last fifty years’, such an increase does not justify, in Lord Neuberger’s reasoning, departure by the Court from established legal principles.69 The difficulty in imputing intention is that it is uncertain and subjective; in the view of Lord Neuberger, its application would be a ‘disservice to the important causes of certainty and consistency.’70 However, in Jones v Kernott the restriction of the fairness test to a ‘fall back option’ appears to balance this fear of ‘palm tree justice’ with that of ‘certainty and consistency’. The residual use of fairness is both sensible and practical, as it provides the court the discretion to identify common intention in any case before it, even where it is not clearly visible.71 Thus, it is submitted that the judicial development in Jones v Kernott, of establishing a residual discretion of fairness in the quantification analysis of a beneficial interest of the family home is a positive advancement in family law. It is important to note that the application of this fairness test is confined to the quantification analysis, where it is only applicable if a claimant has acquired a beneficial interest in the family home and where the cohabitants’ common intention must be imputed.

1.4

Chapter I Conclusion

In England and Wales, the C.I.C.T. is the primary claim available for cohabitants to establish a right in the family home on relationship breakdown. A C.I.C.T. claim is twofold: first, the claimant must 63

Mark Pawlowski, ‘Imputed Intention and Joint-Ownership - a return to common sense: Jones v Kernott’ [2012] Conv. 149, 156.

64 Brice Dickson, ‘Creativity in the Supreme Court 2011-12’ [2013] CJICL 33, 40.

65 Andrew Hayward, ‘‘Family Property’ and the process of ‘familialisation’ of property law’ [2012] CFLQ 284.

66 Graham Battersby, ‘Oxley v Hiscock in the Court of Appeal’ [2005] 17(2) CFLQ 259, 263.

67

Martin Dixon, ‘A Case Too Far?’ [1997] Conv. 66.

68

[2007] UKHL 17, [2007] 2 AC 432 [103] (Neuberger LJ).

Ibid. [102]-[104] (Neuberger LJ).

69 70

Ibid, [125] (Neuberger LJ).

Mark Pawlowski, ‘Imputed Intention and Joint-Ownership - a return to common sense: Jones v Kernott’ [2012] Conv. 149, 156.

71

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establish that she / he has acquired a beneficial interest in the family home, and secondly the court must quantify the beneficial interest therein based on the cohabitants’ common intention. The development of the C.I.C.T. should be viewed, in some sense, as progressive as it affords cohabitants increased ability to claim an interest in the family home on relationship breakdown. The application of fairness within the quantification process72 reflects the ‘familialisation’ of property law;73 the courts have not, as identified by Saunders, detected unfair intentions within the quantification process, which suggests that the sincerity of the court’s commitment to autonomy in this area can be doubted.74 Nonetheless, the high threshold set by Rosset75 test continues to disadvantage female cohabitants.76 The necessity for direct financial contributions devalues domestic work and excludes many claimants from an interest in the family home. While the court has developed wide discretion with respect to the quantification of a beneficial interest that better reflects non-financial or indirect contributions to the family home, the acquisition requirement must nonetheless be satisfied. Therefore, it is submitted that for the purpose of social justice and increased equality the Rosset test must be re-conceptualized, or preferably the whole C.I.C.T. framework reconsidered.77

Chapter II: The Development of Unjust Enrichment by the Supreme Court of Canada In contrast to the approach taken in England and Wales, the Supreme Court of Canada has developed the doctrine of unjust enrichment in disputes over family property. While trusts claims may still be made, claims of unjust enrichment have become the predominant action where there is a dispute over family property on relationship breakdown, particularly for un-married cohabitants.78 This development is of particular importance for cohabitants engaged in domestic work within the home or child-care, as non-financial contributions are valued within framework of unjust enrichment. This chapter shall analyse the Supreme Court of Canada’s development of unjust enrichment in disputes over family property.

2.1

General Principles of unjust enrichment

Unjust enrichment is an equitable action recognized in Canada. Oosterhoff has argued that ‘[a]t it’s core, unjust enrichment arises where there is no other theory of liability available’,79 for example, if

72

Simon Gardner, ‘Problems in Family Property’ [2013] CLJ 301, 302.

Andrew Hayward, ‘‘Family Property’ and the process of ‘familialisation of property law’ [2012] CFLQ 284; also see: John Dewar, ‘Land, Law, and the Family Home’, in Susan Bright and John Dewar, Land Law: Themes and Perspectives (OUP, 1998) 327.

74 Anne Saunders, ‘Cohabitants in private law: trust, frustration and unjust enrichment in England, Germany and Canada’ [2013] ICLQ 629, 652-653.

75 [1990] UKHL 14, [1991] AC 107.

76 Rosemary Auchmuty, ‘Unfair Share for Women: The Rhetoric of Equality and the Reality of Inequality’ in Hilary Lim and Anne Bottomley Feminist Perspectives on Land Law (Routledge-Cavendish, Oxford, 2007).

73

77

Kevin Gray and Susan Gray, Land Law (4th edn OUP, Oxford 2011) 363 – 364; Kevin Gray, ‘The Law of Trusts and the Quasi-Matrimonial Home’ [1983] 42 CLJ 30, 33 – 34.

78 Kerr v Baranow, 2011 SCC 10, [2011] 1 SCR 269.

79 Albert. H. Oosterhoff, Oosterhoff on Trusts: Text, Commentary and Materials (7th edn, Carswell 2009) 728.

12

the circumstances of the case make it impossible to impose a resulting trust.80 With respect to family property disputes, the Supreme Court of Canada has firmly established the elements of an unjust enrichment claim: an enrichment, a corresponding deprivation, and the absence of any juristic reason for enrichment.81 Where an unjust enrichment action is successful, restitution is the remedy; 82 satisfaction of this three-part test gives rise to a prima facie right to restitution.83 In Sorochan v Sorochan84 a unanimous Supreme Court firmly established that unjust enrichment is the cause of action, and that a constructive trust is one remedy (the other being a monetary award) that the court may impose.85 The concept of applying unjust enrichment in cases of family property disputes has been considered and developed by the Supreme Court of Canada since the 1970’s. In Murdoch v Murdoch,86 Laskin J., in his dissenting judgment, adopted the application of unjust enrichment through which he justified the imposition of a remedial constructive trust.87 The argument was a minority and obiter dicta.

In Rathwell v Rathwell88 a minority of the Supreme Court Justices argued that a remedial constructive trust could be imposed on the basis of unjust enrichment; the inequitable withholding of property that would give rise to unjust enrichment could be remedied by a constructive trust.89 However, as this case was decided on the basis of a resulting trust, again the concept of an unjust enrichment with respect to family property disputes remained obiter dicta.

2.2

The application of unjust enrichment in family property disputes

It was not until the Supreme Court of Canada decision in Pettkus v Becker90 that court applied the concept of unjust enrichment with respect to family property disputes. The majority of the Supreme Court imposed a remedial constructive trust based on unjust enrichment. The Court established a three part test that must be satisfied to prove unjust enrichment; the claimant must prove: that the defendant was enriched, that the claimant was deprived due to the defendant’s enrichment, and that there is no juristic reason to justify the enrichment.91 This has since been affirmed by the Supreme Court in Peter v Beblow,92 and more recently in Kerr v Baranow.93 As such, Pettkus v Becker remains

80

D Waters, Waters’ Law of Trusts in Canada (4th edn, Carswell 2012) 470; A. H. Oosterhoff, Oosterhoff on Trusts: Text, Commentary and Materials (7th edn, Carswell 2009) 642.

81 Pettkus v Becker, [1980] 2 SCR 834, [1980] SCJ No. 103.

82 Albert. H. Oosterhoff, Oosterhoff on Trusts: Text, Commentary and Materials (7th edn, Carswell 2009) 728.

83 Mitchell McInnes, The Canadian Law of Unjust Enrichment (LexisNexis Canada 2014) 4.

84 [1986] 2 SCR 38, [1986] 5 WWR 289.

85 Berend Hovius and Mary-Jo Maur, Hovius on Family Law: Cases, Notes and Materials (8th edn, Carswell 2013) 231; Sorochan v Sorochan, [1986] 2 SCR 38 at para 9, 17, [1986] 5 WWR 289.

86 [1975] 1 SCR 423, (1973) 41 DLR (3d) 367.

87 Ibid, at para 454 - 457.

88 [1978] 2 SCR 436, [1978] 83 DLR (3d) 289.

89 Murdoch v Murdoch [1975] 1 SCR 423 at para 449, [1973] 41 DLR (3d) 367.

90 [1980] 2 SCR 834, [1980] SCJ No. 103.

91 Ibid, 848.

92 [1993] 1 SCR 980, [1993] 3 WWR 337.

93

2011 SCC 10 at para 36 – 45, [2011] 1 SCR 269.

13

authority for the establishment of unjust enrichment.94 The Court was clear in Kerr v Baranow that a straightforward economic approach to the first two aspects of the test, that of enrichment and a corresponding deprivation, should be taken. This is clear in the reasoning of Cromwell J., ‘[t]he [claimant] must show that he or she has given a tangible benefit to the defendant that the defendant received and retained. Further, the enrichment must correspond to a deprivation that the [claimant] has suffered.’95 Additionally, in Kerr v Baranow the Supreme Court applied a two-part test to the analysis of ‘juristic reasons’, as set out in Garland v Consumer’s Gas Co96.97 The court must first consider the established categories of juristic reason: that the transfer was by way of gift or part of a legal obligation. In absence of any juristic reason, the court must then consider the parties’ reasonable expectations and any public policy considerations to assess whether particular enrichments are unjust.98

2.3

Unjust enrichment and the value of domestic work within the home

Peter v Beblow99 specifically dealt with cohabitants’ rights to family property, and in particular the family home. It is itself significant in its clear confirmation that domestic work and non-financial contributions in the home can successfully base a claim of unjust enrichment, and further that this work can be considered sufficiently linked to the home to justify a proprietary remedy. 100 The Supreme Court made clear that, ‘it is no longer arguable that unremunerated work done by one partner in a relationship is, in some sense a gift or that public policy dictates that such work and services shall not give rise to equitable remedies’;101 domestic work is no different from work of any other form.

McLachlin J. opined that any argument to the contrary ‘fails to recognize the fact that these services are of great value’ and moreover, ‘contributes to the feminization of poverty’.102 With respect to the imposition of a constructive trust, McLachlin J. held that such a remedy could be justified where a monetary award would be inadequate or insufficient in some way, and in circumstances where there is a direct link between the claimant’s contributions and the property in question.103 This development is extremely significant for female cohabitants. Women in Canada, generally, contribute significantly more to domestic work within the home.104 Moreover, research indicates that domestic and non94

Albert. H. Oosterhoff, Oosterhoff on Trusts: Text, Commentary and Materials (7th edn, Carswell 2009) 728.

Kerr v Baranow, 2011 SCC 10 at para 3, [2011] 1 SCR 269.

96 Garland v Consumers’ Gas Co., 2004 SCC 25 at para 38, [2004] 1 SCR 629.

95

97

Kerr v Baranow, 2011 SCC 10 at para 43 – 45, [2011] 1 SCR 269.

Ibid, at para 114.

99 [1993] 1 SCR 980, [1993] 3 WWR 337.

98

100

Berend Hovius and Mary-Jo Maur, Hovius on Family Law: Cases, Notes and Materials (8th edn, Carswell 2013) 232.

101 Donovan Waters, Waters’ Law of Trusts in Canada (4th edn, Carswell 2012) 471.

102 Mitchell McInnes, The Canadian Law of Unjust Enrichment (LexisNexis Canada 2014) 1181, 1182.

103 Berend Hovius and Mary-Jo Maur, Hovius on Family Law: Cases, Notes and Materials (8th edn, Carswell 2013) 232; Albert. H. Oosterhoff, Oosterhoff on Trusts: Text, Commentary and Materials (7th edn, Carswell 2009) 740.

104 ‘Families, Living Arrangements and Unpaid Work’ (Statistics Canada, 13 May 2013) <http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11546-eng.htm#a14> accessed 16 April 2015; ‘Table 6: Time spent on unpaid care of a child in the household, by working arrangement and age of youngest child,

14

financial contributions increase when cohabitants have children.105 Trusts principles do not consider domestic work; a right to property cannot be established solely on the basis of non-financial contributions of domestic work in the home. This greatly limits the ability of female cohabitants to claim a right to the family home on relationship breakdown. However, the doctrine of unjust enrichment values domestic work and non-financial contributions. Where the action is successful, the claimant is prima facie entitled to restitution.106 Thus, the claimant is not – in contrast to a claim based on trust principles – enforcing pre-existing property rights, but rather seeks a remedy for unjust enrichment that may include the establishment of a remedial constructive trust. This significantly increases the ability of cohabitants engaged in domestic work within the home to receive restitution for unjust enrichment as a result of the breakdown of their relationship. Furthermore, the ability of the court to establish a constructive trust, even where the unjust enrichment claim is based solely on nonfinancial and indirect contributions to the property, such as domestic work and child-raising, increases female cohabitants’ opportunity to attain property rights in the family home where they would otherwise be unable under trust principles. Therefore the development of unjust enrichment and its recognition of the value of domestic work within the home better reflects the practical functioning of cohabitational relationships. This reflects a positive development for women, as it produces greater substantive equality between cohabitants on relationship breakdown.

2.4

Valuation of domestic work within the family home

While Peter v Beblow was significant in that it established that unjust enrichment claims could be made on the basis of non-financial contributions, the valuation of such work proved problematic.

McLaughlin J. held that where the imposition of a constructive trust could be justified, its value should be determined on the basis of ‘value survived’, which ‘focuses on the value of the property at the end of the relationship and the extent to which it had been improved by the claimant’s contributions.’107 However, McLaughlin J. argued that monetary awards should be valued differently from the constructive trust awards. She stated, ‘[f]or a monetary award, the value received [often referred to as ‘quantum meruit’ or ‘fee-for services’] approach is appropriate; the value conferred on the property is

irrelevant.’108 As such, similar work would be subject to dissimilar valuations

depending on the ability of the claimant to justify the imposition of a constructive trust.

Canada, 2010’ (Statistics Canada, 13 May 2013) <http://www.statcan.gc.ca/pub/89-503x/2010001/article/11546/tbl/tbl006-eng.htm> accessed 16 April 2015; ‘Table 7: Time spent on household domestic work, by working arrangement, Canada, 2010 (Statistics Canada, 13 May 2013) accessed 16 April 2015.

105 ‘Table 6: Time spent on unpaid care of a child in the household, by working arrangement and age of youngest child, Canada, 2010’ (Statistics Canada, 13 May 2013) <http://www.statcan.gc.ca/pub/89-503x/2010001/article/11546/tbl/tbl006-eng.htm> Accessed 16 April 2015.

106 Kerr v Baranow, 2011 SCC 10 at para 46, [2011] 1 SCR 269; Mitchell McInnes, The Canadian Law of Unjust Enrichment (LexisNexis Canada 2014) 4.

107 Berend Hovius and Mary-Jo Maur, Hovius on Family Law: Cases, Notes and Materials (8th edn, Carswell 2013) 232.

108 Peter v Beblow, [1993] 1 S.C.R. 980 at para 32, [1993] 3 WWR 337.

15

This ‘remedial dichotomy’109 is inherently problematic; it puts long standing cohabitational relationships where the claimant cannot establish a significant connection to the assets within the relationship, namely the family home, at risk of receiving only a remedy on the basis of ‘value received’. So, in cases where the joint efforts of the cohabitants enabled one party to accumulate significantly more wealth (often tied up in assets, such as the family home) to the detriment of the other, if there is no substantial link to property, the claimant would not be able to invoke a constructive trust.

The ‘remedial dichotomy’, a product of Peter v Beblow,110 has generated considerable criticism.111 However, it must be remembered that Peter v Beblow112 was a successful unjust enrichment case where the Court found it appropriate to grant a constructive trust. The Supreme Court did not rule on the availability of quantification of monetary remedies. While subsequent Court of Appeal decisions have followed McLachlin J.’s reasoning,113 it is submitted, in accordance with Hovius, that McLachlin J.’s reasoning with respect to the quantification of monetary awards is obiter dicta.114 In Kerr v Baranow, the Supreme Court developed the law away from the ‘false remedial dichotomy’115 in an attempt to ‘return to the underlying principles governing unjust enrichment.’116 In doing so, Cromwell J. addressed the practical problems associated with quantum meruit; that to properly take a ‘fee-for-services’ approach in the valuation of a monetary award, it would be unjust for the court to only consider domestic work, and so in practice the parties and or the court would have to, ‘create, retroactively, a notional ledger to record and value every service rendered by each party to the other.’117 In practice this would be extremely difficult (if not impossible) to do, surely leading to extended litigation. It is, as Cromwell J. argues, highly artificial to retrospectively analyse these relationships based on ‘dueling quantum meruits.’118 In situations where relationship breakdown has resulted in the unjust retention of a disproportionate share of assets or wealth accumulated during the cohabitation, the remedy should reflect that fact.119 As such, in many circumstances a remedy based on quantum meruit analysis is not appropriate.

2.5 109 110 111 112 113

The joint family venture

Kerr v Baranow, 2011 SCC 10 at para 58, [2011] 1 SCR 269, 328 DLR (4 th) 577.

[1993] 1 SCR 980, [1993] 3 WWR 337.

Donovan Waters, Waters’ Law of Trusts in Canada (4th edn, Carswell 2012) 494.

[1993] 1 SCR 980, [1993] 3 WWR 337.

Vanasse v Seguin 2009 ONCA 595, [2009] W.D.F.L. 3585.

114

Berend Hovius and Mary-Jo Maur, Hovius on Family Law: Cases, Notes and Materials (8th edn, Carswell 2013) 232.

115 John D. McCamus, ‘Restitution on Dissolution of Marital and Other Intimate Relationships: Constructive Trust or Quantum Meruit?’, in J.W. Neyers, M. McInnes and S.G.A. Pitel (eds), Understanding Unjust Enrichment (2004), 359, 375-376.

116 2011 SCC 10 at para 80, [2011] 1 SCR 269.

117 ibid at para 48.

118 ibid at para 69.

119

ibid at para 80.

16

In the view of Cromwell J., when ‘parties have been engaged in a joint family venture and the claimant’s contributions are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of accumulated wealth proportionate to the claimants contributions.’120 The concept of the ‘joint family venture’, although referred to in previous cases,121 was firmly established in Kerr v Baranow as a tool for the court to identify those cohabitational relationships that operated as a ‘single economic unit’ or partnership; relationships where mutual conferral of benefits occurred.

In Kerr v Baranow, Supreme Court outlined four characteristics of a ‘joint family venture’.122 The Court was clear that this list is not exhaustive, leaving subsequent courts with wide discretion. In addition, the Supreme Court was clear that there is no presumption of a joint family venture, and that a relationship will only be deemed a joint family venture if it is well grounded in evidence;123 ‘[t]he goal for unjust enrichment is to attach consequences to the way the parties have lived their lives, not treat them as if they ought to have lived some other way or conducted their relationships on some different basis.’124 Where a ‘joint family venture’ is established, and as a result of relationship breakdown one of the parties has retained a disproportionate share of the assets or accumulated wealth, the remedy should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions. 125 The claimant must prove that a joint family venture existed,126 and that there was some link between his / her contributions to it and the accumulation of wealth. Practically, this is likely to increase the remedies available to those in a successful unjust enrichment claim. 127

2.6

Unjust enrichment and the remedial constructive trust

Irrespective of the establishment of a ‘joint family venture’, a claimant in a successful unjust enrichment action with respect to family property may receive a proprietary remedy in the form of a remedial constructive trust. As summarized by Cromwell J., ‘[i]mposed without reference to intention to create a trust, the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property.’128 The Supreme Court has recognized that in some circumstances a monetary award may be insufficient or inappropriate, and so a proprietary award must be imposed.129 This is of great practical significance to many claimants, as the additional entitlements that flow from 120

ibid at para 87.

Peter v Beblow, [1993] 1 SCR 980, [1993] 3 WWR 337.

122 2011 SCC 10 at para 87 – 99, [2011] 1 SCR 269: (i) mutual effort, (ii) economic integration, (iii) actual intentions, (iv) priority of the family or partnership.

123 Ibid, at para 88.

124 ibid at para 88.

125 Ibid at para 87.

126 ibid at para 102.

127 ibid, at para 126-161 (Vanasse appeal).

128 Kerr v Baranow, 2011 SCC 10 at para 50, [2011] 1 SCR 269, 328 DLR (4th) 577; also see: Pettkus v Becker, [1980] 2 SCR 834 at para 843, 844, 847, 848, [1980] SCJ No. 103.

129 Kerr v Baranow, 2011 SCC 10 at para 50, [2011] 1 SCR 269, 328 DLR (4 th) 577.

121

17

the recognition of property rights may make an otherwise useless or practically pointless unjust enrichment action viable. For example, with a bankrupt defendant, the establishment of a remedial constructive trust over family property, such as the family home, would put the claimant’s rights ahead of creditors. The ability of the court, as established in Peter v Beblow130 and affirmed in Kerr v Baranow,131 to impose a remedial constructive trust where an otherwise appropriate monetary remedy is insufficient makes unjust enrichment claims practically useful for the deprived party.

The Supreme Court established, in Peter v Beblow, that a minor or indirect contribution would not suffice for an imposition of a remedial constructive trust.132 In Sorochan v Sorochan, Dickson J., held that for such contributions to give rise to a constructive trust there must be a clear proprietary relationship.133 Further, in Kerr v Baranow, the Supreme Court affirmed that the claimant ‘must demonstrate a sufficiently substantial and direct link, a causal connection or a nexus between the [claimant’s] contributions and the property which is the subject matter of the trust.’134 This affirms that indirect financial contributions and direct contributions of labour may suffice for the imposition of a remedial constructive trust, provided that a connection is established between the [claimant’s] deprivation and the property.135 Unlike Canadian matrimonial property legislation, unjust enrichment does not presume equal sharing.136 So, where the court finds that contributions are unequal, quantification may be unequal.137 Kerr v Baranow affirmed the reasoning of Dickson J. in Rathwell v Rathwell, that in assessing the contributions made by each spouse, the court will make a fair and equitable distribution having regard to the party’s respective contributions.138

2.7

Chapter II conclusion

Therefore, through the judicial activism of the Supreme Court of Canada, unjust enrichment has been established as the primary action in disputes over family property. First considered in the late 1970’s, the application of unjust enrichment has now been clearly outlined through the reasoning of Cromwell J. in Kerr v Baranow.139 The court has the discretion to impose either a monetary or proprietary remedy where unjust enrichment is established. The Supreme Court has developed unjust enrichment 130

[1993] 1 SCR 980, [1993] 3 WWR 337.

131

2011 SCC 10 at para 23, 50, 55, 78, 82, [2011] 1 SCR 269.

[1993] 1 SCR 980 at para 997, [1993] 3 WWR 337.

132 133

[1986] 2 SCR 38 at para 50, [1986] 5 WWR 289.

134

2011 SCC 10 at para 51, [2011] 1 SCR 269.

Ibid, 51; affirming: Sorochan v Sorochan, [1986] 2 SCR 38 at para 50, [1986] 5 WWR 289; Pettkus v Becker, [1980] 2 SCR 834 at para 852, [1980] SCJ No. 103.

135

136

Kerr v Baranow, 2011 SCC 10 at para 62, [2011] 1 S.C.R. 269.

Ibid, at para 53; also see: Pettkus v Becker, [1980] 2 SCR 834 at para 852, 853, [1980] SCJ No. 103; Rathwell v Rathwell [1978] 2 SCR 436 at para 448, [1978] 83 DLR (3d) 289; Peter v Beblow, [1993] 1 SCR 980 at para 998, 999, [1993] 3 WWR 337.

137

138

Kerr v Baranow, 2011 SCC 10 at para 53, [2011] 1 SCR 269; Rathwell v Rathwell [1978] 2 SCR 436 at para 454, [1978] 83 DLR (3d) 289.

139 2011 SCC 10 at para 53, [2011] 1 SCR 269.

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actions to take into consideration domestic work within the home, and developed the concept of the ‘joint family venture’ to better reflect modern cohabitational relationships which exist as a single economic unit. As such, cohabitants have access to extensive remedies where unjust enrichment is successfully established. In particular, the development of unjust enrichment makes possible the ability for a non-titled cohabitant engaged solely in domestic work within the home to the award of a remedial constructive trust over the family home. It is submitted, that the doctrine of unjust enrichment as developed by the Supreme Court of Canada is a progressive framework that facilitates equality between cohabitants by valuing and remedying both financial and non-financial contributions.

Chapter III: The significance of judicial development for female cohabitants The majority of claimants in family property disputes are women,140 yet England and Wales does not afford them substantive equality. It is submitted that C.I.C.T. approach does not reflect modern social attitudes or conceptions of justice; in fact it disadvantages female cohabitants on relationship breakdown thereby producing substantive inequality.

3.1

General gender inequality

The C.I.C.T. fails to take into account economic inequality between men and women. 141 This inequality has a direct effect on the ability of women to acquire or contribute to the acquisition of property.142 The strict application of the Rosset test invalidates any claim that cannot establish acquisition of a beneficial interest. With respect to acquiring an interest in the family home, men and women are subject to formal equality; both are viewed as equals before the law. 143 So, the C.I.C.T. framework treats, generally, economically dissimilar groups equally. While the House of Lords has recognized the difficulties inherent in the Rosset test it has yet to be distinguished or overturned.144 Thus, it is submitted that the continued application of the C.I.C.T. framework amounts to substantive discrimination against female cohabitants in disputes over the family home.

3.2

Division of labour within the family home

140

Alastair Hudson, Equity and Trusts (4th edn, Routledge 2013) 794.

Robert Pearce, John Stevens, and Warren Barr, The Law of Trusts and Equitable Obligations (5th edn OUP, Oxford 2010) 429-432; Rosemary Auchmuty, ‘Unfair Share for Women: The Rhetoric of Equality and the Reality of Inequality’ in Hilary Lim and Anne Bottomley Feminist Perspectives on Land Law (RoutledgeCavendish, Oxford, 2007) 180. See also: Department for Culture, Media & Sport, ‘Secondary Analysis of the Gender Pay Gap: Changes in the gender pay gap over time’ (March 2014) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/295833/Analysis_of_the_Gende r_Pay_Gap.pdf > accessed 16 April 2015.

142 Simone Wong, ‘Property Rights for Home-Sharers: Equity Versus a Legislative Framework?’ in Susan ScottHunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001) 133.

143 Alison Diduck and Felicity Kaganas, Family Law, Gender and the State: Text Cases and Materials (Hart, Oxford 2012) 265.

144 Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432.

141

19

The scope of contributions recognized by the Rosset test disregards the division of labour that occurs in most relationships, and as such, discriminates against female claimants.145 The Rosset test simply ignores the reality that in domestic relationships women, generally, remain the partner primarily responsible for the day-to-day care of the family and the home.146 It is submitted that C.I.C.T. approach is unreasonably focused on direct financial contributions. The C.I.C.T. approach discriminates against women by ignoring, generally, the lion’s share of their contributions to the family and family home. As Sir J. Simon opined, ‘[t]he cock bird can feather his nest precisely because he is not required to spend most of his time sitting on it.’147 Although dated, this remains to some extent true; male cohabitants are often better situated to make financial contributions to the family home because they are not engaged in domestic or child-raising work within the home. Thus, the willful blindness of the court to the value of domestic contributions and child-raising, which are generally provided by women, produces substantive inequality on relationship breakdown.

The injustice possible as a result of the court’s sole focus on financial contributions is clear in the now (in)famous case of Burns v Burns,148 where a cohabitant of 19 years and mother of the cohabiting couple’s four children was unable to claim a beneficial interest in the family home on relationship breakdown as she had not made a direct financial contribution to the home. Her years of domestic work and child-raising were not sufficient to acquire a beneficial interest in the home. As identified by Miles, this situation remains a possibility under the current C.I.C.T. approach in England and Wales,149 and as Watkins recently penned, ‘even the most lukewarm feminist can see the injustice of [it].’150 This decision reflects the substantive discrimination that can emerge from the court’s application of formal equality; ignorance of domestic contributions to the family home from establishing a beneficial interest therein only acts as a catalyst for further discrimination and inequality. This focus on rights based property law principles151 and ignorance of the value of nonfinancial contributions152 continues a tradition of substantive discrimination against women within the context of disputes over family property in England and Wales.

3.3

Arguments against reform of the Common Intention Constructive Trust framework

145

Simone Wong, ‘Property Rights for Home-Sharers: Equity Versus a Legislative Framework?’ in Susan ScottHunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001) 133.

146 Ibid, 133.

147 Sir J. Simon, ‘With all my worldly goods...’, (Presidential Address to the Holdsworth Club, Birmingham 1963-1964) 18.

148

[1984] Ch. 317, [1984] 2 WLR 582 (CA).

Jo Miles, ‘Lessons for the south from north of the boarder?’ (2012) 71(3) C.L.J. 492.

150 Dawn Watkins, ‘Recovering the Lost Human Stories of Law: Finding Mrs Burns [2013] 7 Law and Humanities 68, 71.

151 Shazia Choudhry and Jonathan Herring, ‘European Human Rights and Family Law’ (Hart Publishing, Oxford 2010) 417-418.

152 Lloyds Bank plc v Rosset [1990] UKHL 14, [1991] AC 107.

149

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While criticism of the C.I.C.T. is strong, it is not universal. Bottomley argues that increased emphasis on traditional trusts principles will actually advantage women. 153 She argues that the development of ‘common intention’ with respect to disputes over the family home will result in, essentially, remedial awards to women. This, she argues, is inherently problematic. First, if disputes over the family home are strictly based in existing trust frameworks the claimant is asserting a right rather than requesting a remedy before the court. She is critical of the C.I.C.T. as it affords the judiciary great discretion on quantification, which too closely resembles, in her view, a remedial approach rather than a rights based approach. This, further entrenches stereotypes of the ‘good wife’, whereby indirect and nonfinancial contributions remain to be considered part of the domestic duties of women. The result is the concept of the ‘wronged women’ on relationship breakdown, and that it is the role of the court to provide remedy as the female cohabitant is a ‘dependent in need of protection.’

154

In essence, the

trend of familialisation of property law will strip women of the narrative of asserting their rights to property. This, Bottomley argues, may further entrench social roles expected of women, to their continued disadvantage.

More recently, Baroness Deech has argued that it is illiberal to impose upon couples a contractual obligation not freely entered into, as doing so reinforces dependency and lack of autonomy of women generally.155 However, it is submitted that this view and that of Bottomley is narrow in scope and shortsighted. Equality to claim proprietary rights hinges on the equal ability to acquire and or contribute to the property in question. It is submitted that if males and females are (generally) dissimilar in their ability to acquire interests in property, and that the work that they perform (generally) in cohabitatonal relationships is valued dissimilarly, then formal equality establishes formal discrimination. Put another way, where a cohabitant is engaged in domestic work within the home or child-raising, the application of the C.I.C.T. discriminates against women by ignoring nonfinancial contributions to the family home.

3.4

Unjust enrichment: a more progressive progressive approach to disputes over family property

In Canada, as identified in Chapter II, the approach to disputes over family property is considered through the framework of unjust enrichment. Where unjust enrichment is proven, the presumptive remedy is a monetary award, although a property award in the form of a constructive trust may be valid given the circumstances.156 It is submitted that this approach more realistically accounts for the contributions of cohabitants during their relationship. It recognizes domestic contributions as

153

Anne Bottomley, ‘Our Property in Trust: things to make and do’ in Susan Scott-Hunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001) 257.

154 ibid 281.

155 Janice Elliott Montague, ‘To say “I do” or not… the legal implications of life style choices’ [2011] 16 Cov. L.J. 42, 47.

156

Kerr v Baranow, 2011 SCC 10, [2011] 1 SCR 269, 328 DLR (4 th) 577; Bruce Ziff, Principles of Property Law (6th edn, Thomson Reuters Canada 2014) 240.

21

significant enough to warrant a proprietary remedy where unjust enrichment has occurred, and where there is a significant connection to the property.157 As the Canadian approach considers indirect and non-financial contributions, it is submitted that it is less susceptible to accusations of discrimination or inequality.158 Bottomley proposes, correctly, that ‘most of us live our lives within a continuum of a relationships;’159 at one extreme those parties who have actually planned their legal relations and at the other those who have been misled or misrepresented by their partners. Bottomley argues that the former extreme gives rise, in England and Wales, to proprietary based rights to the family home.

Whereas, with respect to the later, proprietary rights are remedial. She argues that the focus in England and Wales on strict rights based claims promotes the treatment of men and women equally as citizens before the law, ‘in the full liberal sense.’160 However, as identified above, the emphasis on equal treatment of male and female cohabitants with respect to the acquisition of beneficial interest in the family home, in effect, discriminates against women; the C.I.C.T. produces substantive inequality for female cohabitants on relationship breakdown.

The existence of a relationship continuum, as proposed by Bottomley is neither revolutionary nor exceptional,161 and has been echoed by the judiciary in Canada as well as England and Wales.162 Strict application of trusts principles, whereby acquisition must be express or via direct financial contributions, ignores many (arguably, most) cohabitational relationships evidenced by such a continuum. Research indicates that it is rare for cohabitants to actually plan out their legal relationship or come to a firm conclusion as their common intentions,163 a concern raised by Jacob LJ writing for the Court of Appeal in Jones v Kernott.164 As such, the C.I.C.T. represents a zero-sum reality; those who can prove, even the smallest financial contribution to the family home may receive significant beneficial interest on quantification. This is clear in Midland Bank v Cooke165 where the claimant made a small direct contribution to the acquisition of the property, equivalent to 6.47 percent interest in it. This direct financial contribution satisfied the Rosset test, and thereby enabled the court to quantify beneficial interest at 50 percent. However, the law ignores a vast number of otherwise similar relationships; where an untitled cohabitant cannot prove direct financial contribution or identify an express trust, acquisition is not satisfied and therefore beneficial rights cannot exist. The current zerosum reality of the rights to the family home on relationship breakdown in England and Wales is 157

Kerr v Baranow, 2011 SCC 10 at para 51, [2011] 1 SCR 269.

Simone Wong, ‘Property Rights for Home-Sharers: Equity Versus a Legislative Framework?’ in Susan ScottHunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001) 138.

159 Anne Bottomley, ‘Our Property in Trust: things to make and do’ in Susan Scott-Hunt and Hilary Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing 2001) 283.

160 ibid. 283.

161 See: Anne Barlow, Simon Duncan, Grace James and Alison Park, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Hart Publishing, Oxford 2005).

162 Kerr v Baranow, 2011 SCC 10 at para 87, [2011] 1 SCR 269, 328 DLR (4 th) 577; Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 [45] (Baroness Hale).

163 Jane Lewis, Rosalind Tennant and Jean Taylor ‘Financial Arrangements on the Breakdown of Cohabitation’ in Jo Miles and Rebecca Probert (eds), Sharing Lives, Dividing Assets (Hart 2009) 161, 165.

158

164

[2010] EWCA Civ 578 [2010] 2 FLR 1631 [90] (Jacob LJ).

165

[1995] 4 All ER 562 (CA)

22

apparent in the comparison between rulings in Cooke166 and Burns.167 The juxtaposition of the acquisition test and quantification process in these cases, it is submitted, evidences a clearly unsatisfactory and outdated legal framework.

Therefore, Bottomley’s proposal of a relationship continuum in fact justifies the unjust enrichment and remedy approach developed by the Supreme Court of Canada. Where unjust enrichment is proven, the court may make a proprietary award. There is no threshold akin to the Rosset test, thus enabling the court access to, what could be phrased, a full ‘continuum of remedies’ that allows for appropriate restitution for unjust enrichment. Furthermore, by developing the concept of joint family venture, the Supreme Court of Canada considers all of the contributions provided by the cohabitants.

By valuing all forms of contributions to the joint family venture, the doctrine of unjust enrichment fosters substantive equality between cohabitants. Hence, with respect to disputes over the family home, the unjust enrichment approach developed by the Supreme Court of Canada is better situated to provide the appropriate remedies to all disputes over family property between cohabitants.

3.5

Legislative reform in England and Wales

It is submitted that the law with respect to cohabitant’s rights to the family home on relationship breakdown is in need of legislative reform. A call for Parliamentary intervention, setting out the rights available to cohabitants on relationship breakdown is neither new nor revolutionary. 168 Both the Law Commission and Parliament have previously considered statutory regulation of cohabitants’ rights to the family property.169 In 2013, Lord Marks introduced the Cohabitation Rights HL Bill.170 Broadly speaking the Cohabitation Rights HL Bill represents a significant change in the legal framework surrounding cohabitants rights to family property on relationship breakdown; it’s a move away from trust principles toward an unjust enrichment model.171 The Bill outlines legal rights that arise for cohabitants provided they have lived with their partner for two years and where the claim is made within two years of separation. Importantly, it states that a claim may be made where the respondent ‘retained a benefit’ or the applicant has ‘an economic disadvantage’ (emphasis added; the court only needs to be satisfied that one has occurred) with respect to the applicant’s ‘qualifying contribution’.

Thus, in theory this framework is wider than the Canadian concept of unjust enrichment developed at the Supreme Court, as there is no need for the claimant to have actually sustained an economic disadvantage.

166 167

Ibid.

[1984] Ch. 317, [1984] 2 WLR 582 (CA).

168

Simon Gardner, ‘Family Property Today’ [2008] 124 LQR 422, 421; Sir Terence Etherton, ‘Constructive Trusts: A new model for equity and unjust enrichment’ [2008] 67 CLJ 265, 265-287.

169 Law Commission, ‘Sharing Homes’ (Law Com No 278, 2002) [Part V]; Law Commission, ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ (Law Com No 307, 2007) [2 – 2.104]; Cohabitation HL Bill (2008-2009) (Law Commission, ‘Sharing Homes’ identifies that it was withdrawn on the on Feb. 6 of that year – see para 5.37).

170 Cohabitation Rights HL Bill (2013-2014).

171 ibid, s 8.

23

Moreover, the term ‘qualifying contribution’ is defined as, ‘any financial or other contribution made by the application to the parties’ shared lives or to the welfare of the members of their families during the parties’ cohabitation or in contemplation of the parties’ cohabitation or likely to be made by the applicant following its breakdown’172 This is a clear and welcome endorsement of the value of domestic and non-financial contributions in disputes over family property. Additionally, s. 10 outlines that ‘financial settlement orders’ may include lump sum payments, transfer of property, property settlements, sale of property and pensions sharing. Importantly, the court is able to transfer property, as established in s. 10(b), therefore all enabling all practical benefit of the constructive trust.

The Cohabitation Rights HL Bill, as currently drafted, presents a claimant cohabitant the possibility of establishing, on the basis of non-financial contributions, a trust over the family home through unjust enrichment. Should this bill receive Royal Assent, it would represent significant development with respect to disputes involving family property in England and Wales, enabling both equality before the law and equality in substance. As one practitioner has put it, ‘[s]tatutory rights for cohabitants would bring family law into the modern age.’

3.6

Chapter III conclusion

Currently, the framework in England and Wales with respect to disputes between cohabitants over the family home is based on trusts principles, predominantly the C.I.C.T.173 It is submitted that this approach substantively discriminates against women, as it places no value on domestic work or childraising within the home. The concept of unjust enrichment as developed by the Supreme Court of Canada is a more progressive and realistic approach to disputes over family property between cohabitants, namely the family home. This approach values domestic work within the home, and considers benefits mutually conferred within the relationship. Redistribution of family property on this basis, it is submitted, better reflects modern cohabitational relationships and concepts of family as it considers all work contributed by the cohabitants. The advantages of this legal framework are evident, as some sub-national jurisdictions in Canada have entrenched the Supreme Court’s development of unjust enrichment in legislation.174 In England and Wales, courts, academics and the Law Commission have identified the inadequacy of the C.I.C.T. framework.175 This is evidenced most recently in the Cohabitants Rights HL Bill,

172

ibid. s 8(2)(c).

Abbott v Abbott [2007] UKPC 53 [4] (Baroness Hale); Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776 [24] (Lady Hale and Walker LJ).

173

174

For example: Family Law Act, RSO 1990 Ch. F.3 (Ontario); Family Property Act, CCSM c F25 (Manitoba); Family Law Act, SBC 2011, c 25 (British Columbia).

175 Fowler v Barron [2008] EWCA Civ 377 (CA) [50] Toulson LJ); James v Thomas [2007] EWCA Civ 1212 (CA) [38] (Sir John Chadwich); Jo Miles, ‘Cohabitation: Lessons for the south from north of the border?’ 71 [2012] CLJ 492; Stuart Bridge, ‘Cohabitation: Why Legislative Reform is Necessary’ [2007] Fam. Law 911; Craig Rotherham, ‘The Property Rights of Unmarried Cohabitees: The Case for Reform’ [2004] Conv. 268; Simon Gardner, ‘Rethinking Family Property’ [1993] 109 LQR 263; Kevin Gray and Susan Gray, Land Law (4 th edn OUP, Oxford 2011); Law Commission ‘‘Sharing Homes’ (Law Com No 278, 2002); Law Commission,

24

currently before the House of Lords.176 This Bill represents an opportunity for the newly elected Conservative government to seriously effect change needed for cohabitants, and establish substantive equality with respect to the family property rights of cohabitants. If passed, it would establish statutory based rights for cohabitants, similar although limited in comparison to those that arise out of marriage.177 The inability of the C.I.C.T. is clearly evidenced when contrasted to the doctrine of unjust enrichment as developed by the Supreme Court of Canada, and recently proposed in the Cohabitation Rights HL Bill. Hence, it is submitted that whomever forms the newly elected Conservative government seriously consider the advantages and equality available to cohabitants through unjust enrichment principles and work to ensure that Lord Marks’ Private Member’s Bill receives Royal Assent.

Chapter IV: Conclusion The focus of this dissertation has been the different judicial development of disputes over the family home between cohabitants in England and Wales and Canada. Chapter I considers the development of the C.I.C.T. by the House of Lords and subsequently the Supreme Court in England and Wales.

Chapter II considers the Supreme Court of Canada’s development of the doctrine of unjust enrichment with respect to family property disputes. While both jurisdictions lacked legislative action to protect cohabitants rights to family property, the they have have taken significantly different judicial approaches in developing rights and remedies for cohabitants on relationship breakdown.

Chapter III compares the C.I.C.T. to unjust enrichment. In England and Wales, the C.I.C.T. allows the court wide discretion where the cohabitant can prove acquisition of a beneficial interest in the family home. In C.I.C.T. claims, acquisition occurs where a non-titled cohabitant makes direct financial contributions to the family home,178 through express statement or agreement,179 or may through registration on property title.180 Where the acquisition is satisfied, the court may infer or impute the genuine common intention of the parties to the share of the beneficial interest in the family home.181 Therefore, the C.I.C.T. framework respects party autonomy where acquisition cannot be established.

Where acquisition can be established, the court is able, through the process of imputing common intention, to disregard party autonomy and consider fairness.182 This is reflective of a zero-sum reality, where the court only respects strict property law principles until the Rosset test is satisfied, after which the main concern appears to be fairness.

‘Cohabitation: The Financial Consequences of Relationship Breakdown’ (Law Com No 307, 2007) Cohabitation HL Bill (2008-2009).

176 Cohabitation Rights HL Bill (2014-2015).

177 Fiona O’Sullivan, ‘Securing Greater Rights for Cohabitants’ [2013] 157 Solicitors Journal 40.

178 Lloyds Bank plc v Rosset [1990] UKHL 14, [1991] AC 107.

179 Grant v Edwards [1986] 2 All ER 426 (CA); Eves v Eves [1975] 1 WLR 1338, [1975] 3 All ER 768 (CA) Clough v Killey (1996) 72 P & CR D22, [1996] NPC 38 (CA).

180

Trusts of Land and Appointment of Trustees Act 1996 s 14.

Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776.

182 Simon Gardner, ‘Problems in Family Property’ [2013] CLJ 301, 302.

181

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In contrast, the Supreme Court of Canada has developed the doctrine of unjust enrichment to resolve disputes over family property between cohabitants. The claimant does not claim a right in the home, but rather a remedy for the unjust enrichment as a result of relationship breakdown. While there is a presumption of a monetary award, where the appropriate nexus to the property is established the court may impose a remedial constructive trust.183 The availability of monetary or proprietary awards provides the court with a wide range of remedies. An important feature of the unjust enrichment approach in Canada is the valuation of domestic work; this alone may base a successful unjust enrichment claim, whereas domestic work is formally ignored by the C.I.C.T. in England and Wales.

Finally, the recent development of the joint family venture further establishes a functionalist approach in Canada; the remedy for unjust enrichment should be valued as a share of the accumulated wealth during the joint family venture proportionate to the claimant’s contribution.184 The C.I.C.T., especially its focus on the acquisition of beneficial interest under the Rosset test, is inherently discriminatory against female cohabitants.185 This strict application of formal equality results in substantive inequality. Furthermore, the whole construct of the C.I.C.T. is incoherent, as on one hand it respects principles of property law and personal autonomy, while on the other hand it allows the court to impose it’s pre-conceived notion of fairness on quantification.186 Similarly situated claimants may receive vastly different judgments as a result of even the smallest direct financial contribution. This is not satisfying as it is incoherent and produces substantive inequality for female cohabitants.

However, the Canadian approach has a much wider scope. It recognizes that cohabiting couples are not a homogenous group,187 and thus allows the court wide range remedies to better accommodate the full ‘relationship continuum’. The value placed on domestic work and the ability to make monetary awards where the unjust enrichment would not necessitate a remedial constructive trust increases the ability of cohabitants to successfully claim on relationship breakdown. Furthermore, the acknowledgement of the value of domestic work undermines much of the gender discrimination inherent in the application of the C.I.C.T. Therefore, it is submitted that the unjust enrichment approach developed by the Supreme Court of Canada is more progressive and better suited to modern cohabitational relationships.

While reformulating the acquisition test currently outlined in Rosset would enable increased justice for female cohabitants, it is submitted that the imposition of legislative reform would provide a better course of action. As stated by Professor Elizabeth Cook (a current Law Commissioner for England 183

Kerr v Baranow, 2011 SCC 10, [2011] 1 SCR 269; Bruce Ziff, Principles of Property Law (6th edn, Thomson Reuters Canada 2014) 240.

184 Kerr v Baranow, 2011 SCC 10, [2011] 1 SCR 269.

185

Rosemary Auchmuty, ‘Unfair shares for women’ in Anne Bottomley and Hilary Lim (eds) Feminist Perspectives on Land Law (Routledge-Cavendish, Oxford 2007) 189.

186 ANN SAUNDERS 187 Kerr v Baranow, 2011 SCC 10 at para 88, [2011] 1 SCR 269.

26

and Wales), ‘the need for such reform can only become more pressing with time’. 188 Moreover, it remains clear that the ‘common-law marriage myth’ continues in England and Wales; much of the public believes, contrary to reality, that over time cohabitating couples attain rights similar to married couples.189 The Cohabitants Rights HL Bill currently before the House of Lords provides a regime based on the concept of unjust enrichment, not dissimilar to that developed in Canada. This Bill better reflects the realities of modern cohabitational relationships. It is submitted that such a statutory framework, regulating the family property disputes between cohabitants based on the doctrine of unjust enrichment, will discontinue the substantive inequality created by the C.I.C.T. framework. In particular, cohabitants engaged in domestic work or child-raising within the home will be better situated, on relationship breakdown, to a share in family property, namely the family home. Therefore, the doctrine of unjust enrichment, as developed by the Supreme Court of Canada and currently proposed in the Cohabitants Rights HL Bill enables substantive equality between cohabitants in disputes over family property on relationship breakdown. As such, reform of the C.I.C.T. should be seriously considered by the next Parliament.

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

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Timothy Youdan, ‘Resulting and Constructive Trusts’ in Special Lectures of the Law Society

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Andrew Hayward ‘Judicial Discretion in Ownership Disputes over the Family Home’ (DPhil thesis, Durham University 2013)

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Commons Library Standard Note, ‘Common law marriage and cohabitation’ 17 December 2014 SN/HA/3372 Catherine Fairbairn Home Affairs Section

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Department for Culture, Media & Sport, ‘Secondary Analysis of the Gender Pay Gap: Changes in the gender pay gap over time’ (March 2014) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/295833/Anal ysis_of_the_Gender_Pay_Gap.pdf> accessed 16 April 2015

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Hansard HL vol 757 col 2072-2076

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Law Commission, ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ (Law Com No 307, 2007)

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Law Commission, ‘Sharing Homes’ (Law Com No 278, 2002)

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Law Commission, Statement on the Government’s response to the Law Commission report ‘Cohabitation: The Financial Consequences or Relationship Breakdown’ (6 September 2013) <http://lawcommission.justice.gov.uk/docs/20110906_Statement_on_Govt_response.pdf> accessed 16 April 2015

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Sir J. Simon, ‘With all my worldly goods...’, (Presidential Address to the Holdsworth Club, Birmingham 1963-1964) 18.

Table of Cases Privy Council 

Abbott v Abbott [2007] UKPC 53

UK Cases 

Burns v Burns [1984] Ch. 317, [1984] 2 WLR 582 (CA)



Clough v Killey (1996) 72 P & CR D22, [1996] NPC 38 (CA)



Eves v Eves [1975] 1 WLR 1338, [1975] 3 All ER 768 (CA)

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Fowler v Barron [2008] EWCA Civ 377, [2008] All ER (D) 318

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Geary v Rankine [2012] EWCA Civ 555

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Grant v Edwards [1986] 2 All ER 426 (CA)

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James v Thomas [2007] EWCA Civ 1212 (CA)

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Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776

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Lloyds Bank plc v Rosset [1990] UKHL 14, [1991] AC 107.

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Midland Bank v Cooke [1995] 4 All ER 562 (CA)

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Oxley v Hiscock [2004] EWCA Civ 546, [2004] 3 All ER 703 (CA)



Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432



Thompson v Hurst [2012] EWCA Civ 1752.

Canadian Cases 

Garland v Consumers’ Gas Co., 2004 SCC 25 at para 38, [2004] 1 SCR 629



Kerr v Baranow, 2011 SCC 10,[2011] 1 SCR 269, 328 DLR (4th) 577



Moge v Moge,[1992] 3 SCR 813, [1992] SCJ No. 107



Murdoch v Murdoch [1975] 1 SCR 423, (1973) 41 DLR (3d) 367



Peter v Beblow, [1993] 1 SCR 980, [1993] 3 WWR 337

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Pettkus v Becker, [1980] 2 SCR 834, [1980] SCJ No. 103



Rathwell v Rathwell [1978] 2 SCR 436, (1978) 83 DLR (3d) 289



Sorochan v Sorochan, [1986] 2 SCR 38, [1986] 5 WWR 289



Vanasse v Seguin 2009 ONCA 595, [2009] W.D.F.L. 3585

United Kingdom Legislation 

Civil Partnership Act 2004

30



Cohabitation Rights HL Bill (2013-2014)



Cohabitation Rights HL Bill (2014-2015)



Cohabitation HL Bill (2008-2009)



Family Law (Scotland) Act 2006



Matrimonial Causes Act 1973



Trusts of Land and Appointment of Trustees Act 1996

Canadian Legislation 

Family Law Act, RSO 1990 Ch. F.3 (Ontario)



Family Property Act, CCSM c F25 (Manitoba)



Family Law Act, SBC 201 (British Columbia)

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Nun Shall Pass: Transgressing the boundaries of normative behaviour for women in colonial Latin America in the lives of Catalina de Erauso and Catarina de San Juan.

Ellie Herman graduated from University College, Durham University in July 2014 with a BA in French and Spanish. After graduating, she undertook a three-month internship in publishing in Bordeaux and is now a writer at a legal publishing house in London. This paper was prepared as part of the 'Representing Women: Sex and Power in Colonial Latin America' module under the guidance of Dr Yarí Pérez Marín

‘I was within and without, simultaneously enchanted and repelled’ (Fitzgerald 2004: 35). Although Nick Carraway’s words are more commonly collocated with ‘the inexhaustible variety of life’ (35) in the 1920s Jazz Age of the United States, their pertinence to Catarina de San Juan’s and Catalina de Erauso’s appropriation of seventeenth-century societal expectations of women is twofold. To begin with, the first clause denotes an idea of boundaries that is intrinsic to a reading of the actions of both figures as exceptional and individual, yet ultimately enfolded within the prescriptive gender roles of the seventeenth century. Moreover, ‘simultaneously enchanted and repelled’ pertains both to a period assessment of Erauso as ‘a monstrous spectacle for the curious gaze’ (Velasco 2009: 23), essentially denying her status as truly transgressive, and to the contemporary Catholic church’s view of San Juan first as ‘exemplify[ing] Christian virtue’ (Myers 2003: 49) and subsequently as ‘indecent… and nearly blasphemous’ (58). Certainly, for seventeenth-century women, as dictated by the patriarchal order of the church and absolute monarchy, ‘the primary issue [was] the protection of chastity’ (Mujica 2004: xxxv). They were then expected to be ‘unassuming, quiet, clean, cheerful, and obedient’ (León 2004: xxxviii), and ultimately, to not oppose the (male) authority of the Church. Thus, employing these period societal expectations, this essay shall argue that, insofar as both figures reportedly maintained chasteness throughout their lives, they both adhered to one of the most important contemporary gender codes; however, while Catalina de Erauso’s assumption of male clothes and behavioural norms ostensibly seems the most transgressive act, it is in fact Catalina de San Juan’s indirect posthumous creation of a ‘cult’ (Myers: 63) around her which deviates most remarkably from societal expectations in providing a challenge to the omnipotence of the patriarchal church.

Firstly, a key aspect in texts on both figures is the emphasis placed on the fact that they were thought to have succeeded in preserving their virginities, during a period when ‘nearly all Catholic moralists of the time viewed wedlock as inferior to celibacy’ (Mujica: xxxviii). In this sense, their chastity transcended societal expectations to become an exemplary and positive model for seventeenth-century Catholic women. Indeed, in Catalina de Erauso’s Historia de la Monja Alférez, Escrita por ella misma, after relating her long tale and confessing her status as a woman to a bishop in Guamanga in the New World, it is not until two women examine and confirm her as a ‘virgen intact, como el dia en que nací’ (2009: 88) that the bishop declares, ‘ahora creo sin duda lo que me dijiste’ and further, that this revelation will mean that ‘os venero como una de las personas notables de este mundo’ (88). Here, then, it is evident to the reader that it is Catalina’s adherence to sexual norms that not only validates the deviance of her nonconventional behaviour, but also propels her to celebration by her contemporaries, more so than the exceptional nature of the adventures alone. That the bishop withholds of approval until confirmation of her purity highlights the pre-eminence of female chastity in gendered behavioural codes of the time. Without this still intact, Catalina would arguably have been dismissed by the church and crown as nothing more than an immoral criminal. Indeed, Catalina labels ‘Señoras putas’ two prostitutes who accost her in the final chapter of her autobiography, suggesting that they deserve ‘cien pescozones’ (103). Here, while these two figures can also be seen as deviating

32

from period societal expectations, the use of violent imagery demonstrates that their unchaste state firmly condemns them to the status of degenerate, a status that Catalina has avoid by remaining pure.

Similarly, in her actual lifetime, Catarina de San Juan was a ‘dedicated servant of the church’ (Gillespie 1999: 21) who was never called into question by the Inquisition. Even though ‘we are unable to hear her voice directly’ (Myers: 68) and representations of her were varied and distorted by biographies written by two of her confessors, Alonso Ramos and José del Castillo Graxeda, a key point of correspondence in both texts is her insistence on upholding her ‘voto de castidad’ (Graxeda 1946: 66) in the face of male desire. In Graxeda’s Compendio de la Vida y Virtudes de la Venerable Catarina de San Juan, despite being coaxed into a ‘unión conyugal’(66) with her master’s ‘esclavo chino’ (65), Catarina resists the ‘enfados, las irascibles y los malos tratos’ of her husband and remains steadfast in ‘la fijeza de su prometimiento y voto’ (67). Here, then, rather than being perceived as transgressive, Catarina is portrayed as striving to maintain her adherence to societal expectation, she endeavours to obey the laws set out for her by a patriarchal order even when it threatens her own welfare. However, it is possible to perceive a paradoxical aspect to the conservation of her virginity within marriage, as in the seventeenth century the ‘main purpose of marriage [for women] was to produce legitimate heirs’ (Mujica: xxviii). In denying her husband Domingo his socially established ‘right’ to consummate their marriage and produce offspring because of her own predicated objectives, Catarina could be considered a strong and unconventional woman who insolently disregards the desires of her husband. In his biography, however, Graxeda circumvents this potential reading of Catarina by describing God as ‘su Divina Esposa’ (67). Thus, as the authority of God clearly exceeds that of her husband, rather than denying the consummation of the marriage on her own grounds, Catarina is presented as adhering to the demands of a male higher up in the patriarchal order; her strength and determination in preserving her chastity come not from within herself but from that of a transcendental male patriarch.

Indeed, it is this sense of power, control and self-determination that allows Catalina de Erauso to be read as a deviant, transgressive figure, completely contradicting the ‘unassuming, quiet, clean, cheerful, and obedient’ (León 2004: xxxviii) nature expected of women in the seventeenth century.

Her autobiography reads as a tale of ‘atropellando, matando e hiriendo a infinidad’ (2009: 37) on and off the battlefield, she even ‘saqué la espalda y entrésela por el pecho’ of a man who accused her of being a ‘cornudo’ (39). Here, she is portrayed as volatile and conceited, and ever-ready to defend herself in the name of masculine honour – a far cry from the unassuming obedience society expected of women. Yet it is the very fact that Catalina dons conventionally male attire and assumes various masculine names in order to carry out these – sometimes heroic, sometimes criminal, but always selfinterested – acts that endorses her status as a patriarchal expectations adherer. As Chloe Rutter rightly argues, her ‘actions under the guise of a woman could have been impossible’ (2009: 6), and when she first fashions for herself ‘unos calzones’ and ‘una ropilla y polainas’ (18), she becomes a man in every aspect except reproductive organs, even using masculine adjectives, such as ‘rendido’ (45) to describe herself throughout substantial sections in her autobiography in which her behaviour is more conventionally masculine; reverting to feminine adjectives in sections in which passivity or religion is emphasised. In this way, Catalina unequivocally denies any femininity and affirms that any adventurous and bold acts can only be played out on a masculine field. In fact, Mary Elizabeth Perry states that ‘Catalina de Erauso should be identified as a male who did not allow his family’s mistaken identity of him nor his lack of some of the physiological characteristics of males to undercut his own understanding of himself’ (1999: 395). Whilst this is can be perceived as regarding Catalina’s case through a modern-day lens, it highlights that Catalina considered himself a man and acted accordingly, firmly within the societal expectations of men during the seventeenth century, more so than a woman deviating from what the patriarchy demands of her.

Conversely, as a slave in the New World, Catarina de San Juan could be portrayed as exemplary in her obedience. Graxeda presents her as ‘comiendo solo lo necesario sin alguna salsa’ (49) – a perfectly unassuming woman – and what is more, ‘era el descanso de Catarina, en concluyendo con las obligaciones domésticas, buscar los escondrijos más secretos’ in order to worship God with ‘un corazón derretido en el incendio de divinas llamas’ (50). Here, Catarina can be seen as an exemplary Christian woman, dividing her time between the domestic and religious realms, in correspondence with the wishes of her masters on Earth and those of her heavenly master; the entirety of her time is spent serving. In a period which encouraged the ‘seclusion of … women’, that they be ‘tucked away 33

in isolation’ (Mujica: xlvi), that Catarina sought the most secret hiding places again confirms her as an adherer to patriarchal norms which largely excluded women from the public sphere. Furthermore, in contrast with Erauso’s predilection for violence and sacrificing others for the sake of his own honour, Catarina is shown to be willingly self-sacrificing to the benefit of others. Whilst varying in volume and content, again both biographies agree that she received ‘frequent… visits made by Our Lord Jesus Christ to her poor cell’ (Paz 1998; 84) as well as other holy figures, and with ‘intensa caridad’ she gave ‘socorro y ayuda’ (Graxeda: 101) to souls suffering in purgatory, by taking on their pain as her own without complaint or objection. Therefore, as one who devotes her life to serving others, maintains her own general isolation from the rest of society and modestly takes on the suffering of others, Catarina fulfils many of the societal expectations of women during the period in which she was alive.

However, it is precisely the greatness with which she fulfilled her pre-ordained roles coupled with the grand nature of her visions as direct contact with the divine, that place her as a societal deviant in the eyes of the Spanish religious patriarchy. As Myers notes, ‘Catarina never learned to write and, therefore, we are unable to hear her voice directly’ (68), and consequently after her death she became a pawn in the pursuit of varying male-orientated objectives, with ‘San Juan’s biographers “interpret[ing]” her words, and the Inquisition censor[ing] those words’ (Gillespie: 36). Yet neither Ramos nor Graxeda were able to successfully promote Catarina to sainthood and increase the prominence of themselves, the Jesuits or Puebla. Equally for the Inquisition, ‘repeated assertions of Catarina’s popularity among the towns people of Puebla and the censorship of her portraits and oratory suggest that devotion to her was hard to stamp out’ (Myers: 66). Therefore, despite attempts by different male patriarchs to manipulate and exploit the image of Catarina de San Juan after her death in order to perpetuate the authority of the Church and Spanish Crown, that she appears to have led her life as a model devotee to God and the needs of others meant that the reverence of Puebla’s general population to a certain extent transcended the attempts by men to control her legacy in the immediate aftermath of her death. Here, then, it is possible to discern her status as social deviant. If ‘the Inquisition persecuted beatas because they upset the traditional gender structure by assuming leadership roles’ (Mujica: xlvi), although Catarina appears to have led an solitary life removed from extensive interaction with the society around her, she represented for the people of Puebla a local holy person who was capable of ‘bringing special divine favour to their community’ (Myers: 49) and as such circumvents and downgrades the authority of the Catholic church as a spiritual middle man between lay people and the divine, and, in doing so as a china slave, further rebukes the supremacy given to pure Spanish Christian blood in the seventeenth century. In adhering quite so impressively to period societal expectations during her life, it is after death, when she exists only in the minds of those who knew or heard about her, that she becomes a true challenger to the omnipotence of the Church, sharply deviating from the societal expectations of women in this period.

It is in this way, then, that Catalina de Erauso falls down as a truly transgressive figure regarding societal expectations. As well as reinforcing the archetypal conviction that the agency to determine the course of one’s life and that of others lay with males alone, even in rejecting claims to masculinity and positing her firmly within the transgressive female realm, ‘the association of her vices with homosexual desire ensured that her personal life would not become an acceptable model for future women’ (Velasco: xi). Whilst Catarina was lauded by some as an exemplary Christian in direct contact with God whom others should try to emulate, Catalina’s uniqueness is never posited, by himself or his contemporaries, as a model to which all women should aspire. When, towards the end of the autobiography, Catalina has an audience with the Pope, he ‘me concedió licencia para proseguir mi vida en hábito de hombre’ on the condition of ‘la prosecución honesta’ (101). Thus, in permitting Erauso to dress as a man as part of an honest life, the Pope welcomed him into the patriarchal folds as a man and Catalina ‘made a complete and total renunciation of her femaleness. It is this quality, and not the fact that she was female and a nun, which set her above the law’ (Perry 1990: 128). Therefore, unlike Catarina, Catalina was ultimately not seen as a threat to church or crown as he was not a figure that could be held up as a model for challenge against patriarchal authority. If one of the main period societal expectations in the seventeenth century was that men would ‘exert control over women’ (Mujica: li), Catalina unreservedly adheres to this, even reverting back to descriptions of himself as female in the sections of the autobiography centred around submissive and obedient behaviour, such as receiving beatings from an older nun in chapter one or being forced back into a convent in chapter.

34

In the final analysis, if the boundaries of prescriptive gender roles are analogous to the contours of an elastic band, both Catalina de Erauso and Catarina de San Juan pushed and stretched the boundaries in ways that certainly would be viewed as deviant, but neither was able to completely break the contours.

Since, in a patriarchal society, societal expectations are essentially made or broken by the men in charge – who in seventeenth-century Spain and the Spanish New World were the king and the Pope – Catalina’s approval by the Pope and reception of a soldier’s pension from the king ultimately prevents him from being viewed as strictly deviant. His status as ambiguous ‘other’, moreover, marginalises him as a character to incite change against the norms. For Catarina de San Juan, however, her status as both china slave and exemplary Christian combined after her death to produce a serious enough threat to the European male patriarchy of the church that the Inquisition had to go to efforts to dismantle her popular support – hardly a figure that could be considered as completely adhering to period gender codes.

Bibliography Aldrich, R. and Votherspoon, G. (2013), Who’s Who in Gay and Lesbian History, London: Routledge.

Erauso, Catalina de (2009), Historia de la Monja Alférez, Escrita por ella misma, (edición de Jesús Munárriz), Madrid: Ediciones Hiperión.

Fitzgerald, F. Scott (2004), The Great Gatsby, New York: Scribner.

Gillispie, Jeanne L. (1999), ‘Gender, Ethnicity and Piety: The Case of the China Poblana’ in Eva Buneo & Terry Caesar (eds), Imagination Beyond Nation: Latin American Popular Culture, Pittsburgh: University of Pittsburg Press, pp. 19-37.

Graxeda, José del Castillo (1946), Compendio de la Vida y Virtudes de la Venerable Catarina de San Juan, Mexico: Ediciones Xochitl.

Jaffary, Nora E. (2007), Gender, Race and Religion in the Colonization of the Americas, Hampshire: Ashgate Publishing.

Jestice, Phyllis G. (2004), Holy People of the World: A Cross-cultural Encyclopedia, California: ABC-CLIO. Kuhn, Annette (2013), The Power of the Image: Essays on Representation and Sexuality, New York: Routledge.

Merrim, Stephanie (1999), Early Modern Women’s Writing and Sor Juana Inés de la Cruz, Tennessee: Vanderbilt University Press.

Mujica, Bárbara (2004), Women Writers of Early Modern Spain: Sophia’s Daughters, New Haven: Yale University Press.

Myers, Kathleen Ann (2003), Neither Saints Nor Sinners: Writing the Lives of Women in Spanish America, Oxford: Oxford University Press.

Paz, Octavio (1998), In Light of India, California: Harcourt.

Perry, Mary Elizabeth (1990), Gender and Disorder in Early Modern Seville, New Jersey: Princeton University Press.

Perry, Mary Elizabeth (1999), ‘From Convent to Battlefield: Crossing-Dressing and Gendering the Self in the New World of Imperial Spain’ in Josiah Blackmore and Gregory S. Hutcheson (eds), Queer Iberia, North Carolina: Duke University Press, pp. 370-394.

Risse, Kate (2002), ‘Catarina de San Juan and the China Poblana: From Spiritual Humility to Civil Obedience’, Confluencia, 18, 70-80.

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Stacey, Lee (2002), Mexico and the United States, New York: Marshall Cavendish, Velasco, Sherry (2009), The Lieutenant Nun: Transgenderism, Lesbian Desire, and Catalina de Erauso, Texas: University of Texas Press.

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‘Celebrate Chaste Soldiers’? Gender Roles in Early Monasticism: The Possibility of a Third Gender in Anglo-Saxon Society, c.

600-850 Helen Bradshaw graduated in 2015 having read History at St Cuthbert's Society. She spent her degree programme developing a specialisation in the Early Medieval period in western Europe and the British Isles. Helen now works in advertising. This paper was her final year dissertation, prepared with the supervision and invaluable guidance of Dr Helen Foxhall-Forbes.

Introduction Early Anglo-Saxon religious life was shaped by two significant arrivals to the shores of the British Isles. The first was the mission of St Augustine to Kent in 596, beginning the conversion of AngloSaxon peoples to Christianity. This era came to an end with the advent of the Viking Age, and the decades of raids by the Norsemen which plagued the English coast. This periodic violence perpetrated on the Anglo-Saxon peoples began with the 793 sack of Lindisfarne, and continued into the ninth century. The years between approximately 600AD and 850AD have been described as a “Golden Age” of English monasticism, which was typified by the ‘double houses’ unique to Britain and Frankia. These were communities under the leadership of an abbess which contained both male and female monastic individuals. The existence of double houses is just one of the ways in which the monasticism of this period was distinct from those forms which followed it. It also serves to highlight one of the most unusual aspects of this ‘conversion period’ monasticism; its relationship to concepts 1

of gender. By examining some of these double house monasteries, as well as significant theoretical and historical texts from this period, it is possible to discover the structure of gender roles at this time and therefore to determine whether monastic life constituted a “third gender” in Anglo-Saxon society.

Gender Theory in Medievalism Born from within the social and political academic field of feminism, gender theory first developed in the early 1970s. Perspectives on sex and gender have since been evolved into two broad camps, those of essentialists and constructivists. In a brief summary, gender essentialists believe that one’s gender is based in their sex, whereas constructivists hold gender (and in some cases, biological sex) to be the result of the culture in which it exists, influenced by social

1

‘Conversion period’ meaning the years discussed here, during which the Christianisation of England took place.

37

2

institutions, power nexuses, and cultural norms. A belief in gender as a social construct also means perceiving gender to be a social performance, something defined by actions rather than biology or internal identity. Feminists of the 1970s had a great deal of influence on historians, with the publication of Ann Oakley’s Sex, Gender and Society (1972) introducing the concept of gender into 3

historical investigation. Until this academic revolution, women were almost entirely invisible in history, particularly medieval history. Some exceptional women from the late medieval period, such as Margery Kempe, had received some study, but for the most part women were not considered relevant to history.

One important consequence of the application of feminist thought to medieval study was to challenge the assumption that masculinity represented the social ‘norm’, with women and femininity as the 4

‘other’ if they were considered at all. An unfortunate effect of the use of gender theory to investigate history and the emergence of the study of historical women being congruent events was that the term ‘gender history’ came to be used as a synonym for the history of women. This conflation has prevented the use of gender theory in historical analysis from developing at the same rate as the theories themselves. By the 1990s, gender theorists were speaking of a plurality of masculinities and 5

femininities, occupying different positions in the social structure and being performed with a variety of methods. However, even this development betrays an attachment to a gender binary in EuroAmerican social and academic culture, which theorists have linked to the cultural conviction that there 6

are only two sexes. The concept of gender liminality, in which an individual may perform elements of the gender role “opposite” to the one which is assumed to align with their biological sex, has been 7

investigated for some time in non-Western cultures. The most recent developments in theory build on concepts like gender liminality, progressing beyond not only the gender binary, but also the idea of multiple masculinities and femininities, to perceive gender identity as a spectrum. Identities have expanded beyond ‘types’ of masculinity and femininity and methods of engaging with those terms to include the possibility of fluid gender presentation, and thus a form of gender which is responsive to circumstances, can be actively rejected, and can exist 2

J. Harding, ‘Investigating Sex: Essentialism and Constructionism’, 1996, in Suzanne LaFont (ed.), Constructing Sexualities: Readings in Sexuality, Gender and Culture (Upper Saddle River, 2003), p. 7.

3 J. M. H. Smith, ‘Gendering the Early Medieval World’, in Leslie Brubaker and J. M. H. Smith, (eds.), Gender in the Early Medieval World: East and West, 300-900 (Cambridge, 2004), pp. 1-2.

4 D. M. Hadley, ‘Introduction’, in D. M. Hadley (ed.), Masculinity in Medieval Europe, (London, 1999), p. 3.

5

6

Ibid. p. 6.

A Fausto-Sterling, ‘The Five Sexes: Why Male and Female are Not Enough’, 1993, in LaFont, Constructing Sexualities, p. 166.

7 See N. Besnier, ‘Polynesian Gender Liminality through Time and Space’, in G. Herdt (ed.), Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History (New York, 1994).

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8

simultaneously in multiple forms within one individual. With this expanded concept of gender identities, it is possible to undergo a critical re-examination of the nature of gender in the past.

Using gender theory to investigate the medieval period is a method which like any other has its attendant flaws. The concept of gender is anachronistic to this era; to use gender theory as a lens through which early medieval life is examined carries with it significant risk of warping history to fit 9

theory. In the Middle Ages, only male and female were explicitly acknowledged. ‘Gender’ itself is a recent invention, born from modern attempts to separate identity from biology. To use gender categorisation to analyse a society which was structured on a sexual dichotomy is not indefensible as a method. However, it does afford historians the ability to consider the categorisation of gender on a broader scale. Modern society is organised by gender roles as much as it is by sex differences, whereas in study of the early medieval period gender can be more specifically used as a descriptor of a social role. Social expectations of the sexes were made explicit by the nature of Anglo-Saxon social and economic structure. Gender roles are actively constructed by the society in which they operate.

They are not universal. . This variation makes comparison and analysis complex, with some arguing that “cross-cultural analogies might not be especially relevant”.

10

While this cultural context is vital, it

does not invalidate the use of gender theory to investigate early medieval societies, and how they changed over time.

An explanation of how the term ‘gender’ will be used in this essay is necessary. There is a duality to the nature of gender. An individual’s gender is both internal and external; it is their sense of personal identity, whilst simultaneously describing the social role they fulfil. Construction and performance of gender do not have to align with the individual’s identity. Genders are constantly renegotiated through social interaction, but this does not mean that the sense of self is so malleable.

Therefore when St. Jerome stated in 388 that a woman who “wishes to serve Christ more than the world … will cease to be a woman and will be called a man”,

11

he did not mean that she would

8

These dualities are similar to those which have been found in cultures outside the Western liberal-capitalist hegemony, for example indigenous North American societies. (Jean-Guy A. Goulet, ‘The “Berdache”/“Two-

Spirit”: A Comparison of Anthropological and Native Constructions of Gendered Identities Among the Northern Athapaskans’, The Journal of the Royal Anthropological Institute, Vol. 2, No. 4 (Dec., 1996), p. 683.

9 Hadley, ‘Introduction’, p. 7.

10 D. M. Hadley and J. M. Moore, ‘”Death Makes the Man”?: Burial Rite and the Construction of Masculinities in the Early Middle Ages’, in Hadley, Masculinity in Medieval Europe, p. 23.

11 Quoted in Vern Bullough, ‘On Being a Male in the Middle Ages’, in Clare Lees (ed.) with T. Fenster and J. A. McNamara, Medieval Masculinities: Regarding Men in the Middle Ages (Minneapolis, 1994), p. 32.

39

physically change her sex. The woman who chooses to serve Christ instead stops performing femininity, and performs a different gender role (although whether this can accurately be termed masculinity requires consideration). Her internal conception of herself may not be changed, but her function in society is altered. What will be considered here is whether that function is separate enough from femininity and masculinity to constitute its own gender, or whether it is simply a subordinate or alternative form which can still be incorporated into a binary structure.

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Chastity: De Laudibus Virginitate and Barking Abbey

Chastity and virginity were not one and the same in early medieval conceptualisation of society.

Aldhelm’s De Laudibus Virginitate, produced in Wessex at some point between 660 and 685, addresses both forms. One aspect of the De Virginitate which is easily overlooked is the nature of its audience. Aldhelm addressed himself to Abbess Hildelith, the leader of the monastic community at Barking.

12

This was a double house: it contained both men and women. Therefore, while his

statements on virginity are most commonly discussed with regard to how they pertain to female monastics, it is not an excessive leap to assume that monastics of both sexes were instructed with his teachings in mind. Aldhelm did not specify that he spoke to one sex or another, simply to the community. An implication of this is that he considered the men and women of the community at Barking to have an equal ability to achieve the perfection of virginity and chastity.

13

The argument

proposed by Scott Gwara, that Aldhelm was in fact writing for a wider audience of similar double houses in the Wessex area,

14

does not affect this position. Barking can serve to a certain extent as

shorthand for multiple monasteries of this location and period. Its specific context can be discussed thanks to Bede’s inclusion of Barking in his Ecclesiastical History, and the expanded audience theorised by Gwara also consists of double monasteries under the governance of an abbess. Barking Abbey provides an excellent example of how Aldhelm’s principles interacted with monastic practice.

While it is important to remember that Aldhelm’s work was written for a mixed-sex audience, it is his diagramming of female life which is most revolutionary. This is made particularly explicit in his theories of chastity. In the theological writings of the Church fathers, women could be chaste in three ways; virginity, widowhood, and marriage.

15

Aldhelm’s innovation was to no longer consider

widowhood one of these primary states, replacing it instead with monastic retreat while one’s spouse still lives. He describes this as “sever[ing] the restraining bonds of indulgence … abandoning the lurid associations of impure flesh”.

16

However, he maintained that virginity was the superior of the three

chaste states of being, saying that “the glory of the Kingdom is granted to virgins, who 12

Aldhelm, ‘Carmen De Virginitate’, trans. J. L. Rosier in Aldhelm,: The Poetic Works, M. Lapidge and J. L. Rosier, (Cambridge, 1985) p. 97.

13 E. Pettit, ‘Holiness and Masculinity in Aldhelm’s Opus Geminatum De Virginitate’, in P. H. Cullum and K. J. Lewis (eds.), Holiness and Masculinity in the Middle Ages (Cardiff, 2004) p. 9.

14 Scott Gwara (ed.), De laudibus virginitatis (Turnhout, 2001) 15

M. Lapidge, introduction to his translation of Aldhelm’s prose ‘De Virginitate’, in M. Lapidge and M. Herren.,

Aldhelm: The Prose Works, (Cambridge, 1979), p. 55.

16 Aldhelm, ‘Carmen De Virginitate’, p. 105.

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abandoned the foul joys of earthly flesh”.

17

Herbert McAvoy has argued that a desexualisation of

chastity took place in the early medieval period.

18

Chastity was not simply sexual abstinence. It also

acquired a powerful moral dimension. Aldhelm considered sex within marriage a form of chastity, if the individual abstained from lustful passions. While it is true that a monogamous, faithful marriage was considered a chaste state, it was not considered of equal value to virginal chastity, as Aldhelm expressed here. Despite this, Aldhelm does not explicitly gender the sin of carnality in so far as he does not perceive it as a more egregious transgression for one sex over the other. This may be linked to Augustine of Hippo’s conceptualisation of virginity as not solely a sexual state. Aldhelm goes so far as to say that “carnal integrity” was only to be elevated when accompanied by “spiritual purity.”

19

Virginity had to be a conscious choice, not an accident of circumstance. This would have chimed particularly clearly with Aldhelm’s monastic audience, all of whom were participating in a consciously sexless life. Aldhelm was encouraging communal monastic life by portraying it as a way to attain the spiritual purity which would elevate the monastic virgin beyond the status they would have had if they had not abandoned secular society. In practice, this internal quality was harder to achieve than the physical state of virginity. Aldhelm’s preoccupation with spiritual purity as well as physical purity induced him to compose harsh criticisms of the wearing of lavish clothing in monastic 20

communities.

His idealised, spiritually perfect virgin was clearly not ubiquitous in reality. Sexual

relations were more easily relinquished than class or personal pride. It was certainly easier to relinquish ones sexual life than the kinship networks which shaped Anglo-Saxon society.

21

Though it took some time to have a real effect, the development of gender hierarchy in early AngloSaxon society affected monasticism, and particularly female monasticism. This took the form of a “discourse of enclosure”.

22

Enclosure affected many aspects of female monastic life, based on the

concept that monastic bodies must remain inviolable, with physical impenetrability reflecting spiritual purity. Early medieval interpretation of the sexes understood women to be inherently sexual, inviting penetration by their existence. This meant that women were both more vulnerable to sin, and by their very nature induced sin in others through temptation. Chaste women held a bodily duality, between their female biology and their religious conviction, which was considered 17

Ibid. p. 167.

18

L. H. McAvoy, Medieval Anchoritisms: Gender, Space and the Solitary Life (Woodbridge, 2011), p. 38.

Aldhelm, ‘The Prose De Virginitate’, trans. Lapidge, M., in Aldhelm: The Prose Works, p. 72.

20 Lapidge, ‘Introduction’, Ibid. p. 57.

19

21

As explained further in J. Stevenson, ‘Brothers and Sisters: Women and Monastic Life in Eighth Century England and Frankia’, Dutch Review of Church History, Vol. 82, No. 1 (2002), pp. 6-9.

22 Shari Horner, ‘Spiritual Truth and Sexual Violence: The Old English ‘Juliana’, Anglo-Saxon Nuns, and the Discourse of Female Monastic Enclosure’, Signs, Vol. 19, No. 3 (Spring, 1994), p. 660.

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easily corrupted.

23

At the time of the authorship of De Virginitate, the early medieval nun was

relatively uncloistered. At Barking, men and women lived separately, but within a single community. themselves.

24

25

Early church theory would have had monastic women impose strict limitations upon Theoretical requirement of female enclosure increased over the centuries, and

subsequently in the tenth century church law was reformed to separate male and female monastics, imposing strict enclosure on women.

26

This enclosure was by no means apparent in earlier Anglo-

Saxon England. Instead, double houses existed under fluid rules which enabled adaptation to 27

individual circumstances.

At Barking, this was one of quasi-enclosure. While the gender theory

which denigrated the female body had existed since the time of the Church fathers, it was by no means central to monastic practice in Aldhelm’s time, and so does not feature in his work. Aldhelm’s praise for the inviolate body focusses on spiritual, not physical, fortitude. Those “virgins who had attained the height of virtue” were bestowed “refulgent crowns”, but virtue was an internal quality.

28

Virginity

was a consequence of virtue. The reversal of this theory took place later in the early medieval period.

Despite its title, De Virginitate does not only offer insight into early medieval gender roles in its rules on chastity. The language of both the prose and poetic works can reveal a great deal about monastic ideals for both men and women in this period. Aldhelm used both masculine coded and feminine coded metaphor, images of strength and delicacy - sometimes simultaneously - to describe his ideals.

As may be expected since these writings were composed for an audience consisting of an abbess and her community, Aldhelm used a great deal of feminine and feminised metaphor. His virtues are personified as female, with Chastity itself the “queen of virtues”.

29

His most perfect sanctified woman

is, of course, the Virgin Mary, and as such motherhood appears as a theme in his work. These references to motherhood are not, however, limited to the idea of the female monastics he is addressing themselves being mothers, although Bede referred to the founder of Barking Abbey, Æthelburh, as the “mother of the community”.

30

Aldhelm, instead, presents the

Church itself as a mother, referring to Hildelith’s female community as “adoptive daughters of 23 24

McAvoy, Medieval Anchoritisms, p. 100.

Bede, The Ecclesiastical History of the English People, trans. B. Colgrave, in J. McClure and R. Collins, Oxford

World’s Classics (Oxford, 1994), p. 184.

25 Stevenson, ‘Brothers and Sisters’, p. 34.

26

Sarah Foot, ‘Unveiling Anglo-Saxon Nuns’, in Diana Wood (ed.), Women and Religion in Medieval England

(Oxford, 2003), p. 23.

27 Ibid. p. 20.

28

Aldhelm, ‘Carmen De Virginitate’, p. 139.

Ibid. p. 107.

30 Bede, EH IV.7, p. 184.

29

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regenerative grace brought forth from the fecund womb of ecclesiastical conception through the seed of the spiritual Word”.

31

This depiction tells us a great deal about how Aldhelm perceived the role of

a female monastic. . It is not one related to their sexual function. A common description of the nun’s role which emerges later in the medieval period is that of the ‘bride of Christ’.

32

The De Virginitate

presents these women as children of the Church instead, repositioning them in the hierarchy of the Church and therefore affecting their relationship to authority.

33

This particular choice may be linked

to his perception of chaste marriage as the least worthy form of chastity, but nonetheless has implications for gender structures. In positioning female monastics as the daughters of the church, their place in religious and social hierarchy is to an extent detached from their sex.

Feminine imagery also appears in the work of Aldhelm through tropes of visual symbolism; flowers, jewels, sweet scents and precious treasures. Again inverting modern expectations, Aldhelm does not reserve floral imagery for female monastics. His lists of saints are “distinguished men and women” who “flourished in perennial bloom” due to their chastity. the flower of pure chastity”.

35

34

Elsewhere, St Jeremiah is “adorned with

Aldhelm did not feel the need to shy away from associating men with

the accoutrements of femininity. A gendered difference can be seen, however, in that male saints are associated with feminine decorations, but women are presented at one point as though they are themselves decorative: “you flowers of the Church, … pearls of Christ, jewels of Paradise …!”

36

While male monastics can be associated with femininity, it is the female member of a monastic community whose very identity is feminine. It is impossible to deny that this implies a sex-based gender difference. What is important to note is how much more subtle this difference is than might be presupposed. One may also hypothesise that this subtle difference expressed by Aldhelm did not necessarily become an integral part of his audience’s identity. Both men and women were described in feminine terms, albeit to varying extents, and this broader pattern likely had a powerful effect on how the inhabitants of Barking Abbey related to one another.

31

Aldhelm, ‘The Prose De Virginitate’, p. 60.

For example, the heroic symbolism and sexual atmosphere evident in the language of the Acrene Wisse, which encouraged religious women to “touch [Christ] with as much love as you sometimes feel for a man”. H. Leyser, Medieval Women: A Social History of Women in England, 450-1500 (London,1995), pp. 213-4.

32

33

The Church is structured in a patriarchal manner, with all Christians as children of God the Father. Patriarchy, however, positions male children above female adults. By presenting women as children of God, not wives, Aldhelm was in fact presenting men and women in monastic communities as equal to one another in Church hierarchy.

34 Aldhelm, ‘Carmen De Virginitate’, p. 103.

35 36

Ibid. p. 109.

Aldhelm, ‘The Prose De Virginitate’, p. 132.

44

In addition to his cross-sex use of feminine imagery of delicacy and motherhood, Aldhelm frequently used metaphors of warfare and other “masculine” pursuits. Though he spoke to an explicitly female audience (while not a solely female one), Aldhelm exhorted them to “fight with muscular energy against the horrendous monster of Pride”.

37

His use of battle imagery is extensive in both the poetic and prose De

Virginitate, but it is most used in the poetic version, which uses an extended military metaphor in his description of vices and virtues.

38

Although he consistently personifies the Virtues as female, Aldhelm

represents them as a powerful military force which takes up arms against the Vices.

He describes the Virtues as “stand[ing] in dense formation – they bear the war-standard, the helmets with breastplates as well as the shield of battle and the sword of the Word [for] killing the manifestations of sin.”

39

This is no passing reference to the Virtues defending themselves against

vice; virtue here is actively armed for battle, and on the attack. While historians including Emma Pettit have interpreted this as an attempt by Aldhelm to reassure his male audience that monasticism did not necessarily separate them from masculinity,

40

this interpretation of ‘alternative masculinity’

does not take into account his direct references to the female part of his audience. If this were to be an example of Aldhelm creating an alternative masculinity, it would be extremely significant that this was a form of masculinity that women were not only able, but indeed expected to access.

Elsewhere Aldhelm also used masculine imagery when he compared study of scripture to athletics, an exclusively male pursuit in both the Greek and Roman cultures. The palaestra was an exclusively male space, yet Aldhelm is referring to those same “adoptive daughters” discussed above when he tells them to be “like talented athletes under some experienced instructor training in the gymnasium through wrestling routines and gymnastic exercises.” male in the Church. As “chaste soldiers”,

42

41

Women were expected be spiritually reborn as

masculine souls in feminine bodies, Aldhelm’s theory of

early medieval female monasticism was inherently cross-gender, with their aspirational ideal containing influences from areas which in later years were to be strictly restricted to one sex, and to one gender. Aldhelm described St Agatha as “like an adamantine rock”.

43

This is not immediately

apparent as masculine. However, early medieval medical theory held women to be fluid, unbound

37 38

Ibid. p. 68.

Aldhelm, ‘Carmen De Virginitate’, pp. 157-62.

Ibid. p. 157.

40 Pettit, ‘Holiness and Masculinity’, p. 18.

41 Aldhelm, ‘The Prose De Virginitate’, p. 60.

42 Aldhelm, ‘Carmen De Virginitate’, p. 102.

43 Aldhelm, ‘The Prose De Virginitate’, p. 107.

39

45

beings. When Agatha “became harder than iron in the face of the tortures imposed”,

44

she was also

adopting masculine attributes. Secular men were considered lesser than those who had chosen a religious life because they were more open to feminine fluidity, rather than being bound by selfdiscipline and a monastic rule.

45

What is important to note is that monastic women were bound under

the same principles.

Were the nuns of Barking, then, incorporating feminine aspects to create an alternative masculinity, or performing an alternative femininity by making use of traditionally masculine associations? A third possible conclusion exists: that the community at Barking, and other double houses like it, were creating their gender to be predominantly neither one nor the other. To establish this, it is necessary first to define what ‘cross gender’ life would look like in the seventh century.

46

Cross-gender

behaviour can be said to exist when alternative femininity or masculinity has become so alienated from the dominant gender narrative that it incorporates more aspects of the gender behaviour associated with another sex than with its ‘own’ sex’s traditional gender role. Historians have debated this, and those arguments should be addressed alongside the theories and practices demonstrated by Aldhelm’s writings and at Barking under Hildelith. The clearest method by which these arguments can be examined is by looking at forms of masculinity and of femininity, and those aspects which can be folded into neither of these concepts, each in their turn.

Since monastic lifestyles tend have been considered an alternative form of masculinity it is this assumption which must be addressed first. Aldhelm does provide some evidence that monastic life required masculinity. This is found particularly in his lists of saints, as in the case of the story of St Eugenia which emphasises the fact that she took a tonsure to “hide the female concealed beneath”, and fulfil a masculine religious role.

47

Herbert McAvoy has described this presentation of female

saints in masculine lives creating a method by which a female body can express a masculine ideology.

44 45

48

What is unusual is this highlighting of the physical. It has been more common to express

Ibid. p. 107.

L. L. Coon, Dark Age Bodies: Gender and Monastic Practice in the Early Medieval West (Philadelphia, 2010) p.

117.

46 I use ‘cross gender’ here as an alternative to the use of ‘transgender’, which is anachronistic and potentially offensive in this context. The concept of sex and gender being independent of one another is not contemporary to the time, and it is disrespectful toward transgender individuals to use their identities to examine this form of social phenomenon.

47 Aldhelm, Carmen De Virginitate, p. 145.

48

McAvoy, Medieval Anchoritisms, p. 171.

46

the alternative masculinity created by monastic life as a predominantly mental state.

49

St Eugenia is

not the only religious woman from this period to have presented herself as masculine – for example, Hygeburc’s association of herself with the monastic men.

50

Female saints have also been interpreted

as presenting masculine role models in other ways. Aldhelm encouraged female monastic masculinity through stories of female martyrdom. These commonly also ones of extreme sexual violence, usually related to the martyrs’ refusal to marry or copulate. A focus on sexual violence may have been to emphasise the need for monastic women to cast aside their femininity. To be feminine was to be open to sexual violence like that suffered by St Lucia, whose method of murder was rape with a sword,

51

or

the suffering of the sisters Chionia, Irene and Agape, whose refusal to sexually submit meant they were whipped and abused before two were burnt alive and the third shot with arrows. women were encouraged by such graphic hagiography to “become male”.

53

52

Monastic

The male was considered

impenetrable, and therefore performing masculinity was expected to protect Anglo-Saxon religious women from the horrors to which their predecessors were subjected.

This is not to say that these women performed masculinity in the same manner as secular men. Since monastic life required celibacy, both monastic men and women could not participate in the “heterosexual framework” which dominated lay society.

54

This alienated monastic men from

traditional masculinity, derived as it was from the ability to impregnate in particular. A form of masculinity enacted by monastic men and women would be one disconnected from procreation. It was also divorced from another major source of secular masculinity: war. Those whom had taken holy orders were prohibited from carrying weapons, and from shedding blood.

55

This meant that they could

not truly claim to be ‘warriors’, despite the emphasis of Aldhelm and others on such imagery for the self-identity of monks. The frequency of such metaphorical usage may indicate that the male monastic audience required reassurance that they could be monastic and masculine simultaneously – indicating that the majority of their interactions implied any monastic masculinity was inferior at best and imaginary at worst. Some scholars have concluded that an alternative

49

Eg. Pettit, ‘Holiness and Masculinity’, p. 17.

50

Stevenson, ‘Brothers and Sisters’, p. 11.

Aldhelm, Carmen De Virginitate, p. 144.

52 Ibid. p. 153.

53 Horner, ‘Spiritual Truth’, p. 661.

54 McAvoy, Medieval Anchoritisms, p. 16.

55 Pettit, ‘Holiness and Masculinity’, p. 9.

51

47

masculinity existed in monasticism: alternative, but not inferior (although this argument is not without flaw).

56

The potential of an alternative femininity’s existence in the writing of Aldhelm of Malmesbury is an interesting proposition. It is usually ignored in favour of a view of monasticism as an “alternative masculinity”. However, both the prose and verse De Virginitate use a great deal of imagery of motherhood as well as warfare. One reason for the dismissal of femininity in the De Virginitate could be a result of the compositions’ intended audience, which is explicitly female. However, this ignores the fact that as a double monastery the community at Barking contained both men and women – feminine images cannot be assumed the result of the audience while masculine metaphor is not treated in the same manner. Aldhelm frequently utilised the imagery of motherhood, monastic life as marriage to God.

58

57

as well as that of

Clearly, monastic women were not entirely detached from

femininity. Indeed, a female anchorite once complained to St. Columbanus that she was unable to go on a pilgrimage overseas because of her sex.

59

Many elite women were even able to find elements of

continuity between their secular and religious lives.

60

Feminine overtones were not limited to the

women in monastic communities. In the case of male anchorites feminising language was used to highlight their supplication to God.

61

This is particularly apparent in the work of Grimlaicus, and

other descriptions of the desert anchorites of early Christianity.

62

Though monasticism was more

feminised than secular masculinity, it is however difficult to perceive it functioning as a form of femininity in society. This is particularly emphasised by the attitude towards female martyrs’ refusal to marry. With procreation and legitimacy central to society, a refusal to do so could not simply be another form of femininity. Female celibacy induced a violent reaction in Late Antique society. For this reaction to be used to control female monastic individuals centuries later, it must have involved an element of social transgression, not merely alternative femininity. Refusal to comply with gendered expectations is a powerful form of social transgression; not only for a woman to refuse femininity as is relevant in this particular example, but also for a man to refuse masculinity.

56 57

Ibid. p. 22.

Eg. Aldhelm, ‘The Prose De Virginitate’, p. 60.

McAvoy, Medieval Anchoritisms p. 96.

59 Jonas, Vita Columbani, in Stevenson, ‘Brothers and Sisters’, p. 29.

60 Pettit, ‘Holiness and Masculinity’, p. 9.

61 McAvoy, Medieval Anchoritisms, p. 178.

62 Ibid. p. 18, p. 36.

58

48

Having concluded that alternative masculinity or femininity are insufficient descriptions of the gender roles presented by Aldhelm’s De Virginitate and exemplified by the community of Barking Abbey, it must be determined how far ‘cross gender’ or ‘third gender’ are accurate terms for this social relationship. One aspect of monasticism which separates it from the ideals of lay gender forms is its association of “holy virginity” and “angelic beatitude”.

63

Biblical angels are genderless and sexless

beings. The association of monastic life and angelic aspiration implies that the ultimate lifestyle model for these groups was one of neither masculinity nor femininity. O’Sullivan has argued that while virginity meant that men and women were able “to transcend earthly gender divisions and to ‘participate in the oneness of Christ’”, this was achieved by women becoming masculine through religion.

64

This argument, however, assumes that ‘masculine’ and ‘feminine’ were the only forms of

gender in society. Another item of evidence for a monastic identity free from masculinity and femininity can be found in linguistics. The term ‘nunnery’ for a female house of devotion did not exist at this time in either Old English or Latin. referred to as “monasteries”.

66

65

Religious communities of all sexual compositions were

The terminology of religious life did not specify sexes until the later

medieval period.

Aldhelm presented monastic values as inherently cross-gender. He used saints of both sexes to provide his 67

examples,

without any apparent conflict. However, he also acknowledged the medieval moral

understanding of femininity as an inherently sexualised temptation. He described feminine beauty as 68

equivalent to a rich feast, a temptation which existed to shake a man’s conviction.

Surprisingly, his interpretation of this did not dismiss the religious potential of women. To combat femininity, Aldhelm exhorted monastic women to become actively non-sexual. He directed monastic women to go about “with an uncombed mane of hair … tresses carelessly matted”.

69

The

conspicuously unfeminine nature of such self-presentation did not make it masculine. Unkempt physical appearance implied that spiritual matters were the only thing on the individual’s mind.

Monastic physical appearance was intended to conceal sex and prevent the replication of lay gender roles.

63 64

Aldhelm, ‘The Prose De Virginitate,’ p. 63.

S. O’Sullivan, quoted in Pettit, ‘Holiness and Masculinity’, p. 11.

Foot, ‘Unveiling Anglo-Saxon Nuns’, p. 17.

66 Bede, EH IV.7, p. 184.

67 Aldhelm, ‘Carmen De Virginitate’, p. 166.

68 Aldhelm, ‘The Prose De Virginitate’, p. 97.

69 Ibid. p. 73.

65

49

Considering contemporary understanding of biology, it may also be surprising that Bede described Torhtgyth of Barking as “made perfect in weakness” after she suffered a serious illness.

70

Medicine

was influenced by Christian theology, which presented women as imperfect men. If the gender dichotomy within a monastic house was not that of masculine and feminine, and instead perhaps ‘perfect’ and ‘other’, then women would have already been ‘weak’ by their very nature – further weakness would not improve their position. However, monastic women could apparently achieve perfection regardless of their sex. This also indicates that men within monastic houses did not necessarily hold even informal authority over their female counterparts, as would be expected from the misogynist gender structures of Christian theology. If the ‘perfect’ vs ‘other’ axis existed, there is no clear definition of what constituted ‘perfect’.

What can be concluded from the study of Aldhelm of Malmesbury and Barking Abbey is that the work of theologians was not necessarily reflected in Anglo-Saxon gendered social relationships.

Gender roles were far more complex than Christian theology implies. What is certain is that while monastic life incorporated aspects of both masculinity and femininity, it cannot be defined by either role. Men and women in monasteries were expected to be chaste. Monastic chastity enabled a lifestyle in which the behaviour of men and women within both double and single-sex religious establishments was more like that of other monastic individuals than to either men or women in secular society.

70

Bede, EH IV.8, p. 186.

50

Prayer and Asceticism

Chastity was not the sole requirement of a monastic lifestyle. In fact, chastity itself is only one aspect of the culture of asceticism which shaped monasticism from its inception, brought to western Europe by John Cassian. Since monasticism was also defined by prayer, to determine whether masculinity and femininity played a role in the structure of early Anglo-Saxon monastic life, it is therefore necessary to examine the relationship between monastic individuals and prayer, as well as aspects of their asceticism.

Monastic asceticism meant a life ruled by rejection of physical comfort. As well as chastity through celibacy, this meant adhering to dietary and dress limits. In the early Anglo-Saxon period, the majority of houses in England did not follow a codified monastic rule. Instead, each monastery was a self-regulating “fluid system”, which relied on the self-discipline of both individuals and the community at large to enforce ascetic behaviour.

71

This attitude towards monastic discipline was

adaptive to local needs, but unfortunately is therefore difficult to trace and examine. This selfdiscipline was shaped by the expectations of each community,

72

but it also enabled individual

prominence. Monastic women adopted asceticism with enthusiasm. Since their access to penitential acts was limited because monastic women were discouraged from pilgrimage or hermitage, extreme asceticism became popular with women. One such act was to consume no food but the Host, a an expression of being sustained by God alone.

73

Fasting was central to the monastic lifestyle, even for

those who did not use this extreme form. Indeed, their attitude towards food was one of the main divisions between monastic and clerical or episcopal living. Rigrammus, a young aristocrat choosing between the monastery and the clergy, was exhorted to avoid the cloister because it would mean living “the life of pigs in a vegetable garden”.

74

Both male and female saints were praised for their self-

starvation in hagiography. Aldhelm praised St. Lawrence for refusing “the sweet richness of [a] feast” as well as for his chastity,

75

and Bertilla of Chelles was lauded for being “foremost in the

71

Foot, ‘Unveiling Anglo-Saxon Nuns’, p. 20.

72

K. Cooper, ‘The Virgin as a Social Icon: Perspectives from Late Antiquity’, in Mathilde Van Dijk and Renée Nip

(eds.), Saints, Scholars and Politicians: Gender as a Tool in Medieval Studies: Festschrift in Honour of Anneke Mulder-Bakker on the Occasion of her 65th Birthday (Turnhout, 2005), p. 11.

73 A. Weber, ‘Gender’, in A. Hollywood and P. Z. Beckman, The Cambridge Companion to Christian Mysticism (Cambridge, 2012), p. 318.

74 J. L. Nelson, ‘Monks, Secular Men and Masculinity, c. 900’, in Hadley, Masculinity in Medieval Europe, p.

133.

75

Aldhelm, ‘The Prose De Virginitate’, p. 97

51

stringency of her fasting” among that community.

76

In a mirror to this praise, Bede considered the fire

which destroyed Coldingham Abbey to be a just punishment for their transgressions of “feasting, drinking, gossip and other delights”.

77

What is significant is that female saints’ asceticism was

praised in the same terms as that of male saints. “Asceticism and spiritual charisma” was portrayed as transcending sex to create a unified religious lifestyle.

78

That these sainted women were able to

achieve feats of asceticism challenged contemporary understandings of female weakness. St Radegund, for example, was reported to have enclosed herself in her cell throughout Quadragesima (Lent). In this time she consumed only “roots of herbs or mallow greens” and “only two sestaria [pints] of water” for 40 days, with the sole exception of some bread on Sundays.

79

This extreme

denial was contemporarily interpreted as asceticism causing these holy women to have “become men” in their moral fortitude.

80

Monastic asceticism also required labour. This was particularly emphasised by the Benedictine Rule but was by no means unique to it. There was no sexual division of labour, even in monastic houses which separated their male and female members. Food production, caring for the sick and elderly, and 81

education of youth were duties performed by both men and women, not gendered ones. of a young boy being educated in Barking Abbey by “the maidens dedicated to God”.

82

Bede wrote Even in the

narrowest interpretations of this, it must be acknowledged that education in that house was not the sole preserve of male monastics, and separation of the sexes was not absolute. Pre-Benedictine double monasteries rarely extended their segregation to producing different versions of their Rules for the male and female halves of their communities.

83

It is highly dubious to conclude that these cenobitic

monasteries therefore treated male and female inhabitants differently when assigning labour. These were not establishments which believed in ‘women’s work’. It could be argued that this was because duties which to the modern eye appear to be masculine were not perceived as such in this time. In a militaristic agrarian subsistence society, sex was unlikely to be reason enough 76

Vita Bertillae, trans. Jo Ann McNamara, in J. A. McNamara, J. E. Halborg and E. G. Whatley, Sainted Women of the Dark Ages, (Durham, 1992), p. 282.

77 Bede, EH IV.25, p. 220.

78

Gisela Musichol, ‘Men, Women and Liturgical Practice in the Early Medieval West’, in Brubaker & Smith,

Gender in the Early Medieval World, p. 212.

79 Venantius Fortunatus, ‘The Life of the Holy Radegund’, in McNamara, Halborg & Whatley, Sainted Women, p. 79.

80 M. Kuefler, The Manly Eunuch: Masculinity, Gender Ambiguity, and Christian Ideology in Late Antiquity, (Chicago, 2001), p. 236.

81 Hollywood, A., ‘Song, Experience and the Book in Benedictine Monasticism’, in Hollywood & Beckman, Christian Mysticism, p. 70.

82 Bede, EH IV.8, p. 185.

83

Hollywood, ‘Song, Experience’, p. 60.

52

to lose the labour of a healthy adult. With the presence of warfare threatening the loss of male labour, a woman would have been expected to be capable of subsistence farming. This was, however, limited to the peasantry, and therefore has a complicated interaction with ideals of femininity. A noblewoman would not be expected to farm, but neither would her husband. In this case, it is enough to say that both men and women in mixed-sex communities were expected to participate in agricultural labour to provide for the community. The precise relationship of this expectation to secular gender roles is unfortunately speculative at best, but it strengthens the argument that men and women in early AngloSaxon monasteries had the same roles and aspirations.

One area in which male and female monastic experience of asceticism differed was when considering the implications of monastic dress. Elites were frequently attracted to monastic life.

84

Monastic asceticism involved the abandonment of all adornment and physical vanity. This, obviously, would have conflicted with elite women’s gender identity, with some prominence among those whose cloistering occurred later in life. A reforming council of the Church in 747 at Clofesho decreed that monastic women should live “soberly”,

85

an indication that some communities’ commitment to

asceticism may have wavered in the preceding years. Aldhelm, in the De Virginitate, made a point to mention that monastic women should present themselves in simple clothes with unadorned hair, rather than curled and coiffed as they would have been accustomed to doing in secular life.

86

Bede’s

example of a monastic establishment which descended into sin, Coldingham, also singled out the women of the community: “[e]ven the virgins who are dedicated to God put aside all respect for their profession and, whenever they have leisure, spend their time weaving elaborate garments with which to adorn themselves as if they were brides, so imperilling their virginity, or else to make 87 friends with strange men.”

Their dress is presented as scandalous because it was seen to invite sexual misdemeanour. Both men and women were expected to wear sex-concealing clothing, however. The rules did not differ, though the response to noncompliance perhaps did. By removing monastic dress, these women were presenting themselves as feminine, not as monastic, and therefore threatening the integrity of the community. Visual elements such as dress have long been held to be integral to the formation of 84

L. Butler and C. Given-Wilson, Medieval Monasteries of Great Britain, (London, 1979), p. 20.

85

Foot, Monastic Life, p. 187.

Aldhelm, ‘The Prose De Virginitate’, p. 73.

87 Bede, EH IV.25, p. 220.

86

53

identity, particularly in signalling identity to others within society.

88

A monasticism which could be

donned and discarded at will was one which would lose authority and respect among the laity. By failing to abide by monastic asceticism, Coldingham Abbey was effectively destabilising the legitimacy of Anglo-Saxon monasticism. It is likely that transgressions of this sort by female monastics were considered far graver than a similar act by a man of the community, because of the medieval belief in female susceptibility to sin. When performing femininity they ceased to perform monasticism. Ascetic behaviour was central to the very nature of monastic life, and displaying this asceticism through clothing was fundamental in demonstrating monastic unity. Similar garb enabled identification of men and women as one community and potentially one social gender.

Since prayer was the raison d’être of monasticism, it is also important to assess whether religious men and women had different interactions with prayer. One of the more tangible ways to assess this is by looking at the intercessory role of monastic houses. Intercession for the sake of others’ souls was one of the fundamental duties of a monastery. Requests for intercessory prayers are therefore an indicator of the valuation of male and female prayers in Anglo-Saxon monasteries. The early surviving rulings on the purposes of Anglo-Saxon monasticism emphasise the importance of monastic intercession through prayer to “entreat the divine clemency not only for themselves, but for kings, ealdormen, and for the safety of all Christian people.” performed by men than women,

90

89

While Aldhelm’s lists of saints mention far more miracles

this does not mean that women were considered inherently less

holy than men. Considering the significant relative loss of information on women from history in general and the early Anglo-Saxon period in particular, a great deal of evidence of female holy power survives. In Barking, for example, a woman’s blindness was reported to have been healed by her prayer there because of its intercessory connection to the saints.

91

This intercessory function was influential in encouraging royal connection to monastic houses, since their founders and the descendants of their founders would therefore be prayed for in perpetuity within those establishments. Intercession therefore motivated the establishment of a number of monastic houses, including female ones. In Saxony over half of all royal charters issued before 1024

88 89

nd

D. Henson, The Origins of the Anglo-Saxons, 2

rev. edition (Ely, 2010), p. 42.

Foot, Monastic Life, p. 187.

90 Pettit, ‘Holiness and Masculinity’, p. 13.

91 Bede, EH IV.8, p. 188.

54

went to female monastic houses.

92

While comparison across cultures in this period is far from

straightforward, there is some evidence of Anglo-Saxon kings resembling their continental counterparts in this. Wulfhere of Mercia, for example, sponsored his deceased brother’s establishment of a monastery under Abbot Saxulf in 656 to protect “the good of [his] soul”.

93

The intercession of

saints and the prominence of their cults does not seem to have been influenced by the sex or gender of the supplicant, even in the case of burial. There is no certain contemporary evidence which implies gendered flaws were considered when choosing a saint to venerate.

94

In around 1510, William Melton

used the prominence of intercession to implicitly criticise monasticism in men, describing the 95

weapons of the Church as “prayers and tears”.

The nature of monastic intercession was not criticised

in this gendered way in the early Anglo-Saxon period. The weapons which would later come to be seen as ‘womanly’ were instead consciously portrayed as more powerful than the sword or the spear.

St Germanus, for example, was described as defeating a ferocious army of attacking Scots and Picts by shouting ‘Alleluia’ from a hilltop.

96

This was a historical event to the Anglo-Saxon peoples,

having taken place before their conquest of Britain. However, the moral and symbolic lesson of this moment was still relevant several hundred years after Germanus crossed to Britain, and was therefore included in the work of Bede. The evidence provided by the surviving tales of saintly intercession, and of the role religious houses played in this process, shows that male and female prayers were considered equally powerful. Even Aldhelm, whose lists of saints emphasised the power of male saints over female, asked that the women of Barking pray for him. He requested to be “borne up on the stable column of [their] patronage”.

97

Though this may be in part formulaic, it makes it difficult to

deny the value of female prayers compared to those of men in monastic houses.

Unlike intercession, liturgical experience did change according to sex. Interaction with the liturgy did not involve prayer alone. Monastic education was fundamental in enabling that worship, and the structuring of religious space also had an effect on how monastic men and women related to prayer.

The social construction of space can reinforce or create segregation by gender, therefore having a 92

Bodarwé, K., ‘Gender and the Archive: The Preservation of Charters in Early Medieval Communities of Religious Women’, in Van Dijk & Nip, Festschrift, p. 121.

93 Anglo-Saxon Chronicle, trans. J. Ingram, (1823) and J. A. Giles (1847), D. G. Killings (ed.)

(1996), http://historymedren.about.com/library/text/bltxtaschronicle.htm (viewed 25 Feb 2015).

94 Helen Foxhall-Forbes, ‘Squabbling Siblings: Gender and Monastic Life in Late Anglo-Saxon Winchester’, Gender & History, 23.1 (Nov., 2011), p. 667.

95 R. N. Swanson, ‘Angels Incarnate: Clergy and masculinity from Gregorian Reform to Reformation’, in Hadley, Masculinity in Medieval Europe, p. 168.

96 Bede, EH I.20, p. 34 97

Aldhelm, ‘The Prose De Virginitate’, p. 131.

55

great deal of impact on gender roles.

98

Late medieval construction of space involved strict monastic

enclosure, particularly of women, and caused limitation of access to places of worship on the basis of sex, or of lay status. Evidence for this gendering of space is found less often in surviving early Anglo-Saxon cases. It was a fundamental element of both Benedictine and Cistercian monasticism,

99

but in the

conversion period religious and secular society was socially fluid and adherence to strict rules was rare.

Even after the Benedictine reforms of the ninth century, in which enforcement of enclosure played a central role, male and female laity had access to monastic houses of either sex.

100

Early English monasticism was not rigorously separated by sex. Many religious spaces could be entered by the laity, and in those places the division between lay and monastic or clerical was considered more important than differences of sex within the religious community.

101

Murray has

interpreted this difference to mean that the medieval world as a whole was far more concerned with religion than other aspects of identity, like social class or ethnicity.

102

This argument fails to

acknowledge the stratification by class which existed within religious society. However in the specific case of lay entry into religious space, this division does become the primary social divide. Spatial segregation became the norm in the late Anglo-Saxon period and after, particularly for women.

103

Gendered spatial segregation in monastic houses could never be complete. Since women could not be ordained, male access to female religious space was necessary for the performance of Mass and other crucial liturgical acts. This male presence in sex-segregated female communities was not ubiquitous in the seventh or eighth centuries. Merovingian convents, which had a great deal of influence on AngloSaxon monasticism, frequently left the sacrament of confession to the abbess or her senior nuns.

These abbesses were not priests,

105

104

but performed aspects of liturgical practice which were

theoretically reserved for the ordained clergy alone. In the late eighth century Alcuin of York 106

encouraged Æthelburh, abbess of Fladbury, to hold daily masses.

As the leader of the

98

J. T. Schulenberg, ‘Gender, Celibacy and Proscriptions of Sacred Space: Symbol and Practice’, in Virginia Chieffo Raguin and Sarah Stanbury (eds.), Women’s Space: Patronage, Place, and Gender in the Medieval Church (Albany,2005), p. 185.

99 Ibid. p. 188.

100

Foxhall-Forbes, ‘Squabbling Siblings’, p. 671.

Ibid. p. 674.

102 J. Murray, ‘Masculinising Religious Life: Sexual Prowess, the Battle for Chastity, and Monastic Identity’, in 101

Cullum & Lewis, Holiness and Masculinity, p. 24.

103 Schulenberg, ‘Gender, Celibacy, … Sacred Space’, p. 200.

104

Musichol, ‘Men, Women & Liturgical Practice’, p. 210.

Stevenson, ‘Brothers and Sisters’, p. 33.

106 Foot, Monastic Life, p. 206.

105

56

community, she may have had access to a priest to perform these masses, but they may have also been performed internally, particularly if she was influenced by Frankish monasticism and wished to maintain the integrity of her community. No matter which method of mass performance was chosen, there was a level of negotiation required to enable female monastic practice.

107

Group participation in

the liturgy was one of the fundamental expressions of communal identity within a monastic establishment, whether single sex or mixed.

108

Segregation could only exist to a limited extent,

because of the centrality of this experience to monastic life. The period before the Benedictine reform in English monasticism was one in which the ordained monk was rare. Male establishments would therefore also have needed an outsider to perform certain parts of the liturgy if no member of the community had been ordained, or else go against Church ruling and have a non-ordained brother perform those duties. The clericalisation of monasticism which began to occur in the ninth century interwove clerical misogyny, made virulent by the banning of clerical marriage due to the Gregorian 109

reform and its subsequent anti-female rhetoric, by the Carolingian kings.

110

into monastic segregation. This change was driven

Before the ordination of monks was common practice, abbesses played a

liturgical role in the service of bishops as well as a missionary and intercessory one.

Literacy was also fundamental to participation in the liturgy.

112

111

It was also crucial to theological

unity, impossible to ensure without strong channels of communication within the wider Christian monastic and episcopal communities. Literacy was not commonplace in early Anglo-Saxon society, but this limitation was not gendered.

113

Within the Church and the aristocracy, both men and women

could be literate. The extent of literacy among female monastics, however, has been obscured due to the disproportionate loss of the works of female authors over the centuries. In the past, this has caused historians to assume that absence of evidence was evidence of absence, and monastic women were not as literate as their male counterparts.

114

Despite these assumptions, male monastic literacy itself

cannot be assumed to have been universal, although the 589 Council of Narbonne implies that it was at least an improvement on the rates of ordained clerical literacy; the 107 108 109

Schulenberg, ‘Gender, Celibacy, … Sacred Space’, p. 199.

Foot, Monastic Life, p. 189.

T. Adams, ‘”Make Me Chaste and Continent, but Not Yet”: A Model for Clerical Masculinity?’, in Kiefer, F.

(ed.), Masculinities and Femininities in the Middle Ages and Renaissance (Turnhout, 2009), p. 2.

110 J. A. McNamara, ‘An Unresolved Syllogism: The Search for a Christian Gender System’, in J. Murray (ed.), Conflicted Identities and Multiple Masculinities: Men in the Medieval West (New York, 1999), p.16.

111 Ibid. p. 11.

112

Foot, Monastic Life, p. 226.

Stevenson, ‘Brothers and Sisters’, p. 1.

114 Bodarwe, K., ‘Gender and the Archive’, p. 122.

113

57

Council had to order that any illiterate priests be sent to a monastery and be taught to read.

115

These

monasteries were not prescribed as ones solely for men. The De Virginitate, for example, was addressed to Hildelith and the community at Barking. It appears to have been composed in response to a request from Hildelith and others that Aldhelm advise them on the topic of chastity and monastic life. This must have taken the form of a letter - but it is only Aldhelm’s half of the correspondence which has been preserved for posterity. This is just one example among many of female absence throughout history being brought about as a result of institutional sexism and the cultural devaluation of women.

Monastic women were not merely literate. It was common for both female and double monastic houses to contain scriptoria, and produced manuscripts for a variety of audiences.

116

The circulation

of Aldhelm’s De Virginitate is at least in part due to the production of copies in monastic houses like Barking. Ergo, these men and women were sufficiently literate to understand Aldhelm’s Latin, which would go on to influence medieval epistolary style across Europe.

117

This continued for some time,

with female communities providing translations and copies of the Rule of St Benedict for other monasteries after the Benedictine reform in the mid-ninth century.

118

Some monastic houses led by

women had scriptoria which developed their own distinctive styles, for example the Frankish double monasteries of Jouarre and Chelles.

119

These houses had significant impacts on Anglo-Saxon

monasticism due to personal connections between abbesses and community members within them.

120

One such connection was that between Whitby and Chelles. Abbess Hild of Whitby’s sister was a member of the community at Chelles, and the abbess had originally desired to join that community herself.

121

As well as producing copies of manuscripts, the women living in those houses and others

like them can be proved to have been highly educated by the quality of the correspondence addressed to them. Aldhelm’s correspondence with the abbess Hildelith was written using highly complex Latin.

He didn’t see fit to simplify it for a female audience, implying that his audience was of an equal competence in Latin and education level as Aldhelm himself. Hildelith

115 116 117

Musichol, ‘Men, Women and Liturgical Practice’, p. 201.

Ibid. p. 200.

Stevenson, ‘Brothers and Sisters’, p. 23.

118

Rohini Jayatilaka, ‘The Old English Benedictine Rule: Writing for Women and Men’, Anglo-Saxon England 32 (Dec., 2003), p. 186.

119 Stevenson, ‘Brothers and Sisters’, p. 1.

120 121

Vita Bertillae, p. 280.

Bede, EH IV.23, p. 210.

58

was also a correspondent of St Boniface,

122

as was Leoba, who had received her education at

Wimborne Minster and accompanied him as a missionary.

123

Since it can be comprehensively proven that monastic women were literate, the gendering of literacy itself must be considered. Were literate women behaving in a masculine fashion? Some feminist historians have argued just that. Horner describes reading in a monastic context as masculine because the reader must “penetrate” the text to discern a spiritual truth.

124

This conclusion is best understood

by looking at its author’s political context. Horner appears to have been strongly influenced by third wave feminism. Theorists of this school perceive phallic imagery with an almost obsessive frequency, as though genitalia were communists and they the Senator McCarthy.

125

Literacy was not a masculine

value in this period, although it was an elite skill, acquired by only the nobility and monastic communities. Though the surviving documentation implies otherwise, this was in reality a small proportion of the Anglo-Saxon population. Though building a complete picture of female literacy is rendered near impossible by centuries of endemic loss of female works, it is possible to conclude from the available evidence that literacy was not limited to biological men. Those women living monastic lives had the same access to literacy as men did, and for the same purpose: the maintenance of Church unity and for the performance of liturgical practice. Their literacy was part of monastic identity, and, though appropriated as a masculine trait for the thousand years or more separating the Anglo-Saxons and the modern day, does not support the theory that monastic women enacted an alternative masculinity alongside monastic men. It is far more accurate to say that monastics of all sexes performed a gender unrelated to their biology, and instead drawn from their intellectualism and relatively privileged position in society.

In their ascetic lifestyle and relationship with prayer, men and women in monastic establishments had far more in common than teleology would lead one to presume. With similar levels of education, they were able to engage with prayer to a similar extent. This meant that their public reputations for efficacy of prayer and intercession were not directly linked to sex, although later royal preference for male establishments may have influenced the decline of double and female 122 123

124

Stevenson, ‘Brothers and Sisters’, p. 26.

Foot, Monastic Life, p. 226.

Horner, ‘Spiritual Truth’, p. 662.

125

Similarly, McAvoy has interpreted the Benedictine concept of climbing a ladder to Heaven as phallic imagery.

To accept this interpretation, one is first required to actively reject Occam’s razor. Early medieval Christianity believed Heaven to be in the sky, and the most common method of getting oneself off the ground in that period was by climbing a ladder. McAvoy, Medieval Anchoritisms, p. 28.

59

houses due to reduced financial states. The men and women of early Anglo-Saxon monasteries were also similarly expected to participate in strict asceticism, which involved limiting their food intake, controlling their dress, and participating in physical and mental labour. Any gendering of monasticism, therefore, must be equally applicable to both sexes.

60

Monasticism and the Secular World

This essay thus far has predominantly discussed the ways in which expectations and practices of early Anglo-Saxon monastic men and women resembled on another. To determine if monastic life constituted a third gender, the idealisations of both monastic men and monastic women must also be compared to gendered ideals among the laity. How did monasticism relate to secular gender identities?

Monastic women have long been held to have acted in “masculine” roles. Previous studies have concluded that monastic life constituted a second, subordinate masculinity.

126

Though Swanson

reached this conclusion with reference to the late medieval period, it was still drawn from a problematic assumption: that acting monastically inherently meant behaving in a masculine manner.

In the context of the Anglo-Saxons, historians’ knowledge is far too limited for such an association to be made. Monastic women have been greatly distanced from their secular counterparts, however. In the De Virginitate works, as discussed above, the use of language serves to promote femininity and motherhood, without encouraging the women of Barking Abbey to apply such imagery to their selves.

His reinforcement of the centrality of moral aspirations, and their masculine nature, through military metaphor, created a perception of the lay feminine as un-monastic, which would necessitate selfdenial of feminine gendered identity by his monastic audience.

127

For monastic women to associate

themselves with monastic values, they also had to become alienated from the reality of their bodies. St Mary of Egypt had a version of her Vita written in Old English, and so presumably was touted as a model for Anglo-Saxon monastic women. She was presented as “the ultimate desert father”, able to live the perfect ascetic lifestyle.

128

Mary of Egypt was also described as having been infertile her

entire life, and this is unusually shown as irrelevant to her sexual behaviour, in her highly promiscuous youth and her entirely abstinent hermitage.

129

Contemporary understanding of sexual

desire held it to be a result of fertility. The promotion of Mary’s asceticism without implicating her infertility as a cause creates a perception of idealised female religious life as entirely separated from the female life cycle. This in turn shows a recommended path for monastic

126 127

128

Swanson, ‘Angels Incarnate’, p. 176.

Askwith, T., quoted in McAvoy, Medieval Anchoritisms, p. 81.

D. Watt and C. A. Lees, ‘Age and Desire in the Old English Life of St Mary of Egypt: A Queerer Time and Place?’, in Sue Niebryzdowski (ed.), Middle Aged Women in the Middle Ages (Cambridge, 2011), p. 64.

129 Ibid. p. 66.

61

women which separates them from the fundamentals of lay womanly identity. Lay femininity placed women in the social roles of wives and mothers. Non-participation in the sexual life cycle was simultaneously crucial in monasticism, and in the separation of monastic women from socially understood femininity. Despite this, women in Anglo-Saxon monasteries were not separated from participation in the world. Strict enclosure of monastic women was not to be enacted until the Benedictine monastic reform of the late tenth and eleventh centuries. In their interactions with the world, Anglo-Saxon religious women did not show an affinity with the experiences of their secular peers. In the Hodeoporicon, the Anglo-Saxon nun Hygeburc self-identifies more closely with a group of monastic men than with a lay woman.

130

When interacting with the rest of society, monastic

women played a similar role to monastic men, rather than one alike that of their unveiled sisters, no matter the prevalence of rhetoric describing nuns as ‘brides of Christ’.

That monastic women were not feminine is not a particularly radical conclusion. More contentious is the question of whether monastic men were masculine. A particularly difficult stumbling-block the historian must cross when attempting to answer this is the quantity of works by early medieval works which present monastic life as masculine. There has been a tendency in studies of these texts to take them at their word. Bullough is one of the few historians to argue that masculinity was as much drawn from the body as femininity was. With secular masculinity, the dominant form among the population (obscured though this fact may be by the quantity of extant documentary evidence which is from a religious perspective), being fundamentally linked to procreation, physical protection, and providing for the family,

131

it is difficult to consider monastic life as masculine at all.

Gender’s performative nature makes it even more difficult to see monks as masculine, since their “spiritual warfare” was inherently internal not visibly performed. Bullough describes masculine dominance as having to be “demonstrated continually” to exist.

132

Monks did not participate in the

same behaviours as laymen. These lay behaviours created the dominant masculinity; by their nonparticipation in the fundamental actions of masculinity, men in monastic communities did not portray themselves as masculine. Yet monks were physically male, and were therefore perceived as men by their society, subject to male temptations.

133

It does not, however, follow that they were socially

masculine. If, as has been argued, monastic masculinity is detached from the body,

134

can it be truly

masculine? Female monastics, as has been demonstrated, were not culturally feminine, but 130 131

132 133

134

Stevenson, ‘Brothers and Sisters’, p.11.

Bullough, ‘On Being a Male’, p. 43.

Ibid. p. 34.

Swanson, ‘Angels Incarnate’, p. 165.

Coon, Dark Age Bodies, p. 11.

62

they retained female bodies. If we extrapolate this theory and apply it to the other side of the gender binary it is clear that the ‘othering’ of monastic men and women means that neither biological gender can be said to have been traditionally represented in medieval religious life. Rather, this conclusion has only come to be commonly accepted due to an entrenched and limiting attachment to a gender binary.

If, despite reliance on military metaphor in the writings of Aldhelm, John Cassian and others, male monastic gender identity was not drawn from the body, there exists an interesting debate on from where monastic men did draw their identity. It has been convincingly argued that Roman masculinity shaped monastic behaviour, particularly the vir ideal, which had in common with monastic life an emphatic focus on both education and self-control. These Roman ideals were not, however, based on sex. Social class had fare more impact on the stratification of society.

135

Both male and female

monastics were praised for their self-denial and level of education - to use this to justify masculinity is an effect of the far more recent cultural bias which has crushed female intellectualism. To use Roman heritage as evidence of masculinity also requires the assumption that genders were unable to change or adapt once they have developed, when in reality early medieval identities were flexible and highly 136

reactive to circumstance.

A fundamental principle of gender theory is that gendered social roles can

and do change, and this is borne out by the archaeological evidence. Anglo-Saxon male graves did have “common characteristics … [but] these patterns are not universal and do change over time.”

137

It

is illogical to assume a static male monastic gender identity when all other identities were so changeable. Leyser has claimed that to separate monastic and lay men is to imagine a “carnivalesque” layman, utterly controlled by violent and lustful impulse, and his total opposite, the “sexually repressed bookish [man] who wrote the texts” without any awareness of the world beyond the 138

cloister.

This claim is not supported by the historiography of early medieval monasticism. That

these two lifestyles carried with them different social roles, and the relationship between them is a question of gendered identities interacting is valid historical analysis. Leyser is relying on an appeal to emotion here.

135 136

139

The monastic and secular options for male identity were

Rachel Stone, Morality and Masculinity in the Carolingian Empire, (Cambridge, 2012), p. 330.

Heinrich Härke, ‘Ethnicity, “Race” and Migration in Mortuary Archaeology: An Attempt at a Short Answer’,

Anglo-Saxon Studies in Archaeology and History, Vol. 14 (2007), p. 13.

137 Hadley & Moore, ‘“Death Makes the Man”? p. 21.

138

C. Leyser, ‘Masculinity in Flux: Nocturnal Emission and the Limits of Celibacy in the Early Middle Ages’, in

Hadley, Masculinity, p. 104.

139 Appeal to emotion: argumentative fallacy, which uses strongly emotive language rather than evidence to gain support for a perspective.

63

“conflicting imperatives”,

140

which, once horizons are broadened beyond the masculine and feminine,

constituted essentially different gender roles.

This is not to suggest that monastic life was gender neutral. ‘Gender neutrality’ is not a useful concept, as by defining gender as a performative, hierarchical system of social roles with ascribed characteristics, for a social group to be without gender is impossible. Gender neutrality is only understandable within a gender binary, a concept which is now outdated. This has not prevented historians from attempting to find a societal binary within this period of history. Herbert McAvoy, for example, considers early medieval society to have been divided into the “perfect” and the “other”.

141

This is a distinction between the physically healthy, Christian male and all others. It would be more accurate to describe this binary as one drawn by late antique and early medieval theorists, not the reality of Anglo-Saxon society. Theory and practice do not always agree - for example, the dominant assumption in early medieval archaeology was for some time that weapons signified a male grave, and jewels a female one. Advances in archaeological techniques have, however, discovered a great many graves which do not follow this pattern, as shown by the women buried with weapons in Heslerton, Yorkshire, or the men buried with jewels in Sewerby, a different burial ground in the same county.

142

Similarly, the “masculine” metaphors used by Aldhelm of Malmesbury which Pettit argues represent monastic men clinging to their accustomed ideas of masculinity were not just accessible to women but in fact addressed to them.

143

Theory and practice did not agree on to whom “masculine” monastic

strength was available.

Monastic men did not participate in hegemonic early medieval masculinity, both in theory and in practice, as their ascetic, abstinent lifestyle proved, in much the same way as monastic women did not perform femininity. It has been argued, however, that they did not enact a “third gender”, but in fact performed an alternative masculinity.

144

It is more accurate to say that they believed themselves to be performing an

alternative masculinity, particularly in the case of monastic men. A strict monastic life was conceptualised as masculine through use of language, as in the anonymous History of Abbot Ceolfrith, which credited Ceolfrith’s “zeal for justice”, “assiduous” adherence to monastic rule, and commitment to prayer for creating “in his monasteries a company of the soldiers of Christ, 140 141

Nelson, ‘Monks, Secular Men and Masculinity', p. 123.

Herbert McAvoy, Medieval Anchoritisms, p. 19.

Hadley & Moore, ‘“Death Makes the Man”?’, p. 26.

143 Pettit, ‘Holiness and Masculinity’, p. 12.

144 Ibid. p. 18.

142

64

more than six hundred strong.”

145

However, it must be remembered that the concept of gender did not

exist in the early medieval period. They saw monasticism as masculine because they did not separate gender from sex; hence, behaviours in which men participated had to be masculine. This is not seen as emphatically in the case of monastic women, and Bullough, among others, has concluded that this is because women could increase their social status by acting as men.

146

Unfortunately it is impossible to know how monastic women perceived their gender identity, since work by female authors has rarely survived to the present day, a result of institutional misogyny over the millennium since the Anglo-Saxons were writing. One could speculate that monastic women may have perceived themselves as performing an alternative femininity. This thought experiment has no intrinsic historical value, but does demonstrate the problems caused by concluding from limited evidence. Alternative masculinities and femininities have been useful concepts for historians since the gender history revolution. Recent development of gender theory means that it is possible to now move beyond these intellectual structures created twenty years or more ago. The idea of a third gender is just as valid as that of an alternative masculinity since both men and women had access to it.

Monasticism was far more significant in the formulation of identity among men and women in religious houses than sex, and this monasticism dominated their interactions with society. Their dominant social definition was not one of masculinity or femininity, but of the monastery.

Anglo-Saxon society was not solely structured by gendered relationships, whether these were of men and women, or the masculine, feminine, and monastic. There were also hierarchies based on age, social position [hereafter “class”, for want of a better word], and religion. The intersection of these social structures influenced gender identities, both in dominant and potential alternative forms.

147

Age

played a far more complex role in the construction of gender roles across society than in modern society, which based as it is on a concept of patriarchy which suborns youth to age in much the same way as it does the feminine to the masculine. A young man in this form of society has more authority than a middle aged woman. In the Anglo-Saxon period, however, this was not the case. In secular society, the peak of masculinity was a physically fit, strong man, able to father children: a man in the “prime of his life”. As secular men aged, however, their status did not continue to improve. Nor did it remain static. Burial evidence implies that elderly laymen in this 145

th

Anonymous, History of Abbot Ceolfrith, trans. D. H. Farmer, in D. H. Farmer (ed.), The Age of Bede, 5 rev. edition, (London, 2004), pp. 219-220, p. 225.

146 Bullough, ‘On Being a Male’, p, 34.

147

J. Thibodeaux, ‘Man of the Church or Man of the Village? Gender and the Parish Clergy in Medieval Normandy’, Gender and History, Vol. 18 No. 2 (Aug., 2006), p. 381. Thibodeaux’s conclusions on intersecting forms of identity can be applied in the Anglo-Saxon era, although her work addresses a later period.

65

period were of a lower status than not only younger men, but also their elderly female counterparts.

148

This unexpected structure may be related to the importance of the life cycle in creating Anglo-Saxon gender roles. A man past his physical prime could not farm, and he could not fight. This fails to explain why the same decline in status did not occur with secular women, whose social position was predominantly based on childbearing. A more comprehensive explanation may rely in the different expectations from men and women at their physical peaks. In societies dominated by war, to die in battle was considered the ultimate in masculine behaviour. An elderly man was, therefore, a lesser man, since he had not had the dignity of dying in battle. For women, the social prominence of childbirth meant that the ultimate in femininity was a woman who had been able to have many healthy children, and survive herself, hale and hearty. Unlike masculine old age, elderly women could prove their value by their physical presence and that of their children. This may have meant that past middle age, women could attain ‘matriarch’ status.

149

They were still able to fulfil other social roles,

particularly with regards to caring for the family. The position of masculine head of the family however would have fallen to a younger, physically capable man.

When this social structure interacted with monastic institutions, it underwent a great deal of change.

To maintain the authority of the Church fathers over time, male old age needed to be reconceptualised as valuable to society, not proof of failure. Monastic veneration of mental, not physical qualities enabled this. This was encouraged through hagiographical language including referring to those in positions of authority as “venerable and holy father”, even when they were on their deathbeds.

150

Prioritising wisdom, gained through age, reduced the importance of being physically able. As such, elders in monasteries could have been excused from physical labour, not on the grounds of incapability, but because they were busy with spiritual matters, which were not only more important, but more socially useful than the production of food and other sundry tasks involved in monastic life.

This did not only improve the status of elderly monastic men, however - since they prioritised mental capabilities, this meant older nuns and abbesses could also access this form of authority. They were in particular need of this reverence for age, as a leader of a double house could not access the status of secular middle aged women, since they did not give birth (though references to motherhood did abound in descriptions of significant abbesses like Hild of Whitby, particularly by male writers like 151

Bede)

148

. Age within Anglo-Saxon monasticism functioned

Hadley & Moore, ‘Death Makes the Man?’, p. 36.

149 Ibid. p. 26.

150 151

Bede, Life of St Cuthbert, trans. J. F. Webb, in Farmer, The Age of Bede, p. 94.

Bede, EH IV.23, p. 212.

66

very differently from the rest of society. Monastic hierarchy did not elevate youth and vigour in men, or childrearing in women. In later Benedictine society, male youth was feminised within monastic life.

152

Though it is impossible to assert with any certainty whether this age relationship existed in

pre-Viking Age monasticism, the “masculinisation” of age within the religious world had already begun to take place. Both male and female senior monastics derived their social position from a very different socialisation of aging to that which existed within secular society.

Another way in which construction of gendered identities related to lay society was through the influence of secular social hierarchy. Stone asserts that “the driving forces behind changing early medieval ideologies were the needs of elite men”. The relationship between secular elites and monasteries was generally a very close one. Despite the egalitarianism of the early Christian church, as monasteries developed into social institutions secular class hierarchy was replicated within religious houses. The majority of double houses and other monastic establishments were led by individuals from significant noble families. In many cases they were Anglo-Saxon royalty. St. Hild, abbess of both Hartlepool and, later, Whitby, was a daughter of a nephew of King Edwin of Northumbria,

153

and this was one of the more remote links to royalty among abbesses of the period.

Her successor, Ælfflæd, was the daughter of King Oswiu of Northumbria, and led the abbey along with her mother, the former queen Eanflæd. While Ælfflæd had been raised in the monastic life since infancy, her mother retired from the secular world later in life.

154

Her status as co-abbess was more

likely a result of her accustomed position in secular life than spiritual pre-eminence. These connections with royal houses were commonplace, with royalty sponsoring the foundations of monasteries across the country. One example is in Kent, where according to a Life of King Alfred the house of Minster-in-Sheppey was said to be founded specifically to be led by Seaxburg, wife of the late king of Kent, Eorcenberht.

155

The social convention of a widowed queen ‘retiring’ to monastic

life became established over the eighth century and beyond,

156

perhaps related to the developing

relationships between royal and ecclesiastical power structures. Barking Abbey was unusual in that it wasn’t founded by royalty.

157

These royal associations do not mean that Anglo-Saxon monasticism

was a purely elite function, particularly in the north where monasticism was heavily influenced with the less hierarchical, more ascetic Irish tradition of Christianity rather than the Roman form which 152

Coon, Dark Age Bodies, p. 120.

153 Bede, EH IV.23, p. 210.

154 155

Ibid. pp. 150-51.

Foot, S., Veiled Women: Female Religious Communities in England, 871-1066 Vol. II, Aldershot (2000), p.

121.

156 Barbara Yorke, Nunneries and the Anglo-Saxon Royal Houses (London, 2003), p.23.

157 Ibid. p. 18.

67

had been assimilated by Roman elites. Intersections of class and the cloister are very significant for gender roles because men and women were not “homogenous social groups”,

158

and neither was

Anglo-Saxon monasticism.

Since abbesses were frequently of elite or royal heritage, their lifestyles within monasticism offer an opportunity to examine aspects of femininity in monastic life. There are elements of continuity between the life of an abbess and the life of, say, a queen. Queens were expected to play diplomatic roles, particularly as intercessors in the name of mercy. One instance of this was Æthelthryth’s protection of a man in her service after his capture in war.

159

The Synod of Whitby can be interpreted

as an example of this feminine diplomacy enacted within a religious context. Hild is portrayed as a 160

mediator in the Life of Bishop Wilfred.

Bede, however, places Hild as a participant in the debate on

Easter at the Synod, and a supporter of the Irish tradition.

161

Another way in which elite women have

been argued to have found continuity between their secular and religious lives was in their capacity as hosts.

162

Pilgrims and visitors of both sexes were hosted within double house monasteries, as in the

case of St Cuthbert’s visit to Coldingham when Æbbe was abbess.

163

Some roles of abbesses were not

in keeping with the expectations and limitations for elite laywomen. For example, abbesses of double houses were in positions of authority above both men and women, monastic and secular. were also responsible for the economic welfare of their communities.

165

164

They

Contemporaries could only

incorporate these aspects into their understanding of the woman’s place by setting these duties in the frame of spiritual motherhood. In the Life of Bertilla, the abbess of Chelles is described as “lov[ing] 166

each of her sons and daughters like a mother”.

Her hagiographer understood Bertilla to be as a

mother to her community at Chelles, because that was the only concept of female authority available at the time. The role of abbess was one in which women exercised authority. Since abbots were also expected to fulfil these roles for their communities, it is inaccurate to describe this as a feminine form of authority. Church hierarchy required that the leaders of communities both discipline and nurture their communities. Despite the

158

Musichol, ‘Men, Women and Liturgical Practice’, p. 200.

K. Bullimore, ‘Unpicking the Web: The Divorce of Ecgfrith and Aethelthryth’, European Review of History, Vol. 16 (2009), p. 839.

160 Stephen of Ripon, Life of Wilfrid, trans. Webb, in Farmer, The Age of Bede, p. 117.

159

161

Bede, EH III.25. p. 154.

Pettit, ‘Holiness and Masculinity’, p. 9.

163 Sarah Foot, Monastic Life in Anglo-Saxon England, c. 600-900 (Cambridge, 2006), p. 325.

164 Pettit, ‘Holiness and Masculinity’, p. 10.

162

165

166

Stevenson, ‘Brothers and Sisters’, p. 5.

Vita Bertillae, p. 285.

68

use of maternal metaphor, these abbesses were exercising authority as superiors in that hierarchy in the same way as abbots did, not as feminine figures.

69

Conclusion

This essay has attempted to analyse monasticism in both theory and practice, and compare the monastic life to that of the laity. While there is no surviving evidence which justifies the early AngloSaxon era as ‘Golden Age’ of English monasticism,

167

if this value judgement is cast aside it is clear

that monastic life between 600 and 850 was unusual in many ways. Certainly it differed in a variety of ways from post-Norman Conquest monasticism in England. Early Anglo-Saxon monasteries were also very much unlike the religious houses which speckled the countryside in the late Anglo-Saxon period after Viking raids reached English shores. The conversion period was one in which monasteries in England flourished,

168

and the particularly Anglo-Frankish phenomenon of double houses was a vital

component of insular religious experience.

While examination of gender roles in this period is complicated by a number of factors, not least of which is the intensely patriarchal nature of the Catholic Church over the centuries since this ‘Golden Age’, what surviving evidence there is builds a picture of a fluid, dynamic religious culture. There was a great deal of variation between monastic houses – in fact what they had in common was their responsiveness to circumstances. Aspects of monasticism which would later be considered synonymous with that life, like sexual segregation, were not yet entrenched in rules. In Coldingham, for example, the men and women whom had taken holy orders intermingled.

169

Men and women in

monastic communities were governed by many of the same principles. These communities maintained a form of sexual equality between men and women which had originated in the very earliest days of Christianity,

170

although it had already begun to be eroded. Much of the rhetoric which postdates this

era places women firmly in a subordinate position. In the pre-Viking period, however; Anglo-Saxon and Frankish women were far more nearly equal to their male contemporaries than religious women of the high middle ages. They were well educated and self-confident, and the limit of their authority depended to a great extent on the networks of kinship, power,

167 168 169

170

Butler & Given-Wilson, Medieval Monasteries, p. 24.

M. Thompson, Abbot and Precinct in Medieval Monasteries (Stroud, 2001), p. 28.

Bede, EH IV.25, p. 220.

“There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus.”, Galatians, 3:28.

70

prestige and the control of wealth, in which respects they were exactly like their male counterparts.

171

Unfortunately, bar the surviving letter of Leoba to Boniface, all documentary record of monastic life in early Anglo-Saxon England was written by men. This leaves an extremely limited perspective for the historian to analyse. It is only with careful analysis and a certain amount of creative logic that the female monastic point of view can be reconstructed. However, what is apparent from works like those of Aldhelm is that cultural expectations of monasticism, while drawing from both masculine and feminine imagery, were able to synthesize into a unique method of interacting with the world. Sadly, the majority of the double houses Aldhelm was directly addressing, including Barking Abbey, were destroyed in Viking raids.

172

Female-governed monastic houses never regained their influence.

Monastic interaction within houses and with the laity was not solely governed by theory, however.

Men and women performed the same duties as one another in both double houses and on a wider geographic scale. Similarly, both sexes were educated and subsequently expected to engage with the liturgy. They were also expected to achieve similar levels of asceticism. These similarities were so strong that it has led some historians to conclude that the medieval world was divided solely on religious lines, with class or gender barely impinging on this utopia of Christian unity.

173

This ignores

the replication of social strata within monastic houses. Since gender is constructed in an intersectional manner, it is safe to say that gender in the monastery functioned very differently to the masculine and feminine beyond the cloister. However it does serve to highlight that the monastic lifestyle, particularly related to celibacy and asceticism, did not replicate the gender structure of the secular world.

Gender identity in the early medieval period was strongly related to the physical body. Medical understanding ascribed different moral values to the sexes. Criticism of secular men included that their bodies were “like those of women in their excessive lust and immoderate acts.”

174

Monasticism, however, required not just celibacy but a total detachment from the physical world.

Swanson developed the theory of ‘emasculinity’ to describe this mental space within monastic 171

Stevenson, ‘Brothers and Sisters’, pp. 32-33.

Anglo-Saxon Chronicle entry for 865 AD, “the [heathen] army stole away inland by night and ravaged all eastern Kent,” in Horner, ‘Spiritual Truth’, p. 658.

173 Murray, ‘Masculinising Religious Life’, p. 24.

174 Coon, Dark Age Bodies, p. 10.

172

71

culture, with its aspiration towards the angelic.

175

Though emasculinity is perhaps a misleading term

for this social identity which incorporated both the masculine and the feminine without predominantly aligning with one or the other, it is even more visible in the early Anglo-Saxon period than later in medieval England. This is particularly obvious in the form of the double monasteries, the prominence of abbesses, and the cross-gender use of metaphor in religious treatises like Aldhelm’s De Virginitate.

This is not to say that men and women in early Anglo-Saxon monasticism functioned as one and the same. Women were not able to become ordained clergy as well as members of monastic communities, and their transgressions were considered far more dangerous than those of men. Monastic women, however, were detached from the roles secular women were expected to play, particularly among nonaristocratic women. Among aristocratic women, the devaluing of childbearing was a significant difference between their lay and religious lives. Monastic men were also unable to participate in masculine gender activity. They were forbidden to shed blood, indulge in feasting or drinking, or to break their vows of chastity. This alienated monks from traditional masculinity. Interpretations of surviving texts have defined monastic lives as a form of subordinate masculinity. This is not necessarily accurate – monastic men consistently emphasised the masculinity of their actions, in no small part to reassure themselves that celibacy and asceticism did not separate them from their secular peers entirely. After all, the majority of men and women in the medieval era did not choose to live monastic lives. When examined objectively, their behaviour and ideals were just as far from dominant secular masculinity as monastic women were from femininity. Monastic women were not enacting a subordinate masculinity in practice, although the rhetoric presented them as such. This language indicates more clearly the similarities between monastic men and monastic women than it does the alignment of their gender role.

With their rejection of physical sources of gender identity, their celibacy and asceticism, and their role as intercessors through prayer, monastic identity was unlike secular gender identity in almost every way. Even if we assume a sexual binary,

176

as the early medieval societies themselves did, a gender

binary is simply insufficient to describe the complex relationships between lay and religious society, as well as within monastic communities. A third gender, while also perhaps overly simplistic, is the only way to investigate these monastic communities without the obfuscation of teleology.

175

Swanson, ‘Angels Incarnate’, p. 161.

176

This is a concept which erases intersex individuals. See Fausto-Sterling, ‘The Five Sexes’.

72

Early Anglo-Saxon monasteries were not paradises of sexual equality. However, they did not operate under the same intersection of identity sources as their contemporary secular society, or the monastic structures which followed them. When this difference is taken in conjunction with their internal similarity, a monastic â&#x20AC;&#x2DC;third genderâ&#x20AC;&#x2122; begins to emerge from the muddy waters of early Anglo-Saxon society.

73

Bibliography Primary Works Aldhelm, ‘Carmen De Virginitate’, trans. Rosier, J. L., in Lapidge, M. & Rosier, J. L., Aldhelm,: The Poetic Works (Cambridge, 1985), pp. 95-167 Aldhelm, ‘The Prose De Virginitate’, trans. Lapidge, M., in Lapidge, M. & Herren, M., Aldhelm: The Prose Works (Cambridge, 1979), pp. 150-132 Anglo-Saxon Chronicle, trans. Ingram, J. (1823) & Giles, J. A. (1847), ed. Killings, D. G., (1996), http://historymedren.about.com/library/text/bltxtaschronicle.htm Anonymous, ‘Bertilla, Abbess of Chelles’, in McNamara, J. A., Halborg, J. E., & Whatley, E. G., Sainted Women of the Dark Ages (Durham, 1992), pp. 280-288 Anonymous, History of Abbot Ceolfrith, trans. Farmer, D. H., in Farmer, D. H. (ed.), The Age of th Bede, 5 rev. edition (London, 2004), pp. 213-229 Bede, Ecclesiastical History of the English People, trans. Colgrave, B., in McClure, J. & Collins, R. (eds.), Oxford World Classics (Oxford, 1994) th

Bede, Life of St Cuthbert, trans. Webb, J. F., in Farmer, D. H. (ed.), The Age of Bede, 5 rev. edition (London, 2004), pp. 43-104 th

Stephen of Ripon, Life of Wilfrid, trans. Webb, J. F., in Farmer, D. H. (ed.), The Age of Bede, 5 rev. edition (London, 2004), pp. 107-184

Venantius Fortunatus, ‘The Life of the Holy Radegund’, in McNamara, J. A., Halborg, J. E., & Whatley, E. G., Sainted Women of the Dark Ages (Durham, 1992), pp. 70-105

Scholarship Adams, T., ‘”Make Me Chaste and Continent, but Not Yet”: A Model for Clerical Masculinity?’, in Kiefer, F. (ed.), Masculinities and Femininities in the Middle Ages and Renaissance (Turnhout, 2009), pp. 1-29 Besnier, N., ‘Polynesian Gender Liminality through Time and Space’, in Herdt, G. (ed.), Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History (New York, 1994), pp.

285-328 Bodarwé, K., ‘Gender and the Archive: The Preservation of Charters in Early Medieval Communities of Religious Women’, in Van Dijk, M. & Nip, R., Saints, Scholars and Politicians: Gender as a Tool in Medieval Studies: Festschrift in Honour of Anneke Mulder-Bakker on the Occasion of her 65th Birthday (Turnhout, 2005), pp. 9-24 Bullimore, K., ‘Unpicking the Web: The Divorce of Ecgfrith and Aethelthryth’, European Review of History, Vol. 16 (2009) pp. 835-854 74

Bullough, V., ‘On Being a Male in the Middle Ages’, in Lees, C. (ed.), with Fenster, T. & McNamara, J. A., Medieval Masculinities: Regarding Men in the Middle Ages (Minneapolis, 1994), pp. 31-46 Butler, L. & Given-Wilson, C., Medieval Monasteries of Great Britain (London, 1979) Coon, L. L., Dark Age Bodies: Gender and Monastic Practice in the Early Medieval West (Philadelphia, 2010) Cooper, K., ‘The Virgin as a Social Icon: Perspectives from Late Antiquity’, in Van Dijk, M. & Nip, R., Saints, Scholars and Politicians: Gender as a Tool in Medieval Studies: Festschrift in Honour of Anneke Mulder-Bakker on the Occasion of her 65th Birthday (Turnhout, 2005), pp. 9-24 Fausto-Sterling, A., ‘The Five Sexes: Why Male and Female are Not Enough’, 1993, in LaFont, Constructing Sexualities: Readings in Sexuality, Gender and Culture (Upper Saddle River, 2003), pp. 166-171 Foot, S., ‘Unveiling Anglo-Saxon Nuns’, in Wood, D. (ed.), Women and Religion in Medieval England (Oxford, 2003), pp. 13-31 Foot, S., Monastic Life in Anglo-Saxon England, c. 600-900, (Cambridge, 2006) Foot, S., Veiled Women: Female Religious Communities in England, 871-1066 Vol. II (Aldershot, 2000) Foxhall-Forbes, H., ‘Squabbling Siblings: Gender and Monastic Life in Late Anglo-Saxon Winchester’, Gender & History, 23.1 (Nov., 2011), pp. 653-684 Goulet, J.-G. A., ‘The ‘Berdache’/’Two-Spirit’: A Comparison of Anthropological and Native Constructions of Gendered Identities Among the Northern Athapaskans’, The Journal of the Royal Anthropological Institute, Vol. 2, No. 4 (Dec., 1996), pp. 683-701 Gwara, S. (ed.), De laudibus virginitatis (Turnhout, 2001) Hadley, D. M. & Moore, J. M., ‘”Death Makes the Man”?: Burial Rite and the Construction of Masculinities in the Early Middle Ages’, in Hadley, D. M. (ed.), Masculinity in Medieval Europe (London, 1999), pp. 21-38

Hadley, D. M., ‘Introduction’, in Hadley, D. M. (ed.), Masculinity in Medieval Europe (London, 1999), pp. 1-20 Harding, J., ‘Investigating Sex: Essentialism and Constructionism’, 1996, in LaFont, S. (ed.), Constructing Sexualities: Readings in Sexuality, Gender and Culture (Upper Saddle River, 2003), pp.

6-17 Härke, H., ‘Ethnicity, “Race” and Migration in Mortuary Archaeology: An Attempt at a Short Answer’, 75

Anglo-Saxon Studies in Archaeology and History, Vol. 14 (2007), pp. 12-18 nd

Henson, D., The Origins of the Anglo-Saxons, 2

rev. edition (Ely, 2010)

McAvoy, L. H., Medieval Anchoritisms: Gender, Space and the Solitary Life (Woodbridge, 2011) Hollywood, A., ‘Song, Experience and the Book in Benedictine Monasticism’, in Hollywood, A. & Beckman, P. Z., The Cambridge Companion to Christian Mysticism (Cambridge, 2012), pp. 59-79 Horner, S., ‘Spiritual Truth and Sexual Violence: The Old English ‘Juliana’, Anglo-Saxon Nuns, and the Discourse of Female Monastic Enclosure’, Signs, Vol. 19, No. 3 (Spring, 1994), pp. 658-675 Jayatilaka, R., ‘The Old English Benedictine Rule: Writing for Women and Men’, Anglo-Saxon England 32 (Dec., 2003), pp. 147-187 Kuefler, M., The Manly Eunuch: Masculinity, Gender Ambiguity, and Christian Ideology in Late Antiquity (Chicago, 2001) Leyser, C., ‘Masculinity in Flux: Nocturnal Emission and the Limits of Celibacy in the Early Middle Ages’, in Hadley, D. M. (ed.), Masculinity in Medieval Europe (London, 1999), pp. 103-120 Leyser, H., Medieval Women: A Social History of Women in England, 450-1500 (London, 1995) McNamara, J. A., ‘An Unresolved Syllogism: The Search for a Christian Gender System’, in Murray, J. (ed.), Conflicted Identities and Multiple Masculinities: Men in the Medieval West (New York, 1999), pp. 1-24 Murray, J., ‘Masculinising Religious Life: Sexual Prowess, the Battle for Chastity, and Monastic Identity’, in Cullum, P. H. & Lewis, K. J. (eds.), Holiness and Masculinity in the Middle Age (Cardiff, 2004), pp. 24-42 Musichol, G., ‘Men, Women and Liturgical Practice in the Early Medieval West’, in Brubaker, L. & Smith, J. M. H. (eds.), Gender in the Early Medieval World: East and West, 300-900 (Cambridge, 2004), pp. 198-216 Nelson, J. L., ‘Monks, Secular Men and Masculinity, c. 900’, in Hadley, D. M. (ed.), Masculinity in Medieval Europe (London, 1999), pp. 121-142 Pettit, E., ‘Holiness and Masculinity in Aldhelm’s Opus Geminatum De Virginitate’, in Cullum, P. H. & Lewis, K. J. (eds.), Holiness and Masculinity in the Middle Ages (Cardiff, 2004), pp. 8-23 Smith, J. M. H., ‘Gendering the Early Medieval World’, in Brubaker, L. & Smith, J. M. H. (eds.), Gender in the Early Medieval World: East and West, 300-900 (Cambridge, 2004), pp. 1-22 Stevenson, J., ‘Brothers and Sisters: Women and Monastic Life in Eighth Century England and Frankia’, Dutch Review of Church History, Vol. 82, No. 1 (2002), pp. 1-34 Stone, R., Morality and Masculinity in the Carolingian Empire (Cambridge, 2012) Swanson, R. N., ‘Angels Incarnate: Clergy and masculinity from Gregorian Reform to Reformation’, 76

in Hadley, D. M. (ed.), Masculinity in Medieval Europe (London, 1999), pp. 160-177 Thibodeaux, J., ‘Man of the Church or Man of the Village?: Gender and the Parish Clergy in Medieval Normandy’, Gender and History, Vol. 18 No. 2 (Aug., 2006), pp. 380-399 Thompson, M., Abbot and Precinct in Medieval Monasteries (Stroud, 2001) Schulenberg, J. T., ‘Gender, Celibacy and Proscriptions of Sacred Space: Symbol and Practice’, in Chieffo Raguin, V. & Stanbury, S., Women’s Space: Patronage, Place, and Gender in the Medieval Church (Albany, 2005), pp. 185-205 Watt, D & Lees, C. A., ‘Age and Desire in the Old English Life of St Mary of Egypt: A Queerer Time and Place?’, in Niebryzdowski, S. (ed.), Middle Aged Women in the Middle Ages (Cambridge, 2011), pp. 53-68 Weber, A., ‘Gender’, in Hollywood, A. & Beckman, P. Z., The Cambridge Companion to Christian Mysticism (Cambridge, 2012), pp. 315-327 Yorke, B., Nunneries and the Anglo-Saxon Royal Houses (London, 2003)

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Understanding Mormon Attitudes to Abortion

Imogen Eddleston is a final year student reading Philosophy & Theology at University College Durham University. Eddleston's studies focus on the anthropological and sociological aspects of religions and philosophies. This paper is her undergraduate dissertation and was supervised by Professor Douglas J Davies.

Introduction If you were to search ‘Abortion’ on the official website of the ‘Church of Jesus Christ of Latter-Day Saints’1 you will find the official teaching of the Church on the subject as follows: Human life is a sacred gift from God. Elective abortion for personal or social convenience is contrary to the will and the commandments of God. Church members who submit to, perform, encourage, pay for, or arrange for such abortions may lose their membership in the Church. 2 However this succinct and authoritative message is not the full picture, further down the page we find a number of exceptions to this seemly hard rule. We find that if the pregnancy was caused by ‘incest or rape’ and if ‘the life or health of the mother is judged by competent medical authority to be in serious jeopardy’ or if the foetus is unable ‘to survive beyond birth’ abortions may be permissible.3 These exceptions are dependent on an individual assessment of the situation with local church authorities and the individual concerned seeking guidance through prayer. The official church position on abortion is one that is the result of historical, social, legal, and theological factors. There are also Mormons active within the church who still dispute this judgement.4 It is my thesis that the Church has taken a negative stance due to its theological commitment to family values and pro-natalism. However the flexibility woven into their pronouncement is primarily due to their emphasis on personal agency and the lack of authoritative revelation. I also believe that an intrinsically flexible theology is part of how the church has coped with historical pressure to conform to American values. The effect of this in the case of abortion is that the Church has aligned its position on abortion closer to mainstream American values and American law. Individual Mormons also often carry ‘folk-beliefs’ about Mormon theology that appear to descend from popular media and other major American religions. 5 I believe this is the case for some Mormons regarding the Abortion issue. The Church has changed its position on fertility controls in the past due to the behaviour of Mormon individuals and there are a number of parallels to be found between the cases of birth control and abortion.

1

There is controversy over the correct way to refer to the Church of Jesus Christ of Latter-day Saints and its adherents, for brevity and clarity the official Institution will be the only group referred to as the ‘Church’ and its adherents as ‘Mormons’. ‘Mormonism’ refers to the religion as a whole. See Terryl C. Givens, People of Paradox: A History of Mormon Culture (Oxford: Oxford University Press, 2007), p. 59.

2 Church of Jesus Christ of Latter-day Saints, 'Abortion' (2015) <https://www.lds.org/topics/abortion> [Accessed 20 April 2015].

3 Ibid.

4 This is discussed in detail in later sections.

5 Richley H Crapo, 'Grass-Roots Deviance from Official Doctrine: A Study of Latter-Day Saint (Mormon) FolkBeliefs', Journal for the Scientific Study of Religion, 26-4 (1987).

78

It is essential to separate our understanding of Mormon attitudes to abortion from the attitudes of other major American religions. Core to this is the extreme difference between Mormon â&#x20AC;&#x2DC;family valuesâ&#x20AC;&#x2122; and the family values of other religious groups. Uniquely for Mormons the cosmic plan for salvation relies on large family groups with strong bonds.6 This is unlike most groups that descend from Protestant traditions who put emphasis on the individual for salvation7. It is also unlike Catholicism which puts emphasis on the Pope and its clergy class as an essential part of salvation.8 Mormonism has integrated its religious leaders into family and work life and put a strong emphasis on personal revelation even for members unable to join the priesthood.9 Mormonism also has an entirely unique set of authoritative scriptural documents.10 Mormons are also unique in that they receive direct knowledge from God from a living prophet.11 This also changes the context of how Mormons view modern moral issues. This means Mormons are more likely to think of moral knowledge as ongoing and adapting for different periods of history rather than being purely scripturally based. Mormons view on abortion is currently one that aligns with other religious groups. However the ultimate motivation for their position is different and could change distinctively depending on circumstance.

The evidence I am using to support my hypothesis aims to show the relationship between Mormon teachings and cultural trends that effect average Mormons. My primary sources comprise three main elements. The first is the resources that the Church claim as authoritative, this includes scriptural documents, resources they make available on their website, and the testimonies of Mormon Church leaders. Secondly I am using articles, reviews, and letters published in the Mormon journal Dialogue12 and the Mormon womenâ&#x20AC;&#x2122;s magazine Exponent II.13 Finally I am using statistical data gathered by researchers into abortion, reproduction, and family values over the last few decades. Alongside these I have other primary sources from the media, the work of Mormon academics, and other non-official Mormon groups which help demonstrate the wider scope of the abortion issue.

The official Church resources are my most important body of evidence. I will use these resources to both to show what the Church is saying about abortion, and more importantly when it communicates its message, how this message is conveyed, and to what audience. One of the great challenges due to the rapid expansion14 of the Church is the fact that great numbers of people with extremely different life experiences are entering the religion. They then try to interpret church doctrine within the frame of their own cultural narratives. This may put pressure on the Church to maintain theological and doctrinal unity under the pressure of so many new voices.15 The Church itself explains that not all documents are intended for a general audience.16 True to the Faith is a handbook aimed primarily at new converts and young people17 and we must understand that because of the intended audience it is written in a certain way that is different from the information on the entry on Abortion in the BYU Encyclopaedia of Mormonism.18 True to the Faith is particularly important to my dissertation as it is one of the most easily accessible and comprehensive accounts of official church positions. It is a

6

Douglas J Davies, An Introduction to Mormonism (Cambridge: Cambridge University Press, 2003), p. 172.

Gustave Weigel, 'Catholic and Protestant Theologies in Outline', The American Scholar, 25-3 (1956), 309.

8 Ibid.

9 Church of Jesus Christ of Latter-day Saints, True to the Faith: A Gospel Reference (Salt Lake City, UT: Intellectual Reserve, 2004), pp. 140-44.

10 Ibid. pp. 155-59.

11 Ibid. pp. 129-30.

12 Dialogue: A Journal of Mormon Thought, 'Mission Statement' (2014) <https://www.dialoguejournal.com/portfolio/mission-statement/> [Accessed 16 January 2014].

13 Carrel Hilton Sheldon, 'Launching Exponent II' (1999) <http://www.exponentii.org/history> [Accessed 20 April 2015].

14 Davies, An Introduction to Mormonism, p. 12.

15 Lavina Fielding Anderson, 'True to the Faith: A Snapshot of the Church in 2004', Dialogue: A Journal of Mormon Thought, 39-4 (2006), 79.

16 Ibid. p. 68.

17 Ibid.

18 Mary K. Beard, 'Abortion', in BYU Encyclopedia of Mormonism, ed. by Daniel H. Ludlow (New York: Macmillan, 1992), p. 7.

7

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relatively new document as the church is non-creedal,19 but its direct and authoritative language and the fact it will be many people’s first impression of the church20 means it is essential for understanding the direction Mormonism is taking.

Dialogue and Exponent II are not official Church sponsored organisations but I have chosen to consider them as they give us an insight into the attitude of individual Mormons who are not church leaders. These Mormons have to reconcile official beliefs with their own understanding of their faith and the morality of the largely non-Mormon world around them. This can only give us a limited perspective as they only appeal to particular kinds of Mormons.21 However when held next to the developments and changes the Church makes to its proclamations about abortions, we can see a clear relationship between the concerns of the Mormons in Dialogue and Exponent II and the resources and advice given by official church resources. Dialogue allows contribution from non-Mormon authors and explicitly states that they encourage a variety of viewpoints.22 However it is a primarily Mormon publication and not just a neutral body so I believe the inclusion of certain articles and letters are significant when held in comparison of official church output in the same timeframes. Exponent II is a women’s magazine which is limiting as we do not get male perspectives. Despite this considering the place abortion has had in feminist movements I believe it is a particularly useful kind of perspective to consider. This is especially as feminism is such a strong cultural trend in America but seemingly not within Mormonism.

Mormonism has developed in a culture that has been hostile to its beliefs and practices.23 I believe that it is most useful to compare Mormons to Americans in order to get an indication of how Mormons actually behave. The church is expanding beyond America’s borders however there is a strong link between Mormons and American culture.24 Mormonism’s leadership and history is firmly rooted in America which means comparison between the two groups is the most fruitful.25 Because of the sensitive and controversial subject matter some data cannot be considered particularly reliable.26 However data indicating that average Mormons are living out their theological beliefs on reproduction is significant.

My hypothesis will be demonstrated in two major phases in this essay. First I will establish the background and theological basis of teaching on abortion, then examine the current state of the abortion issue for Mormons. In the first phase I will demonstrate how the structure of Mormon Theology lends itself to a flexible interpretation of fixed core values of family. I will then go into further detail of the theological ideal of family and the beliefs about the body and gender this corresponds to. This will explain the lens through which the Church and individuals assess the abortion issue.

I will then explain the history of the birth control debate which the most closely related issue the Church has had to face to date and why this sets certain theological precedents for the debate today. I will also explain the significance of the separation of abortion from the idea of murder in Mormon thought within the wider context of the Abortion debate. From this I will have demonstrated the historical roots that have formed the current position into its current shape.

19

Anderson, 'True to the Faith: A Snapshot of the Church in 2004', p. 68.

Both by its design as an introduction to the church for young members and new converts but also its accessibility online.

21 For instance we might assume that the readership of a journal has a larger proportion of academics than the average. Also the mission statement claims the journal aims to bring Mormonism ‘into dialogue’ with nonMormon thought so it is already biased towards this kind of reflective view.

22 Dialogue: A Journal of Mormon Thought, 'Mission Statement'.

23 Givens, People of Paradox, p. 53.

24 Ibid. p. 61.

25 The massive international expansion of Mormonism is also a recent development (Davies, An Introduction to Mormonism, p. 12.) and there is not nearly as much historical or reliable current data on this. My research is focused on comparing Mormons in America to non-Mormon Americans for this reason.

26 See section ‘Mormon Behaviour and Belief’ for details.

20

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In the second phase of my argument I will first analyse statistical data and attempt to show that there are indications that individual Mormons are committed to the Church teaching on abortion, but not unanimously. I will explain how the structure of Church life can act as a regulatory force in opposition to external pressure. I will then go through the main external pressures on the Church and individuals and demonstrate through the data I have discussed, historical precedent of the influence of media and political rhetoric. I will then demonstrate using the work and writings of individuals how this pressure has and still may influence Mormon views on abortion.

The Basis of Mormon Theology Doctrine Itâ&#x20AC;&#x2122;s difficult to define precisely what can be considered doctrine for Mormons. Mormonism does not have a creedal system27 and its belief that truth will be revealed over time means any teachings are extremely flexible.28 In recent years the handbook True to the Faith and its availability alongside other church manuals on the official church website have offered some delineation to what Mormons actually believe and made it accessible not only to Mormons but to the world at large. 29 However even within these short, clear explanations of church teachings and views we are often ultimately referred back to the agency and responsibility of the individual rather than to eternal truths.30 The unfixed nature of Mormon teaching is essential to the dynamism of Mormon theology. 31 Mormon theological thought only has proper context when it is participating in the lives and actions of Mormons.32 Personal agency has been a distinctive trait of Mormonism since its early history.33 Arguably the most important reason for this is the fact that Mormons believe that the current president of the Church is a Prophet who receives direct testimony from God. 34 This means that God is taking an active role in world history and will make changes to his commands according to current states of affairs.35 This does not mean God contradicts himself, but that there are certain rules that are appropriate for different stages in time.

The second reason for the dynamic nature of Mormon theology is the relative youth of the religion.

Mormonism has only existed since the year 1830,36 which means there has been a lot less theological interpretation of existing scripture than there has been for longer established religions. Leone argued that theological development like we see in other Christian churches might actually be a detriment to Mormonism.37 Mormonism is a Christian group which believes in the authority of the Bible but their own unique scriptures38 are given much more focus. This means there is a lot of room for Mormon scholars and leaders to make new interpretations of scripture based on current events.

The Role of the Prophet The Prophet is for Mormons a man divinely inspired by God;39 many of the prophets have reported visions or meetings with God, Christ, or the Holy Spirit.40 Prophets are also most importantly believed 27

Anderson, 'True to the Faith: A Snapshot of the Church in 2004', p. 68.

Givens, People of Paradox, p. 29.

29 Anderson, 'True to the Faith: A Snapshot of the Church in 2004', p. 68.

30 True to the Faith, pp. 4-5. This is not entirely independent as it is supplemented by prayer and discussion with church leaders.

31 Mark P. Leone, Roots of Modern Mormonism (Cambridge, MA: Harvard University Press, 1979), p. vi.

32 Davies, An Introduction to Mormonism, p. 21. Leone, Roots of Modern Mormonism, p. 168.

33 Givens, People of Paradox, p. 18.

34 Ibid. p. 11.

35 Ibid. p. 30. Black priesthood is a primary example of this. See Church of Jesus Christ of Latter-day Saints, 'Race and the Preisthood' (2015) <https://www.lds.org/topics/race-and-the-priesthood> [Accessed 20 April 2015].

36 Davies, An Introduction to Mormonism, p. 12.

37 Leone, Roots of Modern Mormonism, p. 170.

38 True to the Faith, pp. 155-59.

39 Ibid. pp. 129-30.

28

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to be party to a direct line of communication with God. While there have not been any publically announced visitations by the Godhead since the 1898 appearance to President Lorenzo Snow,41 there have been declarations of revealed truths. It is essential to understand there is a subtle difference between an announcement given by a church president of his own ideas,42 and when the announcement is a new revelation from God. Many Mormons acknowledge that the president of the Church, despite his prophetic status, is still human and can be flawed or mistaken in his beliefs but his divinely inspired revelations would not be questioned in the same way.43 Mormons believe that every Mormon can receive spiritual prompting to help them in their own lives but the Prophet is the only one who receives revelation for the church.44 Givens claims that there has not been a new revelation added to the Mormon canon in recent generations.45 However, whilst the canon of scripture is closed, church leaders have issued many proclamations affecting the direction of the Church that are clothed in the language of revelation.46 Free Agency within Mormonism Mormons idealise the concept of free agency. This is true despite strong social pressures Mormons face to meet requirements for a ‘temple recommend’ which is essential to participate in certain ceremonies.47 However despite the pressure to conform the sense of the importance of personal agency within Mormon religious thought is incredibly strong. Because of this Mormons reject the concept of predestination and the concept original sin or natural depravity.48 This is partially due to the Mormon concept of self. Mormons do not believe their intelligence is created by God49 nor do they believe they are destined to be servants of God in the typical Christian sense. Mormons believe their intelligence is co-eternal with God50 and their compliance and obedience to God is an act of their free will to aim towards their own benefit. While like many Christian groups they believe God’s plan is the best for the universe, their understanding of this is subtly different. For Mormons no good spirit in the universe is simply passively acting as God’s servant but actively conspiring with him to bring about goodness,51 this goodness ultimately ends with human beings becoming godlike and embodied in heaven.52 Humans will what God wills because their interests naturally coincide as they too are potential gods.53 Because of this potential, preparation for the afterlife through building a spiritual family becomes especially important.

Mormon Theology of the Body, Family, and Gender Family and its natural extension into pro-natalist ideals are core theological values in Mormonism.

This emphasis is largely informed by their view of family being intrinsically involved with salvation, their afterlife, and the Godhead.

40

Givens, People of Paradox, pp. 14-16.

Ibid. p. 14.

42 Ibid. pp. 17-19. Mormons are encouraged to think for themselves and question pronouncements.

43 Dallin H. Oaks, 'Joseph, the Man and the Prophet' (1996) <https://www.lds.org/generalconference/1996/04/joseph-the-man-and-the-prophet>. Oaks is a member of the Quorum of the Twelve Apostles, and consequently a high ranking member of the church; and is giving a speech at an extremely important event for Mormons, the General Conference.

44 True to the Faith, pp. 140-44.

45 Givens, People of Paradox, p. 14.

46 Church of Jesus Christ of Latter-day Saints, 'Race and the Preisthood'. We can see in the 1978 announcement

by President Kimball’s speech implies the change came in a moment of divine revelation.

47 True to the Faith, pp. 170-74.

48 Kent C Condie, 'Premortal Spirits: Implications for Cloning, Abortion, Evolution, and Extinction', Dialogue: A Journal of Mormon Thought, 39-1 (2006), 35.

49 Ibid. p. 38.

50 Givens, People of Paradox, p. 4.

51 Ibid. p. 7.

52 Leonard J. Arrington and Davis Bitton, The Mormon Experience: A History of the Latter-Day Saints (London: George Allen & Unwin, 1979), p. 186.

53 In embryo which implies the same potential 41

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Structure of the Godhead The Godhead in Mormonism is not a single entity with different hypostatic modes as it is in other branches of Christianity.54 Instead it is a triad of individuals joined together in a shared purpose. God as the father is the most important and is joined in a kinship bond with Jesus Christ who is his messenger and Son. Both God and Jesus have corporeal bodies. The Holy Ghost is the final member of the group, and is considered incorporeal.55 The Holy Ghost is a son of God though he is a ‘spirit man’ and does not possess a body as the others do.56 The Godhead is bound together not by a metaphysical cause but by kinship bonds; this emphasises the eternal and cosmic importance of family. Additionally Christ is the Firstborn of God not his only son.57 All the spirits of human beings are children of God58 and so have kinship bonds with the deity. This is important to consider when Mormons are evaluating the importance of their pregnancies. Each child is linked to an extended cosmic family.

Vision of the Afterlife Similarly to the life of the Godhead, Mormons are bound to their family members after death,59 and live post-mortal lives. In the post mortal realm friendships, marriages, and parental relationships continue.60 The afterlife is envisioned as a social experience, and therefore the kind of salvation you receive61 depends on the relationships made in mortal life; most importantly the relationship between your spouse, yourself, and your children.62 The cloudy distinction between relationships in the pre/post mortal realm and earth has inspired a number of Mormon folk beliefs. Some Mormons have believed that their spouse is someone they met in pre-mortal existence,63 and that their children had chosen them in their pre-existence.64 The Church officially denies these views as being implausible65 but they fit into a wider narrative of family bonds existing for eternity. Through this theological view abortion becomes an act that severs bonds that would have led to eternal happiness.

Gender in Mormonism Paying close attention to the gender issues that exist inside Mormonism is essential for a full understanding of their attitude towards abortion. In the United States an adult woman cannot be forced to have an abortion and abortion is legal for at least the first trimester66. This causes abortion to become closely linked with issues of female bodily autonomy. It also brings up the issue if male parents have rights over a child or fetus. While legally women cannot be forced to abort or keep a pregnancy that could be legally aborted social pressure is likely to strongly affect the woman’s choice.

If the woman is financially dependent on her partner or family this may increase the pressure to 54

Lewis Sperry Chafer, Systematic Theology (Dallas: Dallas Seminary Press, 1947), pp. 382-84.

Church of Jesus Christ of Latter-day Saints, 'Godhead' (2015) <https://www.lds.org/topics/godhead> [Accessed 20 April 15].

56 Joseph Fielding McConkie, 'Holy Ghost', in BYU Encyclopedia of Mormonism, ed. by Daniel H. Ludlow (New York: Macmillan, 1992), pp. 649-51.

57 He is the ‘only begotten in the flesh’ but he is the firstborn of the spirit children. See Stephen E. Robinson, 'Jesus Christ, Names and Titles Of', in BYU Encyclopedia of Mormonism, ed. by Daniel H. Ludlow (New York: Macmillan, 1992), pp. 740-42.

58 Jay E. Jensen, 'Spirit', in BYU Encyclopedia of Mormonism, ed. by Daniel H. Ludlow (New York: Macmillan, 1992), pp. 1403-05. Alternatively, they may be children of Heavenly Mothers and Fathers who ultimately descend from God. 59 Davies, An Introduction to Mormonism, pp. 184-87.

60 Givens, People of Paradox, p. 57.

61 True to the Faith, pp. 92-95. The afterlife is imagined as having different levels of glory.

62 Davies, An Introduction to Mormonism, pp. 186-87.

63 Arrington and Bitton, The Mormon Experience: A History of the Latter-Day Saints, p. 187.

64 Ibid.This belief will be discussed further in ‘Mormons as Americans; Media, Politics, and Mormon Folkbelief’ 65 Ibid.

66 Phillip B. Levine and others, 'Roe V. Wade and American Fertility', American Journal of Public Health, 89-2 (1999), 199.

55

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submit to their preference. Women in the US have legal equality and so have the right to run for office, vote, work, and own property. This means women in the US have access to the financial independence that may be necessary to make their own choice and the right to affect the legal policies that control the right to abort.

The Mormon understanding of gender is uniquely tied to their theology. As reproduction carries on into the afterlife the sexual division of Male and Female takes on eternal rather than temporal meaning. Pre-existence also affects gender concepts but in a more nebulous way as gender could be pre-existent or assigned before birth. In this case gender would not be random but assigned possibly based on qualities or actions of your spirit. This also strongly effects how Mormons view womanhood as a temporal state. Family: A Proclamation to the World67 is the influential68 statement given by the Church President69 Gordon B. Hinckley to the Relief Society in 1995. The statement delineates the position of the First Presidency on family life including a number of statements about a woman’s place in her family.

We, [...] solemnly proclaim that marriage between a man and a woman is ordained of God and that the family is central to the Creator’s plan for the eternal destiny of His children.

All human beings—male and female—are created in the image of God. […] Gender is an essential characteristic of individual premortal, mortal, and eternal identity and purpose.70 This demonstrates the importance of gender to the Mormon concept of eternal life it is part of the essential nature of the universe. The statement also defines strict and traditional roles to be carried out within families.

By divine design, fathers are to preside over their families in love and righteousness and are responsible to provide the necessities of life and protection for their families. Mothers are primarily responsible for the nurture of their children. In these sacred responsibilities, fathers and mothers are obligated to help one another as equal partners. Disability, death, or other circumstances may necessitate individual adaptation.71 Mormons would not necessarily view this division of roles as unequal as both might have the same spiritual weight especially due to the obligation to act as ‘equal partners’. However if women’s roles are completely restricted to nurturing children this seems to put women in a position of financial dependence on their male partners. This also restricting their access to political and legal decisions by preventing them from running for office or working in a politically influential career such as journalism. Typical of Mormon theology the piece is not nearly so dry cut and its formulation allows for a number of interpretations. Women ‘primarily’ concerned with childrearing could still work. Also the difficult family circumstances specified include an undefined ‘other’ which could potentially fit any situation. However vagueness is not enough to dispel claims that Mormon women live in a state of ‘Neo-Victorian Domesticity’.72 The intent of Proclamation is clear that women should not work.

This is explicit elsewhere as in The Honored Place of Woman, a speech given by Ezra Benson the President of the Quorum of the Twelve Apostles in 1981 which attributes a desire to work outside of home to be the result of selfish and even satanic influences.73

67

President Gordon B. Hinckley, 'The Family: A Proclamation to the World' (1995) <https://www.lds.org/topics/family-proclamation> [Accessed 15 April 2015].

68 So influential it is the majority of the entry for ‘family’ in True to the Faith, pp. 59-61.

69 Unless explicitly stated ‘president’ in this essay refers to presidents of the Mormon Church.

70 Hinckley, 'The Family: A Proclamation to the World'.

71 Ibid.

72 Lawrence Foster, 'From Frontier Activism to Neo-Victorian Domesticity: Mormon Women in the Nineteenth and Twentieth Centuries', Journal of Mormon History, 6 (1979), 3.

73 Ezra Taft Benson, 'The Honored Place of Woman' (1981) <https://www.lds.org/generalconference/1981/10/the-honored-place-of-woman> [Accessed 15 April 2015].

84

If Mormon women are dependent on their husbands and fathers and prevented from entering careers that affect legal policy this changes the relationship Mormon women have to abortion. A Mormon woman may feel unable to disobey the wishes of her husband or father, especially as priesthood allows him to embody the church within their family. She may be unable to privately access funds to pay for an abortion. Also her identity would largely revolve around her status as a mother which the idea of having an abortion can potentially challenge. Mormon women can feel a great deal of pressure to live up to the idealised image of motherhood the church presents.74 Heavenly Mother A significant factor for the self-image of Mormon women is the idea of a ‘Heavenly Mother’. It is extremely popular in popular Mormon thought75 despite its absence from official scripture and church teaching. Unlike Jorgensen’s presumption76 the idea of a divine feminine does not contradict a patriarchal system. Divine life for Mormons is the ultimate aim for salvation and so a realistic goal for everyone. So divinity does not necessarily imply the same power and importance as the Heavenly father. The Mormon concept of eternal and pre-existent reproduction means it seems rational that there is a divine partner to the Father, she does not necessarily need to be an equal. In one article77 Kirsten Olsen was appalled when she was told that the Heavenly father was likely to be participating in divine polygyny.78 Interestingly her reaction was very severe. Her vision of divine life was completely negatively transformed; Heavenly father became ‘sexist’ and ‘selfish’ while Heavenly Mother reduced to ‘countless other nameless women’ and her own future ‘more like hell’. Olsen’s reaction is due to her feeling that her core value of gender equality was being attacked by divine polygyny. This seems largely because she self-identified with a heavenly mother figure. While Mormon women may not share her concerns about divine polygyny the theme of self-identification appears to be common. Self-identification with the divine was the subject of another Exponent discussion article.79 Ten Mormon women from various places in America wrote in their views about how they felt the idea of a heavenly mother should be taught to their children. None of the ten expressed any doubt that there was a divine feminine, though their ideas range a great deal. Equality between heavenly mothers was a common theme.80 The anonymous participant directly linked their understanding of a divine feminine to their own self-image.81 If Mormon women’s identity is strongly connected to the image of a divine mother this may also influence their understanding of abortion.

Motherhood is not a temporary state but eternal and exalted. The fact she is not mentioned in core scripture or teaching also supports the idea of female passivity. Motherhood in this way becomes an internalised ideal which abortion could contradict.

Precedents to the Abortion Debate Birth Control and the Church

74

In each of these articles the theme is the woman’s sense of inadequacy as a mother in the Church Heather Sundahl, 'Are You There God? It's Me Heather', Exponent II, 27-4 (2005); Tally S. Payne, 'Unraveling ', Exponent II, 27-4 (2005); Emma Shumway, 'The Begonia Monologues', Exponent II, 27-4 (2005).

75 We can find this theme in popular media aimed at Mormons such as Saturday's Warrior dir. by Bob Williams (Fieldbrook Entertainment, Where at 00:20:00-00:20:23 the pre-existent souls express regret in having to leave ‘heavenly Father and Mother’. And the very popular poem O my Father by Eliza Snow, a wife of Joseph Smith.

Also explored in Exponent II articles: Kimberly Lewis, 'In the Name and Inheritance of Mother', Exponent II, 31-2 (2011); Ryan Thomas, 'My Search for the Divine Feminine', Exponent II, 30-2 (2010).

76 Danny L. Jorgensen, 'The Mormon Gender-Inclusive Image of God', Journal of Mormon History, 27-1 (2001), 107. The article by Jorgenson along with several Exponent II articles (see following references) show this is a matter of some interest for Mormons and Academics studying Mormons.

77 Kirsten Olsen, 'Which Right Is Right?: How Doctrinal Paradoxes Can Be Catalysts for Progression', Exponent II, 30-1 (2010).

78 Ibid. p. 9.

79 Caroline Kline, 'Sisters Speak: Teaching About Heavenly Mother', Exponent II, 30-2 (2010).

80 Ibid. pp. 13-15.

81 Ibid. p. 14.

85

As with proclamations about gender roles, the church appears to have become more liberal over time towards the use of Birth Control. While Abortion is a method for controlling births it differs essentially from other birth controls. This is because abortion destroys a fetus rather than preventing conception. However this essential difference may not necessarily be as important in Mormon theology where the sin of abortion is not strongly tied to the destruction of life as it is to the strong imperative of pro-natalism.82 As the use of birth control ought to be anathema to a strongly pronatalist viewpoint we can consider if the history of the church’s involvement in this issue can give us insight into its view on abortion. True to the Faith’s entry on Birth Control gives us the basic form of the current position of the church. There is no actual condemnation or explicit permission of the use of birth control in the text. It tells us that sex between married people is ‘divinely approved’ and has two purposes; the first ‘to provide physical bodies for God’s children’ and the second to bind the partners together in love.83 The text also tells us that the spouses need to discuss childbearing and ‘prayerfully decide how many children to have and when to have them. Such decisions are between the two of you and the Lord’.84 All of this seems irrelevant to the acceptability of birth control unless it is available as an acceptable practice. The idea of ‘deciding’ when to have children is not really feasible without some form of birth control practice,85 though this is certainly not the consistent view through the church’s history.

The first reliable birth controls were being introduced to America when Mormonism was in its infancy.86 The reaction was of outrage from all sides with those distributing information about such practices being arrested for indecency.87 Mormons listed artificial contraception among a number of hellish acts that could lead to the most frightening and serious form of divine punishment: Perdition.88 At this time abortion was considered the shedding of innocent blood which for Mormons is the most heinous form of murder and possibly the worst crime possible.89 There was no distinction made between abortion and infanticide.90 While in the thirties many churches made a radical change to their teaching about birth control91 Mormonism at this time was unaffected.92 They were not swayed by the fear of race suicide93 nor the belief in ‘social gospel’ which claimed the second coming of Christ will be initiated by human action to eradicate social ills.94 Mormons felt that the mixing of blood was a positive thing it partially contributed to the strength of the Mormon people.95 One aim of Mormon polygamy was to have Mormon men have children with non-white brides to improve their racial and moral standing.96 Wilde and Danielsen claim that Mormons did not have an interest in the social gospel ideas because of their isolation97 however due to Mormons’ particular theology it is easy to see why if they had heard about it they would not be interested. For Mormons the second coming and 82

Futher discussion of this is in the section ‘Thou Shalt Not Murder’.

True to the Faith, p. 26.

84 Ibid.

85 Abstinence is an entirely acceptable form of birth control in many faiths but the extreme pro-natalism of Mormon theology means we cannot make this assumption.

86 Lester E. Bush Jr, 'Birth Control among the Mormons: Introduction to an Insistent Question', Dialogue: A Journal of Mormon Thought, 10-2 (1977), 12.

87 Ibid.; Melissa J. Wilde and Sabrina Danielsen, 'Fewer and Better Children: Race, Class, Religion, and Birth Control Reform in America', American Journal of Sociology, 119-6 (2014), 1710.

88 Bush Jr, 'Birth Control among the Mormons', p. 15. For Mormons Perdition is a state outside salvation even with repentance.

89 Crapo, 'Grass-Roots Deviance from Official Doctrine: A Study of Latter-Day Saint (Mormon) Folk-Beliefs', p. 474; Bush Jr, 'Birth Control among the Mormons', p. 15.

90 Bush Jr, 'Birth Control among the Mormons', p. 15.

91 Wilde and Danielsen, 'Fewer and Better Children: Race, Class, Religion, and Birth Control Reform in America', p. 1710.

92 Ibid. p. 1740.

93 Ibid. p. 1711.

94 Ibid.

95 Ibid. p. 1741.

96 Arrington and Bitton, The Mormon Experience: A History of the Latter-Day Saints, pp. 195-96.

97 Wilde and Danielsen, 'Fewer and Better Children: Race, Class, Religion, and Birth Control Reform in America', p. 1740.

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86

apocalypse will be dependent on souls being prepared for the kingdom98 not the moral state of the earth so preventing births in order to hasten the end is completely counterproductive. Their theology that prized increasing families was key to their resistance to birth control.

For Mormons the second wave of BC99 debate in themed twentieth century is far more significant100.

In the 60’s the pill and IUD were introduced as a truly reliable and safe form of contraception. Before this the church had strongly opposed this issue,101 part of their complaint was that the pill was dangerous for the physical health of women far more so than the dangers of childbirth.102 However the original injunctions against BC as being a way to perdition had significantly softened and Leaders of the church were now beginning to reinstate their objection to BC in a much more general way.103 Exceptions for various cases like poor health were beginning to creep into the language of the statements.104 While once there was no excuse not to strive to tabernacle every soul you can into Mormon households105 leaders began to voice concerns about the health of the mother and the care she could give to her children.106 First abstinence was the only permissible form but then ‘natural’ methods were suggested to be useful such as rhythm or breast feeding due to the negative effect of abstinence on marriages.107 Finally many became confused that the church should draw such an arbitrary line between natural and unnatural BC as both prevented children just one was far more efficient.108 Eventually we come to the modern positive assertion to have children we find in True to the Faith109 rather than an admonition against BC. This slow softening of the Church position on birth control is very similar to the progress of the abortion debate. The current church position which contains a number of exceptions strongly resembles the church position on contraception in 1969.110 The pressures on the church to alter their views now are also similar to the pressures it faced in the 1960s. Abortion is becoming more acceptable in non-Mormon circles, abortion is legal, and knowledge about the safety of abortion is increasing in ways the church cannot control. The church has reason to fear that Mormons will begin to have abortions so undermining church teaching as they began to use birth control against their guidance in the 1960s.111 Thou Shalt Not Murder For many religious groups the key issue in the Abortion debate is one of murder or the ‘sanctity of life’.112 Does the destruction of a foetus carry the same moral weight as the killing of a human being?

98

True to the Faith, pp. 115-17, 59-61. Davies, An Introduction to Mormonism, p. 14.

Birth control.

100 Bush Jr, 'Birth Control among the Mormons', p. 26.

101 Ibid. p. 25.

102 Ibid. p. 28.

103 Ibid. pp. 24-25. J.F. Smith reminds readers that in childbearing we should consider the health of the mother and children.

104 Ibid. p. 20.

105 Ibid. B.F. Cummings compared contraception to murdering children when you could not care for them.

106 Ibid. p. 26.

107 Ibid. p. 30.

108 Ibid. p. 31.

109 True to the Faith, p. 26.

110 Bush Jr, 'Birth Control among the Mormons', p. 27. The statement in 1969 ‘We seriously regret that [...] feeling among any members of the Church to curtail the birth of their children. […] It is contrary to the teachings of the Church […] men must be considerate of their wives […] married couples should seek inspiration and wisdom from the Lord’ This can be easily compared to the 2004 statement ‘Latter-day Saints must not submit to, perform, encourage, pay for, or arrange for an abortion […] exceptional circumstances may justify an abortion, such as when pregnancy is the result of incest or rape, when the life or health of the mother […] and receiving a confirmation through earnest prayer.’ as both start with strong condemnation and prohibition but then lists a fairly wide range of exceptions and ultimately leaves it to the couple. True to the Faith, pp. 4-5.

111 Bush Jr, 'Birth Control among the Mormons', pp. 30-33.

112 The Catholic Church In England and Wales, 'Catholic Bishops of England and Wales Appeal to Amnesty to Maintain Its Neutral Stance on Abortion' (2006) <http://www.catholic-ew.org.uk/Home/News/2006/CatholicBishops-of-England-and-Wales-appeal-to-Amnesty-to-maintain-its-neutral-stance-on-Abortion/> [Accessed 18 99

87

In Christian religious groups possession of a soul is the defining characteristic of human existence.

Therefore the debate usually stands on whether or not a foetus has a soul and if the soul arrives at a particular point of gestation.113 The early Church leaders did appear to believe abortion was a form of murder. Abortion was not simply murder but constituted the ‘spilling of innocent blood’. This is an especially heinous and is an unforgivable sin which would leave the individual without salvation.114 This state is called perdition and is limited to extremely few cases. Some believe only a handful of individuals have ever entered this state.115 This extreme divine punishment demonstrates how seriously Mormons considered abortion at this time.

However despite this the current Church teaches that abortion is ‘like unto murder’.116 This is a key distinction as it leaves the room for the Church to make exceptions to anti-abortion rules. It also lets the church anticipate further revelations or social changes that may necessitate change to the teachings. When understood through the lens of Mormon theology this distinction is enormous. The precise nature of the relationship between the body and the soul is uncertain.117 Embodiment is essential in the cosmic plan for salvation118 but the mortal body decays leaving an unclear connection between mortal bodies and immortal bodies. Spirits pre-exist so the body is not necessarily tied to one particular body. Preassigned bodies would also necessarily imply predestination which is explicitly rejected by Mormons.119 If abortion is simply denying the potential for a spirit to enter a body at a particular time rather than ending a person’s only chance at life then it becomes a lesser sin than murder.120 Importantly the church has said that there is no reason, in the form of revelation or otherwise, to believe someone who has had an abortion could not be saved.121 This is influenced by the tension in Mormon thought between absolute authority of revelation and the emphasis on personal responsibility. As there is no direct revelation about this issue despite its importance for salvation122 the safest bet for Mormons is to take the chance that an individual can be saved. Mormon individuals are asked to wait for a personal revelation before proceeding.123 This safeguards the Church from sending unwitting souls to damnation. On a practical level this teaching supports unity in the church despite its multiplicity both intellectually and culturally in its followers.124 The church puts a great deal of emphasis on genealogy research,125 primarily this lets Mormons find their ancestors so they can perform vicarious baptisms and give them a chance for salvation. It also helps map out the afterlife which is envisioned as interlinking kinship groups.126 To this end Mormons record all new members of their family through birth or marriage in a record kept by the church.127

April 2015]. Southern Baptist Convention, 'Resolution on Abortion' (1971) <http://www.sbc.net/resolutions/13> [Accessed 18 April 2015]. United Methodist Church, 'The Nurturing Community: Abortion' (2012) <http://www.umc.org/what-we-believe/the-nurturing-community#abortion> [Accessed 18 April 15]. All these major groups claim sanctity of life is the reason for their opposition to abortion.

113 Harriet F. Pipel, 'Abortion: U.S.A. Style', The Journal of Sex Research, 11-2 (1975), 115.

114 Bush Jr, 'Birth Control among the Mormons', p. 15.

115 True to the Faith, p. 81; Rodney Turner, 'Sons of Perdition', in BYU Encyclopedia of Mormonism, ed. by Daniel H. Ludlow (New York: Macmillan, 1992), p. 1391.

116 Beard.

117 Condie, 'Premortal Spirits: Implications for Cloning, Abortion, Evolution, and Extinction', pp. 35-37.

118 True to the Faith, pp. 115-17.

119 Condie, 'Premortal Spirits: Implications for Cloning, Abortion, Evolution, and Extinction', p. 35.

120 Beard.

121 Ibid.

122 Ibid.

123 True to the Faith, pp. 4-5.

124 Davies, An Introduction to Mormonism, p. 8. Exponent II and Dialogue demonstrate the intellectual diversity in the church.

125 Ibid. pp. 184-85.

126 Ibid. pp. 185-87.

127 Ibid. p. 185.

88

However stillborn babies and miscarriages are not included in these records,128 there is no a definitive reason why especially as families often record these in their personal records.129 This exclusion may point to an ambiguity the church has about the nature of these individuals. It seems unfair that a soul could be put in a body that could not live and so not get a chance at salvation through mortality.130 Brigham Young also believed this and hoped that in such cases the spirit would be given another body.131 While this is a personal not a prophetic judgement132 it is still important to understanding the attitudes Mormons have towards foetuses and ultimately abortion.

128

Melinda E. Jennings, 'Our Stillborn Baby' (2006) <https://www.lds.org/ensign/2006/02/our-stillborn-baby> [Accessed 19 April 2015]; Church of Jesus Christ of Latter-day Saints, 'Handbook 2: Administering the Church: Medical and Health Policies' (2010) <https://www.lds.org/handbook/handbook-2-administering-thechurch/selected-church-policies?lang=eng#21.3.10> [Accessed 19 April 2015].

129 Jennings, 'Our Stillborn Baby'.

130 True to the Faith, pp. 115-17.

131 Bush Jr, 'Birth Control among the Mormons', p. 15.

132 Ibid. He importantly phrases it â&#x20AC;&#x2DC;I thinkâ&#x20AC;&#x2122; rather than it was revealed.

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Mormons and Abortion today Mormon Behaviour and Belief Mormon women face a unique set of social circumstances when they decide how many children to have. Within the Mormon social realms there is pressure for Mormon women to have more children133 than is considered ideal by most Americans.134 However they may still experience pressure from nonMormon friends or family to limit their childbearing.135 As Mormon women have a much higher birthrate and a higher number of desired children than their non-Mormon peers136 this suggests that the pro-natalist theology of Mormonism is very effective.

Utah is the heartland of Mormonism; it is the seat of Mormon leadership137 and has a population that is around 60% Mormon.138 Utah has one of the lowest abortion rates in the US at 5.4 abortions per 1000 women139 making up only 0.3% of abortions in the US140 despite Utahâ&#x20AC;&#x2122;s population being about 0.9% of the United Statesâ&#x20AC;&#x2122; inhabitants.141 This in part can be attributed to the stringent restrictions on abortion in Utah.142 Utah utilizes a number of polices known to be effective in restricting abortion.143 Access to public funding of abortion is limited to cases where the there is a threat to the life or health of the women or if the pregnancy was caused by rape or incest.144 Women must have counselling designed to discourage abortion and then wait 72 hours before the procedure.145 Minors cannot have abortions without their parents being informed.146 These regulations make it difficult for minors and those with economic disadvantage, who are most likely to try to obtain an abortion147 to do so. The large Mormon community is likely to be part of why such stringent laws are in place,148 additionally the fact that public funding covers cases that the church permits indicates this may be the case as stricter laws are possible.

133

Shumway, 'The Begonia Monologues', p. 14.

Kellie J. Hagewen and S. Philip Morgan, 'Intended and Ideal Family Size in the United States, 1970-2002', Population and Development Review, 31-3 (2005), 515-16.

135 Janet Griffith, 'Social Pressure on Family Size Intentions', Family Planning Perspectives, 5-4 (1973), 239.

136 Michael B. Toney, Banu Golesorkhi, and William F. Stinner, 'Residence Exposure and Fertility Expectations of Young Mormon and Non-Mormon Women in Utah', Journal of Marriage and Family, 47-2 (1985), 462; Tim B. Heaton, 'How Does Religion Influence Fertility?: The Case of Mormons', Population and Development Review, 25-2 (1986), 248.

137 Church of Jesus Christ of Latter-day Saints, 'World Headquaters ' (2015) <http://www.mormonnewsroom.org/topic/world-headquarters> [Accessed 27 April 2015].

138 Matt Canham, 'Census: Share of Utah's Mormon Residents Holds Steady', The Salt Lake Tribune, (2012) <http://www.sltrib.com/sltrib/home3/53909710-200/population-lds-county-utah.html.csp> [accessed 27 April 2015].

139 Rachel K. Jones and Jenna Jerman, 'Abortion Incidence and Service Availability in the United States, 2011', Perspectives on Sexual and Reproductive Health, 46-1 (2014), 7.

140 Ibid.

141 In 2010 United States Census Bureau, 'Utah Quick Facts ' (2015) <http://quickfacts.census.gov/qfd/states/49000.html> [Accessed 27 April 2012].

142 Guttmacher Institute, 'State Facts About Abortion: Utah' (2015) <https://www.guttmacher.org/pubs/sfaa/utah.html> [Accessed 21 April 2015].

143 Michael J. New, 'Analyzing the Effect of Anti-Abortion U.S. State Legislation in the Post-Casey Era', State Politics & Policy Quarterly, 11-1 (2011), 29 and 42-43.

144 Guttmacher Institute, 'State Facts About Abortion: Utah'.

145 Ibid.

146 Ibid.

147 New, 'Analyzing the Effect of Anti-Abortion U.S. State Legislation in the Post-Casey Era', pp. 29-31.

148 Susan B. Hansen, 'State Implementation of Supreme Court Decisions: Abortion Rates since Roe V. Wade', The Journal of Politics, 42-2 (1980), 382-86.

134

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In the US a court decision known as ‘Roe v. Wade’ is considered a landmark case for deciding how strict abortion regulation can be in the US.149 This alongside the conclusions of a number of similar cases allowed access to abortion in the first three months of pregnancy. After Roe v. Wade we would expect that Utah would have a much lower rate of abortion than many other states having at that time a population that was 70% Mormon.150 Utah did have a lower abortion rate in the year’s immediately preceding Roe v. Wade151 as did Idaho which also had at that time a large Mormon population.152 Hansen’s Model of state abortion rates predicts that the abortion rate was not only lowered by the Mormon population affecting legislative issues but Mormons were having an effect in themselves.153 This is despite Hansen predicting that religion would not be an important factor on the abortion rate.154 This alongside the fact that Utah’s abortion rate has remained disproportionally low155 should suggest that Mormons are likely to be living out their convictions. However it is not easy to distinguish whether it is primarily due to Mormons affecting regulation on abortion through voting and campaigning or rejecting the option of abortion for themselves.156 A small sample study carried out 1985 found a surprising result in the beliefs active Mormons had about abortion.157 At that time the church position was that abortion was a serious sin but not murder nor the shedding of innocent blood.158 The interviewees were asked specifically about the beliefs of ‘Mormons’ rather than themselves.159 However 62% of the 60 respondents defined it as Murder with 23% of the total respondents specifically defining it as the shedding of innocent blood. Only 12% defined it, as the Church does, as not murder. However 50% did say abortion was excusable in the case of rape, incest, or health reasons160 so at least some of the respondents who claimed abortion was murder were partially aligned with the church. None of the participants claimed it was not a sin at all.161 Despite the size of the sample the distance from what we predict active Mormons would say is significant. This deviance could have a number of root causes one of which are discussed in the last section. However the existence of significant difference in the church may reflect the importance of personal agency in Mormonism or the flexible and vague nature of many pronouncements that could cover a great number of disparate beliefs.

The Influence of Church Structure on Individuals Mormonism has a church structure that is deeply integrated in family and individual lives. Family is explicitly understood to be the basic unit of the church.162 The Church has a tiered structure; families and individuals are part of ‘Wards’ led by a bishop who tends to the spiritual needs of his flock like a priest or rabbi.163 ‘Wards’ are then parts of ‘Stakes’ which is led by a ‘Stake President’ and a council.

This model of leadership reflects the shape of the whole church164 which is led by the President and the fourteen apostles and some lesser councils.165 Most Church positions are not paid so Stake 149

Ibid. p. 172.

Carol McKewen Stinner Michael B. Toney, Stephan Kan, 'Mormon and Nonmormon Migration in and out of Utah', Review of Religious Reasearch, 25-2 (1983), 114.

151 Hansen, 'State Implementation of Supreme Court Decisions: Abortion Rates since Roe V. Wade', p. 385.

152 Ibid.

153 Ibid. p. 389.

154 Ibid. p. 372.

155 Guttmacher Institute, 'State Facts About Abortion: Utah'.

156 Hansen, 'State Implementation of Supreme Court Decisions: Abortion Rates since Roe V. Wade', p. 391.

157 Crapo, 'Grass-Roots Deviance from Official Doctrine: A Study of Latter-Day Saint (Mormon) Folk-Beliefs', p. 476.

158 Ibid. pp. 473-74.

159 Ibid. p. 471.

160 Ibid. p. 475.

161 Ibid.

162 True to the Faith, p. 34.

163 Davies, An Introduction to Mormonism, pp. 172-73.

164 Ibid. p. 172.

165 True to the Faith, pp. 34-37.

150

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Presidents and Bishops must hold another job alongside their religious duties.166 Mormons do not request these duties but are ‘called’ to them by someone higher in the church167 this can be refused.168 Callings are supposed to be decided through prayer and revelation.169 While the local bishop holds the role closest to priest in other religions the priesthood that most men hold is still an important dynamic in Mormon families. At as young as age twelve a male Mormon is eligible to be elevated into the Aaronic priesthood.170 At this point he has a place in the hierarchy of the church higher than any female siblings and his own mother could achieve.171 Priesthood gives him the right to perform a number of important religious functions including baptism and preparing the sacrament.172 After age eighteen he may become a member of the Melchizedek Priesthood. This higher order allows him to initiate other men into the priesthoods, gives him the ability to confer blessings onto family members, and is essential to ascend the church hierarchy and to receive a temple marriage.173 Most Mormon men are ‘Priesthood holders’ (that is possessing either level of priesthood) and there is no level of priesthood open to women.174 In this way the church structure is fully integrated down to the level of families and individuals. As we briefly mentioned in the discussion of gender issues this can potentially lead to an imbalanced household dynamic as the male can selfidentify with the church and its authority. The Melchizedeck priesthood holders in particular have a spiritual and authoritative advantage over female members of the family. This could potentially make a huge difference to how Mormon women decide to proceed with unwanted pregnancy. Despite this in few of the Mormon articles on the subject has the authority of the husband or father been particularly apparent in decision making.175 176 177 In many of the Mormon articles relating to fertility, the bishop becomes involved at some junction.178 Mormons seek their bishop for an interview179 either due to their inner crisis180 or at the insistence of a family member.181 Bishops have a great deal of autonomy and this has created issues where a bishop’s 166

Church of Jesus Christ of Latter-day Saints, 'The Church's Unpaid Clergy' (2009) <http://www.mormonnewsroom.org/blog/the-church-s-unpaid-clergy> [Accessed 19 April 2015].

167 Church of Jesus Christ of Latter-day Saints, 'Calling Members to Serve in Church Positions' (2001) <https://www.lds.org/manual/branch-guidebook/calling-members-to-serve-in-church-positions> [Accessed 19 April 2015].

168 Boyd K. Packer, 'Called to Serve ' (1997) <https://www.lds.org/general-conference/1997/10/called-to-serve> [Accessed 19 April 2015].

169 Henry B. Eyring, 'Rise to Your Call' (2002) <https://www.lds.org/general-conference/2002/10/rise-to-yourcall> [Accessed 19 April 2015].

170 True to the Faith, pp. 3-4.

171 Foster, 'From Frontier Activism to Neo-Victorian Domesticity: Mormon Women in the Nineteenth and Twentieth Centuries', p. 10. While the relief society and other auxiliary groups have high callings and important positions for women to fill they cannot participate in the mainstream hierarchy without priesthood and so cannot perform essential religious functions like baptism.

172 True to the Faith, pp. 3-4.

173 Ibid. pp. 101-02.

174 Ibid. pp. 124-28.

175 Linda Paxton Greer, 'The Unexpected Choice', Dialogue: A Journal of Mormon Thought, 28-04 (1995).

Despite Greer’s dedication to her religion and the principles of motherhood her husband is absent from the decision making.

176 "Louise" (Anon), 'My Choice: Placing My Baby for Adoption', Exponent II, 29-1 (2009). Louise places more emphasis on her mother’s wishes than her father who only acts as a unit with her mother.

177 Judith Rasmussen Dushku, 'A Time of Decision', Dialogue: A Journal of Mormon Thought, 14-4 (1981), 114. Dushku received a lot of pressure from her husband to abort but he is not a Mormon and he does not use his position as a man in the family to support his position though he does try to use principles from the religion.

178 April Young Bennett, 'Making a Family with Donor Sperm', Exponent II, 2-3 (2011), 24; Greer, 'The Unexpected Choice', p. 103; Dushku, 'A Time of Decision', p. 114.

179 Bennett, 'Making a Family with Donor Sperm', p. 24; Greer, 'The Unexpected Choice', p. 103; Dushku, 'A Time of Decision', p. 114.

180 Greer, 'The Unexpected Choice', p. 103; Dushku, 'A Time of Decision', p. 114.

181 Bennett, 'Making a Family with Donor Sperm', pp. 23-24.

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personal practice becomes invalidated by new church teaching or direction.182 This may cause bishops to become cautious about giving advice and instead point to free agency. When one couple reluctantly consulted their bishop about their desire to use donor sperm he cuts them off mid-sentence, explaining to them that it is an entirely personal decision.183 Even though the church officially rejects sperm donation184 his reluctance to discuss such an issue may be due to the fear that the currently flexible teaching may be changed with changes to the technology185 or because of the limited teaching on the subject. The importance of personal agency and the nebulous nature of church teaching strips back the role the bishop can have in advising his parishioners in cases involving fertility. However the bishop is far from powerless. Outside of simple social pressure the bishop also has decision making power that is tangible for his parishioners. The church has a â&#x20AC;&#x2DC;welfareâ&#x20AC;&#x2122; program which can aid struggling Mormons.186 The bishop is the one who identifies those he believes are in need of the program.187 More relevant to most Mormons is that the Bishop is the first port of call for a temple recommend.188 A temple recommend is essential to Mormons for sealings, temple marriages, and ordinances for the dead.189 Essentially all the spiritual tools for building your family in the afterlife require access to the temple. The bishop decides on the basis of; Questions are asked to ascertain one's faith in God the Eternal Father, [...] loyalty to the teachings and leaders of the Church. Worthiness requirements include being honest, keeping the commandments, such as chastity-sexual continence before marriage and fidelity within marriage [...], fulfilling family responsibilities and avoiding affiliation with dissident groups.190 I have added emphasis to the points particularly relevant. Discussing abortion with the bishop and ignoring his advice could put your temple recommend at stake. Also your family or friends may have to disassociate from you to keep their recommend. This must be countersigned by a member of stake presidency191 however this still leaves a great deal of room for a bishopâ&#x20AC;&#x2122;s personal discretion.

Mormons as Americans; Media, Politics, and Mormon Folk-belief The Church has an uneasy relationship with its country of origin. Within Mormon Theology America is an essential part of the plan for salvation and the work of Mormons in the latter days.192 However Mormons have experienced a great deal of historical persecution, not only from fellow citizens193 but from the federal government.194 In the media Mormons are sensationalised for their polygamous past195 and for their religious beliefs that deviate from mainstream Christianity.196 The Abortion debate

182

Lester E. Bush Jr, 'Ethical Issues in Reproductive Medicine: A Mormon Perspective', Dialogue: A Journal of Mormon Thought, 18-2 (1985), 58-59. As is the case when the church formalised its views on sex change operations.

183 Bennett, 'Making a Family with Donor Sperm', p. 24.

184 Church of Jesus Christ of Latter-day Saints, 'Handbook 2: Administering the Church: Moral Issues' (2010) <https://www.lds.org/handbook/handbook-2-administering-the-church/selected-church-policies?lang=eng#214> [Accessed 19 April 2015].

185 Bennett, 'Making a Family with Donor Sperm', p. 22.

186 Marion G. Romney, 'The Role of a Bishop in the Church Welfare Program' (1979) <https://www.lds.org/general-conference/1979/10/the-role-of-a-bishop-in-the-church-welfare-program> [Accessed 19 April 2015].

187 Ibid.

188 True to the Faith, pp. 170-74.

189 Ibid. pp. 170-74.

190 Robert A. Tucker, 'Temple Recommend', in BYU Encyclopedia of Mormonism, ed. by Daniel H. Ludlow (New York: Macmillan, 1992), pp. 1446-47.

191 Ibid.

192 Givens, People of Paradox, p. 102.

193 Arrington and Bitton, The Mormon Experience: A History of the Latter-Day Saints, p. 45.

194 Leone, Roots of Modern Mormonism, p. 149.

195 Arrington and Bitton, The Mormon Experience: A History of the Latter-Day Saints, p. 184.

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is one of the most hotly debated moral issues of the 21st century especially as it is an issue that directly affects many people’s individual lives. This has become intensified by the fact that abortion as a moral issue is inherently joined with political and legal institutions. Mormons are both consumers and creators of mainstream media in America. As a result their religious beliefs can become mixed with the common cultural beliefs of mainstream America.197 Extra confusion is caused by the ideas presented about Mormon beliefs by Mormons that despite being doctrinally inaccurate still get absorbed into the collective belief.198 Political and legal discourse is essential to the abortion issue. Governments decide if abortion can be legal, and if so in what circumstances and also what education the public receives about abortion.

Restricting access to education199 or changing the way abortion is presented could significantly reduce its use. Since the devolution of the Church’s political party Mormons have been traditionally rightwing and associated with the Republican Party.200 The Republican Party is usually socially conservative and often favours stricter abortion regulation.201 Abortion policy is an issue that influences voter choice.202 The Church has declared itself politically neutral and will not even endorse Mormon candidates.203 However the Church does not abstain itself from all political matters especially when morality and legality intersect.204 This leaves the church free to encourage lobbying against abortion, and this naturally leads to a certain implicit support of parties that express antiabortion viewpoints.

Mormons have become increasingly visible in the media recently, however this is a split presentation.

Public figures who are Mormon like the 2012 presidential candidate Mitt Romney205 and the popular young adult author Stephanie Meyer206 have gathered public interest in Mormons and their views.207 However this has come alongside heavy criticisms of their faith and its influence on their work with Meyer being particularly criticised for presenting pregnancy in a way that appears anti-abortion.208 Alongside this a number of sensationalist television shows primarily focused on the outdated practice of polygamy209 and satirical work about Mormon beliefs have increased awareness of Mormonism as a religion, though possibly less positively. 210 This split dynamic may cause Mormons to question their commitments to certain values. Mormons in America are also Americans and they must often decide between the common national values and the values the church promotes. The church position is more moderate than far-right American views that would ban all abortion and far more conservative than the pro-choice movement which would legalise abortion in nearly any case. Mormons’ ‘folk196

Church of Jesus Christ of Latter-day Saints, 'The Publicity Dilemma' (2009) <http://www.mormonnewsroom.org/ldsnewsroom/eng/commentary/the-publicity-dilemma> [Accessed 27 April 2015].

197 Crapo, 'Grass-Roots Deviance from Official Doctrine: A Study of Latter-Day Saint (Mormon) Folk-Beliefs', p. 482.

198 Ibid. p. 467.

199 Henry Waxman, 'The Content of Federally Funded Abstinance-Only Education Programs' (2004) <http://spot.colorado.edu/~tooley/HenryWaxman.pdf> [Accessed 27 April 2015].

200 Leone, Roots of Modern Mormonism, pp. 152-54.

201 James T. Richardson and Sandie Wightman Fox, 'Religious Affiliation as a Predictor of Voting Behavior in Abortion Reform Legislation', Journal for the Scientific Study of Religion, 11-4 (1972), 349.

202 Ibid. p. 357.

203 Church of Jesus Christ of Latter-day Saints, 'Political Neutrality' (2015) <http://www.mormonnewsroom.org.uk/official-statement/political-neutrality> [Accessed 27 April 2015].

204 Ibid.

205 Cordelia Hebblethwaite, 'Has the Mormon Mystique Been Lifted?', BBC News (2012) <http://www.bbc.co.uk/news/magazine-20327593> [Accessed 18 September].

206 Kira Cochrane, 'Stephenie Meyer on Twilight, Feminism and True Love', The Guardian, (2013) <http://www.theguardian.com/books/2013/mar/11/stephenie-meyer-twilight-the-host> [accessed 27 April 2015].

207 Hebblethwaite, 'Has the Mormon Mystique Been Lifted?'.

208 Cochrane; Hebblethwaite, 'Has the Mormon Mystique Been Lifted?'.

209 Church of Jesus Christ of Latter-day Saints, 'The Publicity Dilemma'.

210 Ibid.; Tim Masters, 'Book of Mormon Musical Storms West End', BBC News (2013) <http://www.bbc.co.uk/news/entertainment-arts-21585803> [Accessed 18 September].

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beliefs’211 about abortion indicate that many believe abortion is murder. A likely source of exposure to these concepts may have been American media sources that support more conservative pro-life views or from right wing political rhetoric.

One piece of Mormon produced media has a unique place in the abortion debate is ‘Saturday’s Warrior’.212 The film begins with a joyous account of the musical’s success in influencing people to have ‘accepted’ children213 into their families; strongly implying that the children already belonged to them before conception. This musical and later film214 was extremely influential on many Mormons.215 Its main plot is the struggle of a young Mormon boy named Jimmy to come to terms with the strong family values of his parents and their desire to bring another child into their already large family.216 Unbeknownst to him his unborn sister is waiting as a spirit in the pre-existence for him to fulfil his promise to make sure she’d be born.217 Ultimately Jimmy repents and accepts the ninth sibling and assists in his sister’s birth.218 Opponents of pro-natalist views are presented as indolent, selfish, and materialistic.219 They use arguments about the environment to support selfish desires.220 While abortion is barely mentioned in the film it has a strong presence. The siblings in their pre-existent life silence a brother when he tries to mention abortion in a factual context.221 This implies the concept is so terrible that the word itself is taboo. Later Jimmy asks his pregnant mother if she will keep her pregnancy to the horror of his family.222 Spirits are presented as eagerly awaiting their birth, to specific parents.223 When a spirit experiences a ‘false alarm’, he expresses a strong sense of loss having waited so long.224 It seems to be implied he was aborted or stillborn, emphasising the responsibility Mormons have to provide bodies for spirits.

Jimmy seems to suffer cosmic punishment for his beliefs in the film. His mother’s pregnancy is implied somehow to rest on his decision,225 and when he does not return home his beloved twin dies of complications of her disability.226 This film has had a great deal of impact especially on Mormon folk beliefs about pre-existence as Mormons express fears of having ‘incomplete’ families or letting down potential unborn children. While this film may not be the originator of ideas about pre-existent promises and assigned family members it certainly has helped perpetuate these ideas 227. The idea that abortion could be killing a child you had promised to have in pre-existence could be a very powerful motivator for Mormons. Preventing their birth may not be murder but it would sever highly valued kinship ties.

211

Crapo, 'Grass-Roots Deviance from Official Doctrine: A Study of Latter-Day Saint (Mormon) Folk-Beliefs', p. 476.

212 Arrington and Bitton, The Mormon Experience: A History of the Latter-Day Saints, p. 187.

213 Saturday's Warrior 00:00:09-00:00:10 214 Ibid.; Arrington and Bitton, The Mormon Experience: A History of the Latter-Day Saints, p. 187.

215 Arrington and Bitton, The Mormon Experience: A History of the Latter-Day Saints, p. 187. Sundahl discusses how her personal beliefs were affected by the musical. Sundahl, 'Are You There God? It's Me Heather', p. 10.

216 Saturday's Warrior 00:41:00-00:42:22 217 Ibid. 00:13:06-00:13:26 218 Ibid. 01:51:00-01:51:35 219 Ibid. 00:33:00-00:34:15 220 Ibid. 00:34:15-00:34:43 221 Ibid. 00:12:41-00:13:06 222 Ibid. 01:19:00-01:19:49 223 Ibid. 00:10:30-00:11:51 224 Ibid. 00:25:00-00:25:41 225 His mother begins shrieking in pain and clutching her stomach right after a confrontation with Jimmy (ibid.

01:19:49-01:20:07). Later in the pre-existence his sisters seem concerned if Jimmy will remember his promise as if this would affect if the youngest will be born. Ibid. 01:29:30-01:30:09 226 Ibid. 01:24:00-01:29:35 227 Arrington and Bitton, The Mormon Experience: A History of the Latter-Day Saints, p. 187; Sundahl, 'Are You There God? It's Me Heather', p. 10.

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Conclusion I have now demonstrated that the thesis I presented in my introduction is likely to be correct. There have been a number of liberalising changes to the Church’s pronouncements on abortion which reflect federal and state law but are still aligned with a pro-natalist theology. But these pronouncements are flexible and allow members of the church to exercise a great deal of free agency and allow for the adoption of views on abortion that are politically motivated or influenced by sources outside of Mormon teaching. In the first part I outlined the relationship between Mormons and their church teaching and the dichotomy between the authority of the church and the Prophet and the emphasis on free agency for individuals. Then I explained the Mormon theological basis for their understanding of a pro-natalist viewpoint and the religious significance of Mormon women’s identities being linked to motherhood. These sections demonstrate the strong commitments Mormons have to pro-natalist views but also their commitment to free agency. I also explained how the flexibility of their doctrine is partly inherent due to the fact of ongoing revelation through the prophet and their historical lack of creedal doctrine. Then I explained the historical precedents to the Mormon pronouncement on abortion including the liberalising changes to the closely related issue of birth control. I also explained the significance of the Church’s decision to separate the concept of abortion from that of Murder. This is evidence of the church’s past flexibility on issues affected by rapidly developing technology and general social change and how this has happened in a significant way in their position on abortion. I then demonstrated that the data on abortion in Utah both after land mark decisions on abortion in America and in the present day indicate Mormons are actively trying to affect social policy on abortion and are likely avoiding abortion themselves. However I have also shown there are signs that some Mormons may have incorrect beliefs about church teaching due to external influences. I have then explained how the deep integration of the church in family life may affect how Mormons behave.

Finally I explained where external influences from the media and political discourse may have been influencing Mormon views. I have also demonstrated an example of Mormon belief being reinterpreted by Mormon individuals that may be influencing their views. It is my prediction based on my hypothesis that the church’s position on abortion may continue to change in response both to the changes in the abortion debate outside the church but also according to the new needs and cultural expectations of areas the church is expanding into particularly the needs of developing Latin American countries.228

228

Davies, An Introduction to Mormonism, p. 8.

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Reforming German Rape Law: Towards a Feminist Account of Rape Jana Cattien is a final year Philosophy, Politics and Economics (PPE) student. Her paper was submitted as a dissertation in Philosophy under the supervision of Dr Sylvie Gambaudo. Jana will continue to study for an MPhil in Gender Studies at the University of Cambridge

Rape is a difficult, complex and emotional issue which concerns feminists and non-feminists alike.

One in seven German women aged 16 and above is raped or sexually assaulted in her lifetime (Louis, 2010). However, according to a recently published study conducted by the Criminological Research Institute of Lower Saxony (Hellmann, 2014) only 8.4% of all rape trials in 2012 resulted in a conviction of the perpetrator, compared to 21.6% in 1992. The study partially attributes this decrease in the conviction rate to a statement issued by Germany’s Supreme Court in 2006 declaring that “evidence that the defendant ripped off the victim’s clothes and forced her to have sexual intercourse against her will does not sufficiently prove rape” which has led to a narrowing of the definition of rape in case law. As a result, German rape law has increasingly come under attack from women’s rights activists and politicians from major political parties. To quote the legal expert of the conservative Christian Democratic Union, Elisabeth Winkelmeier-Becker, “in Germany property enjoys better protection than sexual autonomy” (Gajevic, 2014). Responding to this pressure, the federal minister of justice, Heiko Maas from the Social Democratic Party, insisted in November 2014 that “we must do our best to protect women from sexual violence” and announced his intention to draft a reform proposal as soon as possible (Ibid).

Indeed, many years after women have been given access to full citizenship status in the western world, the conservative bias in the law and the inertia inherent in legal reform are still major concerns for feminists. In this spirit, Dworkin (1978) contends: Laws create male dominance, and maintain it, as a social environment. … Laws shape our perceptions and knowledge of what male dominance is, of how it works, of what it means to us. Laws shape the experiences we have before we have them. Laws significantly predetermine how we will feel, will understand, what will happen to us in life. (p.150) In accordance with her view, this dissertation is based on the assumption that the law constitutes an important discourse in society which wields normative power in virtue of its relatively high degree of institutionalisation and democratic legitimacy. This position in turn grants it a prominent role in society, either as a conservative force working to maintain the status quo, i.e. “male dominance”, or a progressive one pushing for social change. Critical feminist legal theory recognises the importance of the law to the pursuit of any kind of feminist agenda. Specifically, it seeks to uncover how certain laws contribute to the oppression of women as well as to project ways to overcome this oppression.

According to this practical commitment, the law is primarily considered in its role as a cause of patriarchy, even though the relationship undoubtedly also works vice versa. In light of this theoretical framework, this dissertation has two aims. The first is to formulate an “explanatory-diagnostic analysis” (Benhabib, 1992, p.152) of the current rape law in Germany to point out how it contributes to perpetuating a male bias. The second is to devise an “anticipatory-utopian critique” (Ibid) by indicating a direction for legal reform towards a feminist account of rape, as well as anticipating a vision of truly egalitarian sexual relationships. In this manner, I hope to show that it need not remain utopia in perpetuity.

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More precisely, the structure of my argument will run along the following lines: In chapter one I will describe contemporary German rape law and then illustrate its application with reference to a particular case. The intuitive discomfort with the judge’s ruling, resulting from its failure to derive the criminal wrongfulness of rape from its harmfulness, will be examined and justified in chapter two.

Here I will show that current German rape legislation is based on a theory of rape which feminist analysis will reveal to prioritise the perspective of men over that of women.

This in turn motivates the search for an alternative account of rape on gender egalitarian grounds.

Chapter three will therefore introduce the view that rape should be defined as nonconsensual sex. By properly defining all seriously harmful instances of sexual intercourse as rape, it satisfies the necessary condition for a feminist account of rape. Nonetheless, I will also point out that this view is similarly prone to introduce a male bias into the standard of criminality, the conception of the legal subject, as well as the judge’s basis for epistemic enquiry and normative evaluation, if it is combined with a liberal notion of consent.

As I will indicate in chapter four, however, these problems can be remedied if we combine the definition of rape as nonconsensual sex with a revised notion of the consenting self that acknowledges its “particularity”, “embeddedness” and “embodiment”, and a corresponding “relational account of autonomy”. In chapter five I will show that the resulting notion of “relational consent” can counter the objections raised in chapter three. In doing so, I will also discuss several practical implications of the ideas presented in this dissertation. This will enable me to indicate a direction for desirable reform of German rape law towards a feminist account of rape.

1.

German Rape Legislation

This chapter will establish the descriptive basis for the subsequent normative critique of the theory underlying German rape legislation. More precisely, I will present the current German rape law as well as a relevant application which will enable me to show that the existing legislation is unable to capture our intuition that the wrongfulness of rape is primarily a function of the harm it causes to a particular victim. This will, in turn, lay the foundation for my subsequent feminist critique of the theory underlying German rape law and motivate the search for a viable alternative.

According to §177 of German criminal law (Dejure, 2015), someone commits a rape when he or she forces someone else to perform or tolerate sexual acts involving oral, vaginal and/or anal penetration by use of force, threat of force, or by exploiting the vulnerable, defenceless situation of the victim.

Force is hereby understood as an act which physically constrains the victim in such a way as to effectively prevent or overcome resistance. The threat of violence in turn has to be such that it implies a threat to life and physical condition to either the victim him- or herself or close relatives. The condition of vulnerability, underpinning the third pillar of German rape law, is given if the objective possibilities of the victim to resist the perpetrator’s advances are significantly lower than in the average situation. Such possibilities may be attenuated by nature of the isolation of the place, the absence of third parties in the vicinity, or the age or physical condition of the victim.

In order to convict someone of rape on this ground, it must be clearly established that the victim could neither physically resist the perpetrator, escape from his or her attack nor appeal to the help of third parties. On the basis of this legislation, judges then interpret a given case in accordance with relevant case law. In order to fully grasp the implications of §177 it is therefore necessary to consider how it is applied in practice. The case I have chosen represents a useful starting point for my subsequent critique of the underlying theory of rape because it so strongly contradicts our intuition regarding the appropriate legal response to the infliction of harm. It is this intuitive discomfort with the judge’s ruling which shall be further examined, justified and remedied in this dissertation.

In its judgment from 10th September 2012 (henceforth referred to as Acquittal), the District Court Essen (OpenJur, 2012) acquits the suspected rapist of a 15 year-old girl. At the time of the incident, she was present in the defendant’s apartment, together with two other women, who work for the defendant as prostitutes and are acquainted with the complainant. At some point during said evening 105

the defendant, who was intoxicated with drugs and alcohol, suddenly prompted the two other women to leave the apartment. He then asked the complainant to undress herself. Ignoring her initial reluctance which she expressed by saying “No, I won’t”, he proceeded to penetrate her. Whether the defendant undressed the complainant against her will or whether she did so by herself could not be established during the trial. Nor could the complainant rule out the possibility that she lifted her legs to facilitate penetration. However, she convincingly testified that the defendant’s sexual advances were unwanted and “took her by surprise”, but that she was too afraid to resist physically, knowing about his unpredictable, sometimes violent behaviour, as well as the other two women’s likely unwillingness to help her. The sexual intercourse went on for 10 to 15 minutes, during which the complainant remained still and passive. Later in the evening, the defendant and one of the other two women had an argument, during which he heavily beat her. When the police arrived, the complainant did not report the alleged rape. She suffered a psychological trauma from the incident and spent almost two years in a therapeutic clinic. Her counsellor encouraged her to report the alleged rape to the police.

Given this evidence and her testimony, the judge did not doubt that the defendant penetrated the complainant against her will, causing the latter to suffer severe psychological damage. Nonetheless, he concluded that the elements stated under §177 are not given in this case and therefore decided to acquit the defendant. A consideration of the reasoning behind his judgment will be crucial to understanding why the account of rape underlying German rape law is ill-suited to account for the perspective of women and their concrete experience of harm. First, the court held that the requirements of a “vulnerable, defenceless situation” are not fulfilled. More precisely, it established that even though the complainant found herself in an unfamiliar environment and alone with the defendant, she could have either fled from the apartment or called for help from neighbours. The complainant’s fear of violence and of losing her reputation if her accusations are not to be believed, did not, according to the judge’s ruling, relieve her of her duty to try to avoid the rape by all possible means. Second, the judge held that the alleged perpetrator did not reveal a sufficient intention to rape because he might reasonably not have been aware of the nonconsent of the complainant. The fact that she initially refused to undress herself would not be sufficient for a rational person to unquestionably infer the absence of consent. The complainant did not make any other efforts to resist the sexual advances of the defendant, but rather remained silent and acquiescent during intercourse. There was thus no evidence of the use of force or threat of force. As neither the exploitation of the victim’s vulnerability and defencelessness, nor the use of violence or threat of violence could be proved, the defendant was not convicted of rape.

This acquittal illustrates the discrepancy between our intuition that the harmfulness of an action motivates and justifies its criminalisation on the one hand, and the current definition of rape in German law on the other. In the above example, despite strong evidence that the complainant suffered serious harm due to the incident, §177 led the judge to acquit the defendant on grounds entirely separate from the harm done. In other words, the very reason we are concerned about rape is that it causes harm to particular people. The current account of rape underlying German rape law, however, does not capture this intuition about the criminal wrongfulness of rape. I will examine this discrepancy more closely in the following chapter and show that current German rape law relies on an inherently flawed theory of rape.

2.

What is wrong with defining rape as violent penetration?

Irrespective of one’s attitude towards the scope of and rationale behind the law, it is evident that the criminal law needs to draw a boundary between illegal and legal practices which in turn requires a precise enough definition of the offence in question. With respect to rape law, those who hold that rape should be defined as violent penetration argue that the use of force is what ultimately distinguishes sex from rape. According to Tchen (1983), for instance, “rape is an act of violence, anger and power, distinguished by its coercive and sometimes brutal nature, and so the essence of rape is the force or coercion used by the defendant, not the lack of consent of the victim” (p.1529).

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Similarly, Wicktom (1988) argues that rape trials should focus on the perpetrator’s forceful conduct to draw attention away from the victim.

As I have shown in chapter one, German rape law falls within this category of approaches by defining rape as penetration achieved by force or threat of force. The only exception it recognises are cases where the perpetrator exploits the victim’s vulnerable, defenceless situation. However, as Acquittal has illustrated, non-vulnerability can be established even when escape and help from third parties are merely theoretical possibilities. Indeed, prominent legal experts contend that the conditions for vulnerability are too narrowly interpreted by judges in the sense that they are only fulfilled in extremely rare circumstances; for instance when the rape took place in a forest or comparably remote place (Louis, 2010). Given that the vulnerability condition is almost never relevant in practice, I will neglect it in the remainder of this dissertation and focus instead on the condition of force or threat of force.

Based on this assumption, this chapter will articulate an “explanatory diagnostic analysis” of the theory underlying current German rape law in order to show how it contributes to the oppression of women. More specifically, I will argue that the focus on the perpetrator’s misbehaviour implied by a definition of rape as violent penetration (henceforth referred to as VP) is fundamentally problematic for it prioritises what rape means to men over what it means to women due to a certain bias in the selection of relevant state of affairs, as well as their evaluation.

Deconstructing VP We have already seen in chapter one that criminal liability in German rape law is determined independently of the harm suffered by the victim. In other words, “the injury of rape lies in the meaning of the act to its victim, but the standard for its criminality lies in the meaning of the act to the assailant” (MacKinnon, 1989, p.180). In this section the failure to capture the harmfulness of rape will be traced back to the selection of legally relevant states of affairs and the way these are subsequently accessed and evaluated. Specifically, I will begin by presenting how criminal liability is determined according to VP and which characteristics of the legal subject are deemed relevant for this determination. I will then go on to describe the ways in which these states of affairs are established and assessed under VP before setting out to elucidate important feminist criticisms in the following section.

First, I believe that German rape law’s inability to account for the embodied harm caused to the victim is inherent to VP because it defines rape exclusively in terms of the perpetrator’s misbehaviour. On this account, it seems that rapists are punished for having been unable to control their body and to subordinate it to the force of reason (Lacey, 1998), rather than for having inflicted harm on the victim. Therefore, as we have seen with Acquittal in chapter one, VP does not capture all instances of harmful sexual intercourse; the victim’s experience of harm is legally relevant only if it has been legitimised by the perpetrator’s forceful conduct. Harm that arises as a consequence of conduct that does not fulfil the condition of criminality set by VP, however, is excluded from participation in the legal discourse. On a more abstract level, the result is that state of affairs pertaining to the behaviour and mental states of the perpetrator are considered more relevant to the determination of criminal liability than the effect of rape on the victim’s states of being.

The standard of criminality produced by VP in turn favours certain aspects of the person over others and therefore presupposes a particular view of the legal subject. Namely, it seems to be “defined in terms of a certain set of cognitive capacities combined with the power to master the will and hence to control one’s behaviour” (Ibid, p.111). On this view, the ability to refrain from violent conduct on the basis of rational considerations is considered the defining characteristic of the person in legal discourse. Likewise, legal subjects are accorded equal status in virtue of their rational autonomy. This perspective can be summarised by Benhabib’s (1992) concept of the “generalised other”, which means to “view each and every individual as a rational being entitled to the same rights and duties we would want to ascribe to ourselves” (p.158f), on the grounds “that what constitutes his or her moral dignity is not what differentiates us from each other, but rather what we, as speaking and acting 107

rational agents, have in common” (Ibid, p.159). Therefore, the generalised other treats others as rational beings with equal rights and therefore worthy of respect, but does not necessarily value them for the particular persons they are.

Moreover, due to its emphasis on equality instead of difference, this view of the legal subject is based on a conception of the body which does not easily accommodate for experiences of harm and violation. In other words, by defining the person in terms of his or her rational autonomy and assuming away contingencies of particular persons which might impact on their capacity to exercise this autonomy, the legal subject is implicitly marked as able-bodied, and crucially, as “not breached, penetrated or invaded” (Lacey, 1998, p.115). It is this normalisation of the body which leads to disregarding bodily experiences of harm in legal discourse.

Second, the court’s epistemic methodology, as well as its normative basis for judgment, similarly favour reason and rationality over emotions and bodily sensations. As mentioned in chapter one, the judge evaluated the situation given in Acquittal from the perspective of a rational person and assessed the complainant’s behaviour against the resulting standard of reasonability. In other words, he asked whether a reasonable person would have been able to infer that the sexual intercourse took place against the complainant’s will. He thus understands rationality as the appropriate epistemic and normative basis to establish and assess states of affairs relevant for a legal decision. This approach is enshrined in the law on the grounds that it is supposedly the only way to ensure an objective, fair and unbiased judgment. According to Nagel (1986), this “view from nowhere” which is the result of the detachment from our own particular vantage point carries certain epistemic advantages in that it may allow us to access a particular sort of knowledge: “…objectivity allows us to transcend our particular viewpoint and develop an expanded consciousness that takes in the world more fully” (p.5). This “expanded consciousness” may at first sight seem a particularly suitable epistemic ideal for judges whose assessment of rape cases surely ought not to be clouded by their own personal experiences and emotions.

At the same time, however, Nagel (1986) acknowledges that “there are things about the world and life and ourselves that cannot be adequately understood from a maximally objective standpoint” (p.7). For instance, leaving aside the legitimate question whether a genuine “view from nowhere” is practically possible, it is undoubtedly ill-equipped to capture the embodied, emotional dimensions of the crime of rape. Dispassionate objectivity, therefore, does not only expand the perspective of the perceiver, but also restricts it to a particular type of perception and understanding of the perceived. This point has been taken up and elaborated by feminists who argue that this mode of epistemic inquiry is biased in favour of men and therefore misunderstands the essential nature of rape, namely what it means to women. The following section is dedicated to their critique of VP.

A feminist analysis The gendered dynamics at the heart of rape become evident with one glance at the statistics: According to the German national health report, 7328 women were victims of rape or sexual assault (according to §177) in 2013, compared to only 380 men (Gesundheitsberichterstattung des Bundes, 2013). In light of this fact, a feminist analysis is particularly well-suited to uncover the ways in which German rape law contributes to the oppression and victimisation of women. Specifically, the following analysis will show that each of the aspects previously highlighted contribute to a favouring of what rape means to men over what it means to women. First, this is due to the fact that the standard of criminality does not reflect women’s experience of the harm caused by rape. Second, the male bias in the conception of the legal subject devalues the social roles traditionally associated with femininity.

Third, the “view from nowhere” is a product of the artificial reason/male – emotion/female dichotomy which diminishes the role of emotional (female) responses as a sound method of epistemic enquiry. In one way or another, therefore, German rape law perpetuates male dominance. This in turn justifies legal reform on gender egalitarian grounds.

With regard to the standard of criminal liability advocated by VP, MacKinnon (1987) contends that it leads women not to report rape because their experience of harm does not match the legal definition 108

of rape: “To me, part of the culture of sexual inequality that makes women not report rape is that the definition of rape is not based on our sense of violation” (p.82). This corresponds to evidence produced by a study of the Federal Ministry for Family Affairs, Senior Citizens, Women and Children which shows that the actual number of rapes must be almost double the number of reported incidents (Louis, 2010). Given that most rape victims are female and most perpetrators male, a standard of criminality focusing on the conduct of the defendant immediately removes women’s sense of violation from the sphere of legal visibility, signalling that the harm suffered by the mostly female rape victims is less a matter of concern than men’s failure to control their primitive sexual desire.

To employ Fricker’s (2007) terminology, this constitutes a case of hermeneutical injustice, which describes “the injustice of having some significant area of one’s social experience obscured from collective understanding owing to a structural identity prejudice in the collective hermeneutical discourse” (p.155). In other words, the interpretation of women’s experience of harm by dominant societal discourses on rape is negatively biased on the basis of systematic prejudices against them as members of the marginalised group of women. If women cannot understand and express the sense of harm they suffer qua women, then that is because the only concepts available to them favour the perspective of the socially more powerful group of men. This is not because rape laws are explicitly designed for the benefit of men, but because they tend to favour the perspective of the perpetrator, who often happens to be male. As Fricker points out, “the asymmetry arises from the concrete social and practical context in which the collective hermeneutical impoverishment impinges” (Ibid, p.161).

Due to this hermeneutical inequality, women are unable to make sense of an experience which they are disproportionately affected by and is thus in their interest to understand. Fricker even goes a step further by demonstrating how hermeneutical injustices can negatively impact on one’s epistemic confidence in general. In the particular case of rape, this means that women may not be aware of their own sense of violation because they don’t ask themselves “Did I feel violated?” in the first place.

Indeed, the ways in which certain experiences are collectively understood determines individuals’ knowledge of these experiences in their personal lives.

The perspective of men similarly dominates in the conception of the legal subject as a generalised other. In her research on moral development, Gilligan (1987) shows that women tend to frame relationships more in terms of attachment and care rather than equal rights, and are hence less inclined than men to consider others as generalised others. Instead, women are more likely to consider individuals as “concrete others” and thus to “view each and every rational being as an individual with a concrete history, identity and affective-emotional constitution” (Benhabib, 1992, p.159). On this view, “each is entitled to expect and assume from the other forms of behaviour through which the other feels recognized and confirmed as a concrete, individual being with specific needs, talents and capacities” (Ibid). In other words, the perspective of the concrete other emphasises the importance of care for and attachment to others as particular persons whom we may feel immensely responsible for or be fundamentally dependent on. The law’s construction of the legal subject as an abstract, rational and autonomous being therefore results in overlooking the perspective of women who have been socialised into making decisions not in a self-regarding vacuum, but rather from the standpoint of a self deeply enmeshed in social relationships and interested in their maintenance. For example, women are most often the primary caregivers for dependents, such as children and elderly relatives. Similarly, roles in society which involve care for others and sensitive responses to their particular needs, such as teaching or nursing, are very often filled by women.

Finally, the mode of epistemic enquiry and normative evaluation that VP invites can be considered as a product of the male/reason – female/emotion dichotomy dominant in western philosophy (Lloyd, 1993). Fitting into this tradition, Philo (1929), for instance, explicitly characterises the rational as masculine and superior to the feminine sphere of emotion: “… the rational which belongs to mind and reason is of masculine gender, the irrational, the province of sense, is of the feminine. Mind belongs to a genus wholly superior to sense as man is to woman” (p.215). His quote neatly illustrates the traditional view of the female as an embodied, corporeal and affective being, which stands in stark contrast to the rationality of the male. By prioritising rationality and reason over corporeality and

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emotion, both epistemically and normatively, VP is thus symbolically committed to the belief in the superiority of the male over the female.

Not only does the mind-body dichotomy devalue the traits traditionally associated with femininity, it also works to “suppress pre-philosophical beliefs about the cognitive salience of emotions and passions, denying the possibility that they might inform knowledgeable responses to situations or even, in some circumstances, generate the most reasonable responses” (Code, 2007). However, “dispassionate instrumental rationality” (Code, 2007) does not always generate the most appropriate knowledge because it may prevent judges from taking into account available and relevant information concerning the particularities of the case and the victim’s embodied experience of harm. If rationality represents only one half of the male-female dichotomy, then it does not necessarily produce universally valid knowledge, but rather “preserves an exemplary status for traditional white middleclass masculine ways of being” (Code, 2007) at the expense of traditionally female, emotional modes of thinking. When the judge in Acquittal declares the reasonability of the defendant’s belief in the complainant’s consent, we may thus rightly question: reasonable to whom? Once we have deconstructed the gendered dimension of the epistemic and normative order in the law, it its revealed that VP introduces an implicit male bias into the judge’s perspective on rape cases.

This bias has not only been revealed with respect to the means of epistemic enquiry and normative basis of evaluation favoured by VP, but has also been found in the focus on men’s conduct at the expense of the harm women suffer due to rape as well as the conception of the legal subject as generalised other inherent in VP. Overall, therefore, I would argue that VP implicitly prioritises what rape means to men over what it means to women. This makes it fundamentally problematic as a theoretical foundation for rape law in a society which aspires to gender equality in both the personal and the political sphere. The remainder of this dissertation shall therefore be concerned with finding an alternative theory of rape which is compatible with the feminist insights presented in this chapter.

3.

A first step: defining rape as nonconsensual sex

In the previous chapters I have shown that VP, which is the theoretical foundation for German rape law, is not only unable to capture all instances of seriously harmful sexual intercourse, but is fundamentally biased in favour of the male perspective on rape. Following from that, this chapter and the following will be concerned with formulating an “anticipatory-utopian critique” in order to project possible ways to arrive at a feminist account of rape. In light of this aim, I will consider the suitability of a popular alternative to VP which defines rape as nonconsensual sex (henceforth referred to as NCS) in this chapter. NCS’ underlying assumption is that sexual intercourse is only legal as long as it has been voluntarily agreed to by both parties without force, fraud or duress (Belliotti, 1991). Despite its ability to properly define all instances of severely harmful sexual intercourse as rape, it will be shown that a narrow, liberal understanding of consent is not sufficient to remove the male bias with respect to the standard of criminality, conception of the legal subject, as well as the epistemic and normative perspective of the judge. Nonetheless, I will conclude that this is not an inherent feature of NCS, but rather the result of particular underlying conceptions of the self and autonomy.

Before I can set out to present what makes NCS an appealing framework for rape legislation, it is necessary to make two conceptual clarifications. First, we need to acknowledge that VP is a subset of NCS, meaning that all instances of VP are simultaneously instances of NCS, but not vice versa. In other words, “under the umbrella of NCS the use of force is one but not the only circumstance in which consent to sex is vitiated” (Archard, 2007, p. 375). NCS therefore represents a broader account of rape than VP. More importantly, in order to pre-emptively counter a potential objection, NCS will be understood as sex-without-consent and not sex minus consent. Whereas the latter refers to sexual intercourse from which consent is missing but which nevertheless retains the positive aspects of consensual sex, the former is “a combinatory whole whose elements cannot be separately evaluated” 110

(Archard, 2007, p.382). Put differently, sex-without-consent is based on the insight that the element of nonconsent qualitatively modifies the nature of the “sex” in such a way as to eliminate all the positive connotations associated with consensual intercourse (Archard, 2007). Therefore, we can define rape as nonconsensual sex whilst at the same time acknowledging that rape is not primarily a sexual experience. This is important to debunk the common myth that victims of rape experience sexual pleasure (Pineau, 1989).

The necessary condition: NCS and the harm of rape On this basis I can now evaluate whether NCS can properly define all instances of seriously harmful sexual intercourse as rape. This requirement serves as the necessary condition for a feminist account of rape. As we have seen previously, VP, by contrast, fails to establish a direct link between the wrongfulness and harmfulness of rape because it uses the behaviour of the defendant as an indicator of the former and can thus not do justice to the victim’s experience of harm in cases such as Acquittal in which the perpetrator’s conduct was not sufficiently violent.

According to Bogart (1995), however, any definitional account of rape has to include all instances where the victim suffers the following harms: alienation, a violation of their interest in sexual selfdetermination, their interest in bodily integrity and their autonomy. He concludes that this condition is only satisfied by NCS, not for instance by a theory of rape which defines it as nonvoluntary sex (NVS). This is due to the fact that the umbrella of NVS does not include instances of sexual intercourse achieved through fraud or intoxication, even though the harms mentioned may arise in these cases as well. The concept of consent is useful in the sense that it requires a broader understanding of the nature of the action and its consequences than the mere requirement of voluntariness.

Following from Bogart’s argument in favour of the centrality of the harm standard, I will show that a criminalisation of NCS can be justified on the basis of the ‘Harm Principle’. This is the view that “it is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no other means that is equally effective at no greater costs to other values” (Feinberg, 1984, p.26).

In his account of justifications for legal coercion Feinberg further elaborates that lawmakers should be guided not only by the magnitude of the harm in question, but also the probability of it occurring. In other words, the criminal law should intervene only to prohibit practices whose risk, understood as the compound between the magnitude of the harm and its probability, is sufficiently high. On this basis, I will establish the link between the criminal wrongfulness and the harmfulness of rape by first demonstrating the great magnitude of the harm caused by NCS and then the high probability of its occurrence. For the purposes of my argument, I will define harm as the wrongful - that is unjustifiable and unexcusable -“thwarting, setting back or defeating of an interest” (Feinberg, 1984, p. 31).

In order to show that all instances of NCS should be classified as seriously harmful and thus punishable as rape according to the criminal law, I will employ the ‘spatial’ model of interests. Let us examine why it is well suited to understand the harm inflicted on victims of rape. The spatial model considers those interests most important which are most crucial to defining the self or personhood (Archard, 2007). It can thus account for the serious harmfulness of sex-without-consent by recognising sexual self-determination and sexual bodily integrity as interests at the heart of our value as individuals ─ interests which are fundamentally violated by any instance of NCS (Ibid). Archard further argues that the spatial model is appealing for it invites us to think of human beings as agents whose most fundamental interests are worthy of respect, not merely as a means to an end, but due to their intrinsic value to our personhood.

However, it may be objected that sexuality is in fact not as crucial an interest to all human beings.

This would in turn diminish the harmfulness of rape on the spatial account of interests. Archard replies to this objection by arguing that certain fundamental human interests are worth protecting 111

irrespective of what the individual her- or himself chooses to take an interest in. In other words, violations of our sexual and bodily integrity negatively impact on the conditions for human flourishing in general and are therefore intrinsically worth protecting. Bogart (1995) similarly contends that sexual self-determination is crucial to individual personality as “every person has an important interest in control over certain substantive relations in and aspects of their lives” (p.167).

According to him, the harm caused by rape is abstract in the sense that it arises whether or not it is recognised by the victim or others. The spatial model of interests can thus accommodate the serious harmfulness of sex-without-consent which arises irrespective of the forceful conduct of the perpetrator.

Apart from the magnitude, the law should also take into account the probability of the harm in question when determining its spheres of interference (Feinberg, 1984). If we consider that about 75% of rapes and sexual assaults are committed in private contexts, by acquaintances and relatives, compared to only 15% by strangers (Gesundheitsberichterstattung des Bundes, 2013), it becomes clear that the myth of the prevalence of “violent stranger rape” is not supported by empirical evidence.

Only one in three rape victims suffers visible physical harm (Louis, 2010). Instead, we observe a more and more widespread occurrence of “date rape”, that is “nonconsensual sex that does not involve physical injury” (Pineau, 1989, p.217).

Since the probability of date rape is high compared to rape involving physical violence at a similar magnitude of harm, an extension of VP to NCS is warranted on Feinberg’s liberal account of the scope of the criminal law. In other words, defining rape as NCS can be justified with reference to the ‘Harm Principle’ which considers the harmfulness an act causes to third parties the main rationale for its criminalisation. Therefore, NCS, unlike VP which is inherently committed to criminalisation on the grounds of the perpetrator’s violent conduct, is compatible with placing the harm caused to the victim at the heart of the crime of rape.

This represents an important step towards a theory of rape which takes seriously the perspective of women. However, even if NCS is compatible with linking the criminal wrongfulness of rape to its harmfulness, this does not guarantee that the embodied dimension of this harm figures in our understanding of the crime. In the following section I will examine this problem more closely and highlight why a liberal notion of consent is not sufficient as a theoretical framework for a feminist account of rape.

… but is it sufficient?

If we remind ourselves that the feminist analysis in the previous chapter identified a male bias in VP’s standard of criminality, conception of the legal subject, as well as its favoured mode of epistemic enquiry and normative evaluation, then it becomes clear that the ability to capture all instances of severely harmful sexual intercourse is not sufficient for a feminist account of rape. Indeed, in order to construe a genuinely egalitarian rape law, it is necessary to move beyond a formal conception of equality towards a deeper understanding of otherwise invisible, structural causes of inequality. In this section I will therefore show that a liberal understanding of consent as voluntary agreement without force, fraud or duress (Belliotti, 1991) makes NCS vulnerable to similar criticisms as raised against VP in chapter two.

First, it seems evident that, unlike VP, NCS with liberal consent can account for the fact that the conditions for determining criminal liability do not rest on states of affairs pertaining to the perpetrator’s behaviour, but rather to the complainant’s willingness to engage in sexual activity.

Furthermore, as shown in the previous section, it is compatible with making the harm suffered by the victim the main rationale for the criminalisation of rape which in turn legitimises her sense of violation in the legal discourse. However, this is not sufficient to ensure that the relevant states of affairs about the complainant include embodied and embedded experiences, as well as individual particularities, which, as has been demonstrated in chapter two, is crucial to remove the male bias from the conception of the legal subject. Indeed, an individualised notion of consent which disregards the context in which it is given risks overlooking significant individual differences which may impact 112

on one’s genuine possibilities to dissent (Lacey, 1998) and again constructing the legal subject as a generalised other.

Moreover, the theoretical ability to define all instances of severely harmful sexual intercourse as rape does not ensure that the “affective and corporeal dimensions” (Lacey, 1998, p.117) of this harm are accounted for, which in turn “closes off the possibility of developing a sophisticated conception of sexual harm” (Ibid). Arguably, the objectivist account of harm defended by Bogart (1995) and Archard (2007) is appealing in the sense that it provides a framework for establishing a direct link between the wrongfulness and the harmfulness of rape. Nonetheless, their understanding of the harm suffered by rape victims as the violation of sexual autonomy and bodily integrity is entirely abstract and overlooks its subjective bodily manifestations such as “pain, shame, loss of self-esteem, the sense of violation and objectification” (Lacey, 1998, p.116). In other words, their account does not acknowledge that it feels a certain way to have one’s right to sexual self-determination so fundamentally disrespected. This equally applies to cases in which people are unconscious during the rape; their harm is still a felt experience in the sense that it gives rise to certain bodily experience after having regained consciousness. The standard of criminality set by NCS with liberal consent is thus not sufficiently compatible with a feminist account of rape.

Second, a liberal notion of consent is insufficient to prevent judges from again exclusively resorting to rationality as a means of epistemic enquiry and basis for normative evaluation when establishing and assessing the presence or absence of consent. Indeed, an atomistic, abstract conception of the consenting individual may invite judges to evaluate rape cases from a detached perspective. At first sight, this seems to enable them to treat legal subjects fairly and equally, without bias. However, if we consider that the cognitive and contextual resources required for genuine, autonomous consent are not evenly distributed, a “view from nowhere” may well prevent judges from taking into consideration particular obstacles that individuals face. Put simply, equal treatment does not guarantee equal outcomes if the initial positions are unequal.

Overall, NCS with liberal consent seems to risk facing similar objections to VP with respect to the implied conception of the legal subject, the standard of criminality, and the epistemic and normative perspective of the judge. Nonetheless, as already hinted at in this chapter, these problems, unlike in the case of VP, are not inherent to NCS, but result from a liberal understanding of consent which is in turn based on a particular notion of the self and autonomy. In order to confirm this hypothesis, we first need to construe an alternative understanding of the self and autonomy and then demonstrate that the resulting modified notion of consent can rescue NCS from the potential charges discussed in this section. The following chapter will therefore begin by constructing such a revised notion of the self as a unique, embodied and embedded being and derive from it a relational account of autonomy.

4.

Reconceptualising the Self and Autonomy

In the previous chapter I established that a liberal interpretation of NCS is not sufficient for a feminist account of rape. As I will demonstrate in chapter five, this problem is not inherent to NCS but disappears once we consider the consenting self as a unique, embodied and embedded being which can make autonomous decisions not in spite of, but because of and in accordance with these features.

This chapter is therefore dedicated to laying out such a notion of the self as it should be understood in the context of consent as well as a corresponding conception of autonomy. I will begin by constructing a conception of the self which accounts for its uniqueness, embodiment and embeddedness and then derive a particular conception of autonomy on this basis.

A revised conception of the self

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First, the key to understanding the consenting self as a unique individual, with a particular history, personality and psychological-cognitive constitution is, again employing Benhabib’s (1992) terminology, to conceive of him or her not merely as a generalised, but also as a concrete other. As these concepts have already been explained in chapter two, I shall focus here on the implications of such a conception for questions of wider social justice as well as our moral responsibilities in interpersonal relationships. This will help us to understand how the concept of the concrete other can modify NCS in a desirable way.

With regard to questions of social justice, Benhabib (1992) advocates for an “interactive universalism” which demands to “recognize the dignity of the generalized other through an acknowledgment of the moral identity of the concrete other” (p.164f). She specifies that “neither the concreteness nor the otherness of the ‘concrete other’ can be known in the absence of the voice of the other” (Ibid, p.168). Treating others also as concrete others at the level of society thus requires an “institutionalised dialogue among actual selves who are both ‘generalized others’, considered as equal moral agents, and ‘concrete others’, that is individuals with irreducible differences” (Ibid, p.169). In other words, we need to put in place institutions and procedures which enable individuals to make their voices heard and represent their interests as the particular persons they are on the basis of equal rights for all.

Applying the concept of the concrete other to interpersonal relationships, on the other hand, places the emphasis on experiences of “responsibility, bonding and sharing [and] the corresponding moral feelings … of love, care, sympathy and solidarity” (Benhabib, 1992, p.159). Indeed, the concept of the concrete other accounts for the fact that very often we care for others not as abstract rational beings, but because of who they are. Likewise, “we are concerned not only to be treated as a person – any person – but to some extent as the particular persons we are” (O’Neill, 1985, p.260). O’Neill explains further what it means to treat those who are close to us both as generalised and concrete others: “To treat human beings as persons rather than as “ideal” rational beings, we must not only not use them, but must take their particular capacities for autonomy and relationality into account” (Ibid, p. 264) This in turn requires us to consider “the wider social context whose modes of discourse and received opinions may systematically undermine or belittle the other’s ends and capacities to pursue them” (Ibid, p.270). Treating others both as generalised and as concrete others in interpersonal relationships thus means to not merely grant them equal rights and respect them as rational beings, but to take into consideration the ways in which they might face particular obstacles to accessing these rights and to pursuing their interests.

This may for instance be the case if an individual’s body deviates from what society deems to be normal and thus becomes a source of discrimination, shame and dependency. Indeed, we are very much embodied beings in the sense that our bodily features and experiences fundamentally shape and constrain our life. Wendell’s (1989) feminist theory of disability, for instance, shows that considering the individual merely as a generalised other risks overlooking that some allegedly objective paradigms are oppressive for certain marginalised groups in society. She points out that the norms of corporeal invisibility and autonomy as independence which assume that everyone has a ‘normal’ body and is able to take care of themselves humiliates disabled persons and devalues their experience of dependency. Considering the self as a disembodied being forever obviates the possibility of elucidating the challenges of being disabled in a world designed for the able-bodied. Similarly, Alcoff (2005) coins the term “visible identities” in order to highlight the fact that certain bodily features, particularly those related to race and gender, carry a social significance: “Both race and sex … are most definitely physical, marked on and through the body, lived as a material experience, visible as surface phenomena and determinant of economic and political status” (Ibid, p.102). In this manner she shows how individuals’ social context and identity are enmeshed with their bodies. Namely, our own and others’ perception of our body is crucial to the process of identity formation in the sense that it profoundly shapes our behaviour: “race and gender consciousness produce habitual bodily mannerisms that feel natural and become unconscious after long use (Ibid, p.103).

On the other hand, accounting for the embodiment of the self also enables us to revalue the positive role the body plays in our lives as the origin of emotion and affection. Lacey (1998), for instance, 114

argues that instead of considering bodies as boundaries between autonomous, rational individuals, they should be viewed as “aspects of lived subjectivity through which people relate to one another” (p.117). Without the body, feelings of solidarity, love, friendship, sympathy and care, so crucial to a full and rich human life, would disappear behind cold and calculated rationality. This would in turn close off the possibility of appreciating the concreteness of others.

Once we have understood the importance of relationships in our lives, we can also begin to conceive of the self as fundamentally embedded. As we have seen above, shifting the focus away from our shared humanity and rationality towards the differences in social context reveals that we do not make choices as atoms in a vacuum, but are deeply influenced by the circumstances around us. We are thus embedded in the sense that our identity cannot be separated from the social roles and positions that we occupy in the community of human beings, as parents, children, siblings, partners and friends. Kittay (1995), for example, calls for attention to the particular relationship between dependents and those who care for them. She emphasises that the dependency worker cannot be autonomous in the sense of atomistic independence because she “attends to and voices the needs and desires of her charge in addition to, and sometimes at the expense of, her own; she assumes the same responsibilities other citizens have to each other and to themselves and assumes the added responsibility on behalf of one who cannot meet these responsibilities alone” (Ibid, p.12).

Relational autonomy It is thus evident that embeddedness may place constraints on our capacity to pursue our interests and projects in an independent way. As long as we understand autonomy as atomistic independence, we will not be able to reconcile it with the interdependence that is so fundamentally characteristic of our lives, particularly for women who are often the primary caregivers of dependents. For this reason, feminists have developed an alternative, relational conception of autonomy which I will discuss in this final section. More precisely, I will show that conceiving of the consenting self as a unique, embodied and embedded being has important implications for our understanding of autonomy. As I will establish in the following chapter, this will in turn lead to a revised notion of consent which will enable NCS to meet the charges raised in chapter three.

Before I can lay out my version of relational autonomy (RA), as derived from the conception of the self as fundamentally unique, embodied and embedded, it is necessary to clarify that I am concerned with autonomy in the sense of personal autonomy, which, broadly speaking, is “the idea of being one’s own person, directed by considerations, desires, conditions, and characteristics that are not simply imposed externally on one, but are part of what can somehow be considered one’s authentic self” (Christman, 2005 p.3).

On this basis, a common interpretation of RA then makes two fundamental relational claims: First, the sort of self who could realize personal autonomy is an inherently social being who becomes a distinct self with a particular identity only through interpersonal relationships with other persons.

Second, autonomy requires capacities that must either be learned from others, such as selfunderstanding, questioning, doubting, or imagining alternatives, or that must be exercised in interaction with others, for example, the telling of narratives about oneself. (Friedman, 2000, p.217f) Baier (1985) summarises this fundamental relationality of human beings in the concept of second persons which incorporates the insight that an individual’s sense and development of personhood is dependent on maintaining relations of interdependence with others: “Persons are essentially successors, heirs to other persons who formed and cared for them, and their personality is revealed both in their relations to others and in their response to their own recognized genesis” (p.85).

However, as Friedman (2000) rightly points out, this account of RA does not acknowledge that relationships are not always conducive to the development of personal autonomy, but may also constitute an obstacle to it. This is particularly the case in relationships characterised by dependence, abuse and violence. To account for this possibility which seems highly pertinent in a dissertation on 115

rape committed primarily by non-strangers, I will instead opt for a more general formulation of RA which is based on “the conviction that persons are socially embedded and that agents’ identities are formed within the context of social relationships and shaped by a complex of intersecting social determinants, such as race, class, gender and ethnicity” (MacKenzie and Stoljar, 2000, p.4). At the same time, it enables us to “think of autonomy as a characteristic of agents who are emotional, embodied, desiring, creative, and feeling, as well as rational, creatures; and [to] highlight the ways in which agents are both psychically internally differentiated and socially differentiated from others” (Ibid, p.21).

I have chosen this particular formulation of RA because it aptly reflects the features of the consenting self highlighted in the previous section ─ namely uniqueness, embodiment and embeddedness.

Indeed, it accounts for the importance of relationships and social factors as well as the embodied aspects of our existence, the role of emotions and affection. This version of RA also allows for the possibility that our bodily features can significantly shape our social identity. Finally, it calls attention to the differences between individuals, both with respect to their psychological-cognitive constitution and their social context, and thus conceives of them as concrete others.

If we remind ourselves that it is the aim of this chapter to find a conception of autonomy that is compatible with understanding the self as a unique, embedded and embodied being in order to rescue NCS from the charges presented in chapter three, it becomes clear that we need to formulate RA in a way that it can serve as a prerequisite for consent. On the basis of the account defended in this chapter, I will therefore define relational autonomy as the realistic ability to pursue one’s own projects, interests, needs and values, both of rational and emotional nature, as a particular embodied person equipped with a psychological-cognitive constitution and embedded in a social context which allow for such pursuit.

This formulation will in turn enable me to construct a feminist version of NCS in the following chapter.

5.

Towards a Feminist Reform Proposal of German Rape Law: NCS with Relational Consent In the previous chapter I have presented a conception of the self as a fundamentally unique, embodied and embedded being and derived an alternative, relational account of autonomy from it. In this chapter I will now apply the latter to the notion of consent in order to construct a modified version of NCS which can meet the objections raised in chapter three. Specifically, I will construct a feminist version of NCS by basing it on a relational notion of consent which ensures an individual’s voluntary agreement without fraud, force or duress not hypothetically, in ideal, abstract circumstances, but in his or her particular context. Metaphorically speaking, I attempt to remove consent from the high table where it has for a long time dined with noblemen of the likes of Mill and Locke, and use it to empower real people, to give them actual control over their sexual relationships. In doing so, I will discuss some moral and legal implications of NCS with relational consent in order to indicate a direction for desirable law reform towards a feminist account of rape.

If we apply the results from the previous chapter to the notion of consent, it soon becomes clear that the problems faced by NCS in chapter three are not an inherent feature of consent. The previous chapter has shown that recognising individuals’ unique, embodied and embedded features leads to a relational account of autonomy which can accommodate for autonomous choice in harmony with these features. Following from that, I can define relational consent as consent given by an agent who is relationally autonomous according to the definition given at the end of chapter four. Crucially, this will enable us to meet the potential problems raised in chapter three, namely the conception of the legal subject as a generalised other, the failure to account for embodied harm, and the judge’s epistemic and normative aspiration to rationality. I will show how each of these can be remedied by combining NCS with a relational understanding of consent as derived from the requirement of the consenting agent’s relational autonomy.

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First, defining relational autonomy as the prerequisite for consent ensures that sexual partners consider each other as concrete others. Indeed, the information required to establish relational autonomy is only revealed with mutual understanding, trust and communication. This in turn aligns well with Pineau’s (1989) model of communicative sexuality: “Just as communicative conversationalists are concerned with more than didactic content, persons engaged in communicative sexuality will be concerned with more than achieving coitus. They will be sensitive to the responses of their partners. They will, like good conversationalists, be intuitive, sympathetic and charitable” (p.236).

She proposes to view sexual relationships not merely as a calling upon rights and obligations with the aim of immediate gratification, but as requiring friendship-like behaviour, which emphasises the quality of the interaction, sharing and support. This in turn involves staying attuned to the well-being of the partner and to ensure the mutuality of the experience throughout. Indeed, to “treat others as ends may also require action when dissent is in principle possible, but those actually involved have limited capacities to dissent” (O’Neill, 1985, p.263). Ensuring the relational autonomy of the sexual partner thus goes far beyond merely interpreting a lack of resistance as consent, but to actively evaluate their particular capacities to show dissent and to be sensitive to their individual vulnerabilities. Therefore, defining relational autonomy as a prerequisite for consent invites us to consider consent no longer merely as an abstract means to an end, but also as an end itself, namely the shared experience of appreciating the infinite concreteness of the other.

One way of putting these ideas into legal practice is to define rape as nonconsensual sex and to define consent in terms of affirmative signs of willingness to participate in sexual activity. This has for instance been implemented with the recent law reform in California (California Legislative Information, 2014) requiring universities to adopt a policy which includes the following: An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.

Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Even though the full implementation of a communicative model of sexuality requires a change in mentality above everything else, I believe that an affirmative consent standard could lay an initial foundation by signalling that ensuring consensuality is the responsibility of both partners. On this account, it would be illegal to simply infer the presence of consent from the absence of dissent. To the contrary, establishing affirmative consent requires at least a minimal amount of communication, be it verbal or non-verbal, as well as a certain sensitivity to the other’s responses.

Furthermore, an affirmative consent standard reflects the fact that a decision to engage in sexual activity is not merely the outcome of a rational deliberation, but also the embodied manifestation of a desire for pleasure and affection. Indeed, ongoing affirmation in the context of sexuality is not like a one-off signature on a contract, or the rational outcome of a negotiation. It is an enthusiastic sign of willingness to have sex which manifests itself in the body. In other words, we consent to sexual activity not primarily with our minds, but as embodied beings with feelings and affection. Relational consent is not an agreement whose essence can be extracted and written on a piece of paper, it exists only in virtue of the embodied people involved in the sexual activity. Therefore, consent in sexual relations is necessarily a product of people’s desires and emotions and needs to be understood as such.

This is important because only once we acknowledge that sexuality and the body go hand in hand, can we conceive of rape as an attack on the body, a corporeal violation of one’s personal space which gives rise to a certain subjective bodily experience. Understanding the legal subject as an embodied being thus enables us to define rape as NCS for legal purposes and still account for the bodily dimension of the harm inflicted on the victim.

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Building this insight into the law would in turn require us to include the embodied harm suffered by a victim into the standard of criminality by considering it as strong evidence for the nonconsent of the complainant. Indeed, if someone feels so violated that they are willing to report their case to the police and re-live their experience in a trial, the defendant should be required to show that he or she has taken appropriate steps as to ensure his or her partner’s affirmative consent. In addition to that, rape trials should provide space for alleged victims to give an account of their traumatising experience and emotional states in a non-judgmental environment.

This would further require to replace the judge’s “view from nowhere” with a more human-centred perspective on rape cases. As we have already established previously, a detached, rational perspective does not necessarily ensure objectivity; to the contrary, it introduces a gendered epistemic hierarchy into the law and only allows to access certain kinds of knowledge. Crucially, therefore, it does not account for the fundamental uniqueness and embeddedness of human beings. One way to address this problem would be to encourage judges to be more sensitive to context when establishing the presence or absence of consent, as is required to ensure relational autonomy. In the case of Acquittal, for instance, this would induce them to recognise the large age difference as well as the realistic threat of violence as substantial obstacles to dissent.

Nonetheless, as the law necessarily has to generalise over particulars, there are good reasons to maintain some form of objectivity as an epistemic and normative standard. However, we can change the way that we think about rational outcomes in legal discourse. Michelman (1986) offers an appealing illustration of the fundamental problem with the epistemic method by which German judges arrive at their judgment: What is lacking is dialogue. Hercules ... is a loner. He is much too heroic. His narrative constructions are monologous. He converses with no one, except through books. He has no encounters. He meets no otherness. Nothing shakes him up. No interlocutor violates the inevitable insularity of his experience and outlook. Hercules is just a man, after all. No one man or woman could be that. (p.76) In other words, the outcome of a single person’s reasoning cannot be objective, but needs to result from a constructive dialogue with other human beings. As Habermas (1996) elaborates: ‘Rightness’ means rational acceptability supported by good reasons. The validity of a judgment is certainly defined by the fact that its validity conditions are satisfied. Whether these are satisfied, however, cannot be clarified by direct access to empirical evidence or to facts given in an ideal intuition, but only discursively, precisely by way of a justification that is carried out with arguments. (p.226) On this view, objectivity is defined by the method, not by its content. Indeed, once we acknowledge that the lived reality of human beings is infinitely complex, the objective validity of a claim cannot be defined in terms of its corresponding to an actual state of affairs assessed according to an ideal principle, but needs to be derived from its acceptability to a group of individuals. The latter in turn emerges as the conclusion of a discourse under favourable conditions, i.e. in which nobody’s perspective is disadvantaged. If “what counts as a ‘good reason’ manifests itself only in the role it has in an argumentation game” (Ibid, p.227), then genuinely objective judgments will only ever result from the agreement between several people who attempt to convince each other of their respective positions: “The argumentative process of the cooperative search for truth ideally closes the rationality gap between, on the one hand, the individual substantial reasons set out in fundamentally incomplete sequences of argument that are at most plausible and, on the other, the unconditionality of the claim to the ‘single right’ decision” (Ibid, p.228).

What Habermas envisages here in many ways resembles Benhabib’s “interactive universalism”, which combines the perspectives of the generalised and the concrete other in order to arrive at an “institutionalised dialogue between actual selves who are both … considered as equal moral agents, and … individuals with irreducible differences” (1992, p.169). Practically speaking, this would require the adoption of a citizen jury system in which the judgment of a case is the outcome of 118

deliberation by ordinary people. This certainly constitutes a fundamental break with Germany’s entire legal tradition and is therefore difficult to implement. Nonetheless, it is a long term legal reform which is worth considering in the context of this dissertation. In order to fully appreciate the embeddedness and concreteness of the legal subjects and thus to establish their relational autonomy, a single judge’s detached perspective on the case does not suffice. Even if we acknowledge that rational responses are more appropriate than emotional ones in a legal context, we are not obliged to accept how rationality is currently understood in German rape law. Indeed, in light of Habermas’ argument it seems more desirable to adopt a form of ‘procedural rationality’.

Conclusion By critiquing current German rape law as well as indicating a direction for reform towards a feminist account of rape, I have attempted, in this dissertation, to formulate both an explanatory-diagnostic analysis as well as an anticipatory-utopian critique in order to make a contribution to critical feminist legal theory. The initial intuitive discomfort which arose in reaction to the way in which German judges currently assess rape cases has been justified and put into a feminist perspective, thereby revealing the underlying male bias in German rape law. This has in turn motivated our search for a viable alternative which can accommodate for certain feminist insights regarding the selection of legally relevant states of affairs and the means of epistemic enquiry and normative evaluation in legal discourse.

At first sight NCS seemed loyal to the feminist cause; it has proven compatible with criminalising all instances of severely harmful sexual intercourse which is a crucial step in accounting for the experience of the majority female rape victims. However, looking closer, we encountered problems similar in nature to the ones faced by VP. The crucial difference is that, unlike with VP, these are not inherent to NCS, but can be remedied by replacing the liberal notion of consent with the broader conception of relational consent which conceives of autonomy in a way that it can truly be realised by unique, embodied and embedded beings. This in turn enabled us to project a form of sexuality which is based on communication, mutuality and sensitivity to the other’s vulnerabilities. Furthermore, looking at consent through the lens of the body calls attention to the importance of accounting for the embodied dimension of the harm inflicted on the rape victim in legal discourse. Similarly, appreciating the embedded nature of human lives fundamentally changes the way in which we define objectivity in the law, moving away from detachment and towards a more human-centred view on legal issues.

As I have shown in this dissertation, despite its apparent commitment to freedom and equality, consent is not necessarily a feminist ally and risks perpetuating gendered power dynamics in a way similar to violence-based conceptions of rape. This is only the case, however, if we attempt to incorporate theoretically egalitarian ideals into the existing social and epistemic order without questioning the gendered bias inherent in its conceptual foundation. As this dissertation has argued, a truly feminist account of rape can only be achieved if it does not merely define rape as nonconsensual sex, but, crucially, is based on a revised notion of the self as embedded, embodied and unique and correspondingly, a relational understanding of autonomy. The proposed notion of relational consent then serves to fill the linguistic gap resulting from our lack of language through which to envisage consensual sexual relationships that are egalitarian not in a formal sense, but substantively. Only then can women, as well as men, wield genuine control over their sexual lives.

The law can play an important role in conferring institutionalised democratic legitimacy upon such a notion of relational consent. By projecting a vision of truly egalitarian sexual relationships, it would work as a genuine blueprint for social change and no longer as a conservative force maintaining male domination. Along the way, many more problems are yet to be addressed. Importantly, rape laws do not merely commit implicit hermeneutical injustices against women, but also testimonial ones (Fricker, 2007). For example, this phenomenon describes the socially constructed distrust towards women’s testimonies of sexual violence which in turn often undermines their credibility in rape trials.

Therefore, legal reform necessarily needs to be accompanied by social change. And this begins with the questioning of gendered myths around rape and sexuality by every single one of us.

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A patriarchal divinity or his son is exactly not in a position to save us from the horrors of a patriarchal world: a feminist critique of Graham Ward’s Christology.

Imogen Rolfe has recently graduated with a BA in Theology from St Aidan's College, Durham University. During her third year she specialised in Philosophical Theology and the social implications of gendered Christian theology. This paper was written as part of 'The Postmodern God' module under the guidance of Dr Marcus Pound.

In the light of a historical record of subjugation, repression and gendered violence towards women by men, Mary Daly (in a variant of Rosemary Radford Ruether’s question ‘can a male saviour save women?’) declares that a ‘patriarchal divinity’ cannot save women in a capacity that remedies the female experience of a ‘patriarchal world’. Daley states that a masculine incarnation of God is inadequate salvation for women, as this does nothing to break the patterns of male-dominated culture and further reinforces phallogocentrism. Moving away from the ontological subordination associated with the God of masculinity, Daly posits a new theology of women’s liberation which shifts the focus away from Christ’s male-ness. Graham Ward offers a theology in which Jesus’ body is displaced and transformative; there is no ontological hierarchy to gender because Christ is beyond gender. Whilst Ward’s analysis addresses claims of biological essentialism to Jesus’ character, the displaced body of Christ does not sufficiently account for the construction of gendered subjectivity. Even if we displace Christ’s body we cannot ignore his relational experience in male embodiment, therefore in order for there to be a meaningful soteriology for women we require a Christology which respects sexual difference without resorting to essentialism. This Christology must accord with subjective female experience, alter patriarchal conceptions of sexual difference and provide salvation for women in particular.

The patriarchal world that Daly describes is a ‘sexual caste’ system governed by the male patriarch, in which women are treated as ontologically inferior beings, conditioned to be subjects with a ‘derivative status’ in relation to men. All linguistic and relational structures are androcentric, limiting female autonomy and expression and legitimising patriarchal logic by restricting the discourse of an alternative. A male incarnation of a divine saviour corresponds with patriarchal structure and logic, instead of offering a new plane of existence.

This reinforces ‘exclusively masculine symbolism for God’ and fits comfortably alongside the androcentric bias prevalent in theological ‘conceptual systems’ that promote a subordination of women. What meaning can Paul’s claim that ‘in Christ there is no male or female’ have when women have an auxiliary presence to the central masculine symbolism prioritised by the Church?

Feminist theologians share a concern that Biblical narratives are traditionally received through a lens which prioritises the masculine. Based on traditional Catholic readings of key Biblical women, which colour figures such as Mary with an ‘androcentric ideal’ of femininity, Beattie questions the extent to which women can be shaped by a narrative which ‘works in opposition to the woman’s bodily sense of self’. If the narrative is ‘mediated and authenticated by men’ then the masculine becomes the universal standard of being, which marginalises women as secondary and reduces their embodiment to a functionality suited to male ends. For Daly, the presence of a male saviour results in signifiers to women, such as Mary, existing purely in relation to the primary male, to which all credit of divinity is given.

Since the symbol of Mary has been constructed by men and represents male subjectivity, the typical virtues associated with femininity are an ‘active role attributed to Jesus’. This is the 122

result of a hierarchical dualism placing Mary in ‘relation’ to Jesus and a hierarchical ‘duality with men’.

Woman is categorised as the ‘other’ compared to the central and divine presence of the man, excluded from a humanity that gain a presence through their resemblance to the embodied God, and are faced with ‘non-being’. For women to experience salvation through liberation from this marginalisation they cannot be approached externally as an ‘other’ by the patriarchal figure, but must arise internally from the subject, ‘asserting instead “I am”’.

Irigaray echoes this concern about women’s restricted aspect to their own being by expressing a need for woman to know a God who is a ‘perfection of her subjectivity’, rather than accepting an externally imposed symbol which does not ‘match’. In order for woman to fully become herself, she needs know a symbol of divinity which is truly hers, rather than partially participate in an idealised masculine form. For Irigaray, in the present moment female incarnations are not owned by women, but exist to please an ‘other’, which hinders women’s becoming. Irigaray believes that she cannot be saved by an a man for the sake of men, so instead states ‘I have yet to unveil, unmask, or veil myself for me’.

Daly’s objection to a male saviour has overtones of biological essentialism, for the fact of Christ’s sexed body is of primary concern, rather than what happens to Christ’s body. An essentialist approach posits that regardless of how much Jesus’ body is moved or shaped, it contains within it a male presence symbolising patriarchy. This problematizes women’s liberation, for similarly no action or transformation of an embodied woman separates her from present icons of femininity such as motherhood. Ward’s Christology sees Christ’s maleness as an exemplar of the ambiguity of his flesh and its complication of sexuality, moving away from essentialism.

Gospel narratives transform and displace Christ’s body, causing us to question the presence of Christ’s masculinity. Scenes depicting Christ’s transfiguration, such as the Eucharistic supper and resurrection ‘problematise the sexed nature of Jesus’ body’. Christ’s body occupies space on a radically different level than conventional understandings of sexual presence; the deferral of Christ’s body into the Eucharist places himself into the hands of others to be consumed. Jesus ‘male physique’ at that moment of blessing occupies the ‘neuter materiality of bread’, making the body simultaneously ‘sexed and unsexed’. The transformative nature of Christ’s physicality does not make it meaningless, ‘rather it is overwhelmed, drenched in significance’. Christ’s body becomes intensely symbolic as it is unrestricted by ‘established categories’ such as gender, so all people are able to understand themselves better through our own psychosomatic associations with the icons it displays. Christ’s body becomes a ‘symbolic template’ upon which a weeping wound reminiscent of female lactation and menstruation may appear, as well as the associated emotions and experiences. The intense symbolism of Christ’s body invokes ‘empathy’ from a multitude of subjectivities, and also causes them to be aware of their ‘primary levels of desire’.

In Ward’s theology there is no singularity to Christ’s gender because it is continually divided and displaced, and so there is no way to possess or appropriate Christ’s body. Christ instils a desire in people calling us to participate in a mutual, erotic love, as opposed to the Freudian or Hegelian ‘economies of desire’ born from a sense of lack. There is no primary logos generating a form of ontological subordination, such as the structure of Daly’s patriarchal world. The structure of Christian desire is ‘not only my desire, but God’s desire for me’. This desire is met with a continual folding and unfolding upon itself, focussed entirely on the divine-human relationship and the continued understanding of oneself through recognition of this desire. Daly’s theology replaces God the Father with ‘God the Verb’, so that revelation can occur ‘at every historical moment, in every person and culture’ through ‘selfactualisation’ rather than through legitimisation by a superior. Ward describes this as a type of personal revelation, but one mediated by the symbolism present in Christ’s ever-changing body.

Ward’s theology is problematic because it considers the displacement of Christ’s physical sex to suitably displace his masculine subjectivity, which does not account for where subjectivity is formed. Whilst Ward mentions the radical nuances of the ‘performance of Jesus the gendered Jew’, he does not consider thoroughly how Jesus’ embodiment may have influenced the way he was socially received, and the role this plays in the psychological construction of gender. He lived as a man and was treated as such by others, and the socio-historical gendered power dynamics which framed his experience are scripturally significant. The narrative of Luke 7:35-50, in which Jesus defends a woman washing his feet, derives its ethical and salvific meaning from the woman and Pharisees’ encounter with Jesus as a man.

The subjectivities of sexual difference are relational and shape experience, and female subjectivity is repeatedly marginalised by patriarchal tradition. A Christology which saves women must acknowledge the difference of Jesus’ subjectivity and respect the varying subjectivities of sexual difference.

A Christology providing salvation for women must be relevant to the women’s experiences as exceptional figures within patriarchal structure and enable new space for self-expression.

Ward’s Christ is sexed and un-sexed because his body is intensely symbolic, however also applies to ordinary experience. If gender is not intrinsic to biology, then it must be mediated through signifiers articulated through a linguistic structure. Lacan proposes a ‘formulae of sexuation’ demonstrating how gender is ‘not a matter of biology, but structural pattern’. This describes the normativity of masculine symbols and women’s exclusion from them in terms of phallic ‘jouissance’. Men are characterised as a whole by the masculine exception who ‘is not subject to phallic jouissance’. This is the prime-mover existing outside this experiential system, which provides foundation for onto-theology. Lacan articulates a masculine metaphysical structure which relates purely to the structure of masculine subjectivity, creating a castrated ‘norm-male’ standard which positions women as the ‘other-set’ to men.

There is no unitary trait signifying women as there is for men, so women find themselves distinctly outside of these metaphysics. As women have no equivalent onto-theological exception which standardises her being, there is no signifier pointing beyond her embodiment. When speaking the language of their culture, women cannot assert their own being, so their exception characterises their being as women. Žižek describes culture is the ‘negation of women’, as it confines women within a repressive masculine structure which defies female self-expression within its boundaries. Irigaray nuances Lacan’s formulae for sexuation when describing the importance of the symbolic, for as men have the means to participate in signifiers which include them in a unity, there is no symbolic ‘mirror’ through which women can be ‘visible to themselves’. Irigaray states an imperative for women’s goals to come from ‘inside’ themselves, whilst also making room for a God as an objective presence guiding female subjectivities.

A liberating theology for women must recognise their restrictive cultural landscape and actively acknowledge the typical female lived reality. Beattie gives special attention to the Biblical representation of the ‘wife and mother’ in her theology because these are mostly the ‘primary relationships that situate [women] in the world’. Beattie values Christ’s incarnation because it draws attention to the ‘maternal, feminine life’ in Mary which signifies this female experience. Women require a saviour which makes space for their own becoming by creating a new space from which this can unfold, whilst also acting as a signifier towards female experience.

The sexual subjectivities of men and women articulate a particular structural landscape and the meaningful experiences which constitute these identities. Women are disadvantaged by the structure of difference, so a saviour of women would have to reorient conceptions of sexual difference to liberate female action and expression. As masculinity is ‘normative of culture’, when women speak they repeat phallogocentric expressions, so making the same male saviour female does not change the patriarchal structure. Having the ‘possibility that

God might be made flesh as a woman’, as stated by Irigaray, re-labels the onto-theological exception of masculine subjectivity, bringing no new presence to female being.

Beattie states that labelling God as feminine ‘incorporates women into the phallocentric values’ determined by men, so female salvation requires diverting attention from the phallus and towards existing subjects so far ignored by the Christian tradition. For Beattie, a new account of female salvation can be discovered by examining the Virgin Mary in ways which have been neglected by Catholic theology, and in doing so reaffirm the ‘reconciling power of the incarnation’ whilst identifying narratives relating to women’s salvation. Christ’s divinity as understood through Mary does not point in a singular, upwards direction to an ontotheological patriarch, but gestures side to side to his embodied peers. Christ remains divine, but is essentially linked to embodiment by a woman’s presence. This embodiment is what grants embodied humanity its salvation. Beattie interprets this as a way to understand the fundemental ‘same-ness’ of one another as mediated by the difference of incarnation. The ‘incarnate space of Jesus’ life’ as facilitated by Mary represents the ‘paradox of the human condition’ in which we are situated between ‘word and flesh’. Mary’s placement as the foundation for Christ’s incarnation disrupts the patriarchal convention of focussing on the ontological exception as reference to the self and opens a new gateway to female selfdiscovery.

Reorientation and re-definition of language and attention is vital for women to understand themselves and experience salvation outside patriarchal structure. Words must be associated with new and broader meanings; women only have full humanity if they are a normative sisterhood, rather than a ‘subordinate mini-brotherhood’. Daly proposes a systematic ‘liberation-castration-exorcism’: an approach to language which identifies and casts out structures which disproportionately privilege the phallus. Irigaray’s approach does not antagonise the male saviour but reorients our ‘metaphysics of desire’ from prioritising masculine subjectivity to considering it an ally in bringing women to a fuller understanding of themselves. A ‘new transcendentalism’ is required to depart from gnostic dualism and invoke transcendence through relationship, which can be strengthened by the fact of sexual difference. ‘Sexuate subjects’ escape from patriarchal structures by ‘living outside of their autonomy’ and extending their private subjectivities to be in relation to those different to themselves.

Ward’s analysis of this relationship sees Jesus’ Christology as manifested both ‘within’ him and ‘“between” that other person also’, which means that rather than participating in an economy of ‘Hegelian sublation’, salvation is contained within the throes of relationship.

Ward expresses this outpouring of the self as ‘transgressing notions of individualism’, which prevents Christ from being viewed as the man ‘Par Excellance’ in a dualist epistemology and opens up a possible analogical relationship between his incarnation and humanity. When contextualised by sexual difference, it is impossible to assert an ontological hierarchy upon a mutual outpouring of desire between the personhood of the other.

Christ’s masculinity does not necessarily restrict women from salvation, however his physical status cannot have any ontological necessity in his salvific potential, for this excludes women from participating in divinity. Carbine cites Johnson’s interpretation of Christology enacting the traditionally female Wisdom tradition as a movement away from ‘patriarchal Christologies’ in which women presume they are ‘covered’ or ‘subsumed’ by the male humanity of Jesus in order to be saved. Christ’s incarnation remains essential to salvation, but the focus is shifted away from the status of his humanity and towards his ministry. This approach is taken by womanist theologians who have an interest in how the ‘gospel-based ministry of Jesus’ relates to the lived experiences of black women. As a non-black male, Christ’s physicality has been historically appropriated to justify oppression, so womanists often portray Jesus as a black woman in order to expose the sexism and racism inherent in theologies which lionise his physical particularities. These examples demonstrate how

important it is that a group marginalised as the ‘other’ can place the embodiment of their saviour in the context of their own experience. If masculinity is an essential description to their saviour, then the particularity of their experience is negated within the patriarchal structure of which the saviour is an exception.

Ward’s displacement of the body of Christ addresses Daly’s concern of a male saviour legitimising the exclusive masculine claim to divinity, but must be developed to accommodate the lived experiences of women who have been conditioned from birth to assume a position of non-being in a ‘norm-male’ culture. Whilst Christ’s body is transformative and symbolically rich, the fact of his sexual difference must be included in a theology which accommodates women. In order for women to create a new space for their ‘becoming’ outside of oppressive, patriarchal structures they must have a symbol to point towards representing their experience. This can be found in the ministry of Jesus and the erotic mutual exchange of desire which sets the body of those he is in communion with on an analogical level to his own and subverts masculine onto-theologies founded on lack. Christ’s masculinity cannot be an essential part of his embodiment, nor can Jesus represent an ontological ultimatum, for this would offer a type of salvation which would be re-entry to the patriarchal structures which excluded them from normative humanity in the first place.

Bibliography Beattie, Tina, God’s Mother, Eve’s Advocate: A Marian Narrative of Women’s Salvation, 2nd edn (London: Continuum, 2002) Beattie, Tina, Woman (new century theology) (London: Continuum, 2003) Daley, Mary, Beyond God the Father: Toward a Philosophy of Women’s Liberation, 2nd edn (London: The Women’s Press Limited, 1986) Irigaray, Luce, Sexes and genealogies, 2nd edn, trans. by Gillian C. Gill, (New York: Columbia University Press, 1987) Milbank, John, Pickstock, Catherine, Ward, Graham, eds, Radical Orthodoxy: a new theology (London: Routlege, 1998) Pound, Marcus, Žižek: a (very critical introduction) (Cambridge: William B. Eerdmans Pub. Co., 2008) Trelstad, Marit, ed., Cross Examinations: readings on the meaning of the cross today (Minneapolis: Fortress Press, 2006) Ward, Graham, ‘Divinity and sexuality: Luce Irigaray and Christology’, Modern Theology, 12:2 (April 1996) pp. 221-237

Marriage Law and the Status of Women in Postcolonial Kenya, 1963-2014

Jessica Savery is a final year student of St Aidan's College, Durham University, reading English and History. She has specialised in African history and this paper was her history dissertation under the guidance of Dr Jusin Willis.

List of abbreviations CEDAW

UN Convention on the Elimination of All Forms of Discrimination Against Women 1979

CRC

UN Convention on the Rights of the Child 1989

FGM

Female genital mutilation

FIDA-K

The Federation of Women Lawyers-Kenya

GBM

The Green Belt Movement

GBV

Gender-based violence

KANU

Kenya African National Union

MP

Member of Parliament

MYW

Maendeleo ya Wanawake

NARC

The National Rainbow Coalition

NGO

Non-governmental organisation

SOAWR

Solidarity for African Womenâ&#x20AC;&#x2122;s Rights

UN

United Nations

VAW

Violence against women

WHO

World Health Organization

Introduction “This is a Bill for Kenyans, both men and women […] we should not contribute as though this is a tug-of-war between one gender and the other.”418 Martha Karua, 2006 “Women can keep on talking to you about it, but when it comes to passing the laws, we are the people who pass laws here and not women.”419 Martin Shikuku, 1974 These drastically different statements from two members of Parliament (MP), made just thirty years apart, exemplify the significant changes in views and attitudes towards women in Kenyan Parliamentary debates since independence in 1963. Though women played a large role in Kenya gaining independence from British colonialism, Shadrack Nasong’o states that “the establishment of a political system based on authoritarian and over-centralised state structures engendered male dominance in all aspects of Kenyan society” and led to the political marginalisation of women once again.420 Inspired by the extraordinarily long time taken to pass the Marriage Act, this dissertation will look at public debates over key pieces of legislation relating to marriage, responsibility for children, and violence against women (VAW) to see how far these have changed over time and what that tells us about women’s status in Kenyan society. ‘Traditional’ cultural values have proven to be the largest obstacle to passing women’s laws, primarily due to the ingrained concept that feminism was a Western idea and was therefore in opposition to protecting African cultural beliefs. 421 Martin Shikuku’s comment draws attention to this dominant patriarchal view that men held the real power, both in Parliament and the home. However, by 2006 Martha Karua was able to appeal for new laws for women because they would benefit both sexes. This demonstrates how some 418

Martha Karua, Kenya National Assembly Official Record: Hansard (27 April 2006), pp. 784-785.

Martin Shikuku, Hansard (27 March 1974), p. 431.

420 Shadrack Nasong’o and Theodora Ayot, ‘Women in Kenya’s Politics of Transition and Democratisation’, in Godwin Murunga and Shadrack Nasong’o, eds., Kenya: The Struggle for Democracy (London, 2007), p. 164.

421 Muna Ndulo, ‘African Customary Law, Customs, and Women’s Rights’, Indiana Journal of Global Legal Studies, 18/1 (Winter 2011), p. 117.

419

MPs have attempted to correct this misconception of feminism and present it as a struggle for equality that does not have to clash with cultural values.

The passage of so many laws which directly relate to the protection of women and the girl child since 2000 demonstrates how rhetoric about and attitudes towards women in Kenya have developed since independence. This dissertation will focus on the Children’s Act of 2001, the Sexual Offences Act of 2006 and the Marriage Act of 2014, but the Prohibition of Female Genital Mutilation (FGM) Act of 2011 and Marital Property Act of 2013 have also significantly contributed to the advancement of legal protection for women. 422 It is crucial to consider the social, economic and political changes within Kenya over the last half century that have enabled these laws to be passed. The fact that there are now more women in Parliament, and male MPs have been more accepting of working with women, has been crucial. In particular, the affirmative action introduced by the Kenyan Constitution of 2010 was a huge step in ensuring that more women were able to voice their opinions in Parliament on policies that affect them.423 Likewise, the influence of international non-governmental agencies (NGOs) such as the United Nations (UN) and the international environment in general has put pressure on the Kenyan government to enact legislation to protect women and the girl child.424 Though some aspects of these acts, for example the legalisation of polygamy in the Marriage Act, may demonstrate the persistence of potentially damaging cultural values, the legal support that they provide to women is a huge step in Kenyan women’s rights.

Historians now generally accept the view expressed by Nancy Hafkin and Edna Bay that the “colonial impact didn’t liberate African women but diminished their former rights”.425 Colonial officials, to reinforce their authority, restricted women’s economic freedoms, excluded them from politics and institutionalised sexist attitudes that confined women to the 422

All legislation can be accessed at http://kenyalaw.org/kl/index.php?id=3409 (viewed 20 November 2014).

423 Eric Kramon and Daniel N. Posner, ‘Kenya’s New Constitution’, Journal of Democracy, 22/2 (April 2011), p. 98.

424 ‘Reaching for the Skies 2010-2013: Reflections on UN Women’s Initiatives to Advance Gender Parity in politics in the run-up to the March 2013 General Elections in Kenya’, UN Women (2014).

425 Nancy Hafkin and Edna Bay, Women in Africa: Studies in Social and Economic Change (Stanford, 1976), p. 4.

private, domestic space of the home and placed them in an inferior position to men. 426 On this basis, the end of colonialism should have meant women were liberated from the oppressive colonialists. However, the transition from the colonial to post-colonial state proved to simply be a transition of power from the male colonisers to African men who actively perpetuated the colonial legacy of systematic political marginalisation of women.427 The repeal of the Affiliation Act in 1969, which had supported single mothers by forcing fathers of children born out of wedlock to contribute to the living expenses of raising the child, is symbolic of the fact that Kenyan independence meant only a brief improvement in the status of women. 428 The backlash which the Affiliation Act received and the anger towards women who were seen to be abusing the act and exploiting rich men who may not necessarily have fathered their children caused long-lasting resentment and opposition to any legislation seen to disadvantage men. Parts of the Affiliation Act were finally re-introduced in the Children’s Act of 2001 in regard to whose responsibility it is to look after children born out of wedlock. It is obvious that women’s issues were not prioritised in the immediate aftermath of independence.

The relationship between women and the state in most African countries has been fraught by the contradiction between the freedom of independence and the continued subordination to men. In many cases, the post-colonial state has merely reproduced the patriarchy which previously dominated it under colonialism. But, African women across the continent have experienced the end of colonialism very differently due to the very different nature of colonialism in each country and the various nationalist movements. Generally, independence has given women more freedom than they experienced under colonialism but in some countries this has been marginal or significantly slower than in others. As the InterParliamentary Union rankings from 2002 demonstrate, women’s political representation in Parliament in Rwanda, at 48.8 per cent, and South Africa, at 32.8 per cent, was much higher

426

Jane Parpart and Kathleen Staudt, ‘Women and the State in Africa’, in Jane L. Parpart and Kathleen A. Staudt, eds., Women and the State in Africa (London, 1989), pp. 1-15.

427 Nasong’o and Ayot, ‘Women in Kenya’s Politics’, p. 164.

428 Lynn Thomas, The Politics of the Womb: Women, Reproduction, and the State in Kenya (Berkeley, 2003), p. 135.

than Kenya’s 7.6 per cent.429 This could be attributed to the use of Proportional Representation in South Africa which is always better at representing minorities; but, Shireen Hassim focussed on the importance of women’s organisations and how they exploited various external opportunities to transcend the constraints of the political environment that excluded women.430 Yet even in South Africa, where women’s representation in politics is almost equal to men’s, there are still high rates of VAW, sexual abuse of children and young girls and some of the highest rates of HIV/AIDS which women, as carers, bear the brunt of. 431 Furthermore, some historians such as Kathleen Sheldon and Claire Robertson saw the colonial period as beneficial for certain, particularly urban, women who took advantage of opportunities which the new capitalist economy and succeeded.432 Margrethe Silberschmidt similarly argued that in the 1980s “although the economic and social life of both genders has clearly diminished in quality in some respects, these same historical processes have provided women with an emancipatory potential”.433 Her study is limited to the Kisii district of Kenya though, so not representative of the wider society in which the poor economic situation of the 1980s disproportionately affected some women and led to a “feminisation of poverty”. 434 These studies show that it is not possible to make judgements about the general impact of colonialism or post-colonialism on women as it has had a mixed impact on different groups in different geographical areas.

Kenyan women were disappointed that independence did not bring about any significant changes for them; as Branch stated it did not “liberate a great many Kenyans in the fullest sense of the term.”435 This disappointment led to the strengthening of a women’s

429

Nasong’o and Ayot, ‘Women in Kenya’s Politics’, pp. 165-166.

Shireen Hassim, Women’s Organizations and Democracy in South Africa: Contesting Authority (Madison, 2006), p. 3.

431 Vishanthie Sewpaul, ‘Feminism and Globalisation: The Promise of Beijing and Neoliberal Capitalism in Africa’, Agenda: Empowering Women for Gender Equity, 64 (2005), p. 106.

432 Kathleen E. Sheldon, Courtyards, Markets, City Streets: Urban Women in Africa (Boulder Col., 1996) and Claire Robertson, Trouble Showed the Way: Women, Men and Trade in the Nairobi Area, 1890-1990 (Bloomingdon, 1997).

433 Margrethe Silberschmidt, ‘Have Men Become the Weaker Sex? Changing Life Situations in Kisii District, Kenya’, The Journal of Modern African Studies, 30/2 (June 1992), p. 253.

434 Nasong’o and Ayot, ‘Women in Kenya’s Politics’, p. 190.

435 Daniel Branch, Kenya: Between Hope and Despair 1963-2011 (New Haven, 2011) p. 296.

430

movement in Kenya which drew attention to women’s issues in the years following 1963. 436 Crawford Young stated that in the 1980s, the dramatic erosion of “stateness itself” opened space for a multitude of actors including women’s organisations which formed links with international agencies, donor representatives, and the non-governmental sector to gain influence within Kenya.437 He draws attention to external influences, such as donors and NGOs, which were influential in bringing attention to women’s issues, especially after 1989 when the collapse of the Soviet Union and end of the Cold War put more pressure on the liberalisation of post-colonial countries and partially contributed to the introduction of multiparty politics in Kenya in 1992. Women’s organisations, like Wangari Maathai’s Green Belt Movement (GBM), particularly benefited from this situation as donors saw them as more accountable recipients of development funds than the Kenyan Government.438 This period also saw growing international concern over African sexuality and fertility due to a population explosion of the 1980s, widespread HIV/AIDS and increasing awareness of FGM. Lynn Thomas states that Kenya became a favoured target of population-control advocates due to its relatively well-developed infrastructure, stable government and heavy dependence on foreign aid.439 The change in leadership in 1978 after the death of the first President, Jomo Kenyatta, and succession of Daniel arap Moi, was also important since Moi was initially seen as more malleable than Kenyatta, even if later he gained a reputation as an opponent to women’s rights.440 The fact that Kenya was subject to multiple external interventions, a number of which focussed on women, seems to legitimate the criticism made by some MPs that legislation on women’s rights was ‘foreign’. This was particularly true in the 1980s when Western countries and international lending agencies pressurised African leaders to integrate women into 436

Audrey Wipper, ‘Equal Rights for Women in Kenya?’, The Journal of Modern African Studies, 9/3 (October 1971), p. 429.

437 Crawford Young, ‘The end of the post-colonial state in Africa? Reflections on changing African political dynamics’, African Affairs, 103 (2004), p. 25.

438 Branch, Kenya, p. 186.

439 Thomas, Politics of the Womb, p. 10.

440 Chiweni Chimbwete, et. al., ‘The evolution of population policies in Kenya and Malawi’, Population Research and Policy Review, 24 (2005), pp. 85–106.

development.441 Leaders like Kenyatta, Charles Njonjo and Tom Mboya therefore had to balance a commitment to reform and progression against the need to protect ‘African values’ in resistance to foreign domination.442 Rose Oronje stated that even in 2013 this obligation to protect African culture was “greatly entrenched within government and societal structures and almost always [carried] the day”.443 This appeal to culture was often used to uphold patriarchal structures and oppose greater rights for women despite the fact that it is extremely difficult to determine an authentic ‘African’ culture. There is not one homogenous ‘African’ culture but actually between thirty and forty different ethnic groups in Kenya alone, all with varied cultural practices.444 Consequently, often the language used by MPs was ambiguous and vague to ensure that their appeals to protect cultural values had universal appeal to these various groups. They also heavily relied on stereotypes, from the obedient, traditional, rural woman to the wayward, modern, urban woman or the young victim and old manipulative matriarch, to present women either in need of the laws protection or as calculating and exploitative.

As in other post-colonial countries, the constitution and other legislation that was established in 1963 in Kenya was largely borrowed from British laws. Martin Chanock stated that “Western legal forms have been perhaps the most lasting (and least threatened) of the impositions in Africa’s colonial legacy”, which partially explains the patriarchal structure of Kenyan society and the continued exclusion of women from political decision-making because the British system was similarly exclusionary.445 From the 1990s however, these structures were increasingly challenged, by women as well as men. For example, in 1992, elderly rural mothers protested against the continued political imprisonment of their sons who 441

Gwendolyn Mikell, ed., African Feminism: The Politics of Survival in Sub-Saharan Africa (Philadelphia, 1997), p. 1.

442 Thomas, Politics of the Womb, p. 178.

443 Rose N. Oronje, ‘The Kenyan national response to internationally agreed sexual and reproductive health and rights goals: a case study of three policies’, Reproductive Health Matters, 21/42 (2013), p.

158.

444 Catherine A. Hardee, ‘Balancing Acts: the Rights of Women and Cultural Minorities in Kenyan Marital Law’, New York University Law Review, 79/712 (May 2002), p. 720.

445 Martin Chanock, ‘Making Customary Law: Men, Women, and Courts in Colonial Northern Rhodesia’, in Margaret Jean Hay and Marcia Wright, eds., African Women and the Law (Boston, 1982), p. 53.

had fought for multi-party politics.446 Though this protest was powerful because they used their status as mothers to demand freedom, as Nasong’o and Theodora Ayot explore, women have continued to face serious discrimination in entering the political arena due to physical and psychological violence including the threat of rape.447 The general election in 2002, which saw the downfall of the Kenya African National Union (KANU) and Moi, was a key turning point in opening up the political environment within Kenya. It saw the inclusion of many political actors who had previously remained outside the political system, such as Wangari Maathai who was finally elected to Parliament in 2003.448 The increased political involvement of women has been crucial to influencing the legal changes necessary for women’s advancement, as will be seen in this dissertation. Though Maria Nzomo, recommended women to “re-orientate their position from social welfare towards economic control” because she saw their struggles as a capitalist, as well as patriarchal-based, oppression, the passage of recent laws on social welfare shows that achievements can be made irrespective of economic oppression.449 The Second Wave feminist movement and consequent explosion of women’s studies since the 1970s sought to give women, who had previously been both invisible and silent, ‘a voice’.450 Yet, Andrea Cornwall has been critical of some of these initial studies for their “unproblematised notions of patriarchy” and has warned of the “dangers of superimposing monolithic versions of ‘gender relations’ onto African realties”.451 She focused on the importance of challenging stereotypes of African women, such as the image of the oppressed victim because it has mistakenly removed all women’s agency. This is important seeing as external interventions themselves were often flawed because they were based on an assumption that all African women were victims and all tradition was patriarchy. The 446

Aili Mari Tripp, ‘Women in Movement’, in Cornwall, Readings in Gender, p. 242.

Nasong’o and Ayot, ‘Women in Kenya’s Politics’, pp. 164-196.

448 Branch, Kenya, p. 256.

449 Maria Nzomo , ‘The Impact of the Women's Decade on Policies, Programs and Empowerment of Women in Kenya’, Issue: A Journal of Opinion, 17/2 (Summer, 1989), p. 16.

450 Hafkin and Bay, Women in Africa.

451 Andrea Cornwall, ‘Introduction: Perspectives on Gender in Africa’ in Andrea Cornwall, Readings in Gender in Africa (Bloomington, 2005), pp. 7-12.

447

following chapters aim to contribute to this growing interest in gender relations and the importance of studying private and intimate relationships such as marriage because of how they are intrinsically linked to wider society, the community, government policies and international regimes. I draw on existing literature which focuses on social, economic and political changes in Kenya, in conjunction with debates in Parliament, the press, and NGO reports, in order to understand what has changed over the past fifty years to allow these new women’s laws to be passed. Developments in the past few decades such as the declining amounts of bridewealth and increased age of women at marriage show that society is subtly changing, potentially in ways that will be beneficial for women.452 However, it is still a struggle for laws to be passed to protect women, clearly seen by how long it took for the Marriage Act of 2014 to be passed.

NGO reports have been a useful source for up-to-date and detailed studies about women’s lives in Kenya yet they place much more emphasis on the impact which external influences have had on Kenya in comparison to perceptions of these external influences in the Kenyan press. There are also many problems with using debates in legislative proceedings and press reports to evaluate what Kenyans truly think about laws for women. It is impossible to take what MPs and journalists say at face value. Not only due to the fact that speakers or writers usually have ulterior motives for discussing various things at certain times, upcoming elections for example, but also they may want to portray themselves in a particular way, to appear either ‘modern’ or ‘traditional’ to attract support from various voters or readers. We need to re-evaluate the binary definition of ‘traditional’ culture versus ‘modernity’ and see the potential ironies in these various depictions. As Cohen and Odhiambo note, paradoxically, the ability to refer to ancient English texts by Shakespeare made a Kenyan a “modern man”. 453 This manipulation of words and ideas is most starkly seen in the defence of traditional 452

Monique Borgerhoff Mulder, ‘Bridewealth and Its Correlates: Quantifying Changes Over Time’, Current Anthropology, 36/4 (August-October 1995) pp. 573-603 and Lawrence D. E. Ikamari, ‘The effect of education on the timing of marriage in Kenya’, Demographic Research, 12/1 (23 February 2005), pp. 1-28.

453 David William Cohen and E. S. Atieno Odhiambo, Burying SM: The Politics of Knowledge and the Sociology of Power in Africa (Nairobi, 1992), p. 85.

customs, such as wife beating, to oppose specific laws, such as the Sexual Offences Act. Even though domestic violence may have a long history and has in the past been seen as necessary to keep order in the household, this should not make it impenetrable to human rights criticisms. Seeing tradition as static ignores the fact that culture and tradition are actually fluid and, as Thomas Spear demonstrated in the colonial period, constantly being contested and reinvented.454 In The Politics of the Womb, Thomas argues that after colonisation “girls’ and young women’s bodies and reputations remained crucial sites for constructing and contesting political and moral order”, particularly with regard to regulating reproduction.455 This was initially in order to serve national goals such as the attempt to ban polygamy in the Marriage Bill of 1976. But from the 1990s onwards there was a clear shift in foreign intervention focus onto individual rights and needs, as seen by the passage of the Sexual Offences Act. These national and private concerns have to some extent been interlinked. For example, Aili Mari Tripp has demonstrated how women’s mobilisation drew on their roles as mothers to make claims on participation in the public sphere and how that public participation gave them entitlements to make claims for greater decision making within the home. 456 As Silberschmidt has shown though, more female-headed households has been disruptive to traditional gender roles and has caused men to suffer identity problems in which they have turned to alcoholism, used violence to regain control or had extra-marital affairs and increased the sexual health risks within marriages.457 Moreover, many Kenyan women, particularly in rural areas, still lack basic rights and are subject to damaging cultural practices such as wife inheritance and widow cleansing rituals.458 These aspects of ‘culture’, however, have been increasingly challenged as seen in the 1984 court case over the burial of SM Otieno, a prominent Kenyan 454

Thomas Spear, ‘Neo-traditionalism and the Limits of Invention in British Colonial Africa’, The Journal of African History, 44/1 (2003), p. 25.

455 Thomas, Politics of the Womb, p. 177.

456 Tripp, ‘Women in Movement’, p. 240.

457 Margrethe Silberschmidt, “Women forget that men are masters”: Gender Antagonism and Socioeconomic Change in Kisii District, Kenya (Copenhagen, 1999), p. 23.

458 Kawango E. Agot, et. al., ‘Widow Inheritance and HIV Prevalence in Bondo District, Kenya: Baseline Results from a Prospective Cohort Study’, PLoS ONE, 5/11 (November 2010), pp. 1-5.

lawyer who died without a will. His wife, Wambui, even if she did not achieve the right to choose where her husband was buried, in the end was not subjected to the “primitive, crude and brutal” Luo burial rituals or wife inheritance.459 The penultimate chapter to Branch’s Kenya: Between Hope and Despair concludes rather gloomily that ‘nothing actually really changed’ as he lists the similarities between the Kibaki and Moi governments.460 However, despite the continuities in leadership style, the Kenya of today is very different to that of 1978, as the passing of the recent Marriage Bill proves. Women have challenged the fundamental laws, structure, and practices that have formerly constrained them, including discussing previously taboo topics such as domestic violence, FGM and rape.461 Despite problems with implementation, the fact that laws such as the Sexual Offences Act and the Prohibition of FGM Act have been passed demonstrates the changed legislative environment in Kenya. Internal women’s movements and international interventions have caused more MPs and the Kenyan public to question how necessary it is to uphold damaging cultural customs which have been the strongest opposition to women’s advancement. This dissertation will argue that the increased number of female MPs has been influential in passing women’s laws and that the general environment in Parliament, and the press, is now more open and willing to deal with these issues seriously. To what extent do these laws for women actually demonstrate a significant change in the attitude towards women in Kenya though? It is too early to test the impact which these acts have had on the daily lives of women, although recent studies on the effects of the Sexual Offences Act demonstrate that there have been serious problems putting it into practice which will take a long time to overcome.462 Nevertheless, they do show a positive legislative step in the right

459

Cohen and Odhiambo, Burying SM, p. 67.

Branch, Kenya, pp. 245-286. Timothy Njoya stated in 2005 that the acronym for the National Rainbow Coalition Party, NARC, means ‘Nothing-Actually-Really-Changed’.

461 Tripp, ‘Women in movement’, p. 242.

462 Rose Ndakala Oronje, et al., ‘Operationalising sexual and reproductive health and rights in subSaharan Africa: constraints, dilemmas and strategies’, BMC International Health and Human Rights, 11/3 (2011), pp. 1-11.

460

direction for women and, as Parpart and Staudt noted, “the gender struggle [is] an ongoing, fluid process, and [has] to be won each day anew”.463

463

Parpart and Staudt ‘Women and the State in Africa’, p. 8.

The Affiliation Act, 1959 and the Children’s Act, 2001: ‘take a lesson from the birds’ “Before a bird of the wilderness lays an egg, it first of all prepares a nest […]

In our case we are laying the eggs before we even prepare the nest, and therefore our children just drop.”1 Charles Njonjo, 1980

The Affiliation Act of 1959, which gave mothers the option to sue for paternity support for children born out of wedlock, was seen as truly revolutionary for its time.2 It showed that the state was willing to support single mothers and force fathers to take responsibility for their sexual liaisons. Addressing the social problems caused when children were born beyond the boundaries of marriage was seen as necessary for the welfare both of the children and for the social and economic health of the newly independent nation. But this law broke with ‘tradition’ as it gave mothers, not fathers, custody over their children: a troubling notion to patriarchal authority as it disrupted traditional family structures and potentially the wider society too. Not surprisingly then, this re-evaluation of women’s position sparked huge controversy and created a backlash so strong that by 1969 the act was repealed by the all-male National Assembly.3 There have been many appeals for its return over the years, by both men and women, in Parliament and in the press, but these may have been motivated more by international influences and economic pressures than by the welfare of women and children.

The same provisions for single mothers did not return in any meaningful way until the Children’s Act of 2001, an act which was primarily passed to protect children not women.

The protection that it gives to the girl child is commendable though both in its own right, since it prohibits FGM and child marriage for under 18’s, and because children’s rights can be seen as a precursor to women’s rights.4

1

Charles Njonjo, Hansard (16 October 1980), p. 1751.

Thomas, The Politics of the Womb, p. 135.

3 Ibid., p. 136.

4 Cynthia Price Cohen, ‘The United Nations Convention on the Rights of the Child: A Feminist Landmark’, in Michael D. A. Freeman, ed., The International Library of Essays on Rights: Children’s Rights Vol. 2 (Aldershot, 2004), p. 58.

2

As the above quotation from Njonjo illustrates, concern about whose responsibility it was to look after children grew in the 1980s in the context of global worries about the massively expanding population in Kenya and how to curb it. Internal economic pressures, as well as international diplomatic pressures, led to the need to strictly control the population growth, and consequently women’s reproduction.5 Njonjo promoted family planning as a solution and likened this to how a bird prepares a nest in nature; without the security of a “nest”, he implied that parents would let their children down and also weaken Kenya as a whole. This recognition of the need for a strong and healthy nation, not just an independent one, underlay these discussions since children were seen as imperative for a socially and economically strong Kenya. The care of children had traditionally been considered beyond the realm of state intervention as tribes and local courts dealt with such family matters.

However, this opinion slowly changed not only amongst MPs but in the press as well. In The Sunday Nation in 1976, Joe Khadi stated that “the number of destitute children has certainly increased since the act was repealed” and subsequently argued that these private issues had become of national importance because these “children born out of wedlock pose a more serious social problem today than at any other time in the past”.6 This pervasive view of street children as troublemakers has been central to the argument for the necessity of an act to deal with this problem. Yet, despite the fairly undisputed idea amongst MPs in the 1970s and 1980s that the care of children was necessary in the new independent nation, it took over twenty years before the Children’s Act was introduced, largely due to the persistent fear that older women would exploit the Act. In both Parliament and the press, care was taken to distinguish between exploitative women and young girls who, by contrast, were presented as victims, unable to protect themselves from the sexual advances of older, overpowering men. Khadi described the situation without the Act, in which there were “careless men, who [went] around corrupting

5 6

Chimbwete, et. al., ‘The evolution of population policies’, pp. 85–106.

London, British Library (BL), Joe Khadi, ‘asks why? Should innocent children be allowed to suffer?’, The Sunday Nation (20 June 1976), p. 14.

young girls knowing very well there [was] no law protecting the poor ladies”.7 His emotive language surrounding the victim image was clearly influenced by international debates in the 1970s which drew attention to the plight of women. Cornwall has criticised the ‘woman-asvictim’ and ‘men-as-problem’ discourse for obscuring complexities because not all men were “corrupting” and not all the victims of abuse were young.8 Certainly some women, particularly schoolgirls who were subject to the power of their teachers, were vulnerable and easy targets of sexual abuse; however, stereotypically portraying all women as victims and men as problems is a false dichotomy as it generalises too much. Yet in this case Khadi purposely employed the victim image to invoke pity in his readers and gain support for the idea of increased protection measures for women. Even in 2014, these disputes are ongoing which suggests that the Children’s Act failed to fully address parental responsibility for illegitimate children. Njoki Chege emphatically stated that “there is a special corner in hell for men who have children and don’t take care of them. But then again, there wouldn’t be ‘dead beat fathers’ if there were no careless women who get pregnant with questionable men”.9 Again, men were portrayed as evil; however, notably, these women were not portrayed as victims, they were just “careless” in their decision-making. In some ways, this presentation of women is a good development since it reaffirms their agency in choosing their partners, yet Chege ignored the fact that not all women have the ability to choose as they may be forced or coerced into unwanted sexual relations. This significant reversal in opinion shows the impact of the Children’s Act has been similar to the impact of the Affiliation Act which viewed women who claimed support from the fathers of their children as exploitative.

In complete contrast to the victim image, the presentation of women as stereotypically manipulative and exploitative was used as the primary reason why the Affiliation Act should be repealed. The male-dominated Parliament felt that it had

7

Khadi, ‘Should innocent children be allowed to suffer’.

Cornwall, Readings in Gender, p. 13.

9 Njoki Chege, ‘Shame on men who live large as their babies feed on crumbs’, The Daily Nation (12 September 2014) at http://www.nation.co.ke/oped/blogs/City-Girl-Men-Children-Facebook-DeadBeat-Kenya/-/620/2451060/-/qkrcj9z/-/index.html (viewed 16 November 2014).

8

“encouraged a lot of lose women who would identify tycoons and then accuse them of having fathered their children, simply for the sake of getting some money”.10 Their perception of the Act as vindictive and aimed towards persecuting men, in the same way that the Sexual Offences Bill was seen later, reflects the male bias and solidarity which formed in Parliament.

These male MPs have cited “major maxims” in law such as the idea that it is better one hundred guilty people go free than one innocent person be jailed, which demonstrates a selective appropriation of Western ideas by supposedly ‘traditional’ men in order to further their own goals: to prevent women from being given the power to dictate their fatherhood, potentially mistakenly.11 Even the introduction of DNA testing in the 2001 debates, which could conclusively prove fatherhood, was questioned by some MPs on the reasoning that, since Kenya is known for corruption, a doctor could easily be bribed to an answer, despite the fact that men would be more likely to have more money in these situations since it is the women appealing for economic assistance.12 David Mwenje further claimed that a man can father a child “by mistake” and “it is up to [the woman] to know when she can get a child” which unfairly placed sole responsibility on the woman and again ignored the possibility of forced sex or rape.13 Suleiman Kamolleh was forced to declare his “personal interest” in the bill since he expected that there would be many children brought to him when it was passed.14 This interaction between the personal and the political is reminiscent of debates on the repeal of the Affiliation Act which was repealed because some of the MPs feared they would be accused of being fathers of children born out of wedlock.

Children have also been central to debates over women’s rights due to the empowerment that control over children can give to women. Margot Lovett critiqued the colonial enforcement of a capitalist economy that created men as producers and women

10

James Osogo, Hansard (8 Nov 1995), p. 2503.

James Kembi-Getura, Hansard (27 April 2006), p. 797.

12 David Mwenje, Hansard (2 August 2001), p. 2092.

13 Ibid.

14 Suleiman Kamolleh, Hansard (29 November 2001), p. 3440.

11

merely as reproducers, but she ignores the power motherhood can offer women.15 Tripp has shown that, in Africa, women have often drawn on their role as mothers to garner themselves power and to argue for their inclusion in politics because of the nurturing values and justice that they can bring to overcome corruption.16 A woman having more control was not always beneficial for her though. Bridewealth has been crucial to men’s rights over women’s reproduction so without payment, Silberschmidt states, a man “has few if any rights over his children, and loses prestige in his community” which can cause resentment, and increased violence, within the relationship.17 In the Otieno case, his widow Wambui claimed that she lived and raised her family in a “modern marriage” that gave her absolute rights to her husband’s property including his physical remains and presumably their children too.18 Yet this ‘modern’ conception that a child should stay with their mother clashed with the idea of children being part of their father’s tribe. Wafula Wabuge rejected the idea of “illegitimate” children stating that “a child belongs to somebody and that somebody is a man, not a woman”, which asserts male power and control over the family.19 The influence of international ideas on Kenyan thinking is obvious though as by 2001 children are seen not just as property but as “people in their own right” and the fundamental to the love and protection of both parents.20 One way MPs have pacified demands for the return of the Affiliation Act was to portray the problem as an issue of morals and instructed citizens to address their own morals which would mean there would be no need to change law. In 1979 debates over the second reading of the Marriage Bill, for example, Peter Oloo-Aringo argued that “the issue at stake is the question of a lack of code of ethics”.21 This statement implied the increased amount of illegitimate, street children was a modern problem that has occurred due to a breakdown of 15

Margot Lovett, ‘Gender Relations, Class Formation, and the Colonial State in Africa’, in Parpart and Staudt, eds., Women and the State in Africa, p. 8.

16 Tripp, ‘Women in Movement’, p. 241.

17 Silberschmidt, ‘Have Men Become the Weaker Sex?’, p. 246.

18 Cohen and Odhiambo, Burying SM, p. 30.

19 Wafula Wabuge, Hansard (19 July 1979), p. 602.

20 BL, Lucy Oriang’, ‘Didn’t the Children’s Bill ignore something’, The Daily Nation (20 November 2001), p. 16.

21 Peter Oloo-Aringo, Hansard (26 June 1979), p. 1165.

society or loss of tradition. This idealistic notion has been popular and it has even continued to the present day as seen in the Chege article which similarly implies that what is lacking is common sense on the part of the women. Njonjo recommended men to “when [they] are seducing a young girl of 14 years, think of [their] own child of 14 years”, which he hoped would constrain their actions.22 Eddah Gachukia however told Njonjo that he needed “to go a bit further” than “pleading with the adult men to respect our young girls”.23 She recognised that appeals to morals were not enough and there needed to be a stronger deterrent to stop men getting women pregnant, yet she also utilised the young victim image to argue for the necessity of an act to protect women. Njonjo even suggested “that a woman of 40, 50 or 60 years needs no protection from anybody, because she is capable of protecting herself mentally and physically by saying, ‘No’”.24 This mistaken view was something which MPs and the press tackled together in propaganda for the Sexual Offences Act which emphasised the fact that victims could be of any age.

As with the international women’s movement, the new global interest in the rights of children since the 1990s has been important in pushing for children’s, and especially the girl child’s, rights in Kenya. 1979 was the International Year of the Child in which, combined with fears of population expansion, “the Government and voluntary organisations [were] called upon to seriously consider ways and means of helping children”.25 However, the most substantial development for the protection of the girl child was the UN Convention on the Rights of the Child (CRC) which Kenya ratified in 1990. Cynthia Cohen saw it as a feminist “landmark, because in its text, boys and girls are truly treated as equals”.26 If this legislation is evaluated solely from the perspective of the protection which it offers the girl child, against damaging cultural practices such as FGM and child marriage, then it truly is revolutionary.

Cohen noted that women’s issues are often linked to children’s issues but can also clash

22

Njonjo, Hansard (26 June 1979), p. 1164.

Eddah Gachukia, Hansard (26 June 1979), p. 1165.

24 Njonjo, Hansard (26 June 1979), p. 1165.

25 BL, Standard reporter, ‘Accidental pregnancies must stop’, The Standard (24 July 1979), p. 9.

26 Cohen, ‘The UN CRC’, p. 76.

23

because, for example, CEDAW saw this connection as “an obstacle when women try to break away from a nurturing image to become equal partners with men”.27 CEDAW’s perception ignored the fact that if girls and young women are protected from damaging cultural practices then that could provide impetus for the women’s movement to build from, as was seen to happen in the Prohibition of FGM Act in 2011. The equal access to education proscribed by CRC was also particularly important because research has shown that the introduction of mass education is associated with delayed marriage and more contraceptive use which could also benefit young women as they would not be exposed to child marriage or FGM.28 Though the Children’s Act of 2001 can be seen as an achievement for women as it gives support to single mothers, in reality it did not even offer as comprehensive provisions as the Affiliation Act that had been repealed 30 years before. The fact that the Affiliation Act was never returned in its proper form, despite numerous calls for its return in Parliament and the press, demonstrates how difficult it has been for laws to be passed that benefit women. In passing an act which protected children and young girls, MPs both appeared progressive and avoided offering the same protection to older women who were expected to exploit such an act. Increased pressure from international organisations to improve the lives of women and particularly children, such as the CRC in 1989, has been important in bringing about this new law. But, at the same time, the government’s need to address the social problem of street children and its consciousness of its large and growing population at least were initially influential in early debates about the care of children. The Children’s Act is not without its complications since, as Hardee noted, it gave more bargaining power to men than the Affiliation Act did as a father can withhold recognition of a child as his own “in order to contract a marriage with the child's mother on his own terms” so if she needs financial support to raise their child then she will be forced to agree to his terms.29 The real achievement of the act can be seen when focus is paid to the legislative protection it gives to 27

Ibid., p. 68.

Scott T. Yabiku, ‘The effect of non-family experiences on age of marriage in a setting of rapid social change’, Population Studies, 59/3 (2005), p. 339.

29 Hardee, ‘Balancing Acts: the Rights of Women’, p. 739.

28

children against “harmful cultural practices” such as FGM and child marriage which were later built upon in the Sexual Offences Act and the Prohibition of FGM Act.

The Sexual Offences Act, 2006: ‘A slap a day, keeps divorce away?’

“Now all this has gone mad and it’s called “domestic violence” if a man disciplines his wife and children. […] We need to take our society back from the liberal feminist Marxists and make it great once more. Anyone agree? No brother, welcome to the 21st century.”1 The People, 2014 The dominance of men in positions of power in Kenya has contributed to the silencing of certain gender-based issues such as domestic and sexual violence. VAW is not a new issue or unique to Kenya; it is, as a UN Women report stated, “a global phenomenon rooted in the unequal power relations between men and women.”2 Yet, for a number of reasons, it is only relatively recently that there has been wider acceptance of the existence of and more open confrontation of VAW in Kenya. Global campaigns from NGOs such as UN Women have commissioned worldwide studies and raised awareness about the causes behind gender-based violence (GBV) and within Kenya there are now many more women in Parliament, particularly since 2002, who have brought these gender issues to the floor.

However, the outbreak of GBV in the post-election violence of 2007/8 in Kenya, even after the passage of the Sexual Offences Act in 2006, highlighted the problems faced when dealing with such difficult and prevalent issues. That violence revealed the limits to how far laws can act as deterrents when citizens, particularly of post-colonial countries, have been socialised to

1

Catherine Njiru, ‘A slap a day, keeps divorce away?’, The People (17 May 2014) at http://www.mediamaxnetwork.co.ke/thepeople/72821/slap-day-keeps-divorce-away (viewed 21 November 2014).

2 ‘National Reviews Kenya Beijing 20+’, UN Women at http://www.unwomen.org/~/media/headquarters/attachments/sections/csw/59/national_reviews/kenya _review_beijing20.ashx (viewed 20 February 2015), p. 30.

accept violence as normal. The fact that a 2015 study for UN Women focused on the poor implementation of the Act and the necessity for extra measures, should not reduce the significance of its passage.3 It was considered a piece of breakthrough legislation in Kenya and can be seen as part of a general movement towards greater legal protection for women across Africa.4 The focus of this chapter will be on the advances made in Kenyan society and Parliament which led to the act being passed, from more female MPs to the protests and lobbying led by women’s groups which were crucial in addressing damaging, culturallyentrenched beliefs in male superiority.

The above extract from Kenyan newspaper The People demonstrates that cultural beliefs remain a key factor in the defence of GBV. Written in 2014, Catherine Njiru ridiculed those who wished to uphold ‘traditional’ culture, including a man’s right to hit his wife, because they thought that past society and family structures were stronger when they were more patriarchal. Although she completely disregarded this opinion and portrayed it as oldfashioned, not even belonging to the twenty-first century, her focus on it ultimately shows that supposedly traditional values remain one of the key reasons for the persistence of GBV in Kenya. Domestic violence was normalised as part of ‘African culture’, and women were conditioned to accept, tolerate and rationalize GBV, which led to a silencing of victims. This under-reporting of incidences in turn prevented the issue from being dealt with.5 Therefore, a “culture of physical and verbal violence that in turn generated a culture of fear and silence”, which Nasong’o described, was precipitated and expected not only at the national level but in the home too.6 In 1979 Kimunai arap Soi stated that corporal punishment in the home “is very African, it is very normal and [women] need it” and would even “miss it”.7 The perception that domestic violence was socially acceptable, even essential, in order to discipline wives

3

Peter Kiiru Kamau, ‘A Mapping Study on Existing Legal Services for Women and Vulnerable Groups in Particular Survivors of Gender Violence in Kenya Report’, UN Women (Feb 2015), pp. 151.

4 Ibid, p. 30.

5 Kamau, ‘A Mapping Study for UN Women’, p. 5.

6 Nasong’o and Ayot, Kenya, p. 181.

7 Kimunai arap Soi, Hansard (12 July 1979), p. 382.

and retain stability in the home rested on the idea that male dominance in the household was the norm. However, the all-encompassing notion of a loss of ‘tradition’ brushes over the complexities and overlap between the categories of tradition and modernity. As Brett Shadle has shown, pre-colonial ‘traditional’ Gusii magistrates had a very ‘modern’ conception of rape: they treated rape as a serious offence against a woman and not her male guardian and, unlike their contemporaries in Western and in Kenya's British-run courts, the woman’s testimony was given priority: the accused rapist was assumed guilty until they proved that the woman had consented.8 Yet, the concept that increased VAW was due to a loss of ‘tradition’ has remained prominent amongst Kenyans. In 2003, Joyce Majiwa, Chairwoman of the Federation of Women Lawyers-Kenya (FIDA-K), ascribed the increase of domestic violence to “the crumbling of traditional and social structures, which have not been replaced by other norms.” 9 Silberschmidt’s study supports this idea as she argued that men and women’s traditional gender roles had been disrupted by complex social and economic changes which “often acted as a ‘booster’ to female identity and competence” whereas and this resulted in increased antagonism in the home.10 As male unemployment increased in the 1980s, men found themselves unable to fulfil the ‘breadwinner’ roles that had been ascribed to them in the colonial period. Increased VAW was therefore attributed to male attempts to regain lost ‘traditional’ values and re-enforce their position within the household. Ian Bannon and Maria Correia also argued that the emancipation of women, driven by government initiatives and development agencies actions, has “contributed to men’s marginalization, and in the process, inadvertently increased women’s work burden and violence against them”.11 A 2002 World Health Organization (WHO) report supports this idea stating that better-educated women are at increased risk of sexual and physical violence by an intimate partner since they are seen as 8

Brett L. Shadle, ‘Rape in the Courts of Gusiiland, Kenya, 1940s-1960s’, African Studies Review, 51/2 (September 2008), p. 28.

9 Joyce Mulama, ‘Kenya: Violence against women continues to take its toll’, Inter Press Service (25 November 2003) at http://www.afrika.no/Detailed/4436.html (viewed 10 November 2014).

10 Silberschmidt, “Women forget that men are masters”, p. 16.

11 Ian Bannon and Maria C. Correia, ‘Introduction’ in The Other Half of Gender, p. xxiv.

more empowered and are more likely to resist patriarchal norms.12 However, women living in poverty also have a high exposure to rape as seen in the 2010 Amnesty International report about women living in Nairobi’s slums.13 These differences reveal the importance of taking into account various geographical and class differences between women and treating them as one homogenous group.

In Parliament, conservative MPs have capitalised on the idea that religion was seen as ‘traditional’ and have used it to justify male superiority enforced by domestic violence. With three quarters of the Kenyan population practicing Christianity, it can be seen as one of the long-lasting impacts of British colonial rule which, like British law, has served as another tool for patriarchs to re-enforce their authority.14 Christopher Lomada asked in 2002: “why is it said that the man is the head of the family? This is in our natural laws and also in the Bible.”15 Again, male superiority was seen as normal, ‘natural’, and the Bible was used as evidence of this time-honoured belief. It may seem absurd that such an old and contradictory religious text has been used as solid evidence in Parliamentary debates but the authority of Christianity has been accepted and used by both sides of the debate: to promote gender equality as well as male superiority. For example, Wanyiri Kihoro objected to beliefs in male sexual entitlement arguing instead that sex must be mutual, “as it has been agreed in the Bible and elsewhere in the law.”16 The fact that those MPs who opposed GBV and sexual violence, supposedly because they were more modern and progressive than their counterparts, have used the Bible to support their arguments thwarts the view of all religious beliefs being ‘traditional’.

Recently, there has been increasing recognition amongst Kenyans of the falsity of using culture and religion as a defence of violence. In The Daily Nation in 2006, Rosemarie Onyando sarcastically wrote that “[Kenyans] are a very strange people. If a cultural excuse

12

Etienne G. Krug, et al., eds., World Health Organization: World Report on Health and Violence (Geneva, 2002), p. 158.

13 Amnesty International, Insecurity and Indignity: Women’s Experiences in the Slums of Nairobi, Kenya (London, 2010).

14 Hardee, ‘Balancing Acts’, p. 720.

15 Christopher Lomada, Hansard (2 May 2002), p. 827.

16 Wanyiri Kihoro, Hansard (2 May 2002), p. 818.

fails to work, [they] can always turn to religion.”17 It is ironic that culture and religion were seen as interchangeable “excuses” for GBV because Christianity, as a colonial imposition, was not as authentically ‘African’ as traditional culture. Yet both categories have been presented as equably historic and definitive guides to live one’s lives by, despite the fact that in daily life cultural values were more fluid than this.

UN reports have demonstrated that external interventions from NGOs and the international women’s movement have played a large role in challenging these resilient cultural and religious beliefs. Worldwide women’s conferences – held in 1975, 1980, 1985 and 1995 – brought attention to the plight of women across the globe and saw the development of links such as CEDAW which, ratified by Kenya on 9 March 1984, was likened to “an international bill of rights” for women.18 In the wake of the Second Wave feminist movement of the 1960s and 1970s, these conferences emphasised the universality of women’s issues and increasingly presented women’s rights as a human rights issue. They also assisted local women’s groups in African countries, for example to secure rights guaranteed under CEDAW.19 However, it is crucial not to forget the biased emphasis of such UN reports that focus on the success of external interventions in order to legitimise their own actions and funding. From the 1970s onwards, the number of women’s self-help and national groups expanded massively, as demonstrated by Table 1 which shows this increase in Kiambu. The increased prevalence of these groups in the press further exemplified the growth of their influence, for example The Daily Nation’s report on how the “Mandeleo ya Wanawake (MYW) organisation chairman Jane Kiano has slammed wife-beating as a primitive and

TABLE 1: THE GROWTH OF WOMEN’S GROUPS IN KIAMBU, 1954-80

17

BL, Rosemarie M. Onyando, ‘Cultural values, my foot! This is rape’, The Daily Nation (28 April 2006), p. 9.

18 ‘Reaching for the Skies’, UN Women, p. 22.

19 Michael Kevane, Women and Development in Africa (Boulder, 2004), p. 44.

From Claire Robertson, ‘Grassroots in Kenya’, p. 633.

brutal practice.”20 It is difficult to establish to what extent this growth in women’s groups was influenced by the international women’s movement and how much by internal social and economic necessities but, either way, the influence they have had on empowering women in Kenya is apparent.

As Claire Robertson noted, women’s groups were influential in raising awareness of gender inequalities and providing solutions through networks of collaboration and support at the “grassroots” level.21 The solidarity they offered to women created an atmosphere in which it became easier to criticise the use of ‘culture’ to defend domestic violence. The ‘Letters’ and ‘Mailbox’ pages of popular newspapers increasingly enabled members of the public to speak up about these issues, though initially mostly by anonymous writers. A letter from a ‘modern Kenyan woman’ in 1979, entitled ‘MP deserves beating’, strongly retorted to arap Soi’s comments about the necessity of wife-beating, and instructed citizens not to vote those MPs into Parliament since “their ‘nyayos’ are very dangerous for anyone trying to tread in them”.22 Her comment highlights the dominance of conservative men in Parliament and anticipates the significant increase in women’s legislation once more women MPs were voted into Parliament. She was also able to implicitly criticise Moi’s nyayos policy, of following the footsteps of Kenyatta, which she perceived as dangerous not just for women but for everyone.

There was a conscious partnership between women’s groups and the press which was a crucial strategy in mobilising support from MPs and the public for the passage of the 2006 Sexual Offences Bill. The media gave visibility to sexual violence incidents, public demonstrations by civil society and women’s lobbying to prove the necessity of the bill.23 This method had been used before in the reporting of the St Kizito case, in which 71 school girls were raped by their classmates and 19 were crushed to death in the stampede that followed, as The Kenya Times used the story to give prominence to the low status of 20

BL, Nation reporter, ‘Wife beaters come under fire’, The Daily Nation (18 July 1979), p. 3.

Claire Robertson, ‘Grassroots in Kenya: Women, Genital Mutilation, and Collective Action, 19201990’, Signs, 21/3 (Spring, 1996), p. 638.

22 BL, A “modern Kenyan woman”, Malibox ‘MP deserves beating’, The Daily Nation (24 July 1979), p. 7.

23 Oronje, et al., ‘Operationalising sexual and reproductive health and rights’, p.6.

21

women.24 However, the school’s deputy principal, Joyce Kithira, pardoned the boys stating that they “never meant any harm against the girls. They just wanted to rape.”25 Her ‘boys will be boys’ attitude displayed the normalisation of rape and sexual violence but the general reaction to this extreme case of sexual violence shows that in the 1990s attitudes were changing.

Another method used by the press to mobilise support for the bill was to spread concern about Kenya’s international image and promote the need to comply with international laws and sanctions such as CEDAW. One Daily Nation reporter in 2006 used scare tactics by stating that Kenya was “in danger of being branded a nation of rapists, defilers and deviants” if this Bill was not passed.26 Ndung’u admits that she “borrowed heavily from the Sexual Offences Act, 2003 of the UK, for the reason that having been a British colony, the framework of [Kenyan] legal system and laws is very similar to that of England.”27 She presented this as a practical consideration yet it could be seen to support the idea that laws for women’s protection were foreign. For instance, Jimmy Angwenyi argued that “you can see the damage that Western indoctrination has done”, by introducing the concept of marital rape, stating categorically that he cannot rape his wife and that MPs need to “make it an African bill!”28 Marital rape was invisible for a long time in Kenya because it was seen to be impossible since a woman had agreed to all future sexual activity when she got married. MP Keter was also worried that a new definition of marriage would allow homosexuality and lesbians in Kenya, like in the UK and other European countries.29 Male MPs primary concern with this Bill though, like with the Affiliation Act, was the perceived victimisation of their gender that it would promote. Ndung’u stated that the 2006 prosecution of Kizza Besigye in

24

Jane Perlez, ‘Kenyans Do Some Soul-Searching After the Rape of 71 Schoolgirls’, The New York Times (July 29, 1991) at http://www.nytimes.com/1991/07/29/world/kenyans-do-some-soulsearching-after-the-rape-of-71-schoolgirls.html (viewed 6 February 2015).

25 Ibid.

26 BL, ‘Sex Bill is no joking matter’, The Daily Nation (28 April 2006), p. 8.

27 ‘Legislating against Sexual Violence in Kenya: An Interview with the Hon. Njoki Ndung’u’, Reproductive Health Matters, 15/29 (May 2007), p. 149.

28 Jimmy Angwenyi, Hansard (27 April 2006), p. 780.

29 BL, Odhiambo Orlale, ‘Sex Offence Bill hangs in the balance as queries arise’, The Daily Nation (28 April 2006), p. 1.

Uganda and the former Deputy President of South Africa, Jacob Zuma, who were both being tried for rape, were seen as examples of political persecution which this Bill could encourage.30 And this view was supported by Moses Wetangula who blatantly stated that “the hallmark of this bill is punishment”.31 This was further linked to concerns over the potential loss of masculinity that a bill like this would entail which led to John Munyasia stating that he opposed this Bill “like a real man”.32 The most significant change which can be attributed to bringing about the Sexual Offences Act was the introduction of many more female MPs to Parliament who had different priorities to men. A World Bank report stated that “where the influence of women in public life is greater, the level of corruption is lower […] women can be an effective force of rule of law and good governance.”33 Table 2 shows women’s representation in Parliament since 1963 which was marginal until 2002. The new government with NARC and Kibaki clearly opened up the space for greater women’s involvement in politics as the number of women in Parliament doubled to 18 members, including ten who were elected. The number of women in Parliament peaked in 2013 just before the passage of the Marriage Act in 2014 indicating that there is clearly a relationship between women’s representation and the successful passage of laws for women. The change in government in 2003 was also a deciding factor in the passage of the bill because of the massive increase in cases of sexual violence which followed it – either due to people’s sense of new-found freedom, like in South Africa at the end of apartheid rule in 1994, or due to the free media that gave more coverage to issues of sexual violence than previously.34 An article in The Daily Nation in 2006 attributed the introduction

TABLE 2: WOMEN’S REPRESENTATION IN KENYA’S FIRST TO TENTH PARLIAMENTS

30

‘An Interview with the Hon. Njoki Ndung’u’, p. 151.

Moses Wetangula, Hansard (27 April 2006), p. 801.

32 John Munyasia, Hansard (2 May 2002), p. 822.

33 World Bank, Engendering Development: Through gender equality in rights, resources, and voice (Washington, 2001) in Kevane, Women and Development in Africa, p. 2.

34 W. Onyango-Ouma, et. al., The Making of the Sexual Offences Act: Behind the Scenes (Nairobi, 2009), p. 9.

31

From UN Women, ‘Reaching for the Skies’, p. 14.

of new bills such as the Sexual Offences Act to “what a difference women leaders make!” stating that, even though many of the MPs who supported the bill had been legislators for years, it took the nomination of Ndung’u for the Bill to be conceived. 35 Nominated MPs, such as Ndung’u, could be seen as less influential than those who have been elected since they were not chosen by their constituents. However, Ruth Oniang'o said that the expectations of nominated MPs were higher since “they [were] supposed to justify their appointments”.36 The passage of the Sexual Offences Bill gives weight to her statement as it clearly proved Ndungu’s commitment to women’s issues.

The Sexual Offences Act was a crucial step for women’s legislation in Kenya, as well as for raising awareness of sexual crimes against boys and men, and can be attributed to a combination of contingent factors. The growth of women’s groups, partly facilitated by the international women’s movement, and their active lobbying forced the government to intervene in – what were previously considered to be – private issues, such as domestic violence. However, as Nduku Kilonzo noted in 2009, “sexual violence in sub-Saharan Africa remains an under-researched and under-resourced area, despite evidence of how pervasive it is”.37 Problems remain with the implementation of this Act and the proposal of the recent Family Protection Bill in 2013 shows recognition amongst some MPs that more needs to be done to protect women and children. ‘Traditional’ cultural and religious values have remained deep-rooted and have been successfully capitalised on by conservative MPs to oppose or restrict progressive acts. This was apparent in the fact that the 2006 Act did not criminalise “unwelcome sexual advances”, FGM and marital rape. However, these ‘cultural’ values have been increasingly challenged as seen when ten women stormed out of Parliament in objection to Paddy Ahenda’s justification of the need for “unwelcome sexual advances” because

35

BL, Nyokabi Kamau, ‘What a difference women leaders make!’, The Daily Nation (27 April 2006), p. 9.

36 Lilian Aluanga, ‘Kenya: Assessing the performance of nominated women MPs’, East African Standard (19 August 2007) at http://www.wluml.org/node/3988 (viewed 26 February 2015).

37 Nduku Kilonzo, et al., ‘Sexual violence legislation in sub-Saharan Africa: the need for strengthened medico-legal linkages’, Reproductive Health Matters, 17/34 (November 2009), p. 11.

IMAGE 1: CARTOON EAST AFRICAN STANDARD, 28 APRIL 2006

women were “shy creature s

who

must be sweettalked From ‘An interview with Njoki Ndung’u’, p. 151.

into marriage”.38 The fact that this story made front-page news exemplified how much women’s influence in Parliament and society had grown. Crucially, newspapers have contributed to this change as seen by cartoons such as Image 1 which dramatized this debate through the use of satire. It comically portrays a despairing Njoki looking on at three unnamed male MPs who are complaining that “a girl means yes when she says no” and worrying that if this bill bans courtship, also known as unwelcome sexual advances, then they will be unable to get wives.

The fact that this Act was passed demonstrates the influence that Ndung’u and female MPs have had on creating women’s laws and also demonstrates the potential for more advancements if more women gain entry to Parliament, as was seen with the Marriage Act.

38

BL, Nation correspondent, ‘10 women storm out of House as debate on sex bill starts’, The Daily Nation (April 27 2006), p. 1.

The Marriage Act, 2014: ‘Adam, Eve welcome Sarah’

“The Bill covers the whole spectrum of marriage, and marriage is not a question of polygamy or monogamy, but it involves children, relatives, extended families and so on. Therefore, it is a totality of the social unit called the family.”39

Peter Oloo-Aringo, 1979

Branch’s assessment that “Kenyan public debate is often marked by moments of intense openness followed by periods of silence” seems pertinent when looking at the Marriage Act of 2014 which took over 30 years to be passed due to periods of open discussion then complete silence.40 It has sparked huge controversy in Parliament and public debates, most notably in 1979 when it was introduced for the second time and in 2014 when it was finally passed. The need to update and consolidate the many marriage laws in Kenya was clear even in 1979 but disagreements, primarily over polygamy, stalled its passage. As the above quotation from Oloo-Aringo demonstrates, marriage was and is seen as the basis of family household structures and therefore affects many people, not just the man and wife.

Gachukia therefore argued that this bill was a matter of national importance because “the family is at the core of society” and “any disintegration that occurs in a family will be reflected at the national level.”41 This recognition of the impact which intimate relations have on society signalled the start of a shift in the state’s role in Kenya from non-involvement to one which regulates people’s private lives more. As discussed in Chapter one, the increased

39

Oloo-Aringo, Hansard (12 July 1979), p. 384.

Branch, Kenya, p. 193.

41 Gachukia, Hansard (19 July 1979), p. 635.

40

emphasis on children’s welfare since the 1990s was significant to this Act, particularly in discussions about polygamy, the practice of which, was considered by some as damaging for children since it diluted family resources. But one of the primary reasons it was passed in 2014 was the fact that there are now more women in Parliament, something which the new Kenyan Constitution of 2010 was instrumental in promoting. However, the perceived threat of losing cultural and religious values has also been constantly invoked by conservative MPs and members of the public in an attempt to resist drastic changes concerning the advancement of women.

Polygamy was the most contentious issue throughout debates of the Marriage Bill and, despite initial fears that it would be outlawed, in 2014 it was legalised. Judy Thongori wrote in The Standard that the legal protection the act offered to women in polygamous unions and their children was commendable and necessary.42 This was more important than outlawing polygamy completely which may not necessarily prevent the practice but merely prevent women from being able to go to the law for protection. Similarly, Njonjo had maintained that outlawing polygamy would be difficult to implement and stated that “unfortunately, [women] will have to face the fact that in this country, and also in this House there are quite a number of polygamous gentlemen”.43 His comment that there are polygamous men in Parliament in 1979 highlights the interplay between private issues and the political realm demonstrating the personal motivations of some MPs in not outlawing polygamy. However, there were also huge objections to the legalisation of polygamy by some MPs and it caused uproar amongst women’s groups such as Solidarity for African Women’s Rights (SOAWR).44 Catherine Njiru’s article in The People, ‘Adam, Eve Welcome Sarah’, also critiqued the act by comically playing with the idea of a second wife being added to the

42

Judy Thongori, ‘Marriage Act does not promote polygamy, it regulates all unions’, The Standard (29 June 2014) at http://www.standardmedia.co.ke/article/2000126380/marriage-act-does-not-promotepolygamy-it-regulates-all-unions (viewed 25 February 2015).

43 Njonjo, Hansard (12 July 1979), p. 377.

44 ‘SOAWR Strongly Condemns Discriminatory Kenyan Legislation’, SOAWR (15 April 2014) at http://www.soawr.org/en/news/item/soawr_strongly_condemns_discriminatory_kenyan_legislation (viewed 25 February 2015).

most iconic, monogamous relationship in the Bible.45 Her closing lines highlighted the double standards of polygamy, relating to only the men having more than one wife as she asked: “what about all those poor bachelors left out, who will marry them? Guess we would now marry many men too”.46 Her ability use of satire to criticise the act, and implicitly the MPs who passed it, demonstrates how far dialogue on this issue has developed.

As with the Sexual Offences Act, both sides in the debate of the Marriage Bill have appealed to the need to uphold cultural values, despite a huge disparity in what actually constitutes authentic African ‘culture’. Some MPs have presented polygamy as a traditional cultural practice, which in some sense it is, as it has long been an accepted social institution in Africa and had even assumed a juridical character in Kenya.47 Preserving such long-standing traditional practices is important for the protection of multiple indigenous Kenyan cultures, however, Catherine Hardee notes that the protection of certain cultural practices, such as polygamy which was seen as damaging for women, clashes with feminist values of equality. 48 The clause that required a husband to gain consent from his first wife about taking a second wife particularly created disagreement in the 1979 debates because men saw it as “unAfrican” and “oppressive and unfavourable to men”.49 They argued that it gave women too much power in the household which is typically expected to be a male-dominated realm. Peter Ochieng Odoyo even claimed that there was no need for this clause since, by getting married, a wife has already agreed to the possibility of subsequent wives because all customary African marriages are “potentially polygamous”.50 As the act was passed in 2014, this clause was removed so a man could marry another wife without even informing his first wife; SOAWR saw this as “omitting the critical long-existing cultural context that permitted first

45

Catherine Njiru, ‘Adam, Eve welcome Sarah’, The People (3 May 2014) at www.mediamaxnetwork.co.ke/thepeople/73371/adam-eve-welcome-sarah (viewed 21 November 2014).

46 Ibid.

47 J. B. Ojwang, ‘Polygamy as a Legal and Social Institution in Kenya’, East Africa Law Journal, 1 (1974), p. 83.

48 Hardee, ‘Balancing Acts’, p. 713.

49 BL, Juius Kariuki, Letters ‘Marriage Bill’, The Standard (26 July 1979), p. 5.

50 Peter Odoyo, Hansard (19 July 1979), p. 616.

wives to weigh in or veto a husband’s choice”.51 This selective adoption of culture can be seen as a continuation of what Chanock noted about the creation of law in the colonial period: male claims to culture were legitimated as ‘customary’ whereas women’s claims were seen as non-traditional.52 Due to its fluidity, the meaning of culture depends wholly on who decides what it means which has been problematic for women in patriarchal Kenya as it has largely been defined by men.

Wife inheritance, in which a widow automatically becomes the wife of her husband’s brother when her husband dies, is another cultural practice which has been at the centre of debates regarding whether culture should be upheld in law or not. It has been criticised as a violation of human rights by Western feminists yet defended as traditional by many men in Parliament such as John Munyasia who stated that wife inheritance was important, even in 2002, since “it is not individuals who marry; it is clans which establish relationships.”53 This belief that marriage is more than just two people highlights the wider importance of marriage to society and how this has been prioritised over the individual’s needs. Wife inheritance ensured that the children of the relationship remained part of the father’s clan which was particularly important due to the payment of bridewealth from the groom to the bride’s father.

The Otieno case exemplified the conflict over the meaning of culture: his brothers argued for the authoritative and respected nature of custom which gave their tribe the right to bury him, whereas his wife, Wambui Otieno, portrayed Luo beliefs as antiquated and out of touch with the realities of modern Kenya, arguing that it was her right.54 Even before this case, Mwai Kibaki recognised the difficulty of the situation in which the brothers of the dead husband want to “go back to customary law because it suits them” since it offered them more control.55 This is exactly what Otieno’s brothers did and the fact that they won the case demonstrated the need to show respect for Luo culture in the new nation-state was prioritised over a wife’s

51

‘SOAWR Strongly Condemns Discriminatory Kenyan Legislation’.

Chanock, ‘Making Customary Law’, pp. 66-67.

53 John Munyasia, Hansard (2 May 2002), p. 823.

54 Cohen and Odhiambo, Burying SM, pp. 54-60.

55 Mwai Kibaki, Hansard (12 July 1979), p. 413.

52

rights.56 In Western reports such as The New York Times the outcome of the case was seen as an example of tribalism defeating modernism, as even though Otieno was a “modern man” the court’s ruling “illustrated how thin the veneer of modernity can be over Africa's tribal traditions”.57 The case was too complicated to be reduced to a simple binary of tradition versus modernity but it does testify to the strength of cultural values.

The endurance of culture is also apparent in the continued importance of paying bridewealth yet this practice has also considerably changed over the past few decades in particular due to the increased use of cash as a method of payment rather than livestock.

Siberschmidt’s interviewees, both men and women, agreed that if the marriage has no bridewealth then “it is no good” because “the husband has no say over the wife, and the wife has no say over the husband”.58 This statement demonstrates that bridewealth was still seen as necessary to legitimate the marriage and bind the participants together in dependence on each other in the 1990s. However, an article in The Standard described a court case between Erick Mwatela and his father-in-law over the burial of Mwatela’s wife in which the court ruled in favour of Mwatela despite the fact that he had paid no dowry.59 This is the opposite outcome to the Otieno case in which cultural values had trumped the rights of the individual, thus demonstrating the changes in society over the past decades. The article went on to quote a marriage counsellor who argued that paying bridewealth with cash “waters down the whole concept” and “makes the man think he can treat his wife like property”, possibly reflecting Western interpretations of the practice which have missed the importance of bridewealth as part of the marriage contract.60 This internalisation of Western values can also be seen in a strange conflation of tradition and modernity in which there is now even a ‘brideprice app’ to

56

Awino Okech, ‘Burying SM: Simply complex’ Pambazuka News, 549 (26 August 2011) at http://www.pambazuka.net/en/category/features/76624/print (viewed 25 February 2015).

57 James Brooke, ‘Nairobi Journal; Tribalism vs. Modernism: At Death, A Showdown’, New York Times (25 February 1987) at http://www.nytimes.com/1987/02/25/world/nairobi-journal-tribalism-vsmodernism-at-death-a-showdown.html (viewed 25 February 2015).

58 Silberschmidt, “Women forget men are masters”, p. 85.

59 Tony Malesi, ‘Women who pride in paying their dowry price’, The Standard (18 November 2013) at http://www.standardmedia.co.ke/lifestyle/article/2000097979/women-who-pride-in-paying-theirdowry-price?pageNo=1 (viewed 8 March 2015).

60 Ibid., p. 2.

calculate how much a bride is worth.61 This changed position of bridewealth in society is also seen in the fact that recently some women have begun to pay their own bridewealth and thus have deconstructed the display of masculinity that the practice typically entailed. This is justified by some because it is now seen as just any other expense for the modern family, the same as school fees or a mortgage but Njuri speculated that it must either be “for the quest of taking over [the family unit] or out of desperacy” on the women’s part.62 Christianity has had a complex relationship with women’s rights in Kenya. Though missionaries tried to ban FGM in the 1920s and promoted monogamous marriage – seemingly to increase African women’s freedom – their motives for doing so were rooted in maintaining British colonial rule and, with it, male dominance.63 Christian concepts of equality have still been important to some people, such as Archbishop Timothy Ndambuki who, in 2014, criticised the Marriage Act and its polygamy clause for “not [respecting] the principle of equality of spouses in the institution of marriage”.64 Yet, religious values have also constantly been evoked in conjunction with culture to protect men’s patriarchal dominance. In 1981, Zephaniah Anyieni explained that “the way Christianity is seen by an African is different” to “Christianity seen by the white man”, which underscores the growth of various strains of African hybrid-Christianity that combine traditional practices, such as polygamy and FGM, with Christian values.65 This selective appropriation of Christian values, similar to cultural values, is done primarily by men in order for them to retain control. They have even used Bible stories for this purpose, for example, distancing themselves from “the age of Adam and Eve” because there is now more than one woman per man and “some of them do not bear children at all” and likening themselves to the patriarchs, Moses and Muhamad, who were

61

Lilian Mutegi, ‘Kenya: Want to know the worth of your bride? Use Brideprice APP’, CIO East Africa (2 June 2014) at http://www.afrika.no/Detailed/25082.html (viewed 10 November 2014).

62 Catherine Njuri, ‘When dowry calls harambee’, The People (May 31, 2014) at http://www.mediamaxnetwork.co.ke/thepeople/80070/dowry-calls-harambee (viewed 21 November 2014).

63 Claire Robertson, ‘Grassroots in Kenya: Women, Genital Mutilation, and Collective Action, 19201990’, Signs, 21/3 (Spring, 1996), pp. 622-623.

64 ‘President Uhuru Kenyatta signs Kenya polygamy law’, BBC News (29 April 2014) at http://www.bbc.co.uk/news/world-africa-27206590 (viewed 21 November 2014).

65 Zephaniah Anyieni, Hansard (7 October 1981), p. 348.

allowed to marry many women.66 Children here were seen as the main purpose of marriage, however this has been countered by a recent changed view of children, as seen in chapter one, which from the 1990s began to see them as individuals not just property. Njonjo said that “during this time of Nyayo people should be looking after their children”, demonstrating the growing recognition of the practical considerations that one should not have more children than one can afford to clothe, house and educate.67 The Marriage Bill suffered a particularly long history due to its first being introduced soon after independence and therefore being intimately bound to the “ingrained concept that women’s rights is a Western idea that does not fit in African culture”.68 Some Kenyan citizens have therefore perceived a clash between the “African way of life”, in which the husband is regarded as “supreme” in the family, and the “Western” concept of human rights.69 The wish to be fully independent from British control was reflected both in Parliament and in the press, for example, “[Charles] Murgor said the time had come when Africans should start writing their own laws instead of constantly copying British laws”.70 As seen with the Sexual Offences Act though, certain Kenyan laws were purposely modelled on British laws due to the fact that the Kenyan and British legal systems are very similar so it was practical to do so.

Kenya’s relationship to Western countries was further complicated by concern about Kenya’s international reputation which put pressure on MPs to “prove to the world that they respect [gender] equality if and when they pass the Marriage Bill”.71 One MP however saw these sorts of claims as indirect blackmail during the “election fever” of 1979 which could result in bad laws being irrationally passed; hence the Bill was removed from debates and reintroduced after elections.72 The Western influence was seen as negative by some women too, as seen in Mama Anuko’s letter to The Daily Nation in which she stated that “today’s women feel bitter 66

BL, Sheikh M. Munawwar, Letters ‘Polygamy isn’t bad’, The Standard (25 Aug 1979), p. 5.

BL, Nation reporter, ‘Bid to ‘Free’ Women Opposed: MPs slam Marriage Bill’, The Daily Nation (13 July 1979), p. 4.

68 Ndulo, ‘African Customary Law’, p. 117.

69 BL, Githunji wa Chege, Mailbox ‘Marriage Bill Alarming’, The Daily Nation (28 July 1979), p. 7.

70 BL, Standard Reporter, ‘Marriage Bill shelved after heated debate’, The Standard (27 July 1979), p.

2.

71 BL, Nation Reporter, ‘Women not second-class citizens’, The Daily Nation (14 July 1979), p. 6.

72 Cornelius Nyamboki, ‘Marriage Bill Shelved’, The Daily Nation (27 July 1979), p. 1.

67

because the wrong Western seed has been planted in them” and she feared that women would take advantage of such a bill that gave them equality by “drinking, prostituting, rudeness and so on” which would cause more divorces.73 An article in 2010 seemed to support this notion as it stated that “the fight for equality is emerging as the “modern” cause of marriage breakdowns in Kenya.”74 A high divorce rate is undesirable to any society but the fact that “modern” Kenyan women are no longer accepting inequality within their marriages can be seen as a positive change that should result in greater equality in the future.

UN reports have been extremely optimistic about the changed political environment in Kenya, even describing “a cultural revolution in perceptions, attitudes, beliefs and practices in relation to women’s participation in the political life of the country”.75 The new Constitution of Kenya, ratified in August 2010, was viewed as a turning point with respect to women’s participation in electoral politics due to the clause that not more than two thirds of the house should be of the same gender.76 Furthermore, it does not immunise discriminatory customary law against scrutiny based on human rights.77 As table 2 in the previous chapter demonstrated, women’s representation in Parliament increased under the new Constitution however these figures remained marginal in comparison to the one third goal: only 16 women were elected and 6 women nominated out of 290 seats. However, a UN report praised the election of women in a few constituencies that were previously dominated by men, in Central and Rift Valley regions; the fact that women hold 38% of national political party positions; and the number of Women Cabinet Secretaries constituted 33.3 per cent, which was exactly a third, as the Constitution required.78 Within Kenya there has been less optimism about the changes these figures represent. In 2010, Lucy Oriang’ stated that “there are more women than ever in prominent positions in government — and even more women frustrated by the 73

Mama Anuko, Mailbox ‘What’s wrong with sharing a husband?’, The Daily Nation (24 July 1979), p. 7.

74 ‘Kenya: Survey reveals Kenyan marriages in crisis amid pressures of modern life’, The Daily Nation (21 June 2010) at http://www.afrika.no/Detailed/19712.html (viewed 10 November 2014).

75 ‘Kenya Beijing 20+’, UN Women, p. 30.

76 ‘Reaching for the Skies’, UN Women, p. 3.

77 Ndulo, ‘African Customary Law’, p. 101.

78 ‘Kenya Beijing 20+’, UN Women, pp. 28-29.

gap between policy and practice”.79 Though she wrote this a few months before the Constitution was passed it seems just as relevant to the situation afterwards in which even if there are more women in positions of power it still does not mean they and their opinions are treated equally to men.

The Marriage Act had a long, drawn-out history in Parliamentary discussions; it was repeatedly shelved because some MPs thought that it would be better to start from scratch than attempt to modify its drastic proposals which were “too fast and untimely”. 80 As UN reports have demonstrated, more women in Parliament has significantly changed the legal atmosphere in Kenya which contributed the eventual passing of this Act. However, Oriang’ has voiced concerns about how the government would “police” laws that regulate marriage as she stated that, “at the best of times, external intervention in marriage is like walking on quicksand”.81 This is not only due to the fact that marriage was regarded as a private institution into which the government should not intrude but because it has been at the centre of sensitive religious and cultural beliefs such as polygamy, wife inheritance and bridewealth.

These persistent beliefs make the achievement of the passage of the Act in 2014 even more significant. Though the fact that it legalised polygamy still creates questions about how far the political environment in Kenya has developed, the legal protection it offered to women, and their children, in polygamous relationships has been justified by others as necessary since it would be impossible to outlaw polygamy completely. We cannot downplay the achievement of the Act which legally re-defined marriage as a “voluntary union” – that outlaws forced and child marriages – in which parties “have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage.”82 It has made marriage

79

Lucy Oriang’, ‘Kenya: Women’s liberation is dead - long live the women of Kenya’ The Daily Nation (11 March 2010) http://www.afrika.no/Detailed/19473.html (viewed 14 October 2014).

80 Oloo-Aringo, Hansard (12 July 1979), p. 384.

81 Lucy Oriang’, ‘Kenya: Marriage is as political and as complex as a coalition (opinion)’, The Daily Nation (1 October 2009) at http://www.afrika.no/Detailed/18756.html (viewed 10 November 2014).

82 Marriage Act (No. 4 of 2014) Kenya Law at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/TheMarriage_Act2014.pdf (viewed 20 November 2014).

law uniform in Kenya and it started to challenge the previously impenetrable and righteous nature of African â&#x20AC;&#x2DC;cultureâ&#x20AC;&#x2122; which has been used, as in the Otieno case, to uphold patriarchy.

Conclusion Present-day Kenya has come a long way since Shikuku’s comment in 1974 that men “are the people who pass laws here and not women.”1 This is apparent not only in the passage of the Children’s Act, the Sexual Offences Act and the Marriage Act but also in the fact that there are more women in influential decision-making positions in the Kenyan Parliament and in Cabinet positions in Government. As I have shown in this dissertation, these factors are strongly connected: the increased number of female MPs has coincided with an explosion of women’s legislation. The change in government from KANU to NARC in 2002 was seen as a turning point in bringing women into the political sphere but long-term changes in opinion and attitude towards women have been crucial too.

Figures such as Eddah Gachukia, Jane Kiano and Wambui Otieno, the “golden oldies” as Oriang’ has called them, paved the way for a new generation of “contemporary heroines” such as Millie Odhiambo and Njoki Ndung’u.2 The “postcolonial ambivalence” which Thomas noted in Kenyatta, Njonjo and Mboya’s unfulfilled promises regarding a replacement Affiliation Act has gradually yet significantly declined.3 The Kenyan Parliament is slowly being filled with active and caring MPs, such as Ndung’u who introduced the Sexual Offences Bill. Her position as a nominated MP has meant that she felt she has had to prove her worth as someone who passionately cares for the best interests of women, which she has succeeded in doing with the passage of that Act. I have evaluated Parliamentary debates, newspaper articles and NGO reports in an attempt to understand this profoundly different attitude towards women in Kenya that has enabled beneficial women’s laws to be passed. Almost simultaneously with the growth of women’s groups the increased openness in the press has allowed women’s issues, which have previously gone under-reported such as GBV and sexual violence, to be focussed on. Recurrent concerns about Kenya’s international image, its development as a new nation, NGO initiatives such as CEDAW and internal economic stresses have also pressurised MPs to pass laws which would improve the status of women. “Political participation aside, culture [was] the greatest constraint on African women’s advancement” Wambui 1

Shikuku, Hansard (27 March 1974), p. 431.

Oriang’, ‘Kenya: Women’s liberation is dead’.

3 Thomas, Politics of the Womb, p. 178.

2

Otieno wrote in her autobiography.4 Her statement draws attention to the two major restrictions which women in Kenya have faced in their own liberation struggle. The reality of independence in 1963 fell short of hopes for what freedom might entail for women and it has taken a long time for them to achieve anything nearing equality to men. Firstly, issues with political participation have begun to be seriously addressed by the affirmative action of the new Kenyan Constitution in 2010. There are more women in Parliament now than ever before yet the Constitution’s stipulation that there should not be more than two thirds of the same gender MPs has not been realised yet, as demonstrated by Table 2.

The second constraint Wambui noted, culture, has persistently dominated debates on women’s issues due to its association with upholding patriarchal control. Appeals to protect traditional cultural values have been central to maintaining traditional gender hierarchies which placed men unquestionably above women. However, this dissertation has revealed the complexities surrounding the labels of one being ‘modern’ or ‘traditional’ and has shown the dominance of culture even in the lives of those who are supposedly modern, such as SM Otieno.5 The same debates have continued as seen in the case over Mwatela’s wife; however, the outcome of that case demonstrated how bridewealth, and therefore patriarchal cultural values, have lost the same power over the courts which they once had. Legislation only goes so far in changing people’s beliefs and behaviour though, as has been proven by the difficulties in enforcing these laws and by the continually high rates of rape and VAW. Furthermore, it is exceedingly difficult to truly and objectively measure changes in beliefs so it is not really possible to know how much of an impact specific laws have made.

Since Thomas published The Politics of the Womb in 2003, there have been a number of significant women’s laws passed in Kenya, demonstrating the huge achievements that can be gained in just ten years. Though there remain serious problems, particularly regarding implementation of these laws, they still demonstrate that Kenya has begun to actively and seriously address the gender inequalities which make up its society. Furthermore, the multitude of prominent women who have recently raised awareness about feminism on International Women’s Day, 8 March 2015,

4 5

Wambui Waiyaki Otieno, Mau Mau’s Daughter in Branch, Kenya, p. 187.

Cohen and Adhiambo, Burying SM.

demonstrates the growing international impetus for gender equality which will hopefully, in the globalised world that we live in, affect Kenya positively.6 Although there remains ambivalence towards the international feminist movement amongst some Kenyans, as seen in a recent article about the meaningless of Women’s Day in which Abigail Arunga stated: “while it's all well and good that we have days like that, it is clear that no one actually believes in the spirit of them”. 7 Even if that is true, her pessimism obscures the significant gains which women have made in Kenyan politics and society over the last few decades. If Branch’s book “muffles the sounds of enterprise and hope” then this dissertation has sought to demonstrate that there is hope for the further advancement of women in Kenya as has been demonstrated by the number of women who have come into various influential positions of power and the beneficial laws they have contributed towards passing.8 The previous culture of “silence” is opening up to women in the press and Parliament with astounding results that will hopefully continue.

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How useful is the corporeal turn in understanding early modern Europe history?

Megan Smith

The ‘corporeal turn’ is a recent interdisciplinary trend that has seen historians bringing the body back into historical analysis. This move follows the ‘linguistic turn’ of the 1980s; the ‘linguistic turn’ saw the ‘decoupling’ of experience and discourse and so led to the negating of corporeal experience. However, arguably, reintegrating the body back into historical analysis is hugely significant, especially in the study of early modern European history. The rendering of the body as a fixed, irreducible entity has caused multiple disciplines of history to ignore the importance of experience and embodiment. Feminist history in particular has tended to ‘rest on the denial of the body’, in an attempt to avoid essentialism, adversely ignoring the contribution of bodily perception in the history of oppression. Similarly, gender historians have tended to reject the interplay between the physical body and gender under the assumption that diverse gender identities can only be constructed outside the body. The last twenty years however have seen an embracing of the somatic, with the ‘corporeal turn’ proving that the body is a far from a fixed entity but a socio-cultural and historical product. The turn’s usefulness in early modern European history will firstly be explored through contemporary understandings of the sexed body and how these fed into power relations. Of significance, are the corporeal paradoxes between the male performer of power and the anxious male, which coexisted with and complemented the inferior yet perverse and potentially dangerous female body. Understandings of these paradoxes are crucial to historiographical debate. Furthermore, the corporeal has a key place in tracing the history of patriarchy, not simply between women and men, but between men, as well as highlighting women’s role within the patriarchal system. Arguably, the early modern European body was not experienced dualistically, thus semantic experience presents a limited historical picture; the somatic nature of gender and the further ways in which identity was constructed in the body, especially through the progression of lifestages, must be appreciated to fully understand the lives of people in Europe in the early modern period.

Finally, the examination of bodily interactions leads us to question the delegation of ‘corporeal authority’, the ‘politics of touch’ and contemporary body language, thus providing another significant dimension to our understanding of the period. Incorporated into such thought is the hierarchical experience of sex and reproduction, with early modern experience being underscored and assigned meaning by medical and theological discourse. Such analysis shall demonstrate the fluidity of the relationship between experience and discourse, as well as the importance of considering embodiment in conjunction with bodily representation in early modern European history- a period subsumed by ‘countless’ intersections of ‘representational language, evocative imagery and experiential corporeality’. The volatile bodies of early modern men and women were ‘central’ to their everyday lives and thus it is vital to incorporate the corporeal when understanding the dynamics of such a historical period.

When understanding the bodies of men and women, it is important to recognise that the body of the early modern period was widely understood in terms of liquids- as an ‘economy of bodily fluids’. The humoral system was an ancient Hippocratic theory that supposed the body contained four fluids: blood, phlegm, black and yellow bile. Such discourse was corporeally experienced, with the movements of these fluids being highly significant in determining status, gender and sex in a variety of ways across early modern Europe. The importance of which has been highlighted by numerous historians such as Gowing, Roper and Simons. What can be seen generally across early modern European history is that women were sexed by their inability to ‘“contain”’ the humours. This inferiority of female ‘openness’ arguably characterised women as “leaky 174

vessels”, which was thus substantiated by experience such as the occurrence of monthly menstruation. The body’s construction embodied characteristics of a person and thus the physical “leaking” of women was seen as a manifestation of their weak and irrational minds- their lack of male ‘reason’. Women were embodied and seen to be controlled by their womb and bodies, whilst men were embodied by their heads which allowed them to control their bodies. Such an understanding is evidenced by early modern English and German literature that frequently depicted women as ‘subject to the power of their bodies’. Hence, it can be argued that corporeal experience fed into and was corroborated by early modern discourse and bodily representation. The conception of women as a “leaky vessel”, highly purported by Gowing, in the study early modern England, however, proves incongruous in accordance with the contemporary interpretations of menstruation of England highlighted by Crawford, whereby menstruation was perceived as the purification of the blood or the removal of excess blood. Wiesner confirms that these latter interpretations were held throughout Europe. In spite of such apparent incongruity, these contravening conceptions were effectively aligned to reassert women’s inferiority; women were argued to follow a ‘rhythm of discharge’ out of necessity and inferiority, due to their lack of male heat which stopped them from sweating out plethora like men. Thus though “leaky” women were seemingly vilified for lack of self-control, women feared the stagnation of the humours; the women of Eisenach are exemplary of such experience, particularly fearing the cessation of menstruation, and valuing their “leaking”- believing fluxes from the body to be highly important. Similarly in England fear of “greensickness” and “mother-fits”- female “diseases” associated with “stagnating” menses- saw women actively seeking encouragement of menstruation and “leaking”. Although “leaking” or the need to “leak” was evidence of female inferiority, interruption in such flows was feared similarly by men and women. Thus, the sexing of women’s bodies as intrinsically inferior was given force by a variety of interpretations which did not necessarily correlate nor acquired the same strength but were undeniably underlined by culturally-specific notions of “leaking” and variations on the female “leaky vessel” . This sexing of women was thus highly ‘volatile’; arguably the early modern period saw a veneration of certain fluxes but feared and condemned uncontrolled bodily fluxes. Furthermore, as Duden argues, sexing in such a way served to confine female corporeality to the experience of a ‘wretched, stagnating’ body.

The female body was not simply considered inferior, but was constructed and experienced as dangerous. This relates again to the ‘economy of bodily fluids’ and the “leaky” female vessel; bodily fluids and their movements were conceived as potentially dangerous to individuals, other people and even public order- this danger incorporated both male and female bodies, however, arguably women’s “leaky” fluids were considered as the more potent threat. Such threat can be ascertained in exploring taboos regarding sex with women, many of which have origins in religious discourse and were endorsed by medical theory, for example sex with a woman during her menstruation was seen to generate a deformed or leprous child. Debatably, such taboos may not always have been observed but they were certainly recognised; the potential ‘venomous’ nature of menstrual blood was affirmed corporeally by the pain of menstruation. Furthermore, as ‘mistresses of transformational science’ their bodies transformed fluids such as blood to milk; the ‘foreign’ nature of female bodies to men stimulated the male anxiety and fear of female fluids. Moreover, the conceived “leaky vessel” , as well as displaying inferiority, reflected the notion that women ‘could bring pollution on society through their sexual openness’ ; the female “vessel” was literally seen as a source of bodily pollution, blamed for “spreading” diseases such as venereal disease. Applying Grozs’s corporeal feminist theory succinctly captures the essence of the dangerous female body in early modern Europe: ‘it is women and what men consider to be their inherent capacity for contagion, their draining, demanding bodily processes that have figured so strongly in cultural representations’. Arguably, however, though women viewed their own bodily functions as a natural occurrences, it was not simply early modern men who conceived the female body as dangerous but women themselves actually experienced their own bodies as dangerous and polluting. Danger was experienced and constructed throughout the life-stages of early modern European women. For example, the autobiography of Isabella de Mooerloose details Isabella asking her husband to sleep separately to her during her menstruation so as not to cause him ‘“aversion”’ to herself. The dubious nature of maternity, whereby pregnancy remained unconfirmed until the child’s quickening or even its birth as an experience of stagnation, similarly reaffirmed female danger in the fear of stagnation. Even if pregnancy was recognised, women feared the danger of passing on qualities or harming their child under the widespread belief that ‘what a woman saw or experienced during pregnancy could affect the child’. Childbirth in particular was shrouded with danger and fear of death and pain, despite a relatively low maternal mortality rate. Hence the male fear of the “dangerous” female body was complemented by early modern women who lived and experienced their bodies not simply as inferior vessels 175

but ones that could cause danger to themselves and those around them; this sense of danger was exacerbated and predicated on popular discourse and theology. Old age did not provide women recompense from their “dangerous” bodies; as Roper demonstrates, the witch craft trial phenomenon was arguably rooted in a fear of the “dangerous” old woman who became ‘evil mother’ - sucking babies dry and killing new mothers. The life stages of early modern women presented new and continuing dangers to both men and women, formed from a dangerous understanding of female “leaky”, uncontrolled bodies and the precarious nature of their fluids.

Furthermore, it can be argued that the female body was not simply inferior and dangerous, but was constructed as an active threat to the supremacy of man whereby the perverse female body could subvert the power relations. Debatably, this perversity returns to the concept of the “leaky vessel”: an example, from 17th century England, is ‘Poor Anthony’s Complaint’, a comedic story in which a man’s wife urinates on him by using a colander instead of a chamber pot as punishment for his failure to satisfy her demands. Such “leaky” jokes were crafted to insult women but they also demonstrated the fears of the anxious male. However, more than being simply a “leaky vessel”, the perversity of the female body- implicitly based on the threat of the sexually voracious woman- became embodied, culturally-specifically, by female bodily power. The perversity of women was embodied in different ways across Europe but can be generalised as an anxiety of female appropriation of bodily power. Simons’ theory of ‘semenotics’ provides further dimension to this powerful female body, arguing that semen was commonly conceived as the purest blood and the highest and most desired corporeal currency and hence it symbolised virility in the man alongside its ‘purse’ the testicles. Thus semen was seen to be desired by women not simply for reproduction but also sexual pleasure and powerwomen’s orgasms were at some points argued to be on ‘reception of the male seed’ . This played into to the fear of the lusty female who could steal a man’s power through the female body and its ‘snatching womb’ robbing the testicular ‘purse’ of its ‘coinage’ and the man of his power; justifying the Europe-wide fear of cuckolding by women. Thus, literal bodily experience played into inter-sex power dynamics with the perverse female body nurturing the anxious male. Park argues that the rediscovery of the clitoris in early modern France was similarly perceived as a threat to male power, as was thought to act like a penis and allowing possible penetration and tribadism amongst women. Hence it became a popular cultural concern, which reflected in the attack of Catherine de Medici, the French Queen mother, as a “manlike woman” because she was deemed to have too much power. Medical authorities even tried to reduce the clitoris to a ‘deviant’ genitalia associated with hermaphrodites. This is a key example of the interaction between medical discourse, embodiment and experience and is clearly rooted in a fear of female bodily power. A further example of perversity is the bearded woman discussed by Johnston; the bearded woman posed an issue to power as ‘facial beardlessness’ was effectively a sign of ‘deference’ to the ‘patriarchal privilege’ of having a beard. Masters sported beards thus bearded women represented a potential subversion of patriarchy- an appropriation of male power on the female body. Understandings of the female body subordinated them to an inferior status whereby they were deemed to be dangerous, however, such an understanding was insecure and volatile, and early modern women corporeally broke power relations through their bodies’ perversity, potential power and ability to weaken the male body.

In contrast to women, early modern men were undoubtedly considered the superior sex, understood to be ‘performers of power’, however, this did not mean that in reality their bodies were any less ‘volatile’ to interpretation than their female counterparts. This is evident in both discourse and corporeal experience. In terms of the humoral system, men were seen to perform self-control, not simply externally but in preventing “leaking” from the body. Roper argues that this idea thus defined male sin in Reformation Germany as those activities which caused the “eruption” of fluids such as vomit. Foyster reiterates a similar understanding of manhood within an English context, as drunkenness was particularly shameful amongst men because it affected their reason and their physicality thus signalling a loss of male superiority. Such sins were associated with ‘transgressive male bodies’. In other ways men were seen at more risk of plethora because of their lack of regular discharge and thus encouraged to purge the fluxes. The pressure to control the humours helps explain partially some of the pressure on the masculinity of men; as a lack of control meant forfeiting their masculinity.

This view was not consistent across Europe in the early modern period. “Leaking” was not consistently feminine, Lisa Wynne-Smith and Cathy McClive both point out the existence of the “menstruating” man. On the other hand, perhaps more apt terming would be the “flowing man”, as this eludes feminine connotations of “leaking”, and thus recognises that male bodies were absolved of “leaking” and understood to maintain controlled flows. However, Wynne-Smith’s case study of early modern France and England shows that by the 176

end of the 18th century a changing, hardening notion of masculinity, meant that any such “flowing” was no longer acceptable. Such corporeal experience and understanding was intertwined in a reciprocal relationship with popular discourse like conduct literature. This changing experience of male “menstruation” in France and England suggests an increasing or changing anxious masculinity. In general, feminisation of the male body was a significant fear for the early modern anxious male. Furthermore, the precariousness of male superiority was also embodied in the genitals. Potency was of high importance in corporeal hierarchy, as McClive writes the penis had to be seen to function. A man who could not function, did not fulfil his duty as the superior being.

Ejaculation was highly important as part of this functioning, cases of early modern hermaphrodites are exemplary of such understanding. Marie/Marin was pardoned when it was discovered he could produce the male seed. However, the loss of semen was cause for further male anxiety, in relation to the previously explored concept of the ‘snatching womb’ , men were fearful of post-coital exhaustion, a fear explicit in the French terming of the male orgasm as ‘“la petite mort”’ . The male orgasm generated ‘“the material of masculinity but also destroy[ed] it”. However, such exhaustion could be understood as evidence of superiority: Helkiah Crooke cast semen as the more ‘“violent seed”’ and male post-coital tiredness was attributed to their greater orgasm. The male body was further cast as the performer of power, in the advocating of sex as cure of “women’s diseases” like “green-sickness” and other such stagnations. Thus ‘male anxiety ameliorated and norms affirmed by medical knowledge demonstrates that corporeality was of key importance in power struggles’. Men predicated their superiority on their “superior” bodies but in doing so their power became inherently vulnerable and anxious: ‘men’s bodies were thus no more stable or fixed than women’s and their functionality was directly linked to patriarchal concerns in much the same way as that of their female counterparts’ .

Considering the importance of early modern understandings of the body in determining and reaffirming power relations, it is unsurprising that the ‘corporeal turn’ can greatly inform us of the path and local differences in the history of patriarchy. As examined earlier, according to Simons’ theory of semenotics, the ultimate importance of semen and the testicles was ‘age-old’ and left ‘women necessarily, physically dependent on what only men could provide’ with such ‘corporeal authority’ translating into political and economic authority. This high value of semen set the basis of society whereby women were purchased either by semen or by coinage, hence the commoditization of a woman’s virginity. The commoditisation of virginity was evidentially widespread across early modern Europe manifesting in a variety of ways, in particular a prizing of female honour. Moreover, it justifies the powerful connotations behind the insult “whore”, without her sexual honour a woman was necessarily worthless. Dominance was expressed in different ways throughout the life stages of early modern women; in the case of Reformation Germany, good Christians were expected to marry and with this undertake sexual relations. Marriage usually coincided with the gaining of economic security when the man became the master of a craft: thus the husband became the master of the woman coincided with becoming master of work. Women similarly gained power over other women by becoming married for they gained further corporeal knowledge such as in matters of pregnancy. Gowing highlights that this incorporation of women was significant in early seventeenth-century London as those who did not report an illegitimate pregnancy were similarly deemed culpable. In contrast to the “development” of power accumulated with corporeal experience are the witch hunts of Roper’s study of Augsburg in the late 1600s, which demonstrates that there existed a vindication of women in old age. Patriarchy thus manifested itself throughout a woman’s life span, incorporating her participation when necessary whilst subordinating her power if the threat of perversity surfaced.

Early modern European patriarchy, however, became implicitly fragile through its reliance on corporeality.

Women could invert power through extra-marital sexual relations, which cuckolded their husband, or through mere sexual knowledge, whereby women gained a power due to their personal knowledge of their husband’s bodies. Thus perhaps explaining why early modern women in England were prosecuted for extra-marital sex and not men : ‘the adultery of women, and their capacity to bring the children of another man into the family were to be feared precisely because husbands relied on their wives to maintain a literal and symbolic sanctuary in the home’ . Parker argues that female same-sex sexual relations became a significant weakness in the French patriarchal structure, however, this fear of female homosexuality was seemingly unique to France and hence demonstrates the locality of patriarchal relations. The sexualisation of power is further examined in Roper’s study of exorcism in reformation Germany, accounts of which tended to take place on a bed and featured young women of a sexually prescient age writhing naked. Jordanova explores a similar theme with 177

the power and gender inscribed ‘visions’ of females displayed in science and medicine in the eighteenth century, such as the ‘Venuses’ of North Italy which were displayed in ‘passive yet sexually inviting’ poses despite being simple anatomical models. Such passive sexual displays of women ostensibly allude to an invitation of active male power, in the former, the male exorcist and in the latter the male medical observer, whilst reiterating the female as passive yet lusty. The sexualisation of power had repercussions for males too, playing into the formation of the anxious male, for example in Behrend-Martinez’s study of early modern Basque Spain, the non-virulent castratus was prevented by his family and community from marrying and accessing the role of a household patriarch through public impotence trials. Such an example highlights the manifestation of discourse but also public participation in upholding an ideal of patriarchy and an access to patriarchy derived from a specific notion of manhood. As McClive purports, ‘the functionality [of men’s bodies] was directly linked to patriarchal concerns in much the same way as that of their female counterparts’.

Similarly to the castrati, the functionality of the female clitoris in early modern France saw women with “penis-like” clitoris’ prevented from marrying, as such women posed a threat to the household patriarch. Thus patriarchal relations were endemically weak under the foundation of an ideal, functional corporeality and in particular reliant on sexual power which contributed to the determination of the active subject and passive object.

Patriarchy did not simply manifest itself in the corporeality between men and women, but between men. Male bodies were policed as well as female bodies in order to protect access to “patriarchal dividends” and preserve power relations. The afore mentioned castrati are a key example of this “protection”, for example, the castratus José Ruíz de Corçano’s marriage license was contested by his brother Juan; Juan policed in this way because he feared the loss of his own economical “patriarchal dividends” if his brother Juan become the patriarch of a family. The example of inter-male patriarchy within early modern Spain is further explored by Berco, in the analysis of sodomy cases. Berco argues that ‘patriarchal thinking, feeding on codes of masculinity, encouraged a penetrative valuation of sexuality, and thereby sodomy as a means of forging hierarchies’ ; in the early modern Spanish context sodomizing another man was undeniably a ‘means of establishing dominance’ , as in the case of ‘lowly’ soldier Juan Laure who boasted of having corporals and young sergeants ‘“under”’ him.

Highly significantly, Berco argues that in fact prosecution tended to occur only when the active sodomizers were of lower social status than those whom they sodomized, hence sodomy became condemned when it subverted power relations. Such an interpretation of sodomy thus re-asserted the patriarchal divide between a superior active subject and an inferior passive object. In North-Western Europe, however, sodomy was fully condemned as a deviant form of sexuality- reasserting the locality of the course of patriarchy. On the other hand, Trumbach highlights that this condemnation developed after 1700, sodomy having previously been used as a form of dominance , arguably, therefore, the sexualisation of patriarchal power was not distinctively between men and women but determined locally through culturally-approved sex. Moreover, it was access to sex, in conjunction with societally-approved sex that underpinned the manifestation of patriarchy; in early modern England for example George Fenwick sought to defend himself against a fornication charge with Margaret Sharp, in doing so George was defending his apprenticeship which required his celibacy. George’s restriction from sexual relations confirmed his economic deference. This complements Simons’ assertion that entry to economic spheres was implicit in the ability to inseminate a woman, and relates back to the fear of the bearded woman, for apprentices were denied the ability to grow a beard in early modern England- becoming a master was acknowledged in the body whereby a display of manhood symbolised economic power and access to “patriarchal dividends”. Corporeal patriarchy was thus crucial in defining the hierarchy of men and was demonstrated through corporeal obedience and conformity. Significantly, ideals of patriarchy could varyparticularly between the state authorities and local men- when their notions of masculinity diverged; Foyster highlights the danger that English young men posed to civil patriarchy in early modern England in their choice of traditional male pursuits, such as ‘gambling, drinking and fashion’ rather than the civically endorsed activities of virtue that were portrayed in conduct literature. A similar culture of anti-civic masculinity was displayed in the Netherlands and Augsburg; Roper argues that the authority’s condemnation of such activities stemmed from the threat of ‘potentially anarchic and undisciplined’ activities that resulted from men losing a ‘grip’ on their ‘bodily boundaries’ , thus threatening male superiority. Furthermore ‘the authorities straddled an uneasy divide between wanting to invade the household and police the male miscreant, and treating him as a respected ally’. Thus the playing out of patriarchy between men corporeally was as important as the corporeal subordination of women; the perversity of women was mirrored particularly in the perversity of young men

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who defied their corporeal subordination, whilst the inferiority of women was reflected in inferiority of certain men who were restricted from “patriarchal dividends”.

Gender history has typically focused on a separation from the body in an attempt to allow a multiplicity of gender identities, however, the ‘corporeal turn’ demonstrates that the incorporation of the body allows multiplicity, and is a necessary perspective to take when understanding early modern European gender history.

Gender identities were significantly associated with embodiment and an interaction between experience and discourse. Arguably, Butler’s concept of “performativity” highlights a significant connection between the body and gender; this “performativity” manifested itself particularly in the functionality and performance of sexual organs. Masculine identity was often rooted in ‘somatic deeds’ upheld by people and authority, hence the vilification of hermaphrodites like Eleno/a, who was accused of usurping male role by being on top during sex.

Women who used dildos on other women were similarly punished throughout Europe for ‘“usurping the penetrative male role’” ; Wiesner contends that using a dildo was more serious than female homosexuality in itself - this can be understood as part of the corporeal restriction of masculinity, which, as argued previously, was used to protect “patriarchal dividends” . Heterosexual relations were culturally interpreted as ‘innate’ to a sense of gender with the “superior” penetrating role being defined as masculine. In accordance with Foyster, masculinity became predicated on not being feminine; such a construction of masculinity would explain certain reactions of the parents of sodomized boys in Berco’s study of early modern Spain; for example one mother whipped her son because been sodomized by Rafael Reola and thus had been effeminised. Parental responsibility for a boy’s masculinity was similarly undertaken in England, a boy’s female attributes were to be kept in ‘abeyance’ by his parents. The seriousness of the effeminised man can be found across Europe, and such effeminising was significantly associated with bodily performance. The claim to masculinity was a precarious one and masculine identities were not necessarily cohesive, as explored previously, such divergences arguably resulted in a ‘‘crisis of masculinity’’; early modern authorities attempted to restrict divergent masculinities by policing the body, Spanish authorities for example sought to restrict sexual activity, deeming the sexual ‘lasciviousness’ prided by Spanish men as a sign of effeminacy. Interestingly, McTavish explores the phenomenon of the active acquisition of feminine qualities by the men-midwives in early modern France; in the female domain of the birthing chamber men-midwives assumed ‘womanly qualities’ such as cleanliness in order to gain access and trust, paradoxically men-midwives made sure to reassert their ‘masculine professional identity’ in medical treatises. Thus gender identities were displayed through and associated with the performance of the body, moreover such performance resigned masculinity to a fragile, but highly defended privilege. Additionally, the body was a key site for the representation of gender as femininity and masculinity were actively embodied; for example the breast became an ultimate sign of femininity, displaying in ‘softness’ both the maternal bosom and the sexual being. Hence the body was intrinsic to early modern sense of gender; gender immersed within and developed from the body which performed such identity voluntarily or involuntarily. Gender identities were diverse yet fragile with ideals being enforced by the authorities and communities through the policing of the body, arguably to preserve patriarchal relations.

The ‘corporeal turn’ explicitly questions the validity of Cartesian discourse in analysing early modern European history; arguably dualistic thought is thoroughly unrepresentative of early modern European selfperception, as the body and mind were understood to be fundamentally associated. The idea that ‘one becomes something by living as them’ is demonstrated by Bynum to have continued from medieval times. This ‘embodying’ remained of key importance in early modern European lives as, in correlation with the formation of gender identities, early modern people embodied and “performed” their identities. Duden’s study is exemplary for understanding the embodiment of identity, as the women of Eisenach were diagnosed solely on their own words. They embodied their life stories, and such stories reiterate the inseparability of the early modern mind and body- where a bad mood could cause an “irate” womb. Moreover, physicians across Europe tended not to separate the mind and body when diagnosing, thus demonstrating that non-dualistic experience was reaffirmed by medical practice. Rublack and Selwyn succinctly describe such construction and experience as the ‘somatization of emotion’; this ‘somatization’ returns to the early modern body understood in terms of liquids and flows which surfaced in bodily materiality. The surfacing or lack of surfacing of these flows was cherished or condemned depending on the manner in which they were seen to be cause by the person, for example women who couldn’t cry were condemned as witches. Further than basic humoral perceptions, the body’s appearance and experience were unfailingly linked to a construction of identity. Hieber of Augsburg declared that “[Margaret] lied as a whore for he had made her a whore”, his reasoning behind this was that his 179

sexual relations with Margaret had determined her new malignant character. An imperfect body was also perceived as a reflection of the person: a Spanish church court judged that the imperfect body of Juan/a the hermaphrodite revealed his ‘imperfect soul’. That appearance was of ultimate importance in the early modern European culture is unsurprising when looks determined important matters such as paternity , the body became a display identity and thus served as a tool with which to police society. Though such interpretations can be negated to pre-scientific, irrational reasoning, the body could actually provide proofs of identity, such as prostitution through the bodily repercussions of pregnancy or venereal disease. Thus the reasoning that ‘an error once made remained imprinted on the body and could not be remedied thereafter’ had some grounding.

Bodily appearance, feeling and experience were interpreted culturally-specifically across Europe as a reflection of a person’s character, emotions and actions and so the body became a tool of society. Hence acknowledging the “non-dualism” of this period reaffirms the necessity of the ‘corporeal turn’ in understanding early modern European history.

Finally, it is highly important to reintegrate the body into our understanding of early modern European history because bodily interaction was of crucial significance in this period; the ‘politics of touch’, ‘corporeal authority’ and body language served to place the individual body at a conjunction between the public sphere and private domain. Such a topic also provides insights into the experience of sex and reproduction, moreover that understandings of bodily interaction sought to reassert power dynamics. Furthermore, it increasingly exemplifies the vulnerability that the importance of the body placed on early modern lives and the place of discourse in fighting and contributing to this exemplification. The boundaries of touch with regards to sex and gender were particularly fragile, women and men were assumed to have clear bodily boundaries, overstepping such boundaries proved susceptible to public interpretation, which, particularly in the case of women, could damage personal honour. Body language was key in the determination of rape cases, in the interrogations of Augsberg for example penetration was deemed to be consensual if the women had opened their legs. Similar interpretations of rape extend to the sodomy trials of early modern Spain, for the “passive” man was deemed as an accomplice if he had not actively denied consent. Thus, arguably, bodily interaction was interpreted with a skewed view, determined by the passivity intrinsic to early modern conceptions of femininity; being touched was judged to be feminine whilst doing the touching was a male action, in this manner power was displayed through bodily interaction. Such power was implicit in male dissections of female bodies, and representations of these dissections; one surgeon concluded that he had sexually aroused a dead woman, through manipulation of the clitoris, attesting his sexual potency and masculine strength. Even reproductive discourse attributed conception to the active man, such as the Aristolean one-seed theory which argued that the male seed formed itself as a child in the menstrual blood. Thus in bodily interactions ‘“women’s bodies were spaces in which masculine activity reigned”’. ‘Corporeal authority’ and the power to police the body was predicated on corporeal knowledge; female midwives tended to be respected middle-aged women who had experienced childbirth, and thus epitomised such corporeal authority. These women are argued by Gowing to have been employed in breast searches, determination of virginity, touching of bellies; moreover it was not simply midwives but other women that undertook policing of the body whereby ‘women’s touch was one of the controlling mechanisms of early modern society’. Perhaps the female association with the body elevated their position to the ‘corporeal authority’ of their sex. Interestingly, McTavish draws our attention to embodiment of bodily experience by men-midwives; a variety of male midwives accessed female ‘corporeal authority’ by detailing their close association with relatives’ births and their complementary bodily labour alongside their patients. Thus corporeal experience authorised bodily interaction, in the provision of knowledge- attributing power to the experienced body; furthermore, bodily interaction was innately symbolic in the early modern period, embodying power relations and sustaining patriarchal beliefs whereby men remained superior.

The ‘corporeal turn’ is thus demonstrably useful when understanding early modern European history. The body is undeniably a socio-cultural and historical product, by which men and women were ‘embodied and embedded within their political and social context’, and hence provides significant insight into the social, political and economic dynamics of early modern Europe. Early modern European societies were based upon and affirmed by corporeal understandings of the body, which determined status, sex and gender. Bodily perceptions were highly important and intrinsically linked to the ancient humoral system; women were arguably understood as variations of “leaky”, “open” vessels which thus made them inferior, but which also allowed them to be dangerous, not only to others but themselves, whereby the female body was experienced with fear throughout different stages of life. Paradoxically the female body also became perverse when seen to appropriate bodily 180

power, particularly power deemed masculine; such perceptions effectively nurtured the anxious male who sought to preserve patriarchal relations. The male body was similarly ‘volatile’, undertaking a continual fight between the anxious male and the male performer of power , which was considerably associated with the vulnerable functionality of a man’s body. The concept of the “flowing man” incorporates the “menstruating man”, whilst discarding feminine connotations of uncontrollability. Thus the body served as the site of a power contest through local cultural understandings which made it crucial in determining patriarchal relations, and through which we can trace the history and locality of patriarchy. Functionality was evidently fundamental to sex and gender understandings, particularly with regards to sexual performance. The sexualisation of power manifested in a variety of ways, essentially defining feminine and masculine domains as passive and active respectively; these corporeal aspersions reflected and were reaffirmed by popular culture and scientific discourse. However, such emphasis on corporeality rendered patriarchy inherently vulnerable to subversion; civic ideals of corporeality were particularly vulnerable, suffering deviancy from both sexes, especially in diverging notions of gender. The life stages of early modern men and women served as ‘“privileged sites of significance”’, which through analysis demonstrate cultural specificities and Europe-wide trends. Furthermore, identity was fundamentally constructed from the body, not simply in defining multiple gender identities but in reflecting a person’s character and their daily life, whereby semantic and somatic experience interplayed to create fluid relations between experience, discourse, embodiment and representation. Thus metaphors about the body had ‘material presence and everyday effect’. Moreover, bodily interaction served to enforce hierarchical relations between both sexes and gender identities, which left the private body open to public policing, in which women played a key role. Multiple disciplines of history can benefit from the reintegration of the body into history- perhaps most significantly the turn demonstrates that historians of women, gender and feminism can approach the historical body without fear of essentialism. This approach is necessary as experience and embodiment are clearly crucial in understanding the lives of early modern people. Thus the ‘corporeal turn’ must be pursued as the body is central to the study of early modern European history.

Bibliography

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Embodiment and Social Theory: On Skin Whitening Najeehah H. A. Hamid is a second-year student from Brunei currently reading Sociology at Grey College, Durham University. This paper was prepared for the 'Sociological Imaginations' module under the guidance of Dr. Mark Creswell and will serve as a foundation for Hamid's dissertation paper in her final year which she hopes will contribute to the much-needed discussions around embodiment and its implications on race, gender and intersectionality.

‘Contemporary sociology has little to say about the most obvious fact of human existence, namely that human beings have, and to some extent are, bodies’ (Turner, 1996, p. 60). It was only in recent years, however, that a rise in sociological interest and involvement in ‘body politics’ (Davis, 2003a), as some call it, can be observed. Much of this is owed to the impact of the feminist movement and philosophy, which in essence is an ‘embodied theory’ that explores in great detail what it is like to be a woman in a woman’s body. This formulation of embodiment as ‘lived matter of gender’ (Hughes and Witz, 1997), articulated through bodily senses, derives from the work of Merleau-Ponty who emphasizes the body as ‘the vehicle of being in the world’ (1981, p. 82). This essay looks at skin whitening as a beauty practice in particular to understand the embodiment of women of colour within the postcolonial context. It further examines the hegemonic ‘yearning for lightness’ (Glenn, 2008) that is so dominant within communities of colour, and the role of past and ongoing imperialism, female oppression, and capitalism in fuelling the desire for lighter skin. This will involve an engagement with feminist perspectives as well as the theories of Bourdieu, Foucault, Crossley and Goffman.

When discussing embodiment and womanhood, it is impossible (and dangerous, which will be explained later in the essay) to ignore the issue of race. Accordingly, notions of modern beauty are embedded in sexual politics (Wolf, 1991), as well as racial politics. To compartmentalize this, contemporary beauty regimes specific to the pursuit of ‘racial passing’ (Gilman,1999) — the full or partial elimination of racialized differences in order to become more desirable — such as skin whitening should be situated within a discussion of postcolonial habitus, to borrow a conceptual tool drawn from the works of Pierre Bourdieu (1977, 1984). Habitus refers to the everyday actions and interactions through which social structures are produced and reproduced; skin whitening is an example of postcolonial habitus through which pigmentocracy, as a legacy of a colonial past and enduring social hierarchal structure based on the favouritism of white skin and European looking features, is embodied and propagated (Kauppi, 2000).

The valorization of Western beauty ideals in contemporary societies is a manifestation of postcolonial habitus (Thapan, 2004). The reproduction of this postcolonial habitus is predicated on the maintenance of pigmentocracy. This meant the internalization of the ‘white is right’/white supremacist ideology (Ismail, 2012). Skin whitening as an embodied practice that reflects this internalization can be explained through Foucauldian notions of bio- and disciplinary power. Within this framework, the body is understood to be a site of surveillance upon which power is exercised using disciplinary practices. This requires the legitimation of norms and the orientation towards the normative (Foucault, 1979a). Here, acknowledging that skin-whitening practices as embedded not only in systems of colonialism but also of male dominance and capitalism is of highest note (Ismail, 2012).

Women are constantly being fed the message that their value is intimately tied to their level of physical attractiveness (Wolf, 1991). Beauty therefore carries itself as a symbolic capital that women can accumulate by partaking in beauty regimens (in this case, skin whitening) that promises to enhance outward appearances (Gilman, 1999). Popular feminist discourse, in keeping with the Foucauldian tradition, argues that these beauty regimens is simply a way in which the patriarchy exercises its power through the domination of women’s bodies; first, by putting in place beauty standards, second, by telling women their only worth lies in the achievement of these standards and, 184

third and lastly, by tricking women into desiring these standards thus manufacturing the constant need to meet them via oppressive beauty regimens. Women’s bodies thus evolves into a site of surveillance and struggle (Brownmiller, 1975).

However, patriarchy alone is not enough to theorize why recent years have witnessed a sharp rise in the use of skin whiteners. Today, the skin-whitening market is estimated to be worth $5.6billion in Asia alone, has an estimated sixty million consumers throughout the Indian and African subcontinents and exports to all twenty four countries in the Global South (Glenn, 2008). It is paramount therefore that gender and race (as well as capitalism and consumer culture) are not taken as separate systems, but rather as intersecting and mutually constitutive features (Hooks, 2000). So when beauty has come to be synonymous to having a certain skin colour or skin tone (Franklin, 1968; Hall, 1995), it becomes a more complicated issue for women of colour when, in addition to facing other impossible standards of beauty such as extreme thinness, flawlessness and sex appeal, the most overbearing of beauty ideals serve to blatantly exclude them (Kite, 2011). Ultimately, women of colour find themselves ‘Othered’ (Said, 1978).

It is no secret that women are bombarded on a daily basis with images in the media that dictate how they should aspire to look like — ranging from 250 to 3000 and above per day from advertising alone (Abu-Saud, 2013) — but the appalling lack of diversity in representation in the proliferation of these images that showcase only young, thin, able-bodied white women as beautiful perpetuates an elevation of pigmentocratic values that valorizes Eurocentric beauty archetypes, and by extension, whiteness itself (The Representation Project, 2014). Even in film and television, less than 5% of protagonists in the past five years have been women of colour (The Representation Project, 2014).

Chimamanda Ngozi Adichie, in a now seminal 2009 Tedx speech, warned of ‘the dangers of a single story’ whereby people who are outside of the experience begin to internalize belief that their stories are less than valid. When women of colour are routinely left out of popular narratives ensuring them that they are beautiful and full human beings, what does it tell them?

Consider for a moment the far and few in between current female icons of colour in pop culture and film: Beyonce Knowles, Tyra Banks, Halle Berry, Alicia Keys, Zoe Kravitz, Rihanna Fenty. If there is one thing that they all have in common, it is that they are able to ‘racially pass’ (Gilman, 1999) and emulate whiteness with their fair brown skin and vaguely Caucasian features (The Representation Project, 2014). This serves as a constant reminder for women of colour, in particular those of a darker skin hue, that they are ‘imperfect by virtue of simply being born the wrong shade’ (Robinson, 2011, p.

582). This is made worse by Western cinema cosmetics that popularized a stylized language of pictorial aesthetics which helped to promote a standardization of body images (Muller, 2014). What this meant was that not only was whiteness the ideal, but it is also the barometer by which all ‘Other’ women are measured (Kilbourne, 1999; Glenn, 2008).

The skin whitening industry plays on these anxieties through the 'democratization of beauty' (Engels, 2008) whereby supposedly everyone can be 'beautiful'. To do this, the discourse for ‘a plurality of natural beauties’ is appropriated by, paradoxically, promoting a ‘hegemonic’ femininity and countervailing any attempt at emphasizing local and national differences (Villa, 2000). Hereinafter Glenn (2008) contends that transnational pharmaceutical and cosmetic corporations, knowing that the skin-lightening market is highly segmented by nation, culture, race and class, have thus responded by offering multiple product lines targeted to specific segments of consumers and by designing ads and publicity that supposedly incorporate local cultural themes and concerns. The underlying message of ‘white is right’, however, remains the same, ensuring the reproduction and maintenance of postcolonial habitus (Thapan, 2008).

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In an effort also to tap into women's increasing consumer power, the ‘democratic’ vision of ‘hegemonic’ beauty commodifies the rhetoric of female empowerment by placing an emphasis on individual choice that appears to suggest female agency only in terms of 'purchasing' beauty products (Engels, 2008). Stewart (2007) points to corporations guilty of this hypocrisy such as Unilever that commercializes feminist philosophy by telling women to ‘love [their] bodies, but hate [their] skin.’

Dove, for example, have recently introduced a supposedly ‘revolutionary campaign’ that celebrates ‘inclusive beauty’, all the while selling an ‘exclusive beauty’ with their skin whitening products to the very women of colour they claim to be celebrating (Stewart, 2007).

Underpinning this, of course, is the idea that because beauty, i.e. lighter skin, is now achievable, it should and must be achieved (Lury, 1996). Thomas (2009) therefore propounds skin lighteners as a 'technology of the self’ (from Foucault) — here, a technology aimed at improving one's body and other aspects of the self to attain a sense of ‘perfection’. This is exacerbated by how 'science is conjured' (Foucault, 1976b) to not only legitimate pigmentocratic beauty ideals but also the use of skin whitening products (Glenn, 2008). Thompson (2004) terms this the ‘Gnostic mythos’, which is ‘the ideological wedding of science and transcendence’. The lightening of skin is often framed as a way of 'unveiling natural radiance, reclaiming [...] youth, improving dermatological health and fixing 'pathologized' undertones and tints of non-white skin' (Winders, Jones, and Higgins, 2005, p. 80-84).

Women who have white and fair skin were therefore perceived as ‘normal’ and others who fail to achieve a fair complexion are suggested as failing to manage and control their bodies (Crawford, 1985).

Al-Saji (2013) describes this as a way in which bodies of colour are perceived in structural and internalized cultural racism. ‘White is right’ ideology, which has stubbornly persisted throughout the centuries through systems of pigmentocracy that developed globally across many communities of colour, bolstered by a Western-dominated transnational economic system and consumer culture, asserts itself in the dominant postcolonial habitus (Glenn, 2008). The way in which it constructs white or fair skin as both the paragon of feminine beauty (that is attainable) and of normalcy in the collective consciousness implies that having non-white or dark skin is more than just a show of inferiority; it is also a transgression, an act of deviance in and of itself (BondandCash,1992),or in the words of Hall (1995), ‘illegality’. The ‘yearning of whiteness’ (Glenn, 2008) then translates into an act of disciplining one’s body so as to fit into a society where white is the norm, and an act of punishing one’s body for not fitting into a society where white is ‘right’ (Hall, 1995).

This latter aspect of punishment provides an extra layer that complicates the question of skin whitening as simply a matter of the pursuit of beauty. Whilst it makes allowances for the critique of the ideological constraints on feminine appearance (that disproportionately affects women of colour in particular), it simplifies the issue as women just aspiring to feel and be beautiful (Ismail, 2012). This approach reductively regards women of colour today as passive consumers who are victims of false consciousness and internalized sexism as well as, and it appears more so than, racism (Glenn, 2008); that women of colour are but, to borrow a term from Foucault (1979a), ‘docile bodies’. Consequently, it does not do justice to the actual narratives of women of colour who actually do practise skin whitening.

Like ‘ethnic cosmetic surgery’, skin whitening is a controversial practice because it touches upon the embodiment of pre-existing constructions around race that is linked to racist practices of inferiorization and exclusion (Davis, 2003b). It brings to surface the uncomfortable fact that in ostensibly democratic, ‘post-feminist’, ‘post-race’/colourblind societies, certain groups of individuals continue to be defined as ‘Other’. These groups are ostracized for their ‘Other-ness’ and forced to find ways to disguise it (Davis,2003a). Gilman (1999) refers to this as ‘racial passing’, whereby individuals assume a new identity in order to eliminate visible ethnic markers or differences and blend into dominant society (Hall, 1996). Gray (2014), on a more pessimistic note, considers this ‘racial passing’ a ‘deletion and disguising of [coloured]ness [as Other-ness]’ to alleviate the ‘punishment of coloured bodies’ for not being white.

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However, skin whitening as ‘racial passing’ is neither necessarily an aspiration to ‘be beautiful’ or to 'become white’, nor simply a rejection of ethnic identity (Ismail. 2012). On the contrary, as Davis (2003b, p. 23-24) puts it, it is ‘the sense of unfairness at realizing what is defined to you because of physical markers like skin colour [...]that may be so overwhelming that [skin whitening] would be the only way to defy the system and get the benefits a person knows s/he deserves.’ It is important to understand that skin whitening thus typifies a quest to separate oneself from the identification with ‘the Indigenous Black and Brown look [...] which brings with it too much pain to be tolerated’ (Piper,1999, p. 244-45). This is why reducing skin whitening to a mere beauty regimen denies the possibility of viewing it as an ‘intervention in identity, rather than an intervention in appearance’ (Davis, 2003b, p. 19). Treating skin whitening as such invites the scholar to take experiences of real women of colour with their bodies more seriously, better appreciate the gravity of their suffering, and acknowledge why skin whitening to these women may seem like the best and perhaps the only reasonable thing to do under the circumstances (Davis, 2003b).

This perspective is synthesized in the works of Crossley on ‘reflexive embodiment’ (2001; 2007). He discusses how individuals become aware that they ‘both are [their] bodies and [that they] have a body’. The body here is simultaneously the ‘subject’ and ‘object’ (Crossley, 2001). This derives from the acquired capacity to assume the role of another and thereby understanding one’s place in a community through an outside perspective. It is easy to cast skin whitening practitioners as frivolous and ‘ideologically manipulated’ (Davis, 2003b) but for many women of colour, it is this consciousness of one's place in a highly racialized society (subjectification), that skin whitening (objectification) remains an active strategy — Reflexive Body Technique, Crossley (2005) calls it — employed in navigating through a world that is further divided along 'coloured' and ‘gendered’ lines (Ismail, 2012). It is the negotiation of identities in a context where difference in embodiment gives just cause for oppression (Davis, 2003a); and, it is about competing for the ‘gifts’ that comes only with whiteness and are denied to women of colour purely because of their sex and the hue of their skin (Thapan, 2004).

These ‘gifts’ i.e. the advantages of being 'fair' are clear. In post-colonial societies where resources are divided by race and colour (as well as gender and class), it is white men (and women) who reap a disproportionate amount of the benefits. One way of conceptualizing skin colour within the contemporary postcolonial context, then, is as a form of symbolic capital that can be cashed into social, cultural and ultimately economic capital (Glenn,2008). The choice to partake in skin whitening practices is thus not so much a manifestation of internalized racism, or sexism for that matter, and false consciousness by ‘docile bodies’ as it is a rational decision made by active individuals of colour having weighed in the disadvantages and taken into consideration the systemic inequalities like how 'skin tone correlates directly and glaringly with one's life chances'(Chua,2002). Skin whitening practices should thus be considered a ‘meticulously calculative strategy used by some groups to reclaim power’ (Lipsitz, 1998, p. 3).

But of course, skin-whitening or even bleaching does not actually whiten one’s skin. The most it can offer is to (temporarily) lighten one’s skin (a harsh reminder to folks of colour that whiteness is not something that can be earned; it is a privilege some are born with and others aspire and work towards). Nonetheless, having lighter skin does indeed embody an ‘emulation of whiteness’ (Glenn, 2008). As already established earlier in the essay, this is because the pigmentocratic racial hierarchy — that took root in many cultures with the rise of colonialism in the eighteenth century and proliferated in the spread of mass media and consumer goods in the twentieth century onwards — retains itself in the postcolonial habitus and perpetuates the ‘white is right’ ideology and a ‘light at the top’ phenomenon (Hall, 1995). Hence, the closer one is to looking white, or the more one ‘racially passes’ and is ‘ethnically invisible’ (Gilman, 1999), meant s/he is somewhat afforded the treatment reserved to white folks (Lynn, 2008). That being said, regardless of physical appearance, people of colour of all skin tones are still subject to certain kinds of discrimination, denigration, and secondclass citizenship; but the intensity of these experiences, the frequency, and the outcomes will differ dramatically by skin tone (Hall, 1995).

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As Banton (1967) observes, race and ethnicity become the signs leading to the consignment of positions in society in the overall system of exploitation. Hunter (2007) notes that ‘colourism’, or skin colour stratification further adds insult to injury. Hughes and Hertel (1990) found that the education gap between whites and people of colour was almost identical to the education gap between lightskinned and dark-skinned people of colour. In another study by Murguia and Telles (1996), teachers indicated a clear colour bias as they tend to respond more positively to light-skinned students than their equally talented darker-skinned students: from paying them more attention and encouraging them to participate in classrooms to giving them more solid references in college applications. If there is one thing to take from the infamous Nisbett and Wilson (1977) experiment, it is that these responses create a ‘halo effect’ which in turn results in ‘self-fulfilling prophecy’. This perhaps explains why lighter-skinned people of colour complete more years of schooling than their darkerskinned counterparts even when their family and socio-economic backgrounds are similar (Murguia and Telles, 1996).

Furthermore, Espino and Franz (2002) found that that translates to differences of thousands of dollars in yearly income as well as level of occupational prestige for darker and lighter people of colour.

Research shows that, given the opportunity, many people will hire a light-skinned person before a dark-skinned person of the same race (Murguia and Telles, 1990; Hughes and Hertel, 1990; Espino and Franz, 2002), as if it was not already bad enough for people of colour in general who are 50% less likely than white people to gain employment (The Economic Policy Institute Report, 2013). This extends to housing access, ownership and segregation (Alba, Logan and Stults, 2000) which altogether not only socially isolates, but also stunts the opportunity for accumulation of wealth and mobility (Oliver and Shapiro, 1995).

For women of colour, it is a more pressing problem. They have to face discrimination based on sex and gender, and race and ethnicity, in addition to skin tone (Ismail, 2012). Take the gender pay gap for instance: for every 77 cents white women earn on the dollar compared to men, women of colour earn between 55 and 65 cents, with fair Asian women experiencing the smallest gender pay gap and darker Hispanics and Latina women facing the largest (American Association of University Women, 2014). More importantly, light skin colour as an indicator of beauty can also operate as a form of social capital for women (Hunter, 2002). This social capital can be transformed into other forms of capital and, for instance, used to gain employment and status in jobs (findings from Johnson, Sitzman and Nguyen’s 2014 study found that the more ‘aesthetically pleasing’ an employer found a prospective female employee to be, the likelier she was to be picked for the job).

This disparity is played out even more elaborately in non-white communities, in particular former European colonies such as India, South Africa, Hong Kong and the Malay Peninsula (Li, Min, Belk, Kimura and Bahl, 2008) where, to top off wrestling with values of their colonial past, they are also contending with the onslaught of Western-produced cultural images that glorifies whiteness and especially white femininity (Hunter, 2007). In these societies, fairness of skin does not only equate to having an advantageous start in the labour market but also the marriage market (Hunter, 2002).

Research by Rondilla and Spickard (2007) revealed an ubiquitous ‘marrying up’ practice in which lighter-skinned partners are preferred not just because they were considered more attractive, but that marrying them gives the spouse access to privileges as well as allowing one’s children to be born with and cultivate a higher status simply by being lighter-skinned themselves.

Where dark-skinned people lack the social and economic capital that light skin as a symbolic capital can provide, being able to achieve lighter skin tones therefore meant accruing some of the multiple unyielding privileges of having white, or light, skin (Hunter, 2002) and distancing oneself from the systemic discrimination against having dark skin (Keith and Herring, 1991). Accordingly, Robinson (2011), who contends that in her interviews and observations skin whitening is often ‘a personal matter which relates mostly to improving one’s social standing’ (p. 583), stresses the fact that women of colour were fundamentally motivated, not by the prospect of being white, but by the status which they can gain from embodying whiteness. It is worth remembering again that beauty also operates as a form of social capital for women (Hunter, 2002) and where beauty is defined by whiteness, skin 188

whitening seems like one of the few ways to get a piece of the pie in an increasingly racialized and gendered society (Hunter, 2007).

This reiterates Davis’ views on the ‘negotiating of identities’ (2003a), which is rather analogous to Goffman’s theory of ‘management’, and giving off, of ‘impressions’ (1959). In regards to women of colour who partake in skin whitening, it is the managing of: 1. the impression of whiteness, which offered a way to achieve upward mobility and assimilation in a world that defines them as different and. more importantly, inferior by virtue of their appearance (Glenn, 2008). 2. the impression of beauty, which promises a sense of self-validation and self-worth (Robinson, 2011) in the same world where women’s value are oftentimes singularly measured against constructed notions of physical attractiveness — which like most social constructs consisted largely of specific histories and genealogies that inform racism and other forms of deeply ingrained prejudices. And finally, 3. the impression of whiteness as beauty and beauty as whiteness, because skin tone remains an important characteristic in defining beauty and beauty is an important resource for women (Wolf, 1991; Hunter, 2002).

Skin whitening should therefore not simply be taken as an embodied expression of postcolonial habitus, but a deep understanding of and reaction to it (Thapan, 2004). ‘Negotiating of identities’, ‘reflexive body techniques’, ‘management of impressions’ — call it what you will, skin whitening proves to be a multi-faceted matter. It is neither helpful to posit it in terms of beauty that encourages the casting of women as superficial beings whose lives revolve around pursuing an unattainable perfection (Ismail, 2012), nor to critique it as nothing but a ‘symptom of racial self-hatred’ (Hall, 2006) or ‘a traitorous complicity with oppressive norms’ (Davis, 2003b). Complicating the discourse opens up an array of possibilities to consider ‘women’s engagement with their own embodiment and identities’ (Oza, 2011, p. 1089).

So perhaps, by looking at skin whitening as an ‘active strategy’ employed by women of colour to ‘counteract their subjugation’ and ‘reclaim power’ (Lipsitz, 1998), it allows for a paradigmatic move away from thinking of these women as passive victims — ‘docile bodies’ and ‘cultural dupes’ — of systems of inequality and false consciousness, and risk a moral condemnation and massive shaming of women of colour, which many a time ‘holier-than-thou white middle class feminists’ are guilty of doing (Ismail, 2012). In fact, aligning oneself to the latter framework can simply perpetuate the oppression of women of colour by prescribing on them more expectations to which to adhere (Hunter, 2005).

Be that as it may, the extent to which beauty regimens like skin whitening can oscillate between oppressive and empowering qualities is up for debate. Women of colour, even when empowered to control their bodies and their embodiment through skin whitening practices, still pattern themselves on the external control of patriarchal beauty and racist standards (Wolf,1991) because failure to do so results in ‘punishment’ (Gray, 2014) in the form of low self-esteem and social status. Skin whitening then appears to be more of ‘survival tool’ (Ismail, 2012). Furthermore, to deem skin whitening an ‘active strategy’ may conflate reflexive choice with forced choice. Whilst women of colour do show some level of agency when employing skin whitening practices to thwart the influence of social structures, that they have to employ them to ‘survive’ (Ismail, 2012) only highlights the fact that they are still succumbing to those social structures and to existing gender and pigmentocratic hierarchies they hope to challenge.

That isn’t to say that all women of colour are not questioning and confronting these structures — on the contrary, several studies have shown a prominent growth in women of colour proudly accepting and celebrating their ethnic and racial identities. But it is going to take the dismantling of the larger systems of patriarchy and white racism because as long as societies experience ongoing colonization, capitalism and male dominance, skin whitening, as both a beauty regimen and a way in which to limit the influence of institutionalized and structural discrimination and access social and economic privileges, is always going to exist (Ismail, 2012). Until then, skin whitening will also represent an embodied resistance by women of colour; an ironic attempt at achieving equality, validating their existence, and finally being seen as full human beings.

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‘It’s not rape if…’: Female Students’ Everyday Experiences of Lad Culture at Durham University

Sophie Lambert is a final year student reading Geography (BA) at Grey College, Durham University. Within this, Lambert has focused on social and political geographies with a particular interest in gender. This paper was submitted as an undergraduate dissertation under the guidance of Dr Siobhan McGrath.

1. Introduction and Research Aims “A string of headlines about misogynistic behaviour has become a depressingly recognisable sign that the new university year has begun. For many female students, those headlines represent the tip of the iceberg.” (Laura Bates, 2014, The Guardian) By the time of the January deadline for university applications in 2014, UCAS had received 580,000 applications, over 57% of which were from female applicants (Adams & Page, 2014). Females have outnumbered males in higher education in the UK for a number of years (UCAS, 2014), so, are female students now dominant, and is sexism and gender inequality at university a thing of the past?

Are males now being excluded from higher education by the widening gender gap? This dissertation will argue that when questioning whether achieving statistical equality corresponds to gender equality, it is essential to look beyond quantitative statistics and into the everyday lives of university students.

The dissertation aims to produce an understanding of the gendered experiences of university of students at Durham University, using a feminist viewpoint to fill a gap in our knowledge regarding gender equality at university.

This dissertation will explore gender inequality through the lens of lad culture. Lad culture has become increasingly prominent in news, social media and in academia in recent years. One of the main aims of this dissertation is to establish what the term lad culture means to female students at Durham University, establishing a working definition of lad culture based on the views of the research participants. Throughout, this will be compared and contrasted to popular and academic definitions of ‘lad culture’. Using this, a critical analysis of if and how experiencing lad culture as part of everyday life can be detrimental to female students will be produced. Central to the dissertation is female agency which, this dissertation will argue, has so far been missing from literature on lad culture. The dissertation will therefore aim to not only investigate how female students are exercising their agency but will aim to provide the participants with an opportunity for their voices to be heard.

1.1 Lad Culture in the Media: Situating the Research In recent years gender inequality and lad culture (particularly in educational spaces) have been increasingly prominent in the media. For example ‘Edinburgh rugby players chant rape jokes at female students’ (Robinson, 2014), ‘10 Things female students shouldn't have to go through at university’ (Bates, 2014b), and ‘Universities ignoring laddish culture’ (BBC, 2014) are few of many recent news articles which discuss lad culture in universities. Articles can be found relating to lad culture in higher education institutions all over the country highlighting the wide reaching and ever spreading nature of the issue.

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The motivation for this particular dissertation came from an article entitled ‘Durham student rugby club played game ‘encouraging rape culture’’ (Silverman, 2013). This article reported St Cuthbert’s Society Men’s Rugby Team playing a game named ‘It’s not rape if…’, in which members take it in turn to finish the sentence with phrases such as ‘It’s not rape if…you shout surprise’. The incident made the news after a member of Durham University Feminism Society wrote an article (she had been at the bar that night and had confronted the rugby players) on student news site The Tab (Perry, 2013). This clash culminated in a panel discussion co-hosted by Durham University Feminism Society and St Cuthbert’s rugby team with Durham Women Rising about whether there is a link between sexual violence and lad culture. The panel was well attended by both male and female students, suggesting that lad culture is an important issue for students at Durham University. This dissertation is therefore situated within an ongoing debate within the university about the implications of lad culture being part of university life for Durham students.

1.2 Research Questions In order to fulfil the aims of this dissertation, the research will be based on the following questions: 1)

How is lad culture understood?

2) How do female students experience ‘lad culture’ as part of everyday life at Durham University?

3) How do female students’ responses to lad culture reflect asymmetric gendered power relations within the university space?

2. Literature Review 2.1 The Ontology of Lad Culture The term laddish emerged in the 1950s in reference to Playboy Magazine and first entered academia in 1977 in Willis’ Learning to Labour. Willis (1977) used the term to describe young working class masculinity and focused on the role of humour in the production of masculine identities (Kehily & Nayak, 1997) and the importance of having a ‘laff’ (Willis, 1977: 29). Willis also alluded to an environment of sexism and misogyny within working class masculinity in the 1950s, 60s and 70s which arose from women becoming increasingly prominent in the work force, taking jobs which would traditionally have been held by men (McDowell, 2011). Accompanied by a rapid decline in availability of industrial manual work, this caused rising levels of unemployment for men, leading to what has been labelled the ‘crisis of masculinity’ (McDowell, 2000; 2002). Laddish behaviour, sexism and misogyny arose as visible manifestations of this erosion of a homogenous masculine identity (Chinn, 2006).

Evidently, laddish behaviour is not a new phenomenon. However, the ontology of laddism or lad culture has evolved through different social contexts. Throughout the 1990s there was rising interest in the study of masculinities (Berg & Longhurst, 2003; Phipps, 2006), from which, interest in the concept of laddism re-emerged (Phipps & Young, 2014). In this instance, laddism was a middle-class reference to the working class machismo epitomised by ‘new lads’ (ibid, page 3) such as Noel Gallagher and Frank Skinner and by the arrival of ‘lads mags’ such as Nuts and Zoo (Phipps & Young, 2015).

A series of two reports recently published by the National Union of Students demonstrates renewed academic interest in lad culture. The first paper, Hidden Marks (2010), highlighted gender inequality in university life, focusing on the high incidence of sexual assault experienced by female students.

The following paper, 'That's what she said...': Women students’ experiences of ‘lad culture’ in higher education’, specifically looked at how female students experience laddish behaviour. Within this literature lad culture is described as a template of masculinity which privileges homosocial bonding, 194

laughter, objectifying women, political incorrectness and potentially promotes sexual violence (NUS, 2012). Further to this, Phipps and Young (2014) have argued that lad culture today is a form of masculine competitiveness which uses sexism as a response to a perceived threat to male privilege in a similar way to lad culture in the 1970s (Willis, 1977). Though masculinity is not homogenous, with many temporal and spatial contingencies (Berg & Longhurst, 2003), for Phipps and Young (2015) laddism as a form of masculine identity currently dominates the social and sexual spheres of university life in the UK. This dissertation will explore the link between lad culture and sexism and gender violence proposed by this literature but will also argue that there are many other manifestations of lad culture which impact the lives of female students.

2.2 The Everyday This research will differ from previous work on lad culture as it will focus on the everyday, how lad culture has become part of everyday life for female students at Durham University and what the implications of this could be. In its most literal sense, the concept of the everyday relates to a daily rhythm; that which is repeated in every 24 hour cycle (Bovone, 1989). In this understanding, anything can become everyday (Highmore, 2011). However, for the geographies of everyday life, and for this dissertation, researching the everyday is not concerned simply with things that happen every single day but with the way that ‘small things’ happen so regularly that they accumulate to constitute one bigger, yet hard to register, thing (Highmore, 2011, p. 2). Although Rigg (2007) discusses everyday geographies in relation to the lived experiences of people in the Global South, his framing of the everyday can be helpfully extrapolated in order to understand why the everyday is so important for this dissertation. There has been a tendency in much geographical work to disregard the importance of the everyday in order to focus more on atypical events (Duncan, 1993; Holloway & Hubbard, 2014).

However, for Rigg (2007), and for this dissertation, placing greater focus on incidents that constitute the rhythms of the everyday is critical. This dissertation will argue that by placing more value on small, everyday incidents we can better understand their impact on the lives within which they are embedded.

The Everyday Sexism Project (2014) exemplifies why placing greater value on the everyday is important for this dissertation in particular. Central to Everyday Sexism is Bates’ (2014) contention that sexism is most damaging to its victims when it is low level, everyday and therefore becomes normalised. According to Swim et al (2001), the cumulative impact of small incidents of everyday sexism can be detrimental; the effects of experiencing everyday sexism have even been likened to those of post-traumatic stress disorder (PTSD) (Berg, 2006). Swim et al (2001, p. 32) contrast ‘everyday’ sexism with ‘blatant’ sexism in order to argue that the repetition of low level, everyday incidents of sexism causes them to become familiar, routine and therefore unquestioned (Foley, 2012). This concept has also been studied in relation to racial discrimination (Shaw, 2013); Deitch (2003) has presented evidence that experiencing subtle, everyday racial discrimination is negatively linked to various wellbeing indicators. Therefore, this dissertation will investigate to what extent lad culture has become normalised at Durham University in order to identify how the presence of lad culture as part of everyday life could be detrimental to female students.

2.3 A Feminist Lens The importance of the everyday is not only rooted in the possibility of normalisation through repetition but also in the ways that the everyday is so deeply interlinked with the personal (Rigg, 2007). Feminism has always sought to emphasise the need to think of personal private life as equally important as public or political life (Rose, 1993) therefore interest in the everyday experiences of women has long been of interest in feminist geography (Dyck, 2005). As feminist geography works to bridge lived experiences of women with the theories that help us to make sense of the world (Staeheli & Martin, 2000), a feminist lens can provide an interesting perspective on the importance of the everyday for this dissertation. A feminist lens can begin to provide an understanding of how lad culture may be most damaging if it is experienced in mundane, everyday situations or places. Yet, the issue of lad culture in university, particularly in relation to feminist conceptualisations of the importance of the everyday, is highly under-researched (Staeheli & Martin, 2000; Swim, et al., 2001; 195

Ayres, et al., 2009); despite the aforementioned NUS reports indicating that it is of critical importance for both research and policy to work to better understand, explain and prevent the damaging characteristics of lad culture, there has been little progress. This dissertation will therefore begin to fill a gap within academic literature by following a feminist geographical framework in analysing the importance of everyday experiences of lad culture.

Until the publication of the NUS reports (2010; 2012) and the works of Phipps and Young (2014; 2015), there had been a tendency for research to focus on how the participation in or resistance to laddish behaviour may effect males: their social involvement, emotional wellbeing and career prospects have all been studied (McDowell, 2000; Dempster, 2009). However, there has been little attention paid to female experience or agency. Female agency refers to women’s individual capacity for choice and, importantly, action (Mahmood, 2001). Since almost all of the literature studied for this dissertation suggests that lad culture involves behaviour towards women, how women respond to it is key (Phipps & Young, 2015). It is therefore important to question if and how women are expressing agency through the rejection of lad culture. For example, a rise in feminist societies at universities has been attributed to women fighting back against the increasing prevalence of lad culture and sexism in higher education (Hilton, 2013). This dissertation will therefore investigate ways in which female students are (or are not) rejecting lad culture.

Finally, a feminist viewpoint will be used throughout this dissertation in order to suggest the importance of understanding power as a product of connections between people (Sharp, 2007).

Feminism understands power imbalances between the sexes as constructed and maintained though social connections (Mosedale, 2005; Berg & Longhurst, 2003). Therefore, using a feminist approach to understand how power asymmetries are rooted in gender relations (Fine, 1992), this dissertation will suggest that the social relations between male and female students produced through lad culture are one way that power imbalances endure at Durham University. The final section of this literature review will discuss fear as a possible outcome of these asymmetric gendered power relations.

2.4 Geographies of Women’s Fear Feminist geographers and urban theorists alike have argued that space is gendered and that the gendering of space can have an acute detrimental impact on the experiences of women (Doan, 2010).

One consequence of spaces becoming gendered, masculinised in particular, is the production of women’s fear (Whitzman, 2007). Fear in public spaces can negatively impact the lives of women (Day, 2001) because of the inherent connection between women’s fear and their use of space (Valentine, 1989).

Gendered fear is an important concept for this dissertation because fear is not pre-existing but is part of a complex embodied discourse within which there are many subject positions, such as gender differentiated subject positions (Mehta, 1999). It is therefore important to consider how a discourse that facilitates the production of women’s fear is being created at universities. Day (2001) argues that women’s fear is produced through discourses inherent to the construction of both masculine and feminine identities. Additionally, Phipps and Young’s (2012) description of lad culture as a form of masculinity that is being reproduced throughout universities in the UK alludes to how fear of men may be being expedited in public spaces at these institutions. Following Day’s (2001) contention that the construction of masculinity is based on perceptions of women as comparatively fearful and weak, it is possible to suggest that men performing masculinity through participation in lad culture may lead to ideas about the vulnerability of women which produces discourses in which ‘women are told and soon learn through experience’ (Valentine, 1989, p. 389) that they should be fearful in public spaces.

Valentine’s (1989) work on the geographies of fear suggests that women often cope with fear in public spaces by avoiding spaces in which they feel fearful. Further to this, Carr (2001) has argued that perception of danger not only influences which spaces women will or will not use but how they act within public spaces. For example, women’s independence within public spaces becomes restricted as they avoid being alone and particularly seek male accompaniment when outside their homes (Valentine, 1989). The spatiality of fear is important both for feminist geography generally and 196

for this dissertation in particular; as women are more fearful than men in public spaces, their use of space and independence in male dominated spaces can become limited or controlled (Day, 2001).

Though this is true for many spaces, this seems particularly significant for this dissertation due the historical dominance of men in education generally and the enduring dominance of men in certain academic fields (Chevalier, 2007). Modan (2008) has suggested that underlying the issue of gendered fear in public space is an attitude that women do not belong alone in certain spaces therefore a perceived threat to men’s privilege may underlie misogyny and sexual harassment in educational spaces (Phipps & Young, 2014) as they function to reclaim power and space (Bennet, 2009; McLaughlin, et al., 2012). As already discussed, the first waves of lad culture were rooted in resentment of women for their increasing presence in previously male dominated work spaces (Willis, 1977) so a connection can be drawn between women’s fear in public space more generally, the role of lad culture in making female students feel fearful and the ways that female students are forced through fear into restricted use of some spaces (Valentine, 1989).

Using the literature discussed above as a theoretical lens, the dissertation will now review how this project will research female students embodied experiences of lad culture before analysing the findings of the research.

3. Research Methods 3.1 A Feminist Framework As previously discussed, a feminist lens will be of vital importance throughout this dissertation. This also extends to the choice of research methods. Though structures of power inherent to the researcherresearched relationship can rarely be fully eliminated (Staeheli & Martin, 2000), it is important to use methods that empower the participants rather than further marginalise them (Wright, 2008). This dissertation will therefore use research methods which aim to be as ‘user-friendly’ as possible (Maynard & Purvis, 1994, p. 4). The dissertation has used research methods which facilitate participant involvement and empowerment in an attempt prevent the perpetuation of researcherresearched power relations (Sharp, 2005). Participant diaries were selected as a research method because they allow participants to record events in their daily lives in their own words (Alaszewski, 2006) and focus groups were selected as they have been highlighted as a key method in research which seeks to empower the researched (Cameron, 2010). Further to this, Harding (1986) has argued that from a feminist perspective, the only way to fully understand the meaning of women’s experiences is for the experiences to be expressed by women. Therefore I have used diaries and focus groups together to allow participant the optimum opportunity to express themselves through the research.

A feminist lens will also be used throughout the research process in order to better understand female students’ lived experiences of lad culture and the asymmetrical power relations inherent to this. As gender is central to everyday places and processes (Staeheli & Martin, 2000), a gender aware approach is essential for understanding embodied experiences, particularly in relation to exercises of power (Sharp, 2007). Therefore a feminist framework will help to understand the production of power relations through space, the embodied experiences of female students and how everyday exchanges with lads can influence their lives in multiple and complex ways.

3.2 Research Field and Participant Selection This project was conducted with 13 female students from Durham University aged 18-21. All identified as white and heterosexual. The qualitative research methods selected are resource intensive, meaning it is impossible to include a large number of participants in the time available. However, these methods provide data which is much richer than that from quantitative methods (Lewis & Massey, 2004). Though the dissertation acknowledges that using more participants may have

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provided more data and a wider range of views, the research did not aim to be large scale or representative but rather intensive and focused providing illustrative, rather than definitive, examples.

Participants for the research were self-selecting: I publicised my dissertation to groups and societies within the university and provided my contact details for anybody interested in taking part. Therefore, those who were interested in the research project may have already had strong views about lad culture. Though this could be viewed as a limitation of the research, I argue that through participation in the research participants are being given the opportunity to discuss an issue which is important to them, placing value on their views and voices.

3.3 Participant Diaries In order to collect data on everyday experiences I solicited diaries with an open format (the participants were free to write what they wanted in any format) (Alaszewski, 2006), recorded for seven days. Diaries are advantageous for researching everyday life because there is a short time between an event and the recording of the event, minimising the distortion of the report due to retrospect bias (NCRM, 2014); Swim et al (2001) argue that retrospective accounts can become distorted over time, therefore daily dairies can help to minimise this. Further to this, when researching the everyday, diaries can provide a rich insight into ordinary experiences (Latham, 2003; Winchester & Rofe, 2010). Finally, diaries are particularly for feminist research because they make personal experiences of the women involved visible and important (Brown, 2014).

One limitation I encountered when using diaries as a research method is that it was difficult to direct and inform the participants without risking influencing what they noticed or recorded. In an attempt to overcome this issue, I told participants briefly what the dissertation would be about and that there was no right or wrong thing to write, stressing that they should write whatever was important to them. I encouraged participants to ask further questions if they had any concerns. Although the open format lead to the diaries taking different tones and formats (Appendix 1) I believe that this was the most effective way to use the diaries as it allowed the participants to write about what was important to them rather than trying to fulfil what they perceived to be the needs of the research.

3.4 Focus Groups In an adaptation of Zimmerman and Wiederâ&#x20AC;&#x2122;s (1977) diary interview method, participant dairies were accompanied by focus groups. Diaries followed up by interviews can provide a good source of data about day to day life as well as a reflection on participants views on their experiences (Woodzicka & LaFrance, 2001; Jacelon & Imperio, 2005), and for this project, focus groups provided an opportunity to further interrogate issues raised in the dairies (Emmel & Clark, 2009) while allowing for a more relaxed atmosphere and a more free-flowing style than interviews (Morgan, 1997). Though it is often assumed that individual interviews may be more appropriate for researching sensitive topics (such as personal experiences), a feminist perspective to research can reveal how focus groups reduce the power differential between the researcher and the participants and allow participants to feel empowered and supported. I took advantage of this facet of focus groups by allowing participants to self-select groups.

The focus groups consisted of two to five people (see Table 1), lasted between 30 minutes and an hour and followed a semi-structured schedule which provided a stimulus for conversation that was relevant to my research questions while allowing conversation to flow naturally (Appendix 2).

Group Number

Participant Pseudonyms

1

Rose, Jane, Hermione, Madonna, BeyoncĂŠ

2

Cara, Amelia, Amy

3

Chloe, Isabella, Millie

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4

Kate, Emma Table 1: Focus Groups

The focus groups were recorded and transcribed in order to analyse the data; transcription was done immediately after the interviews as I felt it important to keep the tone and emotion of the participants fresh in my mind (Valentine, 2005). The transcriptions were coded using a mixture of axial and open coding (Appendix 3); axial coding was used to identify data that were relevant to my predetermined research aims and questions (Dunn, 2000) while open coding was used to include important themes which I had not identified prior to the focus groups (Cope, 2009). This was crucial for this dissertation as it allowed participants’ views shape the dissertation, rather than the research questions becoming restrictive.

In order to encourage participants to be as open and honest as possible, focus groups were coded using pseudonyms (selected by the participants) and diaries were submitted anonymously (apart from when participants chose to identify themselves). Although it was therefore not possible to link together the diary experiences and focus groups discussion I felt it more important to give participants anonymity so that they were not fearful or embarrassed about what they recorded. Pseudonyms were used in order to make the participants and their experiences real to the reader while giving participants the opportunity to select their own pseudonyms allows them to exercise their agency through participation in the research while protecting their identity (Mohammad, 1999; Dunn, 2000).

3.5 Limitations and Further Acknowledgements In addition to the research methods discussed above, I used a short questionnaire to collect data about my participants (Appendix 4). Although I was interested in the participant demographic, the final question – ‘Would you say that you are a feminist?’ – was the main reason for using the questionnaire. This was an essential question to ask as Swim et al (2001) have suggested those who identify as feminist are more sensitive to sexism and may report more incidents. This dissertation will consider throughout how a feminist ideology may have influenced the participants views of laddish behaviour; as 12 out of 13 participants identified as feminist this is a is particularly important factor to reflect upon .

The questionnaire also revealed that all participants identified as white, heterosexual and were aged between 18 and 21; it is important to contemplate how experiences of lad culture could vary for people of different ethnicities or sexualities and further research could aim to select a more varied participant demographic.

As I am simultaneously a female student (sharing this part of my identity with the participants) and also the researcher, it is critical to reflect on my positionality as a researcher (Rose, 1993). Though I acknowledge my experiences and beliefs may have affected the themes covered in my research and the interpretation of the data, sharing a ‘common frame of reference’ with the participants gave me an insight into their lives participants, allowing me to better understand their feelings and provided greater opportunity for rapport (Dyck, 1993, p. 54).

Finally, Swim et al (2001) have indicated that there can be a tendency for people to be more likely to notice incidents that they recorded because they were taking part in the study. However, I have not taken this to be a hindrance to my research. Instead it has promoted my interest in the everyday experiences of women as I wish to uncover how and why experiences incidents may normally be going unnoticed and what the implications of this may be.

4. What is lad culture?

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In order to highlight the complex nature of ‘lad culture’ the dissertation will now turn its focus to participants lived experiences of lad culture, investigating how everyday experiences of female students at Durham University differ to or are similar to definitions of lad culture in relevant literature. The chapter is divided into the following themes; sexism and misogyny, humour, sexual harassment, group behaviour, sporting masculinities, and lad culture in education. Through this thematic structure lad culture will be presented as multifaceted, complex and experiential.

Importantly, though gendered fear is an important theme for this dissertation, it will not be discussed as a standalone issue. This conscious decision was made because for many participants fear of lads was highly contextual, not homogenous. It was therefore more productive to discuss fear in relation to other themes rather than separately.

4.1 Sexism and Misogyny Sexism and misogyny arose within literature and media reporting on lad culture as a central feature of lad culture (see Willis, 1977; Kehily & Nayak, 1997; Phipps & Smith, 2012; Bates, 2014a for academic literature and Williamson, 2003; NUS, 2012; Robinson, 2014 for media sources). Though this dissertation will present lad culture as much more than just a manifestation of sexism, it will begin by discussing how lad culture may be facilitating and perpetuating sexist attitudes within universities.

Much of the sexism and misogyny experienced by participants was based on the “lads” expectations of them or of females in general.

Cara: Academically and like in sport, literally in everything it’s like their expectations of us are at level zero.

Diary 7: They started laughing when I did my sets [of weights]…someone else said ‘leave it man she’s just weak’ The expression of lowered expectations for females demonstrated in these examples was also shared by another participant, Kate, who described a situation in which she had been playing table tennis with male friends and one had stated, ‘oh you’re quite good for a girl’. To Kate the most frustrating aspect of this incident was that the friend had intended it as a compliment and did not see why she was offended. This dissertation suggests that a lack of awareness that what is being said is offensive may be due to the normalisation of sexism within both university culture and society more generally (Phipps & Young, 2014; Bates, 2014b).

In response to this incident, Emma noted that this attitude was normal and that ‘casual sexism’ such as this is inherent to lad culture. Emma’s use of the word ‘casual’ speaks to Swim et al’s (2001) differentiation between everyday and blatant sexism and Bates (2014a) conceptualisation of everyday sexism. In this instance Emma was playing down Kate’s experience, even stating ‘that’s kind of normal and later adding that ‘at uni it’s like so normal that it’s not really noticeable’. Much of the literature discussed previously contends that sexism becomes most damaging it is low level and therefore stops being noticed (Bates, 2014a; Swim, et al., 2001). Therefore this statement by Emma clearly illustrates how sexism is a normal part of everyday life for some female students.

Inherent to the experiences analysed here is an assumption that less should be expected from women than men. This dissertation suggests that a discourse which expects women to be less capable than men is highly prevalent and normalised in educational spaces. For Amelia sharing answers in seminars is uncomfortable as she assumes she would not have the correct answer, whereas ‘the guys expect themselves to know the right answer so they like go and put themselves forward’. The confidence of male students is therefore making some female students feel less able to participate. It is essential to consider how this could inhibit female students from achieving their potential and could damage their self-confidence, leading to lowered expectations about their own abilities (Chevalier, 2007). If this continues to impact female students beyond university is could translate into a continuation of the domination of men in certain working environments, further widening the already 200

existing gender pay gap and gender inequality in working environments more generally (ibid; The Telegraph, 2013).

4.2

Humour as a Disclaimer Diary 9: in a seminar, topic of banter came up. Many opinions of it just being harmless and just a joke.

Humour has been identified both in literature (Kehily & Nayak, 1997; Willis, 1977) and by participants as central to lad culture. In some focus groups there was debate over whether laddish humour was funny or not.

Madonna: having fun that's fine but it's when people start to get a bit more extreme.

Madonna’s statement reflects the views of many participants that humour became problematic when lads ‘overstep the mark with their jokes’ (Amy). The key question was where to draw the line between acceptable or funny, and offensive and unacceptable. Some participants found laddish jokes ‘funny sometimes’ (Hermione) whereas others, such as Kate, viewed the laddish humour as ‘casual sexism…passed off as banter’. Echoing this, Madonna expressed dislike for ‘the term banter’ as she feels it is used to excuse ‘bad behaviour’. Here Madonna echoes Williamson’s (2003, p. 1) description of lad culture as ‘sexism with an alibi’, suggesting that laddish humour has a role in excusing and normalising behaviour that is offensive to others (Gill, 2011).

For Cara this was most problematic in relation to rape jokes espoused by lads because they ‘diminished the seriousness’ of sexual violence, fear of which ‘comes across a girls mind on a pretty regular basis’. Cara believed that this contributed to low levels of reporting of sexual violence because rape has become ‘something people joke about’. Further to this, Jane felt that those who do not find the jokes funny are ‘branded as an outsider’ and framed as having ‘no sense of humour’. Here Jane illustrates how Phipps & Young (2015) and Kingsley’s (2012) contention that confronting sexism can leave you branded as humourless translates into the lived experiences of female students. This dissertation argues that laddish humour can take away female agency, ‘diminishing’ female voices, and making them powerless. Through this dismissal of voices, humour can come to normalise or perpetuate sexist and misogynistic ideas and can even lead to the normalisation of sexual violence (Kehily & Nayak, 1997; Phipps & Young, 2015; Attwood, 2006).

Context, content and the target of jokes were key factors influencing whether participants viewed the humour as funny or offensive. For example, Chloe suggested it is problematic when jokes become ‘targeted at one person’. Hermione also agreed that there is ‘a time and a place’ for laddish humour but that it has the potential to make people feel ‘uncomfortable’. Further to this, there was also debate over sensitivity its impact on whether people found the laddish humour funny.

Hermione: ‘It's about sensitivity and humour as well though, like if people don’t find it funny then they take it very badly.’

Here, the concept of sensitivity becomes complexly interlinked with normalisation; Hermione even suggested that she had become ‘desensitised’ to things she used to find offensive because she was exposed to lad culture so regularly. Foley’s (2012) conceptualisation of the everyday indicates that discourses stop being questioned when they become normal and embedded in everyday life. Being critical of the normalisation of lad culture is important for understanding construction of asymmetrical power relations and their impact on women’s agency; this dissertation argues that the oppressive impact of lad culture on women continues to be perpetuated as it has become normalised to the extent that it is no longer questioned.

4.3 Sexual Harassment and Sexual Violence Data regarding sexual harassment and sexual violence were varied; some participants focused heavily on sexual harassment while others didn’t feel sexual harassment is connected to lad culture. However 201

in over half of the diaries participants recorded at least one indecent of sexual harassment. This may suggest that some forms of sexual harassment have become so highly normalised that they are just expected to be part of life for female students. This issue was identified in one focus group during a discussion of statistics about sexual assault at university. All of the participants in the focus group agreed that they didn’t feel the statistics were accurate, Rose even suggested that instead of one in seven women being sexually assaulted while at university (as the NUS (2010) have argued) it is ‘more like seven in seven’. It is therefore possible to argue that it is because being ‘groped’ (Diary 9) or ‘grabbed’ (Dairy 2 and Dairy 3) has become so normalised that although participants recorded these incidents in their diaries but did not associate lad culture with sexual harassment when asked in the focus groups.

Some participants observed the issue of normalisation themselves. During a discussion about whether lad culture is linked to sexual assault and what sexual assault is, Madonna stated that being groped in a night club ‘is sexual assault yet that happens on a weekly basis for pretty much all of us’ (original emphasis). Rose agreed that ‘it happens so much, it’s expected’ (original emphasis). Here an important link can be drawn between this research and understandings of the everyday within geography; sexual harassment occurs so regularly it becomes everyday and therefore unquestioned (Foley, 2012). This could be damaging to female students because experiencing harassment at an everyday level has been negatively linked with a number of wellbeing indicators and PTSD like symptoms (Deitch, 2003; Swim, et al., 2001).

Within lad culture, humour in particular has been identified as one way that sexual violence is becoming normalised at university. Although Phipps and Young (2015) have begun to allude to this, there is very little literature surrounding the issue and there is no geographical literature relating to the normalisation of sexual violence to lad culture, yet it was critical to many of my participants.

Diary 5 (Cara): Whenever the subject of rape comes up around boys, they start to make a joke of it.

Cara: ‘they don’t walk around like probably on a weekly basis thinking am I safe enough right now’ Together these quotes suggest that the normalisation of sexual violence has occurred due to laddish humour; Cara describes just how prominent fear of being a victim of sexual violence has become in her life while the diary entry demonstrates how laddish humour can play a role removing the seriousness from women’s fears or actual experiences. It would be both unrealistic and unproductive to attribute all sexual violence at universities to lad culture, however, this dissertation argues that it is important to consider the ways in which lad culture could be contributing to a wider societal issue of the normalisation of sexual harassment at universities across the UK (NUS, 2012). This project suggests that this issue should receive more attention from human geographers because feminist geography can help us to understand the power relations inherent to sexual violence and how they are produced and reproduce through lad culture.

4.4 Group Behaviour The concept of a group mentality is of key interest to this dissertation because it is not prominent in literature about lad culture yet it featured heavily throughout the focus groups and diaries. There was a particular emphasis on the physicality of groups of lads, including the size of the group and being ‘loud’ (Beyoncé, Amelia, Emma, Kate all identified this as a key facet of laddish behaviour). In addition to this, many participants identified group behaviour as ‘intimidating’.

Emma: ‘I probably wouldn’t wanna be around a group of lads… if we go into a pub and there’s group of lads I’d probably go somewhere else just because they’re loud and they make me feel uncomfortable, especially if there’s a lot of them’

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Diary 1: Walked home alone at 1am. Although I knew I was safe I couldn't help worrying in case a group of drunken lads started shouting at me from across the street The precautionary behaviour adopted by Emma reflects how women ‘learn’ (Valentine, 1989) to be cautious in certain spaces or of groups of people and how this translates into an inhibited use of space.

Further to this, the diary entry indicates that fear of lads can become so engrained in the lives of participants that even when lads are not there, participants feel unsafe. This dissertation therefore argues that precautionary behaviour adopted by women due to persistent fear of lads can be understood a spatial expression of patriarchal control, reflecting how unequal gendered power relations are being produced and maintained by the presence of lad culture.

Participants also highlighted how being in a group provided lads with a form of protection. Many participants felt lads would do things when they were in a group that they would not normally do because ‘they can hide behind each other’ (Isabella) and are ‘protected by each other’ (Beyoncé) from the consequences of their behaviour. This not only contributed to a feeling of unease when around groups of lads because they are able to get away with anything but also made participant feel less able to confront laddish behaviour. This will be discussed further in relation to its impact on how people respond to lad culture in the next chapter.

4.5 Sporting Masculinities For many of the participants lad culture and sport were fundamentally connected. Sports (rugby, football and cricket in particular) were associated with a form of hyper-masculinity because of their competitive and physical nature; for Kate, ‘being manly and being like don’t show pain, just get on with it’ is a key characteristic of laddish masculinity. Though an association between sports and lad culture has been identified in some literature, this dissertation wishes to understand how this form of lad culture transfers from the sports field or the locker room into everyday lives of female students.

Kate: ‘It’s unacceptable within your teammates to stop and be like no that’s offensive so basically [they] can say anything and get away with it’.

Here Kate demonstrates Williamson’s (2003) conceptualisation of lad culture as an alibi for sexist or offensive behaviour. With Kate’s statement in mind, sexist or misogynistic attitudes are able to spread, unquestioned, within sporting environments.

Some participants argued associations between some sports and laddish behaviour have produced ‘reputations within the university’ about people who play particular sports. For this dissertation, perceived ideas about particular groups of people may be as important as actual experiences, especially if it causes the female students to feel fearful or to adapt their behaviour by avoiding places or people. For example, for Madonna, rugby in particular ‘has such a big stigma attached to it, people are terrified’ of the rugby players; Hermione agreed that ‘you would not want to walk up to a group of guys, like rugby guys, if you didn't know any of them’ (original emphasis). Through this expression of fear and intimidation, Hermione demonstrates how lad culture in sport is one way that power relations between the sexes are being constructed and maintained (Mosedale, 2005) through the presence of lad culture at universities.

4.6 Lad Culture in Education Some recent academic interest in lad culture has researched the prevalence of laddish behaviour in educational spaces (Jackson, et al., 2014). Participant data on experiences of lad culture within education were mixed. However, this dissertation argues that this is more significant than if all participants had said that they experience lad culture within education; data from this project suggests that those who study subjects with a male majority are likely to experience laddish behaviour on a very regular basis. Kate studies sport and said she experiences lad culture in her lectures ‘every time [she] goes in really cause there’s mostly boys’ and Amelia (a maths student) and Amy (a physical geography student) also reported experiencing or witnessing lad culture with their educational spaces 203

regularly. For this dissertation this reflects an enduring masculinisation of educational spaces, perpetuating male domination of some subjects such as sciences and engineering (Chevalier, 2007; McDowell, 2000).

The predominant manifestations of lad culture that participants noted experiencing within education were male students being ‘loud and… laughing and making remarks all the time’ (Madonna) in lectures and sexist attitudes as discussed at the beginning of this chapter.

Amelia: lads ‘don’t expect [girls] to do as well…as them in like exams and homeworks and stuff like just because I’m a girl’.

Amelia demonstrates how the domination of ‘lads’ through a combination of physical intimidation (through being loud and disruptive), confidence in their own abilities and a lack of confidence in female counterparts makes some female students feel under confident and scared to participate fully due to fear of failure.

Examples given by participants who study traditionally male-dominated subjects demonstrate how experiencing lad culture within education can be incredibly damaging for female students, especially regarding their views of their own ability. Since this dissertation began by discussing the origins of laddish behaviour rooted in resentment towards women in the previously male-dominated work forces (Willis, 1977), this data may suggest that a similar notion of women not belonging in certain spaces is being recirculated by the current form of lad culture (Attwood, 2006) by perceiving the presence of female students in traditionally male dominated subject as a threat to male privilege (Phipps & Young, 2014). This research therefore strengthens the claims of this dissertation and surrounding literature that despite a statistical improvement in the gender balance of undergraduate students, gender equality has not been achieved as lad culture as a form of hegemonic masculinity is still strongly felt throughout higher education (NUS, 2012; David, 2015).

So far this dissertation has combined literature and participant data to present an understanding of female students’ everyday experiences of lad culture. The dissertation will now go beyond defining lad culture by discussing different ways that female students respond to lad culture, considering how this reflects gendered power relations and its implications for female agency. The following chapter will therefore discuss some of the ways participants reported responding to lad culture, and what influences the way they chose to response.

5. Surviving Lad Culture: Fight or Flight Although Hilton (2013) has suggested that a rise in university feminist societies may be a reaction to the presence of lad culture, there has been no academic focus on how students are responding to lad culture. Therefore, this section will begin to fill this gap in the literature by discussing how participants attempt to ‘survive lad culture’, a concept taken directly from Cara. First, the chapter will discuss how some participants attempt to fight back against lad culture. This will be followed by a discussion of the ‘flight’ response; taking precautionary measures, avoiding lads and being passive in response to lad culture. The chapter will consider why participants choose one approach over another and the implications of different approaches. Finally, using a feminist geographical lens, the chapter will draw together the findings discussed in the last two chapters and will reflect on the concept of female agency in order to consider why participants overwhelmingly adopt flight rather than fight responses.

5.1 Fight.

The first form of response to lad culture this section will discuss is the “fight” approach, referring mostly to confronting and questioning laddish behaviour. Some participants reported adopting a confrontational approach as a way of expressing their agency by resisting lad culture. For example, Kate, said she responds to the ‘constant’ incidences of lad culture within her lectures (especially to 204

jokes about her ability as a girl) by saying ‘I’m here to do sports, I like this course and I’m good at it’.

Similarly, Amy said that ‘if somebody does something and I don’t think it’s on I do try to just tell them I don’t think that was on’. Here the participants prove their desire to resist laddish behaviour and demonstrate that confrontation is the primary way through which they do this.

However, participants reported that confronting laddish behaviour often did not go without problems.

The main issue faced with when confronting laddism was (further) harassment as lads reacted badly to being confronted, either by being aggressive or by becoming defensive (often using humour as an disclaimer, as discussed earlier in the dissertation). Kate discussed confronting laddish behaviour in her seminars but was aware that ‘people react badly if you embarrass them’ as they often disregard her challenge by stating that she ‘can’t take a joke’. This type of reaction is important because it made participants less likely to challenge laddish behaviour because they ‘feel like it’s not really worth’ it (Amelia). Amelia’s use of the word worth suggests that she has evaluated the advantages and risks or detriments associated with confronting lad culture and has determined that the benefits she may experience cannot outweigh her perception of risks or disadvantages.

Further to this, participants also avoided confronting lads due to fear of ‘what they’d do back’ (Chloe). Some participants said that they would confront sexism within groups of people they knew but whether they chose to confront it on a particular occasion depended ‘if it's group that [they] feel comfortable enough to know that they're nice people’ (Millie). Drawing back to Amelia’s perception of the worth of confrontation it is possible to suggest that as participants do not confront lad culture due to fear they are forced to lower the value they place on their agency as they have to place their safety ahead of their freedom.

Although in the focus groups some participants said that they would (or do) confront laddish behaviour, only one participant recorded confrontation her diary. Participants recorded incidents such as being ‘grabbed and touched inappropriately a lot’ (Diary 2) ‘propositioned’ (Diary 2 and Diary 3), and witnessing groups of lad ‘chanting and shouting’ and ‘making inappropriate comments about women’ (Diary 3) yet Cara (she had chosen to identify herself in her diary) was the only participant to record confronting lad culture, validating this dissertation’s claim that a more passive approach to coping with lad culture is the most common. The following section will therefore discuss what this dissertation will call the ‘flight’ response.

5.2 Flight.

This section will discuss the approach to lad culture which was adopted by most participants. The flight response consists of being passive, not responding to laddish behaviour, trying to avoid lad culture, and the idea of ‘picking [your] battles’ (Cara).

The idea of picking your battles illustrates one reason why female students might choose not to confront lad culture. Even though Kate said she does often confront lad culture, she also felt that sometimes she has to ‘just get on with it’ because, experiencing lad culture and sexism is ‘so constant’. Instead of confronting laddish behaviour, participants tried to survive the enduring experiences of lad culture by learning to ‘keep your guard up when they’re there’ or by ‘not going anywhere near them’ (Cara). For example, Emma said ‘there is a club in Newcastle that I wouldn’t ever go to now just because [lads] might be there’. This is important to this dissertation because it illustrates how female students’ lives are being directly impacted by lad culture. Doan (2010) recognises how detrimental gendered spaces, such as those dominated by lad culture, can be for the experiences of women, as illustrated by Cara and Emma.

The two main reasons participants said they would not confront lad culture were fear and that it happens so often that they ‘can’t be bothered’ (Amy) or ‘don’t want the hassle (Millie) anymore. For some participants there was a fear of a violent response from the “lads” if they questioned their behaviour, either based on past experiences or due to news reports.

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Madonna: ‘I’ve read quite a few articles where someone’s challenged someone and they’ve just been punched in the face or something like that’ Madonna and others in her focus group discussed the killing of Tuğçe Albayrak, a German woman murdered after confronting a group of men who were harassing two teenage girls (Connolly, 2014), and the harassment of the victim in the ongoing Ched Evens rape case (The Guardian, 2014). Their use of high profile cases a reason not to confront laddish behaviour provides a worrying illustration of the serious fears female students are facing as part of their everyday lives. This also demonstrates Mehta’s (1999) contention that fear is not pre-existing, instead it is produced as part of a complex embodied discourse in which women learn to be fearful both through their own experiences and experiences of others (Valentine, 1989).

In addition to fear of violence, participants also feared the social implications of confronting laddish behaviour.

Cara: ‘having a good time I don’t know if they actually mean it or if it’s harmless and I don’t wanna come across as like some overly defensive hysterical female basically and so I just choose to walk away’ Participants identified being called a feminist or told ‘you can’t take a joke’ (Kate) as typical responses from lads if their behaviour is questioned. This demonization of feminism demonstrates how lad culture works to recirculate sexist or misogynist views (Attwood, 2006). As the creation of feminist societies at universities has been reported as a key way that female students are resisting lad culture (Hilton, 2013), a discourse which demonizes feminism is evidently damaging for female agency, limiting their possibility for resistance.

Fear preventing women from questioning laddish behaviour is critical to this dissertation because it illustrates how lad culture can control female agency. Fear of lads’ reaction to confrontation made the participants such as Isabella question whether confronting lad culture is ‘really worth the reaction’; it became apparent that for many of the participants the answer to this question was no. The final section of this dissertation will further investigate why this is the case.

5.3 Gender, Power, and Agency Considering Ayres et al’s (2009) discussion of situational and individual factors which can affect young women’s likelihood of confronting sexism alongside some of the reasons that participants adopted the flight or fight approach, this chapter will conclude by questioning why female students aren’t fighting back against lad culture more.

Ayres et al (2009) recognise feminist ideologies an influential factor in whether women report confronting sexism, recognising that those who identify as feminist were more likely to report confronting sexism. This is an important point of consideration for this study as 12 out of 13 participants identified as feminist. As previously discussed, only one participant recorded confrontation in her diary yet, when asked in the focus group, many others said that they would challenge laddish behaviour. Challenging laddish behaviour would align with participants’ feminist ideologies so they may believe they would take this course of action. However in reality, other factors (such as fear) prevent them from confronting laddish behaviour in real life (Cohen & Cohen, 1993).

This theory was confirmed by Madonna, who, when asked if she’s ever confronted laddish behaviour, said ‘no but I really wish that sometimes I do, but then you’re scared’ so instead you must just ‘shrug it off’ and Kate who concurred that instead of confronting offensive or problematic behaviour ‘it’s just best to take yourself out of that situation’.

Feminist geographical literature can help us understand how Kate and Madonna’s experiences are entrenched in gendered power relations. Such literature suggests that the formation and reproduction of power relations between the sexes power is about connections (Mosedale, 2005); the participants’ fearful position in relation to lads reproduces inequality in gender power relations. Therefore, the 206

gender-aware approach adopted by this dissertation is vital for understanding embodied experiences and exercises of power (Sharp, 2007); through this lens the fear produced by lad culture can be seen as a key factor in the power imbalances experienced between male and female students and as a reason why female students feel unable to confront laddish behaviour.

6. Conclusions and Recommendations for Further Research This dissertation was based on my desire to produce a new understanding of lad culture based on female students’ experiences in order to understand the implications of lad culture becoming part of the everyday lives of female students at Durham University. Since lad culture has been largely absent from geographical literature I have aimed to use a range of literature to indicate why the topic of lad culture, especially in relation to female experiences, could benefit from further engagement in human geography. I utilised literature on the geographies of everyday life, feminist geography and the geographies of women’s fear alongside literature from other disciplines as a theoretical lens through which to analyse and make sense of data from focus groups and participant diaries. This chapter will discuss the findings of the dissertation and will then reflect on the limitations of the dissertation, suggesting some possible routes for further research.

6.1

Conclusions

Returning to my research questions, the dissertation first discussed how lad culture has been understood in academic literature. The dissertation then explored similarities and differences between academic definitions and female students’ experiences of lad culture in order to understand how lad culture has become embedded in the everyday lives of female students. Sexism and sexual harassment have been outlined both by literature (NUS, 2010; 2012; Phipps & Young, 2014) and participants in this project as important elements of lad culture. Participants discussed high prevalence and normalisation of experiencing sexism, misogyny and sexual harassment as part of their everyday lives and most believed that this was at least in part due to lad culture. This dissertation has used literature on the everyday (and on everyday sexism in particular) to suggest that the normalisation of sexism and sexual violence through lad culture is incredibly damaging for the lives of female students because it alters their views about their own capabilities, limits their freedoms and reduces their agency.

Using focus groups and diaries together produced a deeper understanding of female experiences than was achieved in previous literature on lad culture, highlighting some aspects of lad culture that were of importance to participants yet were not present in the literature. For example group mentality and the intimidation caused by a group of lads impacted the lives of my participants; many expressed wishing to avoid groups of lads and had learnt from experiences that encounters with them could lead to experiences of sexism and mocking at best and sexual assault at worst.

For some participants the detrimental impacts of the laddish group mentality was present in educational spaces as well as social situations. Those students who study subjects in which girls are in the minority reported experiencing lad culture on a regular basis, and although some felt able to confront laddish behaviour in these circumstances, others resorted to avoiding lads and not answering questions in seminars because of the overpowering confidence of the lads.

Previous literature on lad culture outlined laddism as a highly classed concept (Willis, 1977; McDowell, 2002; 2011; Phipps & Young, 2014). However, none of my participants indicated class as a factor in their understanding of who is a lad or what lad culture is. This may reflect Phipps and Young’s (2014) contention that as a form of masculinity, lad culture dominates university culture, meaning that there is little variation regardless of class. However, further research could investigate whether this is true at different universities where the class demographic of the students may be different to that of Durham University.

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The second part of this dissertation focused on how female students are responding to lad culture.

Although some participants reported expressing their agency by challenging lad culture, the overwhelming response was to avoid lad culture or to be passive in response to laddish behaviour.

The main reasons for this were fear of how lads would react if they were challenged and a feeling that it was not worth confronting the lads as lad culture is experienced so regularly. This dissertation has argued that both the cause and an implication of this lack of confrontation is the ongoing perpetuation of asymmetric power relations between male and female students, produced and facilitated by lad culture as female students feel unable to fight back against oppressive elements of lad culture.

A key limitation of this dissertation is that only 13 students participated in my research, all identified as white, heterosexual, age 18-21 and 12 identified as feminist. Therefore, the conclusions I have made cannot be taken to represent the entire Durham student population, and definitely not the wider student population. However, I do not intend to dismiss the importance of the findings based on the number of participants. Instead, I argue that the results show that the experiences and impacts of lad culture are significant and raise many questions about lad culture which should be investigated more.

I will therefore now suggest some important themes for further research.

6.2 Further research As previously identified, further research could focus on involving a greater number of participants from a wider demographic (particularly in relation to sexuality and race) in order to gain a wider view of experiences of lad culture and in an attempt to make heard the voices of those who have been most oppressed by the impacts of lad culture.

As this dissertation has only been able to investigate one week’s worth of experiences through diaries and suggest some short to medium term impacts of experiencing lad culture, further research should focus more on long term impacts. For example, using Berg’s (2006) connection between everyday sexism and PTSD and Deitch’s (2003) investigation of the impacts of everyday racism as a theoretical lens, it may be possible reveal how experiencing lad culture as part of everyday life at university could impact females throughout the rest of their lives, particularly in relation to careers.

To conclude, this dissertation has investigated the multifaceted and complex nature of female student experiences of lad culture. In addition to this, it has revealed how experiencing lad culture as part of everyday life can be detrimental to female students. The research has contributed to limited body of geographical research on lad culture while simultaneously working to promote the agency of the participants. However, in order to build on the findings of this project, further work on lad culture is needed to explore lad culture’s detrimental impact on the lives of female students. Further research should continue to make visible the gendered power inequalities inherent to lad culture which permeate university culture in order to fully understand why lad culture is an important point of study for human geography and feminist geography in particular.

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The rehabilitation of Marie-Antoinette within selected literature from the Age of Revolution

Elliot Grogan is a final year student reading French and Spanish at University College, Durham University. Elliot specialises in comparative literature within the French and Spanish speaking worlds, and is particularly interested in 18th and 19th century France. This paper is the end product of the final year dissertation in Modern Languages, and was prepared under the guidance of both Thomas Wynn and Sam Bootle.

Introduction ‘Art can provide a response to a traumatic event’ (Astbury;2012;10) Scholars led by Chantal Thomas have analysed at length the significance of eighteenth-century licentious pamphleteering which depicted Marie-Antoinette as an incestuous mother and foreign ‘other’ to rationalise the revolution and finally her execution (1989). However, although Anja Butenschön has evaluated visual iconography (2011), comprehensive analysis of post-revolutionary depictions of the Queen is sparse, and therefore this dissertation will ask how and why a woman depicted in libertine pamphlets as ‘reine scélérate’ (1989) is rehabilitated following the revolution.

Thomas asserts that the purpose of pamphleteering was ‘l’élaboration d’une mythologie’ (ibid.;19) of Marie-Antoinette, yet post-revolutionary literature serves precisely the same function, re-shaping the myth of the Queen. Furthermore, in her recent study Katherine Astbury argues that literature was central in managing the trauma of revolution following 1789, notably in reviewing life before the fall of the Bastille, in order to restore a sense of continuity (2012;11). This investigation will advance Astbury’s theory, arguing that Marie-Antoinette comes to embody such continuity, as depictions of her are assimilated within the ahistorical mythical structures of motherhood, national identity and tragedy, around which the project will be organised.

The corpus consists of three texts of different epochs and genres: Madame de Staël’s pamphlet Réflexions sur le procès de la Reine (1793), Madame de Campan’s Mémoires sur la vie privée de Marie-Antoinette (1822), and finally Alexandre Dumas’ novel Le Chevalier de Maison-Rouge (1846); the latter, serialised in La Démocratie Pacifique (Schopp;1997;386), is the most pertinent of Dumas’ novels on Marie-Antoinette to this investigation, as it represents a standalone novel set in the turmoil of revolution. The corpus’ diversity in genre and timespan highlights both similarities and evolution within depictions of Marie-Antoinette, and the validity of such comparative analysis is supported by Barthes’ deconstruction of the difference between history and fiction; Barthes’ sees both as vehicles to transmit discourse or meaning (1970) and the corpus conforms to this paradigm as history and fiction merge in rehabilitating Marie-Antoinette. Discourse is therefore a central term, and will be defined as the meaning generated by the text above the narrative, and in order to fully elucidate the texts’ discourses, detailed language analysis will be employed alongside an ambitious use of theoretical criticism. However, differentiation must be made between ‘person and text’ (Thomas;2001;20) as this dissertation will focus on textual representations and their implications rather than the historical figure, for although the historical body dies, ‘the myth still hovers over the cadaver’ (Thomas;2001;21).

Moreover, the corpus must also be contextualised within what Hobsbawm calls the Age of Revolution (1962); the period from 1789 to 1848 during which France underwent profound political and social change as regimes rose and fell. Contextually, Staël’s pamphlet emerges from the midst of revolution after the regicide of Louis XVI, presenting a visceral attempt to sway public opinion in favour of 214

Marie-Antoinette before her trial. The subsequent texts are then anchored in periods of conservative restoration. Campan’s memoires appear during Louis XVIII’s politic of ‘union et oubli’ (Skuy;2003;71), whereby the need to honour royal victims was implemented ‘in the least provocative way possible’ (Butenschön;2011;4), encapsulated by the understated conversion of MarieAntoinette’s Conciergerie cell into an expiatory chapel which immortalised her supposed final words ‘je pardone’ (ibid.;10). Moreover, following the ‘ultra-right’ (ibid.) Charles X, Dumas’ novel was published during the July Monarchy, one which through Louis-Philippe affirmed an ideology of juste milieu (Antonetti;2002;713) or middle-way conservatism. Thus, the rehabilitation of Marie-Antoinette must be read in light of the historic rehabilitation of monarchy which would rule post-Napoleon France until 1848.

Finally, recurring terms must be defined. Revolutionary trauma will be taken directly from Astbury’s study; a trauma she likens to 9/11 (2012;3), and defines as the repercussions, both concrete and psychological, of overturning the collective worldview of the Ancien Régime. Secondly, the term myth will be employed throughout this dissertation, and take broadly three definitions. Lévi-Strauss uses the French Revolution to argue that myth ‘is historical, but it is also everlasting, ahistorical, part of the present, past and future’ (1971;51), whilst Barthes develops this, proposing that myth allows for the creation of meaning within an already established semantic network (1957). Thomas summarises Barthes view, asserting that myth is a ‘système de communication’ (1989;15) which can be manipulated through literature; all three are applicable to representations of Marie-Antoinette and are relevant to how literature faces the trauma of revolution, as shall be discussed.

Marie-Antoinette the Eternal Mother ‘Elle existe encore; elle existe parce qu’elle aime, parce qu’elle est mère’ (Staël;1996;57) Thomas has analysed in depth the attacks on Marie-Antoinette as mother within the pre-revolutionary pamphlets (1989), which culminated during her trial in the allegation of ‘un acte incestueux entre la mère et le fils’ (Prévost;1865;45). Within the revolutionary psyche, Marie-Antoinette represented the ‘bad mother in a republic that was supposed to be shaped by the lessons of good mothers’ (Hunt;1992;122), yet Hunt goes on to argue that this depiction as ‘mauvaise mère’ was fundamentally motivated by French society’s rejection of women in the public sphere (2012;97-98) and ‘the menace of the feminine’ to republican manhood (1992;94). Otherwise put, it was an attack on the fear of female transgression. Incest symbolises the ultimate sexual transgression, but this fear is also encapsulated through contemporary songs such as ‘La Carmagnole’ which appears in Dumas’ novel, criticising ‘Madame Véto’s’ political machinations, or the subsequent executions of Manon Roland and Olympe de Gouges, killed for apparently violating ‘the natural order of sex and gender’ (Goodman;2003;11). However, following the challenging of the family model during the revolution (Astbury;2012;7), notably through the oedipal killing of the kingly father (Hunt;1992;52), Hunt postulates that women were rehabilitated through a ‘domestic ideology’ (1992;158) which emphasised their maternal role (1992;160), re-locating the feared feminine transgressor within a controlled patriarchal space. This chapter will analyse the domestication of Marie-Antoinette through Hunt’s view, and demonstrate that her relocation within a maternal, family-centric milieu assuages her political significance; Marie-Antoinette is thus elevated to a symbol of motherhood and reappropriated as an exemplary good mother, an association Beauvoir labels as the misogynistic motherhood myth which ‘imprisons her in her sex’(1997;35).

Staël’s pamphlet is explicitly centred on the theme of motherhood, appealing to a female community by presenting a domesticated Marie-Antoinette. This chapter’s opening quotation underlines this, demonstrating both the text’s bombastic rhetorical style and central leitmotif. The alliteration and repetition builds a grandiose, aphoristic atmosphere, elevating motherhood above the grandeur of monarchy. This is vindicated by Marie-Antoinette’s kneeling at the feet of a grenadier who returns Louis-Charles to her (38); her status as Queen appears secondary to that of mother. Furthermore, the anaphora through its repetitive structure hints at the universality of motherhood as a role that 215

transcends ‘femme de tous pays, de toutes les classes’(19), and relocating Marie-Antoinette not as a monarch, but as universal woman. This is continued through the metonymic ‘ils ont enlevé le fils à la mère’(57). The trope elevates Louis-Charles and Marie-Antoinette’s personal rupture into a universal family drama between ‘fils’ and ‘mère’, accentuating her maternal instinct. However, Beauvoir has highlighted how the myth of motherhood allows for a patriarchal society to posit woman as a sociopolitical ‘other’, downgrading her active role within the patriarchy (1997;171), and Staël’s depiction fulfils this paradigm; published months before the Queen’s trial in 1793, motherhood acts as a mechanism to disassociate the Queen from the political sphere and align her within an unthreatening domesticity. As such, Staël’s style is sharp and direct, filled with an ‘élan gestuel et d’émotion’ (Thomas;1996;7), as she re-appropriates the Queen as a good mother, and proceeds to repudiate incest allegations, ‘on violerait en elle les […] lois de la nature’(41). The phrase reshapes the allegations of incest and re-focuses the violence of the rape onto the destruction of her maternal body; MarieAntoinette is rehabilitated from supposed transgressor of nature’s laws to victim of a metaphorical rape. Thus, the theme of motherhood within Staël’s pamphlet supports Hunt’s view of domesticity, as Staël presents the Queen as a ‘simple, inoffensive wife and mother’ (Gifford;1992;301).

Strikingly, Staël would later write that ‘depuis la révolution, les hommes ont pensé qu’il était politiquement et moralement utile de réduire les femmes à la plus absurde médiocrité’(1800;335).

Yet, in light of her pamphlet this appears highly hypocritical, as Staël sucumbs to the absurd reductionism she later criticises, although Gutwirth argues that such a position was the only one available (1992;215). Nonetheless, this reductionism clearly fulfils Hunt’s postulation of a ‘domestic ideology’ (1992;158) which attempts to negate the feminine menace as the motherhood myth relocates the perceived transgressor within a domestic sphere. Staël therefore surrenders in the midst of revolution to the ‘chains of rhetorical servitude’ (Gifford;date;218) that she would later dismiss, and which Beauvoir views as misogynistic, yet a similar discourse continues within Campan and Dumas’ texts, notably through the portrayal of family life in the former’s memoires: ‘Le bonheur qui succéda à ce moment d’alarmes fut aussi excessif que sincère. On s’embrassait, on pleurait de joie’(171-172)

Campan’s Marie-Antoinette is not the universal mother of Staël, but instead is anchored within her own family. The early chapters are abundant with moments of domestic togetherness, such as the collective falling to their knees of Louis XVI and his wife on inheriting the throne (74). MarieAntoinette is thus aligned within this motherhood myth, vindicated through her pregnancy, ‘jamais on n’a pu voir d’époux plus unis et plus heureux’(163). The froideur that permeates the royal couple’s early relationship, symbolically represented by the unfulfilled ‘droits d’époux’(108) which echo throughout the opening chapters, thaw into the unbridled joy of family life. The polyptoton of ‘grosse’ and ‘grossesses’(163) convey the boundless enthusiasm for Marie-Antoinette’s late pregnancy, and although the first child is not the dauphin so craved, Campan emphasises ‘son cœur vraiment maternel’(173) as the child therefore belongs to the mother and not the state. This family discourse is also articulated through the use of ekphrasis, as the narrator claims that LeBrun’s 1788 painting of Marie-Antoinette with her children represents the most authentic tableau of the Queen (135). The painting (fig.1) lacks the ostentatious imagery of monarchy associated with the likes of Dagoty’s portrait in coronation of robes (fig.2), as the fleur-de-lis is marginalized in the far right in contrast to the central family triangle that dominates the canvas. Thus, unlike Staël, Campan initially focuses on family unity to re-locate the Queen within the domestic sphere yet given the broad span of her memoires this initial unity also heightens the drama of death, as Louis-Joseph and Sophie-Hélène perish in the midst of the États-Généraux. Such a familial focus reinforces Maire-Antoinette’s primary function as mother, as the political event is neglected in favour of the personal ‘déchirement de coeur’(263) as Louis-Joseph dies. The lexis is darkly proleptic of the subsequent destruction of revolution, and is heightened by Campan’s anachronistic inclusion of Sophie-Hélène’s death within the same passage, a technique Barthes cites as central in manipulating historical discourse to create meaning (1970;153). Thus, the depiction of both domestic unity and family tragedy establishes MarieAntoinette’s sphere of influence as a firmly domestic one.

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Additionally, Campan demonstrates greater precision than Staël in directly repudiating MarieAntoinette’s political influence, touched upon with the États-Généraux, but also highlighted through Marie-Antoinette’s desire not to allow ‘cette distance qui avait existé dans la famille impériale’(41).

This supports Hunt’s view of a domestic movement of women from public to private (1992;97-98), as the Queen is anchored within a domestic space in juxtaposition to Marie-Thérèse’s political use of her family through the ‘rapprochement calculé’(42) whenever visitors arrived in Vienna. This is further explored through the reactions to rumours of Marie-Antoinette’s political scheming with the King.

Although Campan later reveals Marie-Antoinette’s plans to escape the kingdom (338), she quotes the Queen rejecting all political affairs as ‘les reines de France ne sont heureuses qu’en ne se mêlant de rien’(255). The historicity of such verbatim speeches has been questioned given Campan’s position as ‘defender of the Queen’ (Rifjelj;2009;8) and Barthes’ structural analysis of historical discourse would question Campan’s blurring of verifiable fact and fiction (1970;154). Yet nonetheless, such speeches form a central part of Campan’s discourse of rehabilitation, imbuing the memoires with an apparent ‘truthfulness’, and thus emphasising Marie-Antoinette’s domesticity whilst assuaging the fear of feminine menace.

Additionally, Bassan argues that Dumas’ oeuvre is ‘peuplé de symboles et de mythes’ (1993;101), and Dumas’ foregrounding of the motherhood myth supports this, markedly through her introduction as mother of the dauphin: ‘Comme une tigresse fait de sa tanière. « Jamais je laisserai enlever mon enfant ! »’(57)

Unlike the previous texts, Marie-Antoinette’s two introductions within the novel construct and subsequently deconstruct the good/bad mother dialectic. The Queen’s initial introduction is as the ‘mauvaise mère’ within republican speech, centring on her apparent sexual lasciviousness (39), and acting as a fitting example of Barthes’ definition of gossip as ‘murder by language’ (1977;169); Marie-Antoinette appears to be executed for alleged crimes rather than actions, as chapter forty-six’s ‘Le Judgement’ and Simon’s farcical attempts to force Louis-Charles to depose against his mother in chapter thirty-eight display. Yet the introduction of Marie-Antoinette as an active character revokes the bad mother, as she is heralded by her daughter’s words ‘pauvre mère!’(50).

Although stripped of her title and castigated by derogatory epithets throughout, she cannot be deprived of her role as mother, whilst numerous characters who interact with her develop a respect for her as a woman and mother, notably Maurice, Lorin and the Conciergerie gaurds who pledge to return strands of her hair to her children (476). This establishes a dialectic whereby the bad mother is located within the gossip of extremist revolutionaries, whereas the good mother is tied to Marie-Antoinette’s actions, vindicated through the introductory scene in which she overcomes the crushing masculinity of Santerre to defend the dauphin (52). The simile to a tigress is particularly pertinent as it manipulates a term frequently employed in sexual derision within pre-revolutionary pamphlets.

‘Tigresse’ appears in Le Bordel Royal (Thomas;1989;215) amongst others to paint Marie-Antoinette as an incestuous harlot, yet Dumas re-appropriates the word through the narrative voice, imbuing it and thus Marie-Antoinette with a regal might and raw maternal instinct. ‘Tigresse’ consequently mirrors Marie-Antoinette’s rehabilitation within the novel; that which was perceived as lascivious is re-appropriated as a signifier of good motherhood, subsequently accentuated through the epizeuxis of ‘jamais! Jamais!’(51) which displays both terror and maternal fury as the initial depiction of MarieAntoinette situates itself within the corpus as a continuation of the motherhood leitmotif, building early empathy.

Furthermore, Dumas’ construction of Marie-Antoinette as the good mother is additionally developed through the parallelism of the Queen and ‘la femme Tison’; the minor character acts as a foil to the Queen, embodying a poor motherhood which by contrast accentuates Marie-Antoinette’s maternal goodness: ‘[Tison] : « Malheur à toi, Antoinette, tu me le payerais cher?[...] Tu entends, Antoinette ?... Ma fille !... C’est toi qui auras perdu ma fille! »’(109)

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The Tisons are charged with attending to the royal family, whilst unbeknownst to them their daughter Héloise acts as an agent for the royalist cause and as a result is taken from her mother like LouisCharles from Marie-Antoinette; both women lose those dearest to them, yet their response categorises them as good and bad mothers. The aggressive repetition of rhetorical questions against MarieAntoinette demonstrates the vitriol Tison projects onto her, which evolves into a heightened schadenfreude. As Héloise is barred from the Temple, Tison enacts a perverted vengeance on MarieAntoinette opening the window ‘pour qu’elle [Marie-Antoinette] jouisse sans empêchement de l’amour que lui porte son peuple’(157). The sexual undercurrents of ‘jouir’, referenced within the Académie Française dictionary (1835), allude to a sexual violence and the violation of MarieAntoinette’s body through pamphleteering, entrenching the dialectical opposition between the two women united in motherhood but differentiated by their respective cruelty and dignity in the face of adversity. Nonetheless, Tison’s sadism ultimately debases her as a quasi-comic villain and ‘malheureuse créature’(111), and this is highlighted by the Tison court drama. The stichomythic exchange builds tension until the final tragic discharge ‘par vous, ma mère’(251) as the mother unwittingly denounces her own daughter to the scaffold, and consequently falls into madness. Tison therefore presents the antithesis of Marie-Antoinette the rehabilitated good mother, whose maternal grandeur is further heightened in her forgiveness of Tison (257) which also alludes to the politic of forgiveness within restoration-era France.

Moreover, Dumas’ bathetic portrayal of Tison is similar to that of Simon who is also manipulated to repudiate the incest allegations; characters that should represent a Republican ideal appear as hackneyed fools to augment the position of the Queen within the discourse. The first allegations of incest within the novel emerge from Tison’s ‘une mère aussi dépravée que toi…’(58). The ellipsis menacingly hints at the allegation, yet this may alternatively be interpreted as deeply ironic; the lacuna created by the ellipsis provides a moment of reflection for the reader in which to consider the preceding description of the Queen as good mother alongside Tison’s comic villainy, and indeed Simon suffers a similar fate. Simon is the novel’s anti-hero, endlessly ridiculed by the Maurice and Lorin (101), and preceding the incest scene he is undermined within the very justice sphere he relies on for authority and power as he plots whilst the Chevalier de Maison-Rouge stands beside him (370).

Furthermore, given Simon’s child beating and forcing of Louis-Charles to sing ‘La Carmignole’, the truthfulness of any potential deposition by Louis-Charles against his mother is challenged as Simon pressurises the child in chapter thirty-eight. Queffélec argues that Dumas saw allegations of incest as the transgression of the Revolution (1990;673), and Simon embodies this through his immoral abuse which degenerates into ‘hurla’(397). Ironically, this reverses the situation as Simon appears childish whilst Louis-Charles is imbued with a stoic dignity, exiting to sing his father’s favourite song (401).

Within this claustrophobic scene, Lorin acts as the final cipher to repudiate incest in a manner reminiscent of Staël’s writings, declaring ‘c’est presque insulter à l’humanité tout entière dans la personne de cet enfant’(394). Therefore, given how Fraser has highlighted that Louis-Charles did depose against his mother (2001;429), Dumas’ crafted re-writing of history completely undermines allegations of incest and thus allows for the rehabilitation of Marie-Antoinette as good mother.

The corpus consequntly demonstrates an evolving range of techniques which re-locate MarieAntoinette within the family sphere; a concept that even extended into the art of her expiatory chapel which promoted Marie-Antoinette as ‘warm-hearted mother’ (Butenschön;2011;5). This cannot be interpreted as complete fabrication as Marie-Antoinette’s final testament and adieu to her children prove otherwise (Crivellin). Yet this motherhood motif is clearly manipulated to serve Hunt’s view of a domestic ideology. Gutwirth postulates that the French Revolution attempted to ‘resist woman’s advancement in society and to restore an unquestionable male supremacy’ (1992;383) and pamphlets such as Le godmiché royal foreground this fear of usurpation, as the sexual becomes political; the dildo by its very nature grants female self-pleasure, usurping the male. Contrastingly, motherhood tempers this female transgression, returning the menacing female to the constraints of the family. In Gutwith’s view, the motherhood myth was manipulated by men to maintain patriarchy (1992;251), reminiscent of Barthes’ view of a semantic network as motherhood signifies a reconciliatory, subservient mode within the patriarchy (Beauvoir;1997;284). Cabelzali calls this a ‘myth of suppression’ (1990;161), which by ontological opposition imbues man with vigour and potency. Yet 218

most pertinently, motherhood is also, in accordance with Lévi-Strauss, ahistorical and enduring; as well as reinforcing patriarchal norms, it imbues Marie-Antoinette with a timeless universality. This fulfils Astbury’s concept of dealing with the trauma of revolution by re-writing a continuous past (2012;11) as Marie-Antoinette is assimilated within a myth of continuous human reality: motherhood.

This therefore assuages the revolutionary trauma of Hunt’s ruptured family and feminine menace, perpetuating a patriarchy Gutwirth highlights was evident in the eighteenth century and continued throughout nineteenth century France (Bragg;2011). Dumas perhaps best summarises this ideology as ‘reine, c’est une grande coupable; femme c’est une âme digne et grande.’(110); Marie-Antoinette the Queen embodies a menacing femininity, yet as mother she is noble, great, but above all an unthreatening member of an eternal and docile womankind.

All communities are imagined communities (Anderson;1991)

‘On leur a dit que Marie-Antoinette détestait la France, qu’elle était Autrichienne; et c’est par ce nom que dans leur fureur ses ennemis l’ont toujours appelée, certains de frapper ainsi l’esprit du peuple’ (Staël;1996;28) If the previous chapter highlighted Marie-Antoinette’s female ‘otherness’ within a patriarchal society, this chapter will focus on Marie-Antoinette the perceived ‘foreign “other” to the King’s French self’ (Goodman;2003;11). Austrian by birth, pamphlets such as ‘la poule Autrichienne’ (fig.3) were central in depicting Marie-Antoinette as ‘other’, as an ‘étrangère, qui souille le trône de France’ (Thomas;1989;19) and indeed Gutwith argues that xenophobia was of greater significance than perceived sexual or political transgressions (1992;228). Moreover, whilst scholars argue that MarieAntoinette was manipulated as part of her mother’s foreign policy (Lever;2000), her lobbying for Austria, notably in favour of the house of Lorraine (Kaiser;Goodman;184), fuelled the public perception of her as the Austrian enemy. In his analysis of nationalism, Anderson asserts that literature was central in ‘re-presenting’ nationhood (1991;25), a view evident in pamphlets which helped construct a French self in opposition to the Austrian ‘other’ of Marie-Antoinette (Thomas;1989;17). However, Anderson also defines a nation as ‘an imagined political community’ (1991;6), and imagination suggests the potential for re-imagination and re-telling. Taking this as a point of departure, this chapter will analyse how Marie-Antoinette is re-imagined as a unifying force and symbol of French identity, and finally interpret the repercussions of this on the broader myth of French nationhood.

Staël’s pamphlet was published at the zenith of Austria-phobia following the Legislative Assembly’s declaration of war on Austria, and it is within this context that Staël attempts to temper MarieAntoinette’s foreign ‘otherness’: ‘La reine, partie de Vienne à treize ans, ne pouvant obtenir dans sa patrie qu’un rang secondaire, préférait cette patrie à la France, dont elle était reine! A la France, séjour si délicieux ; aux Français…’(28)

The polyptoton of France encapsulates the pamphlet’s discourse, re-associating Marie-Antoinette with everything French, whilst her Austrian past is rejected in favour of ‘sa patrie adoptive, que la France’(30). Staël appeals to both rational and emotional reasoning, emphasising in hyperbolic fashion both how France has elevated Marie-Antoinette from daughter of the Empress to Queen, alongside ‘l’attachement de la reine pour la France’(29). The metaphor creates a visceral connection between Queen and nation, hinting at the broader thematic within the text of unification of Queen and ‘peuple’. Although disproved by later historians (Lever;2000), Staël rejects claims of MarieAntoinette’s connivance with the Austrian enemy (31), emphasising the potential for national unification around Marie-Antoinette. This is foregrounded through the asyndeton ‘républicains, 219

constitutionnels, aristocrats […] réunissez-vous tous pour la sauver!’(20); Marie-Antoinette is reimagined as a means of unifying a fractured French identity from the chaos of revolution, a shared thematic with Dumas’ novel. This is further accentuated through the elegant simplicity of the single clause, ‘le peuple la reçut’(22). The simplicity of language communicates a transparent vignette of unity; a woman subsumed into a national body and thus national identity. However, Staël’s closing salvo juxtaposes such unity with a chilling reference to the terrors of revolution, ‘vous gouvernez par la mort […]là où il existait un trône vous avez élevé un échafaud’(49). Evocative of Brown’s view that the revolution through the terror fell into ideological fanaticism (2007;156), this presents a stark choice to the reader between the unifying body of the Queen, or unification in murderous terror, and this theme will be further explored within Campan and Dumas’ texts.

Additionally, Staël also locates the Austrian ‘other’ within the speech of Marie-Antoinette’s enemies, demonstrated in the quotation that opened this chapter, and reminiscent of Barthes’ aforementioned view of gossip as ‘murder by language’ (1977;169). Such xenophobia is embodied by the phrase ‘la calomnie s’est attaché à poursuivre la reine’(21) as the Queen is stalked by a monstrous body of slander in which the ‘Autrichienne’ is clearly located, whereas in contrast the narrative voice promotes Marie-Antoinette as the locus of French identity as previously analysed. Such a technique of disassociation is also prevalent within the remaining texts. Austrian gossip permeates Campan’s memoires, explicitly addressed through chapter five (102) and the opening of chapter six, where critics speciously attack Marie-Antoinette for the apparent Austrian influence to her fêtes galantes.

However, this is undercut by the narrative voice and Marie-Antoinette’s speeches which entrench her French identity, ‘épouse d’un roi de France, mère du dauphin, je suis Française’(396). The staccato clauses build an aphoristic atmosphere of apparent authentic identity, which segues into the protracted emotive clause ‘je ne puis être heureuse ou malheureuse qu’en France’(396). Similarly, this modus operandi appears in Dumas’ novel, whereby Marie-Antoinette is referred to as ‘reine’ by the narrative voice, yet the municipal is castigated for doing this by the revolutionaries (263), who frequently mock her by referring to her through antonomasia of ‘otherness’, such as ‘l’Autrichienne’ or ‘Madame Véto’. Thus, zealous and often comic revolutionaries such as Simon are undercut whilst the narrative voice continues to refer to her as Queen of France.

Campan also demonstrates a clear progression from Staël in re-appropriating Marie-Antoinette not merely as French, but as the very embodiment of French identity: ‘On était séduit par un seul sourire; dans cet être enchanteur, ou brillait l’éclat de la gaité française’(52)

The sibilant alliteration draws the reader into this image of ephemeral beauty, conveying a graceful insouciance and elegance which reaches its apogee through ‘gaité francaise’. Marie-Antoinette and a French ideal of national beatitude merge into one as the language is moulded to serve this discourse of integration, symbolising French identity itself. Moreover, Derrida argues that language within western phonocentric culture represents a privileged signifier of authentic communication (1997;32), and this is applicable to Campan’s rehabilitation of Marie-Antoinette as ‘elle était si bien devenue Francaise qu’elle avait meme oublié sa langue maternelle’(299). Derridian logocentrism sees the speech-act or word within western discourse as associated with an authentic truth (ibid.;33), and here MarieAntoinette’s language is a sign which signifies her authentic French identity. Furthermore, Anderson argues that as the Europe-wide use of Latin was supplanted by vernacular languages on the continent, language therefore became a signifier of nationhood as communities were united by their own vernacular language (1991;40), and thus Campan’s discourse also utilises language to re-appropriate Marie-Antoinette within a French identity, and by contrast reject her Austrian ‘otherness’.

However, Dumas approaches national identity rather differently to the previous texts, as it is not articulated explicitly through Marie-Antoinette, but rather through interactions with Marie-Antoinette and the opposition between the chaos of revolution and the unity embodied by the protagonist Maurice: ‘La nuit était descendue sur Paris […] bruyante, orageuse et entrecoupée d’éclairs’(1)

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Autrand labels the novel’s setting as ‘la periode réactionaire ou descendante’ (1990;8) of the revolution in Dumas’ eyes, and the opening pathetic fallacy supports this as ‘entrecoupée’ connotes schism, hinting at a ruptured revolutionary identity. Dumas’ poetic setting is a fractured one of nationalists and traitors, and the opening battle between ‘garde civil’(10) and ‘petit troupe de […] volontaires’(7) functions as a microcosm of this chaotic identity. Chapter one is quasi-farcical in its delivery, questioning this anarchic milieu of accusations and counter accusations which comically result in the republican hero Lorin labelled ‘traître’ and ‘créature de Pitt’(17). Such hollow repetition of ‘traître’, redolent throughout the novel and attributed to almost every major character including Marie-Antoinette may therefore be seen to undergo a process of ‘semantic satiation’ (Jakobovits;1962), whereby repetition enervates a word of all meaning. In its attribution to everyone it lacks coherent meaning, highlighting a quasi-schizophrenic revolutionary psyche where everyone but therefore no-one is stigmatised as a traitor. This implicitly questions the use of ‘traître’ against MarieAntoinette as branding Lorin as English, a proved republican and Frenchman who endlessly quotes from the French poetic canon, undermines later attributions of Marie-Antoinette as Austrian; from the outset xenophobia is anchored within this schizophrenic context of fractured and erroneous identity.

Campan also briefly hints at a disorientated revolutionary identity through the blurring of gender identity as revolutionaries mistake her for a transvestite man (424), although this theme holds greater significance within Dumas’ novel. Dumas develops this fractured identity as it also gives rise to terror, demonstrated through blood-stained references to the ‘rêve sanglant’ of the September massacres (147). The massacres were motivated in part by a fear of foreign invasion (Lewis;2003;38), so allude to an underlying nationalism whilst Dumas’ narrator explicitly states that in saving France through the massacres, France and French identity were lost (149) as this reactionary period descended into brutal chaos. Simon encapsulates this discord, even decadence, as his power stems not from the heroic and moral grandeur of Maurice and Lorin, but from political scheming and depositions against apparent ‘traîtres’, fulfilling a post-revolutionary literary type of comically immoral characters who ‘use[d] terror to settle scores’ (Astbury;2012;104).

However, emerging from such anarchy, Dumas polysemously offers up Maurice as a symbol of a Romantic French identity, and through this protagonist Marie-Antoinette is subsumed into a discourse of national unity: ‘[Lorin] : «Le culte de la patrie n’exclut pas celui de l’amour; au contraire, l’un commande l’autre»’(42)

Maurice symbolises a new French identity within the novel, combining patriotic zeal with an unshakable Romantic morality; he synthesises republicanism with a deep-seated respect for monarchy, reminiscent of the July Monarchy’s juste milieu. Maurice is born half-aristocrat but is republican by sentiment (43), and his Ancien Régime weaponry, pistols from the factory of Versailles and a Champ-de-Mars sword (36), is employed to enforce initially republican values. Furthermore, his narrative journey is one of reconciliation. Maurice couples the ardent republicanism of an artillery commander during the tenth of August 1792 (11), having also fought at the Bastille and Versailles (45), with an ardent respect for Marie-Antoinette bowing his head (107) and attending the trial of this ‘malheureuse femme’ (471). Maurice then prides himself in the silence he demonstrated at the execution of Louis XVI (46), subsequently claiming that he would have killed any man who would have insulted the King (179) and is finally subsumed into the royalist cause by chapter thirty. In contrast to the fractured identity of the revolutionaries, Maurice is driven by consistent respect and morality which unites republican and royalist values, and which reaches its apogee through his relationship with Geneviève, bringing together republican and aristocrat. Yet critically, it is through Marie-Antoinette that they are united. It is her narrative that brings them together, and they follow her to the scaffold united. This suggests an implicit discourse of Marie-Antoinette as unifier of the French self, locating her within the discourse of national unity as it is due to her that the two are drawn together, and such synthesis may support Bassan’s view that Dumas was in favour of a benevolent monarchy (1993;105). Moreover, the main protagonists die together at the guillotine irrespective of political views, whilst the ‘vive Simon!’(558) cry acts as a parodic criticism of revolutionary excess which executes those who represent a juste milieu. Bassan labels Dumas’ heroes as ‘redresseurs de 221

tort, des médiateurs, des saveteurs’(101) and Maurice fulfils this, attempting to redress the wrongful conduct towards the Queen, mediating the old and new worlds into one, and thus providing a blueprint to save French identity as one of reconciliation based upon a heroic morality. Consequently, Dumas manipulates his narrative in order to relocate Marie-Antoinette as a symbol of national unity rather than discord; discord arises from an excess in republican zeal, and unity from a Romantic morality, heroism and respect.

Therefore, once again the corpus clearly re-situates Marie-Antoinette as a member, unifier and even symbol of French identity and nationhood. This is particularly pertinent in Campan and Dumas’ text given Butenschön’s view of the profound political disunity amongst the French populace following the restoration (2011;2). Yet, much like motherhood, nationhood can arguably be defined as a myth; a semantic network communicating how one should act to be French as Barthes postulated, but also an ahistorical entity, as France lives on, in accordance with Lévi-Strauss. However, returning to Astbury’s concept of post-revolutionary literature re-writing a continuous past, Anderson argues that nationalism emerged from an eighteenth-century paradox; the nation usurps religion and monarchy as it ‘emerge[s] from the large cultural systems that precede it’ (1991;12) thus defining itself against its past, yet polysemously the nation must represent meaning and continuity and so must also incorporate its preceding cultural history within it (ibid.). Therefore, the rehabilitation of Marie-Antoinette may be read in this light. If the revolution needed to define itself through the pamphlets against the monarchy and particularly define a French nationhood against Marie-Antoinette’s Austrian ‘otherness’, MarieAntoinette also comes to represents a part of French history, and thus rehabilitating her as French assuages the trauma of revolution by re-writing an imagined continuous past of French nationhood.

Et in Arcadia ego; dealing with death ‘Ce fut les dernières paroles que prononça la fille des Césars, la reine de France, la veuve de Louis XVI […] et Marie-Antoinette tombait dans l’éternité’ (Dumas;1989;499) This final chapter will confront Marie-Antoinette’s death; an event at the heart of the revolution and thus Astbury’s theory of trauma, and a central reason for which Marie-Antoinette falls into the ‘éternité’ of collective and cultural memory as ‘the last queen, The Queen’ (Thomas;2001;81). The events of the revolution alone lend themselves to dramatization, fulfilling a number of Aristotle’s writings on tragedy, such as grandiose action revolving around a noble family (2013;33), and therefore this chapter will ask how the tragedy of Marie-Antoinette is depicted within the corpus, utilising both Aristotelian and Racinian models of tragedy. However, Astbury’s theory of continuity is difficult to reconcile within this theme; Marie-Antoinette is executed and her body cannot be restored to life. Yet, although unable to re-write a continuous past, meaning can be given to her death, and this chapter will also ask whether the texts can imbue Marie-Antoinette’s death with meaning in light of Nietzsche’s postulation that man ‘does not deny suffering as such: he wills it, he even seeks it out, provided he is shown a meaning for it, a purpose of suffering’ (2006;120).

Staël’s text cannot confront Marie-Antoinette’s death in the manner of Campan and Dumas given its publication before the Queen’s trial. However, writing in the aftermath of Louis XVI’s execution, Staël presents an emotive depiction of the bodily violence enacted on the Queen as she foregrounds the trauma of regicide: ‘Cette longue suite de souffrances pénètre d’un sombre respect; la reine devrait périr mille fois sous tant de coups redoublés’(53)

The connotations of ‘pénètre’ allude to a Queen violated by the revolution, and the text is permeated by such violence, but also by the tragic inevitability of death through the proleptic opening ‘cette illustre infortunée’(19); the quasi-paradox acts as a reminder that although born of royalty, she has been brought low by the revolution, and in Aristotelian terms is an example of peripeteia, falling from prosperity to adversity (2013;xxi). Death overshadows the pamphlet, omnipresent through the 222

referenced momento mori ‘et in arcadia ego’(29), and further highlighted through ‘race royale persécutée’(44). This alludes to both regicide and the killings of those such as the Princesse de Lamballe, although alongside the ruptured family unit previously analysed, this also foregrounds the tragedy of ‘séparation’ (1991;29). Racine argues that the separation of lovers, such as Aeneas and Dido, can produce tragedy, and the separation of Louis XVI and Marie-Antoinette is central to this depiction. Moreover, Aristotle emphasises morality as fundamental to tragedy, and there is a moralistic element to the pamphlet as the aforementioned replacing of the throne by the ‘échafaud’(49) demonstrates, of a King replaced by death. These techniques therefore clearly accentuates and build Marie-Antoinette’s tragedy, and later in the first French republic Staël would ask who can write and ‘ne pas […] penser sur la révolution de France’ (1796;21), foregrounding the intense trauma of revolution. Nonetheless, although the pamphlet’s tragedy promotes pity for MarieAntoinette and a fear of revolutionary brutality, this cannot be labelled cathartic as the text lacks a final purification of emotion; it is an in medias res appeal to deliver Marie-Antoinette from the guillotine. Although it may be interpreted that it does engender a re-appraisal of revolutionary morality, there is no final purifying conclusion; Marie-Antoinette’s own life still hangs in the balance, her own conclusion has not yet arrived, and thus rather than catharsis the pamphlet represents an appeal to evoke pity and fear, but it is left to the reader, ‘à vous’(34), to execute the purification of such emotions by supporting the Queen. Thus, within this maelstrom of revolution, Staël cannot provide a meaning for Marie-Antoinette’s suffering bar the cruelty of revolution, acting instead as a mouthpiece for the traumatic experience of regicide and revolution.

However, the subsequent texts postdate Marie-Antoinette’s execution, and consequently must confront her death. In keeping with Staël, Campan’s memoires share an atmosphere of dramatic foreboding which establishes Marie-Antoinette as a tragic heroine; she is introduced alongside the Lisbon earthquake (39), an event estimated to have killed up to forty-thousand (Jones;2002;212), whilst the following description of the Queen as ‘l’étoile funestre’(48) adds to the sense of tragic inevitability within the narrative, accentuating both the brilliant beauty but also impending darkness to come. Such prolepsis is central to Campan’s tragedy, as death pervades the early narrative of the memoires and Marie-Antoinette’s death appears imminent from the beginning. Comparably to Staël, Campan heightens the tragic atmosphere by emphasising Marie-Antoinette’s peripeteia alongside the family separation, previously analysed within the motherhood chapter, which hints at the later destruction of the family unit during the revolution. Yet, in a marked evolution from Staël, Campan also underlines Marie-Antoinette’s Aristotelian hamartia (2013;32) as a disinterest in licentious public opinion (114/169). Furthermore, Campan begins to imbue the execution with meaning, positioning her as sacrificial victim, ‘comme une victime’(295) as the Queen delivers herself to the crowd at the Versailles balcony. This discourse of self-sacrifice is perpetuated through the final parting of MarieAntoinette and Campan, as ‘cette souveraine détronée nous tendit le bras en disant que nos malheurs, dont elle était la cause, aggravaient les siens propres’(430). The dethroned sovereign is particularly poignant, as a sovereign without a throne lacks ontological wholeness; Marie-Antoinette is thus depicted as having lost truly everything, even herself, yet nonetheless is principally concerned by the well-being of others - in this case Madame de Campan. This strikes a reconciliatory tone, and does to an extent provide her death with meaning as an altruistic suicide and quasi-martyrdom; a death accepted for the good of others.

Nevertheless, Aristotle argues that a truly tragic plot needs ‘completeness’ (2013;26), and Campan’s ending only represents a half-meaning. Campan falls short of true meaning as she is unable to confront the episode of Marie-Antoinette’s death itself, ‘je m’arrête à l’affreuse époque de l’assassinat d’un roi’(442). Ironically given the heavy use of prolepsis, the final expected scene is non-existent, the memoires appear truncated. Kermode in his analysis of endings in literature argues that literary endings act as reminders of the ending of life (1967;7), and the memoires certainly mirror that of Marie-Antoinette by ending prematurely. This inability to confront Marie-Antoinette’s death may exemplify Astbury’s revolutionary trauma, nevertheless meaning or continuity cannot be achieved without confronting the death itself. Although ‘we cannot be denied an end’ in literature (Kermode;1967;24), Campan is unable to confront, rationalise or give meaning to the ending a postrevolutionary readership expects. This also questions whether the text can be labelled cathartic, as 223

although tragic elements inspire pity and fear, there is no conclusion that allows for the purification of such emotions. Thus, although the discourse begins to rehabilitate Marie-Antoinette’s death as a meaningful one of self-sacrifice, the author is unable to face up to the final death, the ultimate creation of both tragedy in Aristotle’s eyes and meaning in a nietzschean sense.

Dumas’ novel by comparison perpetuates but also develops Marie-Antoinette’s tragedy, and was so successful that it was adapted for the stage at the Théâtre-Historique in 1847 (Schopp;1997;410).

Significant tragic elements include Marie-Antoinette’s hamartia of ‘fierté’ repeated throughout the text, the aforementioned moral element which Maurice focuses and his moment of insight, of anagnorisis (2013;24) through the realisation that he has unwittingly aided the royalist cause (307).

Yet, rather than regressing to mindless republicanism, he gives himself up to his passion and critically his heroic morality. However, within Marie-Antoinette’s narrative, Racinian ‘séparation’ is the central driver of tragedy. Returning to the previously analysed chapter ten, Marie-Antoinette’s introduction is also characterised by the lack of the family’s father figure after the death of Louis XVI. The male characters represent polar opposites, the sick Louis-Charles symbolises the impending death of this ‘Capet’ family, whilst the Montagnards and Santerre’s ‘brutale puissance’(51) embody the violent, aggressive and overbearing republican masculinity that acts as a constant reminder of Louis XVI’s execution (53). As such, Louis XVI is conspicuous in his absence within this severed family, whilst his empty cell merely heightens the sense of separation, symbolising his loss. Marie-Antoinette refuses to walk past his cell (113), and when forced to almost faints (268). Yet, Dumas manipulates the reader in this scene through the shift in metonymic description by the narrative voice from the initial ‘reine’ to ‘mère’ as she passes the symbol of her lost husband that is the cell. This locates Marie-Antoinette at the heart of a family drama as analysed, but also demonstrates the falling low of the tragic heroine, brought low by the execution of her husband, a tragedy that transcends class. This family separation and tragedy is finally encapsulated through the anaphoric repetition ‘séparée de son fils par la prison, séparée de son mari par la mort’(187), as the narrative voice questions what is left for Marie-Antoinette apart from death.

Nevertheless, contrastingly to the previous texts, it is within Dumas’ novel that the meaning of MarieAntoinette’s death finds its clearest épanouissement. Marie-Antoinette’s execution is confronted, unlike Campan, and imbued with a unity achieved through the death of all the major characters: ‘Marie-Antoinette aussi regarda le ciel et sourit doucement.’(492)

Dumas’ novel is fully cathartic; the death is not a brutal ending, but after the pity of the family tragedy and the fear of revolutionary terror, the death offers a purgation of emotions as MarieAntoinette escapes the savagery of the terrors. The Queen’s last act is one of peaceful transcendence, foregrounding that as much as the novel centres on the destruction of family, through death and moving to the ‘ciel’, the tragic heroine is re-united with Louis XVI. This concept of unity through death is also evident through the executions of Maurice, Geneviève and Lorin, and the suicide of the Chevalier de Maison-Rouge; all four actively consign themselves to death. Seneca views a stoic death as one whereby if the knowledge of death makes man human, then choosing the script of one’s own death imbues it with meaning (Edwards;2015) and the four characters fulfil this; the Chevalier is unable to live without Marie-Antoinette, whilst Maurice decides to die alongside Geneviève, converting death from a destructive process into one that unites republican and aristocrat, that unites man and woman. Lorin’s execution is similar, deciding to die alongside Maurice, which demonstrates a true sense of fraternité. If the incessant double-crossing ‘traître’ of the republicans represents a false, broken brotherhood as previously analysed, Maurice and Lorin die together in true fraternité, whilst Lorin’s closing ‘Vive Simon!’(558) repudiates the mendacity and chaos of the Terror; death becomes a release through which unification can be achieved, pertinent given the contextual restoration of the monarchy. The execution of the Queen is thus placed within a framework of moderation and unity, and so becomes a process through which a discourse of collective unity is professed.

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Moreover, religion was criticised alongside the Queen in the pamphlets, epitomized in the Bordel Royal, where the abbot is the most sexually charged of all Marie-Antoinette’s lovers. Yet, within the context of restoration, Dumas re-appropriates religion to give meaning to Marie-Antoinette’s death: ‘[Marie-Antoinette] : «vous me tuez. Vous avez raison, j’attends » […] Elle était sublime en ce moment: une auréole l’éclairait, la plus brillante de toutes, celle qui vient de l’amour’(443)

The concept of self-sacrifice is touched upon within Campan, but it is in Dumas’ novel that MarieAntoinette is ultimately aligned with a Christian typology of defeating death. She sublimely accepts her fate and is imbued with the angelic qualities of a halo (443), her hair is ‘une aureole’ gifted by God (221) and finally she transcends the crowd as ‘presque céleste’(490) on reaching the guillotine.

This is also evidenced through Marie-Antoinette’s refusal to let Geneviève take her place (436) or allow the Chevalier de Maison-Rouge to come to harm on her behalf (454). She is consequently depicted as a Christian martyr who accepts death, and this discourse is one which appeared shortly after her execution, demonstrated by the 1793 English engraving calling her a martyr (fig.4), whilst her chapel also contained a ‘monogram of Marie-Antoinette with a crown of thorns’ (Butenschön;2011;6). Dumas draws on such iconography raising Marie-Antoinette as a surrogate Christ, to highlight the Christian doctrine of grace (ibid;10), and the religious symbolism functions on different levels; Christ gives himself up for the sins of mankind much as Marie-Antoinette appears to be executed in the novel not for her own faults but the fanaticism of others. Moreover, Christ preaches forgiveness, and Marie-Antoinette is re-appropriated as a symbol of forgiveness and reconciliation within restoration era France, further demonstrated by the Christian iconography of her sculpture built at St.Denis following her reinterment (fig.5). However, Christ also gives himself to death as part of a process to be re-united with God ‘the father’, and Marie-Antoinette parallels this, as through death she is re-united with Louis XVI ‘the father’, imbuing her death with meaning in a nietzschean sense.

Therefore, Marie-Antoinette’s execution clearly lends itself to a tragic retelling, fulfilling a number of Aristotle’s conceits, and although Racine argues that blood and death are not critical to tragedy (1991;30), Marie-Antoinette is anchored within the traumatic bloody violence of revolution.

However, Racine does emphasise the renewal of emotions tragedy engenders within the hearts of its spectators (1991;30), and this is particularly pertinent alongside Astbury’s theory of trauma; depictions of the Queen’s tragedy renew the manner in which her death is perceived, and in Dumas’ case imbue it with meaning which rehabilitates her and rationalises the execution. It is significant to note that the further from the historical death the greater meaning the corpus is able attribute to it, yet all three texts add to the myth of Marie-Antoinette’s death; Staël and Campan imply a tragic inevitability, whilst Campan and finally Dumas are able to attribute some meaning to it. Thus, all three add to the myth of Marie-Antoinette’s death, and although Astbury’s theory of re-writing a continuous past is difficult to reconcile with such a death, the posthumous depictions of MarieAntoinette mean that she lives on in culture; that though her historical body dies, the myth is ahistorical, hovering ‘over the cadaver’ (2001;21) as Marie-Antoinette continues to act and speak through the likes of Campan and Dumas’s works.

Conclusion ‘Stories, not facts […] are what we turn to when we want to make sense of chaos and complexity’ (McCrum;2005) The aim of this dissertation has been to ask how and why Marie-Antoinette is rehabilitated within the corpus, and the three chapters have put forward answers for both; Marie-Antoinette is comprehensively rehabilitated as a unifying force in contrast to the division she symbolised in prerevolutionary pamphlets. Although the likes of Dumas’ Mémoires d’un médecin series, in which Marie-Antoinette appears according to Queffélec as a ‘mère quasi-sadienne’ (1990;674) demonstrates that there is a rich avenue of further nuance to be investigated, this corpus has confronted the three most critical means of reconciliation within literature from the Age of Revolution. Motherhood unites 225

her within a female collectivity, assuaging the fear of the feminine by entrenching a patriarchal ‘second sex’, whilst her nationality is re-appropriated to promote French togetherness. Finally, even her death is rehabilitated under a discourse of bringing together republican and aristocrat, man and woman, as this concept of unification draws heavily on the context of each text; from Staël’s quixotic attempt to restore Ancien Régime status quo, to the conservative restoration in which both Campan and Dumas wrote.

However, context cannot be labelled the sole driver of rehabilitation, indeed confronting the traumatic memory of revolution, as Astbury has highlighted, is also significant. This dissertation has demonstrated that although Astbury focuses on the ten years following the revolution, elements of trauma and making sense of the revolution continue well into the Age of Revolution. The three texts foreground three distinct post-1789 traumas: the destruction and rehabilitation of the family, an evolving sense of what France signified as it lurched between kingship, republic, empire and restoration, and finally the execution of the monarchy. Astbury quotes McCrum’s view on the power of literature, of stories to give meaning to chaos, and the corpus’ rehabilitation of Marie-Antoinette serves this function. The ‘reine scélérate’ (1789) is rehabilitated through the three texts, building a mythology of Marie-Antoinette that long outlives her historic body by in part aligning her with ahistorical structures; motherhood and nationhood are certainly continuous realities, whilst by reliving and re-reading her death some meaning can be attributed to her tragedy. As a central representative of Ancien Régime France, her myth was critical for a post-revolutionary French audience to re-evaluate its past, and it is pertinent to return to Anderson’s analysis of eighteenthcentury revolution at this point (1991;12); of a nation initially defined against Marie-Antoinette, yet following revolution she came to represent part of French history, and thus was re-assimilated into a national French discourse. Dumas articulates this best within his novel, writing, ‘parmi ses dix-huit siècles de monarchie, la France a eu peu d’années aussi mythologiques que l’an de grâce de 1793’(62). Lévi-Strauss argues that the French Revolution lives on as an ahistorical myth which comes to symbolise different meanings to different epochs (1971;51), and Marie-Antoinette’s myth is comparable, appropriated in the late nineteenth century as a lesbian icon (Castle;1992) and in the late twentieth and early twenty-first centuries as a fashion icon (Rifelj;2009). However, within this corpus and during the Age of Revolution she undoubtedly comes to symbolise unification within a continuous French nation.

Bibliography (Corpus): Campan, Jeanne Louise Henriette (1988), Mémoires de Madame Campan ; Première femme de chambre de Marie-Antoinette, Paris : Mercure de France.

Dumas, Alexandre (1989), Le Chevalier de Maison Rouge, Paris : Editions Complexe.

Staël, Germaine (1996), Réflexions sur le procès de la reine, (ed) Thomas, Paris : Mercure de France.

Bibliography (Remainder): Anderson, Benedict (1991), Imagined communities; reflections on the origin and spread of nationalism, Verso : London.

Anon, (1989), Bordel Royal, in (ed) Chantal Thomas, La reine scélérate, Paris : Editions du Seuil.

Anon, (1989), Le Godmiché Royal, in (ed) Chantal Thomas, La reine scélérate, Paris : Editions du Seuil.

Antonetti, Guy (2002), Louis-Philippe, Paris : Librairie Arthème Fayard.

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Aristotle, (2013), Poetics, (ed) Kenny, Oxford : Oxford university press.

Astbury, Katherine (2012), Narrative Responses to the trauma of the French revolution; London : Legenda / Modern humanities research association and maney publishing.

Autrand, Michel (1990), ‘Le roman d’Alexandre Dumas à l’épreuve de la Révolution’, in Revue d’Histoire littéraire de la France, 90, pp.679-691.

Barthes, Roland (1977), Roland Barthes, (trans) Howard, New York: Hill and Wang.

Barthes, Roland (1970) 'Historical discourse', in (ed) Michael Lane, Structuralist: a Reader, London: Butler & Tanner.

Barthes, Roland (1957), Mythologies, Paris : Editions du Seuil.

Bassan, Fernande (1993), ‘Le Roman Feuilleton et Alexandre Dumas Père 1802-1870’, in NineteenthCentury French Studies, 22, pp.100-111.

Beauvoir, Simone (1997), The Second Sex, (trans) Parshley, London : Vintage.

Bragg, Melvyn (2011), Delacroix – Liberty leading the people, BBC Radio 4, UK. Broadcast on 20 October.

Brown, Howard (2007), Ending the French Revolution: Violence, justice and repression from the terror to Napoleon, Virginia : Virginia University Press.

Butenschön, Anja (2011), ‘Remembering the past in restoration France : An expiatory chapel for Marie-Antoinette’, in Nineteenth century art worldwide, 10.

Cabezali, Elena (1990), ‘Myth as suppression : motherhood and the historical consciousness of the women of Madrid 1936-9’, in (ed) Samuel & Thompson, The Myths We Live By, London : Routelage.

Castle, Terry (1992), ‘Marie-Antoinette obsession’, in Representations, 38, pp.1-38.

Crivellin Lorenzo, Dernière lettre de Marie Antoinette à Madame Elizabeth (16 octobre 1793) et bref message inséré dans son livre de prières, http://www.madamedepompadour.com/_m_antonietta_fersen/ita/lettere/let_m_a/1610793_f.htm (accessed 31 March 2015) Dictionnaire de l’Académie Française. (1835) 6th ed. University of Chicago: The ARTFL Project, http://artflsrv02.uchicago.edu/cgi-bin/dicos/pubdico1look.pl?strippedhw=jouir, (accessed 31 April 2015) Edwards, Catharine (2015), History of ideas; Catharine Edwards on Seneca and Facing Death, BBC Radio 4, UK. Broadcast on 21 January.

Fraser, Antonia (2001), Marie-Antoinette; The Journey, New York: N.A. Talese/Doubleday.

Goodman, Dena (2003), Marie-Antoinette : Writings on the body of a queen, London : Routelage.

Gutwirth, Madelyn (1992), The Twightlight of the Goddess; women and representation in the French revolutionary era, News Brunswick : Rutgers University Press.

Hobsbawm, Eric (1962), The Age of Revolution: Europe 1789-1848, London : Abacus.

Hunt, Lynn (1992), The family romance of the French revolution, Berkeley Los Angeles : University of California Press.

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Jakobovits, Leon (1962), Effects of repeated stimulation on cognitive aspects of behaviour; some experiments on the phenomenon of semantic satiation, Montreal : McGill University.

Jones, Colin (2002), The great nation; France from Louis XV to Napoleon, London : Penguin Books.

Kaiser, Thomas (2003), ‘Ambiguous identities: Marie-Antoinette and the house of Lorraine from the affair of the minuet to Lambesc’s charge’, from (ed) Goodman, Marie-Antoinette: Writings on the body of a queen, London : Routelage.

Kermode, Frank (1967), The sense of an ending; studies in the theory of fiction, Oxford : Oxford University Press.

Lewis, Gwynne (2002), The French Revolution; Rethinking the debate, London : Taylor and Francis.

Lever, Evelyne (2000), Marie-Antoinette ; The Last Queen of France, London : Piatkus.

Lévi-Strauss, Claude (1971), ‘The Structural Study of Myth’, in (ed) Sebeok, Myth; A symposium, London : Indiana university press.

McCrum, Robert (2005), ‘Want to know what’s happening? Read a novel’, The Observer, 4 September.

Nietzsche, Frederick (2006), On the Genealogy of Morality, (ed) Keith Ansell-Pearson, (trans) Carol Diethe, Cambridge : Cambridge University Press.

Prévost, Nicholas (1865), Procès de Marie-Antoinette, ci-devant reine des Français, ou Recueil exact de tous ses interrogatoires, réponses, dépositions des témoins, suivi de plusieurs anecdotes sur sa mort... , Nouvelle édition, Paris : Chez les principaux libraires.

Powell, Jim (1997), Derrida for beginners, New York : Writers and readers publishers.

Queffélec, Lise (1990), ‘Figuration de la violence dans le roman de l’avant à l’après 1789 : Sade, Rétif, Dumas’, in Revue d’histoire littéraire de la France, 90, pp.663-678.

Racine, Jean (1991), Bérénice, Paris : Classiques Larousse.

Rifelj, Carol (2009), ‘Memoirs and Marie-Antoinette : Constructing the past through fashion’, in Journal of the Society of Dix-Neuviémistes, 12, pp.1-15.

Schopp, Claude (1997), Alexandre Dumas ; le génie de la vie, Paris : Fayard.

Skuy, David (2003), Assassination, Politics, and Miracles: France and the Royalist Reaction of 1820, Quebec : McGill-Queen’s University Press.

Staël, Germaine (1800), De la littérature considérée dans ses rapport avec les institutions sociales, Paris : Bibliothèque-Charpentier.

Thomas, Chantal (1989), La reine scélérate ; Marie-Antoinette dans les pamphlets, Paris : Editions de Seuil.

Thomas, Chantal (2001), The Wicked Queen; the origins of the myth of Marie-Antoinette (revised), (trans) Rose, New York : Zone Books.

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Appendix

Fig. 1. Elisabeth Vigée-Lebrun (1788), Marie-Antoinette de Lorraine-Habsbourg, Queen of France and her children, Museum of Versailles.

Fig. 2 Jean-Baptiste André Gautier Dagoty (1775), Marie-Antoinette in coronation robes, Museum of Versailles.

Fig.3 Anonymous (1791-92), La poule d’Autriche; Photo Giraudon/Art Resource, New York.

Fig. 4. Isaac Cruikshank (1793), The Martyrdom of Marie-Antoinette, National Trust Museum, Waddesdon Manor.

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Fig.5 Edme Gaulle and Pierre Petitot (1830), Sculptures funéraires à la mémoire de Louis XVI et de Marie-Antoinette, Basilique Saint-Denis.

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The Effect of Rape Myths on Rape Trials and Possible Reforms

Imogen Jones graduated in June 2015 from Josephine Butler College, Durham University, with a law degree. During her degree she found interest in criminal law and the gendered aspects of it, amongst other things. This paper was prepared and submitted as her dissertation for her degree, under the supervision of Laura Graham.

Introduction ‘She was asking for it’1 is a phrase that has all too commonly become associated with the crime of rape and is illustrative of an inherent problem with our society’s approach to sexual interactions, both legally and socially.

This problem has concluded in a justice gap shown by the abnormally low attrition rates for rape compared to other crimes and other countries. Between 2009 and 2012 it was estimated that there had been 60,000 to 95,000 cases of rape with only 15,670 of these reported, 2,910 taken to trial and just 1,070 resulting in convictions2. Between 1977 and 2005, attrition rates for rape dropped in the UK from 32% to 5.6%3 despite the reporting of rapes increasing4. Furthermore, the 62.5% (2011/12) rape conviction rate is much lower than the 83.5% average for all crimes5, even though figures from other countries6 show that there is no natural trend of rape cases having lower conviction rates, implying that there is a fault in the UK system that is not ensuring the convictions of defendants in cases that would be successful in other jurisdictions.

This dissertation submits that the impact of rape myths on jury decisions is a significant factor in the low attrition and conviction rates; which subsequently reduces the punishment of perpetrators and therefore hinders the protection of victims, and the general public. It argues that this needs to be addressed because of the harm principle of criminal law, which suggests we should criminalise

1

J.C.McKinley, ‘Vicious Assault Shakes Texas Town’ The New York Times (NY 8 March 2011); A.Morrow, ‘Judge appears to blame victim in sexual-assault case’ The Globe and Mail (24 February 2011) 2 HO ‘An Overview of Sexual Offending in England and Wales’ (London: ONS, 2013).

3 L.Kelly et al, ‘A Gap or a Chasm? Attrition in Reported Rape Cases’ (London:HO 2005) 293.

4 V.Stern, ‘The Stern Review - Rape Complaints are Handled by Public Authorities in England and Wales’ (London:HO 2010).

5 N.Burrows, 'Responding to the Challenge of Rape Myths in Court. A Guide to Prosecutors' (NB Research 2013) <http://www.nb-research.co.uk/index.php/projects-2/>accessed 21/10/2014.

6 L.Kelly, ‘Different systems, similar outcomes? Tracking attrition in reported rape cases in eleven countries’ (London: CWASU, 2009).

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because of harm done, as well as legal paternalism, which argues that the aim of the law is to protect.

It proposes that the harm of rape is caused by more than just the physical harm, it is the infringement of the victim’s autonomy7 which is shown when ‘victims speak of a loss of self identity and a change in their view of themselves’8 with many survivors of rape feeling ‘socially devastated’9.

This

dissertation proposes that harm of this nature needs to be prevented and there should be punishment when it is caused, both as retribution and to act as a deterrent.

Additionally, rape myth acceptance is causing a wider problem, and a correlation between rape myth acceptance and self likelihood to rape, has been demonstrated10. This essay submits that this is due to rape myths causing sexual situations and partner’s behaviours to be misread, as they provide presumptions of what actions imply consent, rather than promoting the acquisition of explicit consent.

This dissertation will argue that rape myths are prevalent in UK rape trials and that they come from deep rooted societal beliefs which are fuelled by education, tradition and the media. At best these views are ‘fundamentally questionable’11, but as this dissertation will show, they are arguably disprovable. It will further contend that these myths are influencing court decisions and having an impact on conviction and attrition rates. It submits that they have affect through their use by barristers to persuade the jury, combined with the jury’s presupposed views. This dissertation proposes that to solve the problem, it is not merely a reform of the legislation that is needed, but an overhaul of the approach to rape trials, with a further aim to subvert the current stereotypes that are present in both society and the court room.

It shall do this by firstly defining rape myths, before discussing their origin and where they are found, to show that they are historically engrained in our society. It will then address who is holding rape myth views, including studies that illustrate that these views are widely held. It will feature some examples of rape myths, which it will go on to dispel, by providing evidence that they are erroneous and have little factual basis. Concluding that rape myths are deeply engrained in society, and are widely held, but largely false beliefs.

Chapter two will discuss the effect that these rape myths have on rape trials. It will begin by addressing the current construction of the sexual offences laws and how this allows for rape myths to have an effect. It will then discuss the professionals within a rape trial, including how judges approach

7

J.Gardner, S.Schute, J.Horder, ‘Action and Value in Criminal law’ (Oxford:Claredon Press, 1996).

S.H.Pillsbury, ‘Crime against the heart: recognising the wrongs of forced sex’ (2002) 35 Loyola of Los Angeles Law Review 845, 848.

9 n8.

10 V.Greendlinger, D.Byrne, ‘Coercive sexual fantasies of college men as predictors of self-reported likelihood to rape and overt sexual aggression’ The Journal of Sex Research (1987) 23, 1-11.; G.Bohner et al ‘Rape myths as neutralising cognitions: evidence for a causal impact of antivictim attitudes on men’s self-reported likelihood of raping’, European Journal of Social Psychology (1998) 28 (2), 257-268.

11 E.Finch, V.Munro ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) LS 26, 3, 303-320.

8

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rape myths, and barristers’ use of them. Lastly, it will show that their allowance and use by barristers affects jury deliberations, which is how rape myths come to affect the outcome of rape trials.

However, they are beginning to be acknowledged by judges, who may be the key to ensuring they have less of an effect in the court room.

Lastly, this essay will propose that there needs to be a reform of both the law and the trial procedure.

It shall do this by discussing a number of proposals for reform based on the legal constructions used by other countries, in order to deduce an option for the UK’s law. It will then propose that this needs to be accompanied by a reform of the trial process, as it will be argued that, due to the nature of rape cases, it is unlikely that a reform of the legislation can completely prevent rape myths from affecting decisions, as there will almost always require an assessment of the facts by the jury. Therefore, this dissertation will propose measures, including expert evidence and judicial directions, within the trial process to counteract the effect of rape myths. Lastly, it will submit that all of these reforms should be combined with education and an aim to increase awareness of the erroneous and damaging nature of such views, in order to eventually eradicate rape myths.

Chapter One: Rape Myths The term rape myth was coined by Burt who defined them as ‘prejudicial, stereotyped or false beliefs about rape, rape victims, and rapists,’ 12 with judgements of a woman’s character that attribute certain reputations or identities with the stereotype that they consent more readily and therefore attaching to this class of women the assumption that the situation was not rape13. This definition has been developed further to broadly include attitudes that are widely held, yet generally false, that serve to justify male sexual violence against women.14 This dissertation focuses on Burt’s original definition of rape myths, but accepts the common use of the term with the broad definition. This chapter will discuss: the origin and continuation of rape myths; who they are held by; how frequent they are; and their general effect, arguing that not only are these views commonly held, widely found and affect people’s perceptions of sexual encounters, but they are also false.

1.1 The origin and continuation of rape myths.

Rape myths are prevalent in society, the media and institutions15 and it is argued that this is because they are ‘embedded in history, religion and culture’16. They can be traced historically, for example Thomas Hardy’s 19th century novel Tess of the D’Ubervilles depicts the heroine’s rape, accompanied 12

M.R.Burt, 'Cultural myths and supports for rape' [1980] J.Pers.Soc.Psychol 38(2) 212-230.

M.R.Burt, R.Semmel-Albin, 'Rape Myths, Rape Definitions, and Probability of Conviction' [1981] Journal of Applied Psychology 212-230.

14 K.A.Lonsway, L.F.Fitzgerald, ‘Rape Myths in Review’ (1984) Psychology Women’s Quarterly 18, 133-164.

15 J.Anderson, 'Rape Myths, Letter from the Editor' [2007] WCSAP Research and Advocacy Digest 1 16 K.M.Ryan, ‘The Relationship between Rape Myths and Sexual Scripts: The Social Construction of Rape’ (2010) Sex Roles A Journal of Research 59(1).

13

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by an implicit sexual awakening, as if she ‘wanted it’17, showing that these are not modern concepts.

Their historic entrenchment in our culture causes these myths to have a great affect because they are seen as inherent facts, rather than the creations which this dissertation submits they are.

Arguably, the legislature itself promotes rape myths18, as seen during discussions of defendant anonymity in the Sexual Offences Bill 2003, when Lord Thomas argued that victims ‘may well be lying, as happens in sex cases’19, which shows the prevalence of these views and illustrates how these myths become incorporated into the law. In the current SOA 2003 the ‘moral hierarchy’20 of laws created by sections 75 and 76 cause distinctions that promote the idea that where a rape has certain characteristics it is more likely to have been a rape. This codification of a myth encourages the jury to presume that for there to be rape there needs to be certain evidence, and guides them to look for stereotypical situations, rather than acknowledging the unique situations that may occur. Furthermore, in a recent attempt to guide police about rape myths, the CPS reiterated the law’s focus on ‘strong cases’, and perpetuated the myth that a case with more physical evidence is more of a rape21.

Additionally, although the law does not require resistance the CPS has stated that, due to the difficulty in proving the absence of consent, ‘prosecutors will look for evidence such as injury, struggle, or immediate distress’, which conforms to the requirement of a ‘real rape’ scenario, which will be discussed in detail below.

Additionally, feminist writings maintain that we live in a ‘rape culture’ with constant exposure to the sexual abuse of women in ‘movies, television, advertising and girlie magazines’22 which increases rape myth acceptance by normalising coercive sexuality. Brinson studied the frequency of rape myths in prime-time television and concluded that their prevalence in mass media served as a ‘barometer of cultural attitudes’, and is ‘a reflection of our culture’23. Her study found 1.54 rape myths per storyline with 5.08 uses per story line, which shows a high inclusion of rape myths in the discussion of rape.

Similarly, a study of a police drama showed the consistent portrayal of rape victims as young and ‘asking for it’24. Brinson argues, due to the media being a ‘reflection of our culture’, it shows that these views are popularly held. In addition it is argued that these modes of media promote the rape myth ideas, fuel their prevalence and cement their acceptance. Similarly, rape culture has developed

17

T.Hardy, ‘Tess of the D'Ubervilles’ (New York:Harper and Bros 1892) Ch.8.

S.J.Schulhofer, ‘Unwanted Sex: The culture and the failure of law’, (Cambridge:HUP, 1998).

19 P.Rumney ‘False Allegations of Rape.’ (2006) CLJ 65 (1) 125-158.

20 A.Ashworth, J.Temkin ‘The Sexual offences Act 2003: 1) Rape, Sexual Assaults and the Problems of Consent [2004] Crim.Law.Rev 328 at 336-46.

21 'Police given new guidance to combat rape 'myths'' (BBC News 29 January 2015)<http://www.bbc.co.uk/news/uk-31037876>accessed 02/04/2015 22 n17.

23 S.Brinson, ‘The use and opposition of rape myths in prime-time television drama’. (1992) Sex Roles, 27(7/8), 359-375.

24 N.Kibble ‘R v D: Rape: rape within a relationship’ [2009] Crim.Law.Rev. 18

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with the normalisation of pornography, which has been shown to promote stereotypical sexual scripts and has shown direct links to rape myth acceptance25.

1.3 Who holds these views?

It is submitted that rape myth acceptance is highly frequent and this has been evidenced in numerous studies26, with up to 50% of participants agreeing with common myths such as certain actions implying consent27 and another study showing up to 40% of participants holding a woman at least partially responsible for her rape if she behaved in a certain way, such as being flirtatious, failing to say no clearly, being drunk or in a dangerous area or being previously promiscuous28. Even more recently, in 2011, 40% of participants felt that accusations of rape were often false29, which shows the continued frequency of these views.

Additionally, Burt found that the probability of individuals holding these views can be linked to certain factors, such as: personality characteristics; background; and personal exposure to rape30.

Specifically, it has been shown that males are more likely to believe rape myths than females31 and older individuals are more likely to hold them than younger ones32. Age and education have been found to be two of the most prominent influences on the probability of belief33 and other factors such as socio economic status, race, sex, and marital status, have been seen to have an effect 34.

Furthermore, rape myth belief has been linked to the holding of other damaging attitudes, such as: ‘acceptance of interpersonal violence’35; the holding of general negative views about various groups within society36; and a person’s belief in gender roles37. Moreover, it has been noted that studies of rape myth acceptance differed between countries38, which illustrates the influence of different cultures and backgrounds on rape myth acceptance, and may explain the afore mentioned disparity in

25

N.M.Malamuth, J.V.P.Check, ‘The effects of mass media exposure on acceptance of violence against women; A Field experiment’ (1981) Journal of Research in Personality 15, 436-446.

26 Amnesty International/ICM ‘Sexual Assault Research Summary Report.’ (2005) London: Amnesty International/ICM. 27 n11.

28 n26.

29 H.McGee, M.O’Higgins, R.Garavan, R.Conroy ‘Rape and Child Sexual Abuse: What beliefs persist about motives, perpetrators and survivors?’ (2011) J.Interpers.Violence 26(17), 3580-3593.

30 n12.

31 J.V.P.Check, N.M.Malamuth ‘Sex-role stereotyping and reactions to depictions of stranger versus acquaintance rape’ (1983) J.Pers.Soc.Psychol 45, 344-356; K.B.Anderson, H.Cooper, L.Okamura ‘Individual Differences and Attitudes Toward Rape: A Meta-Analytic Review.’ (1997), Personality and Social Psychology Bulletin 23(3) 295-315.

32 n5.

33 H.S.Feild, ‘Attitudes toward rape: A comparative analysis of police, rapists, crisis counsellors and citizens’ (1978), J.Pers.Soc.Psychol 36, 156-179.

34 n31(2).

35 n12.

36 n31(2).

37 n12.

38 H.Gerger, H.Kley, G.Bohner, F.Siebler, ‘The Acceptance of Modern Myths About Sexual Aggression Scale: Development and Validation in German and English’ (2007) Aggressive Behaviour, 33, 422-440.

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conviction rates. Although the prevalence of these views is disappointing, the understanding of particular factors that can be linked to rape myth acceptance aids the ability to subvert the views. In particular, the links to age and education imply that improved teaching about rape may remove the stereotypes with proper instruction on the realities of sexual encounters. Additionally, the links to other damaging views may aid an increase in rape myth acceptance.

1.4 Rape Myths examples; and how they are in fact mythical The key to presumptions being defined as rape myths is that they are ‘false’39 and consequently, this essay submits that they can be disproved and will attempt to do so.

The ‘real rape’ myth40 is perhaps the most detrimental and is the belief that rape ‘is a very violent attack in a dark alleyway by an armed stranger on a woman who physically resists and is physically injured’41 usually expecting the victim to have reported the crime immediately. Many people have a perception of what rape is like and attribute how they believe they would react to how the victim should react. However, the ‘real rape’ myth does not conform to reality, illustrated by Jordan’s book of the accounts of survivors of a serial rapist, which showed that all victims react differently and most do not conform to the stereotypical narrative42, with figures showing only around 22% of victims resisted through fighting and screaming, whilst most (56%) begged, pleaded or froze43. It has been shown that immobility can be a common reaction to rape44 and therefore the evidence the jury expect would not be present. This myth is repeatedly cited in police investigations with ‘no evidence of a rape’45 becoming a satisfactory reason for not pursuing the case, even though this does not mean that the rape did not happen46 and victims are often criticised for ‘inconsistencies’47 even though unreliable memories in a trauma situation are not uncommon 48. Similarly, the reaction of victims is often not to report immediately49, as only 46% are reported the same day, with 14% waiting over 6 months50. Additionally, studies have shown only 191 out of 16,327 recorded rapes in 2012/2013 39

n12.

A.Carline, C.Gunby, ‘Barristers’ Perspectives on Rape, Consent and the Sexual Offences Act 2003’ (2011) Liverpool Law Review 32, 237-250 41 H.Reece, ‘Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?’ (2013) OJLS 1,12 42 J.Jordan ‘Serial Survivors. Women’s Narratives of Surviving Rape.’ (Sydney: The Federation Press, 2008).

43 E.S.Ullman, A.R.Knight, ‘Fighting Back. Women’s Resistance to Rape’(1992) J.Interpers.Violence, 7 (1) 3143.

44 A.C.Gidycz, A.Van-Wynsberghe, M.K.Edwards, ‘Prediction of Women’s Utilization of Resistance Strategies in a Sexual Assault Situation: A Prospective Study’ (2008) J.Interpers.Violence, 23 (5): 571-88.

45 A.Holpuch ‘Police suspend investigation of alleged gang rape at University of Virginia’ The Guardian, (New York, 23 March 2015).

46 J.Valenti, ‘Inconsistencies in Jackie’s story do not mean that she wasn’t raped at UVA’ The Guardian Online (24 March 2015).

47 J.Valenti, ‘Who is Jackie? Rolling Stone’s rape story is about a person – I believe her’ The Guardian Online (8 December 2014).

48 A.Taub, 'The lesson of Rolling Stone and UVA’ (Vox 5 December 2014) <http://www.vox.com/2014/12/5/7341973/trauma-rape-allegation-uva>accessed 02/04/2015.

49 n66.

50 A.Feist, et al, ‘Investigating and Detecting Recorded Offences of Rape’. (London:HO 2007) 40

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involved a knife51, implying that the majority of cases do not conform to the violent ‘real rape’ narrative. Furthermore, most rapes are not the perceived stranger rapes, as research shows that the majority of rape is committed by someone known to the victim52.

Another common myth is that women can be partially culpable for their attack53. A particular branch of this myth is the ‘party acquaintance rape myth’54 which implies that women are negligent, and therefore partially to blame, due to their provocative dress, consumption of alcohol, or attendance at a party. Studies have shown as many as 30% of participants found a victim partially or totally responsible if they acted in this way, which, in reality, many women and men do, and they are not intending to imply consent to sexual activity. As is emphasised by the rape crisis charity ‘it is not a crime to drink, it is a crime to rape’55. This myth is based on a claimant differing from the gender stereotype of a woman being a conservative mother and wife, and implies that by straying from this image they are more likely to be promiscuous and therefore are more likely to have consented. People often attribute previous promiscuity to future consent, which was illustrated in an Amnesty International study that found 22% of people believed that a woman was partially or totally responsible for her rape if she had many previous sexual partners, showing the myth of the presumption she will consent again. Similarly, a study of a TV jury showed that a woman acting in a provocative manner makes it difficult for jurors to believe she would not have consented56. However, contemporary women no longer necessarily fit the stereotypical conservative female rhetoric, and there is no fault in them doing so, nor does it mean they are more sexually promiscuous or consent more readily.

In addition, there is the myth that victims are making false allegations because of regret or for revenge57. In the police television drama study, discussed above, 38% of the storylines included the suggestion that the woman was lying, and studies have shown that around 40% of people hold the view that false allegations happen regularly58. This presumption is a myth, as only 8% of cases result in reports of false allegations with 0.2% convicted for it59. Although there are ‘no universally accepted

51

ONS, ‘2012/2013 – Crime in England and Wales, Year Ending March 2013’ (London:ONS, 2013).

A.Myhill, J.Allen ‘Rape and Sexual Assault of Women: Findings from the British Crime Survey’.

(London:HO 2002); J.Hoare, K.Jansson, ‘Extent of Intimate Violence, Nature of Partner Abuse and Serious Sexual Assault’, in D. Povey (ed) ‘Homicides, Firearm Offences and Intimate Violence’ (3rd ed. London:HO, 2008).

53 n26.

54 n18.

55 'Myths and Truths about Rape' (Rape Crisis 2015) <http://rapecrisis.org.za/rape-in-south-africa/mythsstereotypes-about-rape/>accessed 02/04/2015.

56 N Westmarland, L.Graham ‘The Promotion and resistance of rape myths in an internet discussion forum’ (2010) 1 (2) Journal of Social Criminology 80.

57 H.McGee, M.O’Higgins, R Garavan, R.Conroy ‘Rape and Child Sexual Abuse: What beliefs persist about motives, perpetrators and survivors?’ (2011) J.Interpers.Violence, 26(17), 3580-3593.

58 Ibid.

59 n57.

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figures regarding how many rapes reported to the police are false allegations’60, studies still evidence that it is not happening any more than for any other crime61 and is not a common occurrence that should be feared62. This myth is shown in the arguments in support of rape defendants being allowed anonymity, because there is a presumption that they need to be protected against false allegations63.

This presumption then transcends into the court room, where juries are less inclined to convict because of the fear of false allegations. However, the statistics show that this is not a regular occurrence, and therefore is neither a reason to actively seek to protect rape defendants more than other defendants, or for juries to be fearful of it happening. This dissertation submits that it would be rare to presume that a victim of another crime was making a deliberate false allegation, particularly due to the time consuming and expensive process of court cases, that most individuals would not undertake without due cause. Therefore, it argues that it is unnecessary to make this assumption about rape victims, particularly when the statistics further show false allegations are as exceptional as in other crimes, and it is merely a myth.

1.6 The General Effect of Rape Myths This dissertation submits that as well as affecting trials, the frequency of rape myth views is having a significant effect on sexual scripts, which are culturally determined patterns of behaviour that inform desire, influence sexual behaviour and determine sexual attitudes64. These then erroneous sexual scripts cause individuals to engage in particular sexual behaviours and to label sexual situations accordingly. Men use sexual scripts to interpret their partner’s behaviour and derive when consent has been given, as it is rarely acknowledged explicitly. Therefore, the erroneous beliefs of victim’s wishes, caused by rape myths influencing sexual scripts, lead men to presume consent where there may not be any. Furthermore, rape myths influence people’s views of sexual behaviour and patterns, and cause them to erroneously label situations as ‘not rape’, which can be particularly detrimental in court rooms and will be discussed in chapter two.

1.7 Conclusion This essay submits that many common rape myths are substantially untrue, and the assumptions that are subsequently made due to their belief are therefore incorrect. This theory is proposed due to the statistical information cited that shows that most rape cases do not fit the stereotypical narrative and that particular characteristics do not mean a victim is more or less likely to have consented. However, these beliefs, despite their lack of factual basis, are having an effect on rape cases, as will be discussed 60

n56.

P.Theilade, J.L.Thomsen, ‘False Allegations of Rape’ (1986) 30 Police Surgeon 17; L.J.F.Smith, ‘Concerns About Rape’ (London:HO 1989) 106, 8 p23–24; J.Gregory, S.Lees, ‘‘Attrition and Rape in Sexual Assault Cases’’ (1996) 36 Brit.J.Criminol 1, 4–5.

62 J.Temkin, ‘Prosecuting and Defending Rape: Perspectives from the bar’ (2000) 27 (2) Journal of Law and Society 219.

63 Ibid.

64 n18.

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in chapter two, and this essay will show how these assumptions are the reason for the low conviction rates in rape cases.

Chapter Two – The Effect of Rape Myths on Rape Trials 2.1 Introduction This chapter will argue that rape myths affect the outcome of rape trials and subsequently cause the low attrition and conviction rates. It will outline why rape myths have an effect in the court room, and it will argue that this is due to: the construction of the law, in particular the reasonable belief element; judges’ approach to them; their use by barristers; and the affect on the jury.

2.2 Construction of the Law It is submitted that rape myths have an effect in the court room because the law allows them to be included in jury deliberations. Rape legislation can be attributed to the juries ability to rely on their own perceptions of what rape is, because terms such as ‘freedom’ ‘capacity’ and ‘choice’ are ‘vague and undefined’ and raise philosophical debates of such complexity as to be ill-suited to the needs of criminal justice65, requiring the jury to derive their own definitions of these words, and consent, based on the personal views they subscribe to. Furthermore, it is doubtful the extent to which the definition of consent is even explicable to jury members66 and this dissertation proposes that the abstraction causes personal interpretations of definitions to become a necessity for juries to make decisions. It is submitted that, as will be shown, these personal definitions are influenced by the frequently held rape myth views and affect the situations that jury members decide contain implicit consent, thereby giving rape myths an effect in court rooms. Additionally, the vague terms ‘permit a degree of contextualisation’67 and allows for juries to purport their understanding of a stereotypical rape onto the case, thereby making an assessment of whether it was rape based on mythical presumptions. The reason this weak construction of the law has such effect is because juries are often faced with cases where it is the defendant’s word against the claimant’s, and the law provides little guidance, leaving them to apply their individual common sense perceptions to the stories presented to them to deduce whether the act was consensual.

A particular part of the law that allows rape myths to have an effect in the court room is the reasonable belief element, which is criticised for encouraging the jury to take into account ‘all the circumstances’68, and allowing them to consider stereotypical views regarding appropriate sexual behaviour. This element of the law permits the jury to take into account factors that may make the 65

n20 p.336. n40.

67 n20 p.342.

68 S.Cowan, ‘Freedom and Capacity to make a Choice’, in V.Munro, C.Stychin (eds), ‘Sexuality and the Law: Feminist Engagements’ (Abingdon:Routledge-Cavendish, 2007).

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defendant more susceptible to rape myth views, such as their education or background (as discussed in chapter one), and therefore be lenient towards the defendant’s belief in consent69. Additionally, the jury can deem the defendant’s actions to be ‘reasonable’ because they themselves would have perceived the complainant to have consented. Actions such as ‘flirting’, ‘evidence of attraction’ and ‘being invited back to the bedroom’ have all been said to create a reasonable belief in consent70, even though they do not explicitly show consent. The danger then arises because, as shown, rape myths views are widely held, and therefore a jury is statistically likely to include individuals with these views who may find the defendant’s misconceived assumption of consent to be reasonable because they would assume the same, as has been shown in mock juror studies71, which will be discussed in detail later. It is argued that this is fundamentally flawed, because the fact that may people hold these views does not speak for its reasonableness, and this dissertation has submitted evidence to show that they are in fact unreasonable beliefs, thereby making the rape myth influenced evaluations of the defendant’s reasonableness incorrect.

Furthermore, the term ‘reasonable in all circumstances’ is broader than a mere reasonable person and actively encourages jurors to scrutinise the complainant’s behaviour as they attempt to determine whether there was anything which could have created a reasonable belief in consent 72. These assessments of the complainant’s behaviour may include an examination of their actions leading up to the intercourse, or of her previous sexual history, and her general character73. It is submitted that the outcome of these assessments is likely to be based on a measurement of the complainant against appropriate female standards, resulting in her being held to a stereotypical and possibly fictional standard. It also encourages a focus on a lack of removal of consent as when presented with a situation where a complainant ‘did not shout, she did not try and get him off, she just lay there’ and did not act in a way that led ‘[him] to believe she was not consenting’74, rather than focusing on whether there was consent, jurors are encouraged to address the reasonableness of the defendant’s actions. This dissertation argues that assumptions made because a victim does not vocally or explicitly remove consent have been normalised by the ‘real rape’ myth because jurors expect resistance and assume that anyone who does not must have consented or at least that a defendant is reasonable in assuming there was consent.

69

n68. n40.

71 L.Ellison, V.Munro, ‘Turning Mirrors Into Windows? Assessing the Impact of (Mock) Juror Education in Rape Trials’ (2009) 49 Brit.J.Criminol 363.

72 n20 p341-342.

73 n11.

74 n40.

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Therefore, due to the construction of the law, defence barristers are inadvertently allowed to use rape myths within their narratives to persuade jurors that a victim had consented, or implied consent75.

2.3 Barrister’s Use of Rape Myths There has been continuing criticism of the way barristers defend in rape trials76, particularly their reliance on ‘standard stories’77 to portray their case, most of which can be classified as rape myths.

The broad discretion given to barristers regarding how they can behave in court has failed to be addressed by codes of conduct78, and allows them to use such practices to influence the jury. They utilise these techniques to discredit the victim79 and to persuade the jury that the complainant consented, or at least that the defendant was reasonable in believing that the complainant must have consented. Their use is tactical, and is problematic because they are misleading, as was demonstrated by the evidence submitted in chapter one which confirmed their lack of substance. It has been argued that their use by barristers is one of the main reasons rape myths appear in court rooms 80 and that they are particularly influential due to the high burden of proof and the habitual lack of evidence juries have to rely on. This dissertation proposes that these narratives are affective because they both affirm and conform to the mythical beliefs the jury may have about rape by portraying the victim as someone who would stereotypically consent or depicting circumstances that do not conform to a ‘real rape’ scenario and therefore are assessed as unlikely to be rape by the jury. Furthermore, the professional position of barristers gives authority to the rape myths and makes the jury more likely to subscribe to them. Additionally, the mere fact barristers are employing rape myth narratives shows the depth of the problem as they would not be using them if they were not widely held and persuasive to the jury.

Temkin reports barristers acknowledging that ‘if a woman looks like a scrubber she’s going to get less sympathy from the jury than someone who looks respectable’ and that ‘juries do think women may have consented because of how they behave’81, showing that barristers employ these techniques because they are successful.

A particular technique employed by barristers is to malign the complainant, namely their behaviour, clothing and characteristics, which links to the common myth discussed in chapter one, that a woman of a particular image is more promiscuous and that a promiscuous woman is presumed to consent again. Taslitz highlights the use of this technique by a defence counsel who aimed ‘to cast doubt on the victim’s answers in ways that fed the stereotypes of patriarchal tales’82. Similarly, Rock attributes

75

n62. n62.

77 P.Rock, ‘The Social World of an English Crown Court’ (1993) 83.

78 M.Blake, A.Ashworth, ‘Some Ethical Issues in Prosecuting and defending criminal cases’ [1998] Crim.Law.Rev. 16, at 18.

79 n4.

80 n4.

81 n62.

82 A.E.Taslitz, ‘Rape and the Culture of the Courtroom’ (New York:NYUP 1999) 76

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the success of this technique to the reliance on the ‘sealed world of the court room’83, a practice which involves the barristers vilifying the claimant and creating a warped view of norms by encouraging the jury to focus on the stereotypes presented to them by the barristers and not the reality of the world outside the court room. It is argued that the character of the victim and defendant is ‘crucial to their credibility’ when the jury has to assess who is speaking the truth84. This is problematic because the criteria with which the jury are directed to judge men and women is sexist, with the male focus being on occupation and status, whereas the woman’s is sexual character, where a woman with a good reputation is chaste85. Barristers often criticise the victim’s clothing and juxtapose it with lawyers and female court room attendant’s clothes86 who are used to portray the image of a stereotypical, conservative, woman, and therefore implying that the victim is looser than them. Young refers to this as ‘filtering out surrounding reality’87, and explains how this can constitute the jury ignoring common sense and being misled by the stereotypes, and subsequent assumptions, illustrated by the barristers. It is submitted that this technique causes juries to forget that women work, travel, drink and spend time with men who are not their partners, including visiting their homes, and that these are completely normal activities which doubt is cast over when barrister’s give a skewed view of what is acceptable.

Even more detrimentally, Dworkin argues that these defamations attack the female gender as a class, ‘so that no individual woman has any credibility before the law’88.

In their use of these narratives, barristers are relying on the mythical but widely held view that false allegations of rape are frequent, which leads juries to be more likely to believe a barrister who presents an argument that the victim is lying. This myth is particularly dangerous because, as shown, it is unsubstantiated, but has the powerful effect of removing from juries the presumption that most other crimes hold, that the victim is not lying about the crime occurring and allows juries to be comfortable asserting that the victim may not be being truthful, which leads to fewer convictions.

Barristers utilise the habitual suspicion of rape claimants that has been fuelled by rape myths in the media89 to create sympathy for the defendant and show that either the claimant is lying or that the defendant was at worst mistaken.

Currently, much of the evidence that is given in rape trials is via the barrister’s narratives, which often include stories that mirror rape myths, and jurors are forced to make decisions based solely on the

83

n77.

S.Lees, ‘Carnal Knowledge: Rape on Trial’ (2nd ed. London:The Women’s Press, 2002) p242.

85 ibid 86 n62.

87 H.Young ‘An Indictment of Justice’ Guardian, (1 February 1992).

88 A.Dworkin, ‘Our blood: prophecies and discourses on sexual politics’ (Harper and Row: New York, 1976) 89 O.Duggan, A.Hamer, J.Rothwell, ‘Oxford Union ‘rape victim knew her claim was false’ The Telegraph (London, 29 June 2014); S.Laville, ‘109 women prosecuted for false rape claims in five year, say campaigners’ The Guardian (London, 1 December 2014).

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assumptions they derive from these stories. This dissertation submits that rape myths largely have such an effect in the court room due to the use of them by barristers in their narratives to the jury.

2.3 Judges The way a judge sums up the trial has the ability to affect the credibility of the participants90 and the impact of rape myths in trials, as does their admittance of evidence, and directions. Furthermore, their opinions give authority to the myths and influence the jury. Such as Lord Lane CJ’s statement in Goodwin91 that ‘everybody knows rape is an easy allegation to make’ or examples of judges referring to victims as ‘silly, immature, misguided and mixed up’92 shows the dangerous and misleading statements judges have the ability to make.

Historically, the courts have taken a sympathetic view of the defendant’s belief in the consent of the victim, allowing acquittal where there was merely an honest belief, which usually came from assumptions made due to rape myth belief93. However, since the 2003 reforms, and the requirement that the belief be reasonable, a more positive approach is possible. Nonetheless, in R v Bahador94 the court of appeal deemed that the victim’s alleged behaviour in the nightclub, which included exposing her breasts and simulating oral sex, was relevant to the defendant’s belief in consent. In reality, these actions are only useful for an assessment of her character, because they were not at the time of the intercourse and not even directed at the defendant and therefore their admittance is problematic because the court is confirming the myth that a woman of a particular character is more likely to consent, for which there is no proof.

A similar discouraging approach was seen in the case of Savage, a woman, who was camping alone, and chose not to fight back against her rapist due to the fear he would kill her, and instead chose to be passive and let him sleep by her that night in the hope he would not attack. He was not convicted of rape because it was argued that victims would not react to rape in this way and therefore it was presumed she had consented.95 Furthermore, these approaches are giving credence to the myth often accepted by society, that it is ‘reasonable’ for a defendant to have a ‘belief’ that a person consented, and allowing men to make presumptions about consent, as opposed to encouraging the ascertainment of certain and positive consent Conversely, in R v Taran96 it was stated that there is no obligation to give a direction concerning reasonable belief in every case, instead it is within the judge’s discretion to decide whether to direct

90

n86.

R v Goodwin (1989) 11 Cr App R (S) 194, 196.

92 n86.

93 DPP v Morgan [1976] A.C.182.

94 R v Bahador (Hussein) [2005] EWCA Crim 396 p.1.

95 n82 96 R v Taran (Farid) [2006] EWCA Crim 1498.

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the jury towards it if there is appropriate material. Furthermore, in R v Ciccarelli97 it was held that there needs to be evidence beyond fanciful or speculative to support the reasonableness of the belief98.

As the reasonable belief element arguably encourages defendants to scrutinise the actions of the victim, with rape myths often affecting their evaluations, it is submitted that, following Taran and Ciccarelli, to limit the effect of these myths the jury could only be directed towards evaluating whether there was a reasonable belief if there is evidence to suggest that there may have been one.

However, this essay submits that the flaw in this process arises when the judge’s own views decide that the defendant had a reasonable belief, and this could be due to their belief in rape myths.

Nevertheless, this essay submits that this could be rectified with appropriate judicial education and by providing them with factual information on the realities of rape cases and responses to rape.

Nonetheless there have more recently been attempts by judges to dismiss rape myths and this dissertation suggest that there was a more positive approach in the recent case of R v Smith and O’Neill99 where the original trial judge directed the jury that ‘any steps taken to ensure that V had consented’100, were to be included in their assessment, which shows them encouraging ascertainment of explicit consent. Further to this, an appeal on the basis of additional evidence from witnesses of the jovial atmosphere at the start of the evening and rumours of the victim being someone who was ‘up for anything’, was dismissed as it was deemed doubtful that the evidence would add anything material to the case. It is submitted that the Court of Appeal is recognising that assumptions cannot be drawn from a person supposed characteristics. However, despite its radical appearance, because the reasoning included the fact that they had not disclosed the information earlier and that the witnesses had not seen the actual event, it may be a fact sensitive decision and therefore not a conclusive stance against the admittance of such evidence.

Additionally, arguably due the beginnings of media acknowledgement of the existence of rape myths and general awareness, there have recently been positive statements made by judges dispelling some myths. In a press discussion of the Bob Hewitt case, Judge Bert Bam argued that the victim’s ‘submissiveness in the circumstances should never have been seen as consent’101 which discourages the myth that lack of removal of consent implies consent. Similarly, in R v D, the finding in the initial trial that the defendant was not guilty because the victim did not report the rape immediately, which evidences the myth of the ‘real rape’ narrative, was over turned by the Court of Appeal and it was emphasised that ‘[rape is] complicated in both its effects and how it’s dealt with by victims’, and he highlighted that the nature of rape can make it difficult to report102. This shows the court limiting the 97

R v Ciccarelli (Yuri) [2012] 1 Cr. App. R. 15. n93.

99 R v Smith, R v O’Neill [2013] Unreported, CoA. 100 ibid p1.

101 ‘Tennis Player Bob Hewitt convicted of rape’, The Guardian, (South Africa, 23 March 2015).

102 n24.

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effect of rape myths and is an example of the sort of judicial direction, that this essay will propose later, that should be used to curb their effect.

2.5 The Effect of Rape Myths on Juries The use of rape myths in narratives by barristers, and the affirmation by judges, has an effect on jury decisions. There is overwhelming support for this claim, with studies by Burrows showing 20 out of 21 studies finding a relation between juror judgements and rape myths103. It is argued that the low conviction and attrition rates of rape can be attributed to how the characteristics of rape cases, such as lack of physical evidence and witnesses, cause the cases to become a judgment of credibility, which can only be deduced with the information in the narratives, therefore, juries make assumptions when they hear of: whether the victim fought back; whether they had injuries; and how quick they reported, concluding that if it does not conform to their understanding of a real rape then it may not have been a crime, despite the inaccuracy of these assumptions104.

In the absence of access to real jury deliberations, mock juries have been used to study the effects of rape myths. These studies confirm the existence of the myths discussed in chapter one and evidence their effect in rape trials on convictions105. Ellison and Munro observed that juries ‘generally displayed limited appreciation of psychological responses to rape’ which this dissertation submits, shows a lack of understanding of the reality of responses to rape and an expectation of the stereotypical real rape response106. Furthermore, this implies a lack of education and understanding of the reality of rape situations, and this naivety causes erroneous assumptions, which will then affect the outcome of their decisions. The studies also illustrated the inferences that jurors drew from evidence of the complainant’s behaviour, perceiving ‘a calm demeanour as calculating and extreme emotion as merely a performance and a desire to find physical evidence for the rape such as ‘internal or vaginal trauma’107. Therefore, rape myths can have a substantial effect when the jury are faced with the task of placing one person’s word against another, as they cause them to favour the outcome that most conforms to their stereotypical perceptions of rapists and victims.

Talitz theories that ‘juries deliberate by constructing stories based on the evidence presented to them at trial’ and they do this by ‘connecting facts to conclusions and looking for good reasons to decide if the story is accurate’108. This dissertation proposes that this is where rape myths have the most substantial effect as juries relate these ‘stories’ to their own views on ‘real rape’, further influenced by

103

n5. n4.

105 L.Ellison, V.Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility’ (2009) 49 Brit.J.Criminol 202; n77; J.Dahl et al, ‘Displayed emotions and witness credibility: A comparison of judgements by individuals and mock juries.’ (2007) Applied Cognitive Psychology 21(9), p1145-1155 106 ibid(1).

107 ibid.

108 n82.

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barrister’s narratives, and assess whether the situation fits one that they believe is rape. However, such assumptions cannot be made because, as evidenced, each case is unique.

The effect of rape myths on the reasonable belief element has also been studied using mock juries and has shown a tendency for jurors to make the assessment broadly and evaluate whether the defendant is deserving of being declared guilty109, arguably holding them to society’s standard, which has been proven to be disappointingly skewed by rape myths. In their study Finch and Munro noted that when jurors were assessing the reasonableness in all circumstances they evaluated the entire situation of: a party, a drunken victim and a lack of her saying no, resulting in them declaring his action as not unreasonable. An assessment such as this pays deference to the defendant and sympathises with his position, whilst ignoring the harm caused to the complainant. As the reasonable belief element has been implemented broadly, rape myths have the ability to affect decisions and lower the standard defendants are held to. However, as the harm of rape is so detrimental it is submitted that defendants need to be held to a higher standard than this, and due to the nature of sexual intercourse, and the effect of incorrect assumptions of consent, they should be required to be more than just not unreasonable.

2.6 Sexual History Evidence The use of sexual history evidence in rape trials is a further example of how rape myths affect trials when barristers request its inclusion and judges allow it. Its allowance has the ability to promote the rape myth that a woman who has previously consented to sexual intercourse is more likely to consent again110. This presumption is dangerous because it ignores a person’s right on each occasion to choose whether they wish to engage in sexual activity. Furthermore, rape within emotionally intimate relationships has the potential to be more damaging and create greater vulnerability, and therefore these cases often have a significant effect that should not be dismissed by a mythical presumption.

One third of rapes or attempts, occur in social situations where the victim and rapist already know each other111, which shows that the presumption that previous history means there was likely to be consent ignores the third of cases that happen when there has been a previous relationship and could lead to erroneous decisions . The use of sexual history evidence misrepresents the relaxed sexual morals of our time as it assumes a sexual code that actually most people would no longer adhere too112.

109

n11.

R v A (No 2) [2002] AC 45.

111 R.L.Shotland, L.Goodstein, ‘Just Because She Doesn’t Want to Doesn’t Mean It’s Rape’ (1983) Society and Psychology Quarterly 46, No.3 220-232.

112 n62.

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In R v A113 the law against the use of sexual history evidence was challenged on the basis of the right to a fair trial114 and it was clarified that the trial judge can permit the evidence if they decide it is relevant to the issue of consent115. As shown, judges may hold rape myth views and therefore there is the potential for the decision that the sexual history evidence is relevant to be affected by the myths regarding previous promiscuity. This decision ignores the reality that rapes happen within relationships116 and allows for a myth to have effect by removing focus from substantiated facts and encouraging the jury to assume that it was not rape or that consent was implied, because of previous situations, rather than addressing the individual circumstances. Furthermore, it alludes to the stereotype that women who engage in sexual intercourse regularly are more likely to consent in each situation, which is an unsubstantiated assumption, and its codification effects the decisions of jury members and distracts them from other evidence. Post R v A, it has been reported that one third of cases involve a section 41 application and two third of these were successful117 which shows that judges are allowing this myth into the courts.

However, there is the potential for judges to control the use of sexual history evidence to situations where it is genuinely necessary. The limitation of the rape myth’s effect was seen in the court of appeal where the trial judge ruled that the contents of a conversation revealing the details of a rape victim’s previous sexual behaviour were inadmissible118. The judge stated that they did not believe that such evidence would not have changed the jury’s views, which shows they recognised that such evidence can have an effect. However, the judge acknowledged that, in this case, previous sexual history was irrelevant to the consideration of who was telling the truth, and this shows an understanding that the fact she had consented previously should not create a presumption she will consent again. Importantly, by not presenting the information to the jury the judge recognised that the jury are not equipped to not be influenced by rape myths. Although this is a positive move towards judges discouraging rape myths in court rooms, it was also stated in Gjoni that the relevance of sexual history evidence will be decided in each case, and it will be interesting to see if this stance is continued.

2.7 Conclusion This paper submits that rape myths are having a substantial effect in court rooms as the construction of the law and their use by barristers causes them to significantly affect the views of the jury. Recent case law shows an acknowledgement of the insubstantial nature of some of these myths, however,

113

n110.

ECHR Art.6.

115 YJCEA 1999 s41 116 n52.

117 L Kelly et al, ‘Section 41: An evaluation of new legislation limiting sexual history evidence in rape trials’ (London:HO, 2006) 20/06.

118 R v Gjoni (Kujtim) (2014) EWCA Crim 691.

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some of the decisions were arguably circumstantial and therefore it is unclear as to how this shift away from their acceptance will progress. What can be understood is that due to their prevalence in society, rape myths are having a considerable affect on jury deliberations, and their engrained nature will ensure they will not stop doing so without a radical change.

Chapter 3 – Reform 3.1 Introduction Although there have been attempts to reform the law on rape there has been no comparable increase in convictions and it is argued that this is due to the continued affect of rape myths. The UK government has acknowledged a need to tackle them119, and this dissertation proposes that this must be done with a reform of both the law and the trial process. This dissertation rejects the proposal of using a case by case approach120, and prefers a clear, statutory definition of consent. This chapter will evaluate the options for reform and proposes a change to the construction of consent and the reasonable belief element of the law, accompanied by utilisation of expert testimonies, judicial instruction, jury education and general education.

3.2 Legal Reform It has been suggested that the UK should mimic the structures of jurisdictions such as Michigan, USA121, Canada122 and New South Wales, Australia123, which would provide a ladder like offence encompassing different degrees of seriousness of rape. It is argued that this would ensure fair labelling and could improve conviction rates, due to juries being more likely to convict for lesser sentences. However, this dissertation dismisses this approach as such a construction places an emphasis on ‘real rape’ mythical scenarios that require a certain situation, namely violence, to ensure a conviction. In essence, it would have little more effect than sections 75 and 76 of the current law in clarifying the law.

Helen Power proposed a more satisfactory ladder construction124 that avoids violence as a distinction, favouring three degrees of rape distinguished by the defendant’s knowledge of the absence of rape, their recklessness or negligence. The redirection away from violence is positive, however, this dissertation submits that this construction would still be problematic as rape myths could still influence the juries’ belief of whether there was recklessness or negligence. It is similar to the proposal that the UK should adopt an element of recklessness within intention comparable to the 119

HO ‘Cross Government Action Plan on Sexual Violence and Abuse’ (London:HO 2007) 40.

R v Olugboja,(1982) CA. 121 Criminal Sexual Conduct Act 1974.

122 Canadian Criminal Code.

123 The Crimes Act 1900 (as amended 1981).

124 H.Power, ‘Towards a Redefinition of the Mens Rea of Rape’ (2003) OJLS 23, 3, 379-404.

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Australian Penal Code. Although, arguably, this addition would put an onus on the defendant to ascertain consent, as not gaining explicit consent could be deemed reckless, it is submitted that this would still leave a broad scope to the jury, with the potential for rape myths to influence whether the jury believed the action was reckless and therefore would provide limited improvement.

The third proposal is a structure of consent that requires explicit consent before intercourse, as it is argued that this would make consent clearer. This proposal would amend the current definition of consent125 inserting the word ‘explicit’ within the definition, with guidance that this can be verbal, written or otherwise. The argument for such a construction is that there is no detriment in requiring explicit consent, a man ‘only has to ask, since to have sexual intercourse without her consent is to do her great harm, it is not unjust for the law to require that he inquire carefully into consent.’ 126 Furthermore, such a requirement would change society’s approach to sexual relations and would proactively encourage men to seek consent from females in order to protect themselves, and would promote the idea that it is acceptable for women to be direct about their sexual desires. This would not be a wholly unprecedented idea, as a similar approach has begun to be taken in California, where they argue that responsibility for sexual violence should be on the perpetrator and consent can never be assumed127. Moreover, some academics have argued that sexual penetration is harm128 and therefore this dissertation argues that it can be equated to battery, which is a prima facie wrong that is illegal unless consented to. However, although it would create more certainty, such an onerous requirement could be seen as an infringement on sexual autonomy and private life. Conversely, this essay argues that the harm done by non-consensual sexual activity is so great that it outweighs the infringement.

Lastly, the most convincing argument against this approach is that it would still result in one word against another, and could still be influenced by submission. However, this essay submits that a defendant would have to actively create contempt of court if they were to say there was verbal consent when there was not, rather than merely stating that it was implied, this greater onus on the defendant may deter such a situation. This construction would make it strict liability and remove the excuse that the signs were misread and therefore there was no mens rea129, which is arguably insufficient when the harm is so great. It is proposed that such a radical reform would illustrate to society the necessity of ascertaining consent and would do much to subvert public perception.

125

SOA s74.

T.Pickard ‘Culpable Mistakes and Rape: Relating Mens Rea to the Crime’ (1980) 30 University of Toronto Legal Journals 75,83.

127 S.T.Khadaroo, 'California's 'Yes Means Yes' Bill’ (CS Monitor 2014) <http://www.csmonitor.com/USA/Education/2014/0829/California-s-yes-means-yes-bill-how-it-addressescampus-sexual-assault>accessed06/10/2014 128 M.M.Dempsey, J.Herring, ‘Why Sexual Penetration Requires Justification.’ (2007) OJLS 27, 3, 467.

129 S.Estrich, ‘The Definition of Rape: The Common Law Tradition’ in Hilarie Barnett (eds), ‘Source Book on Feminist Jurisprudence’ (1st, Cavendish Publishing House, 1997) 126

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3.3 Trial Reform This dissertation submits that the legal reform needs to be combined with a change to the trial process.

It is argued that the main concern is barrister’s narratives, which exploit rape myths to create implications that either a woman consented or that the man had a reasonable belief. Temkin argues that in rape trials they ‘appear all too often to give defence counsel free reign’ 130, therefore, a new code of conduct should be administered, as the current ones are arguably too broad131.

Furthermore, this dissertation proposes that because it is the role of the judge to monitor relevant information132 they need to be informed of the realities of rape, to subvert prejudicial views and to allow them to evaluate the relevance of information, and be astute to when rape myths are present. In particular, they should be educated on sexual history evidence, to inform decisions regarding when it is relevant, with knowledge that previous relations do not imply future consent. It has been proposed that their discretion to admit sexual history evidence should be curtailed, with a codification of when it is allowed133, and this dissertation agrees that codification would be useful guidance but would prefer to keep judicial discretion, albeit whilst encouraging better informed discretion. Lees proposes that a method of monitoring the judges post-education should also be implemented134, and this dissertation submits that if this was an independent body, made up of relevant experts, academics and possibly victims or lay people, then its ability to fairly monitor could be sustained and would make it a beneficial addition.

An additional problem is that ‘the judiciary is overwhelming male’135, and a recent study argued that a lack of women within the judiciary is affecting decisions136, and showed the relevance of this argument to rape cases in their discussion of R v A, where a different decision was reached after a female judge challenged the assumption that ‘a woman who has agreed to have sex with a particular man is –simply by virtue of that fact – more likely to do so again’137. Therefore, this dissertation proposes, that diversifying the judiciary would significantly aid the removal of rape myths from court rooms, because as shown in chapter 2, judges have the ability to limit their effect and can be used to give directions, which would benefit from the unique knowledge of female experience that female judges possess.

130

Ibid. n78.

132 J.Temkin, ‘Rape and the Legal Process’, (2nded. Oxford:OUP 2002).

133 n86 p267 134 ibid 135 n86 p242.

136 R.Hunter, C.McGlynn, E.Rackley, ‘Feminist Judgments: From Theory to Practice’ (Hart Publishing: 2010).

137 Ibid.

131

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3.4 Expert Evidence and Judicial Directions As shown in chapter one, many of these rape myths are insubstantial, and therefore, this essay proposes that general expert evidence should be used to inform juries of the realities of rape. The government has begun proposals to allow such evidence in rape cases, with an aim to educate jurors about common reactions to sexual violence and to ‘dispel myths and stereotypes about victim’s behaviour’138. This dissertation proposes two primary methods for its implementation: expert testimonies, to offer alternative explanations for the behaviours of victims that does not coincide with the juror’s perceptions of ‘real rape’139; and the utilisation of judicial instructions140. Ellison and Munro’s mock jury studies141 showed that both could be effective in changing jury discussions and educating them of the realities of rape, allowing for them to make informed judgements rather than being influenced by the stereotypes presented by the defence barristers. Their studies found that educated jurors were markedly less likely to be influenced by rape myths or find importance in particular responses of the victim, such as their demeanour142. The jury discussions in the study showed that educated jurors displayed a greater understanding of emotional reactions to rape, were more willing to accept the feasibility of a wide range of responses and in each case the educated juries submitted that the information was helpful. Therefore, a ‘general knowledge’ testimony is proposed, as opposed to case-specific expert testimonies, in order to equip the juries with an education in an area in which they may hold erroneous views or be generally uninformed about. Case-specific testimonies should be avoided as studies have shown that they often provide too much influence143, and juries have a tendency to take the expert information as proof of the defendant’s guilt rather than a dispelling of myths. The aim will be to alert the jurors of certain phenomena and to explain that certain problematic features of a complainant’s evidence may be common and should not necessarily lead to the conclusion that they are lying144.

Furthermore, judicial instructions should be utilised as the judge has the ability to strike a balance between both parties. This was shown in R v Doody145 which confirmed the potential of extended judicial instructions and showed the balance that the judges will need to strike to ensure fairness to both parties. Latham LJ acknowledged in his judgment of this case that where defence counsel raises the issue of a complainant’s delayed rape report in order to undermine her credibility, the trial judge is entitled to comment on the way that evidence is to be approached, since otherwise there is the danger of the jury coming to an unjustified conclusion. With an approach such as this, it is submitted that the 138

CPS, ‘Convicting Rapists and Protecting Victims’ (London:OCJR, 2006). n77.

140 D.Wolchover , A.Heaton-Armstrong, ‘Debunking Rape Myths’ (2008) New Law Journal 158 : 117 – 19 .

141 n71.

142 n71.

143 N.Brekke , E.Borgida, ‘Expert Psychological Testimony in Rape Trials: A Social Cognitive Analysis ’(1989), J.Pers.Soc.Psychol 55,372 – 86.

144 n71.

145 R v Doody [2008] EWCA Crim 2394.

139

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judge can ensure that the jury are not adversely influenced and are aware that responses to rape vary.

Furthermore, it is submitted that judicial instructions should be utilised alongside expert evidence, as judges have the ability to ensure the jury are fairly informed, and that there is balance between both sides. This approach will reduce the effect of rape myths because jurors will no longer hear them submitted as factual realities, and will become aware that multiple responses are usual, and rather than being influenced in either direction, they will become equipped with information that will allow them to assess the situation.

3.5 Special measures As shown, barristers use rape myths and techniques such as maligning the claimant to influence the jury and therefore this dissertation argues that rape trials could benefit from additional special measures to reduce their effect, particularly relating to the claimant’s appearance, and to make the trial less onerous for the claimant.

It is proposed that using alternative testimony methods for claimants would allow them to be able to speak more comfortably. Taslitz’s studies showed that women often cannot tell their stories ‘in the same way [they] can in private, because of the structure of the court room’, which he denotes has a ‘male combat style’146. Consequently, this dissertation submits that victims are less believable to the jury, and therefore less able to counter act the rape myths, because they are forced to speak in an ‘unnatural, strained and confusing’147 format, whilst the defence barrister is also using techniques to cast doubt upon them, including arguing that a real victim would be acting differently. Video testimonies have been proposed148, however, this essay submits that although cross examination has proved to be problematic, there would need to be an ability to do so in order to ensure a fair trial.

Therefore, if video testimonies, or closed room testimonies and cross examinations could be combined with stricter codes of conduct then they could be successful, however, to provide sufficient protection from unnecessary scrutiny, the measures would need to be more substantial than the screening currently permitted149, and provisions for victims could take the form of the similar allowances for video links for witnesses150.

3.6 Education Studies have shown that many individuals, in particular men, are uneducated about the law of rape and consent, with approximately 50% stating it incorrectly151. These results evidence a need for better education about rape, to clarify the law, especially if the new requirement of explicit consent is 146

n.82 ibid.

148 n86.

149 YJCEA 1999 s23.

150 ibid s24.

151 C.Gunby, A.Caroline, M.A.Bellis, C.Beynon, ‘Gender differences in alcohol-related non-consensual sex; cross-sectional analysis of a student population’ (2012) BMC Public Health 147

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implemented. It is argued that if factual information is provided to the public that dispels the myths there effect can be limited.

Furthermore, in the studies of Ellison and Munro discussed above, the myth that a victim of rape will physically resist, was found not to be dispelled by additional information, most probably because the belief is so engrained and therefore, this essay proposes that these system reforms must also be accompanied by general education152, possibly as a part of sexual education in schools, in order to provide healthy concepts of sexual encounters from a young age, in addition to online, radio and poster campaigns153. The legal reforms can only be effectively implemented alongside a transformation of attitudes154 and this dissertation submits that the requirement of explicit consent will change the perception that consent can be implied and should be combined with education that teaches men ‘to seek permission’ and women ‘to express their wishes, whether it is to invite or reject sexual contact’155. It is submitted that this would aim to subvert the way that we approach sexual relations, and place a focus on the necessity of clear positive consent, to avoid situations of unconsensual sexual activity that have a detrimental impact on individuals and the female gender as a whole.

Articles in popular newspapers can also be highly influential by drawing readers’ attention to the existence of rape myths, subsequently jurors will be aware of them in trials and will be susceptible to the information given by expert witnesses and judges156. Furthermore, in light of recent cases, such as that of footballer Ched Evans, schemes such as the one recently implemented in Brighton to teach young football players about consent, shows a move to improve Britain’s role models, as well as tackling infamous perpetrators, and improved youth education157. An overhaul of public perception is beginning and hopefully will continue in line with reforms, to eradicate the effect of rape myths.

3.4 Conclusion This essay proposes that the most effective reform would be proposal three, because the requirement of positive consent would put on onus on individuals to ascertain consent, as well as encouraging positive sexual attitudes that involve partners discussing their wishes. Furthermore, defendants could no longer rely on implicit consent and therefore would have to act in contempt of court or plead 152

J.D.Foubert, J.T.Newberry, ‘Effects of Two Versions of an Empathy-Based Rape Prevention Program on Fraternity Men's Survivor Empathy, Attitudes, and Behavioural Intent to Commit Rape or Sexual Assault.’

Journal of College Student Development (2006) 47(2), 133-148.

153 Rape Crisis Scotland, 'October news: This Is Not An Invitation To Rape Me’ (Rape Crisis Scotland 2008)<http://www.rapecrisisscotland.org.uk/news.html>accessed28/01/2015.

154 S.Jeffreys, J.Radford ‘Contributory negligence or being a woman? The car rapist case’, in P.Scraton, P.Gordon (eds) ‘Causes for Concern’ (London:Penguin books, 1984); J.Gans,‘Rape Trial Studies: Handle with Care’ (1997) Australia and New Zealand .Journal of Criminology 30, 26-35.

155 J.Dressler, ‘Where we have been, and where we might be going: Some cautionary reflections on rape law reform’ (1998) 56 Cleveland State Law Review 409 p.428.

156 R.Sanghani,‘6 Rape myths which need busting. Badly’ The Telegraph (London, 10 June 2014).

157 ‘Brighton’s young players to be trained in sexual consent’ The Guardian, (London, 2 April 2015).

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guilty, which would be a much greater deterrent as well as possible improving the number of guilty pleas. It would provide a clearer understanding of what consent is, and set a precedent for individuals explicitly consenting or ascertaining consent. However, this paper also proposes that the fourth proposal could be similarly effective, although not as proactive at subverting views due to it not being so overt in requiring consent. The positive of this proposal however, is that it would appear less controversial and less of a breach of autonomy.

Conclusion This paper attempted to evaluate the effect of rape myths on rape trials in the UK and proposed possible reforms in this area. It began by addressing the need for discussing this topic and the necessity of reforms, to the conclusion that the harm done by rape is not rectified by the criminal justice system and this is shown through low conviction rates. Chapter one introduced the concept of rape myths and their prevalence in society. It was shown that these views can be disproved and have little factual basis but are widely believed due to common misconceptions and their circulation by the media, with their general effect being a substantial interference with the way people perceive gender stereotypes and sexual relations. The construction of the law regarding rape has allowed these myths to become relevant in the court room, and it is clear that they are affecting how the jury views the actions of the defendant. Furthermore, the presence of ‘real rape’ scenarios in legislation both in the UK and internationally, shows the engrained stereotypes people have regarding rape, which has been shown to create expectations in rape trails. Current safe guards, such as codes of conduct, are proving inefficient, and therefore a reform is proposed that encompasses a change in the law as well as a change to the trial process, including jury education and judicial directions. Barrister’s narratives were found to be the most culpable source of rape myths in the court room, and their effect on the jury’s perceptions of the victim and the defendant was seen to be profound.

It was proposed that consent should be explicitly required in sexual interactions, in order to put an onus on individuals to ascertain consent, an obligation which has been deemed unproblematic.

Furthermore, this requirement would encourage positive sexual attitudes and would begin to set a precedent for individuals to discuss their sexual wishes. This paper submits that this construction, when teamed with further education, would aid a change in societal views. Furthermore, to reduce the effect of rape myths in court, there needs to be a change in the trial process, involving jury education and judicial directions.

Lastly, it is difficult to deduce the full effect of rape myths in court rooms because of the privacy of jury deliberations. Furthermore, on researching the literature it was clear that some of the academics

254

themselves hold inherent prejudicial views that affect their studies, often subconsciously158. However, many of the modern studies have shown a positive and open minded approach to the topic159, and it is clear from their findings that not only are rape myth views widely held, they are integrally present in the media, and have a great potential to affect deliberations regarding rape cases160.

This dissertation hopes that the phrase ‘she was asking for it’ will one day be universally seen as nonsensical and that a legal acknowledgement of the erroneous nature of it, and similar beliefs, will begin the process of subverting society’s views on sexual interactions. With the many advances that have been made in societal acceptance in the last century, it is surely time that we moved away from these outdated views of sexuality. The fact that direct comparisons can be drawn between current sexual views and Victorian novels161, when we have made so many advances since then in terms of women’s rights is embarrassing, and illustrates the desperate need for change.

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Legislation 99. Canadian Criminal Code 100.

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101.

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102.

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103.

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Reports 104.

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London: Amnesty International/ICM. 105.

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Amnesty International/ICM, 2005) 106. Burrows. N, ‘Responding to the Challenge of Rape Myths in Court. A Guide to Prosecutors.’, (2013) www.nb-research.co.uk: NB Research 107.

CJS, ‘Convicting Rapists and Protecting Victims – Justice for Victims of Rape’

(London: OCJR, 2006) 108.

Feist, A. Ashe, J. Lawrence, J. McPhee, D. Wilson, R. ‘Investigating and Detecting

Recorded Offences of Rape’. (London: Home Office, 2007) 109.

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(2007) London: HMSO. 110. Hoare. J, Jansson. K, ‘Extent of Intimate Violence, Nature of Partner Abuse and Serious Sexual Assault, 2004/05, 2005/06 and 2006/07 British Crime Survey’, in D. Povey (ed) Homicides, Firearm Offences and Intimate Violence 2006/07 (3rd edn London: Home Office, 2008) 111.

Home Office ‘Cross Government Action Plan on Sexual Violence and Abuse’

(London: Home Office 2007) 40 112. Home Office ‘Protecting the Public’ (Home Office, 2002) 113. Home Office, ‘Setting the Boundaries: Reforming the Law on Sex Offences’ Volume 1 (2000) 114. Kelly. L, ‘A research review on the reporting, investigation and prosecution of rape cases’, (2002) London: HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary.

115. Kelly. L, ‘Different systems, similar outcomes? Tracking attrition in reported rape cases in eleven countries’ (London: CWASU, 2009): 116. Kelly. L, et al, ‘A Gap or a Chasm? Attrition in Reported Rape Cases’ (Home Office Research Study 293, Home Office 2005) 117. Kelly. L, et al, ‘Section 41: An evaluation of new legislation limiting sexual history evidence in rape trials’ (London: Home Office Online Report 20/06, 2006) 118. Law Commission, Consultation Paper No139, Consent in the Criminal law, 1995, pp202 and 205 119. Ministry of Justice, Home Office and the Office for National Statistics, ‘An Overview of Sexual Offending in England and Wales’ (London: ONS, 2013) 120.

Myhill. A, Allen. J ‘Rape and Sexual Assault of Women: Findings from the British

Crime Survey’. (London: Home Office, 2002) 261

121. Office of National Statistics, Focus on: Violent Crime and Sexual Offences 2011/12 (London: ONS, 2013) 122. Official Crime Statistics, ‘2012/2013 – Crime in England and Wales, Year Ending March 2013’ (London: ONS, 2013) 123. Smith. L.J.F, Concerns About Rape, Home Office Research Study 106 (London 1989) 124. Stern. V ‘The Stern Review - A Report by Baroness Vivien Stern OBE of an Independent Review into How Rape Complaints are Handled by Public Authorities in England and Wales’ (London: Home Office, 2010)

Websites 125. CPS,

'CPS

Policy

for

Prosecuting

Cases

of

Rape'

(CPS

2009)

<:http://www.cps.gov.uk/publications/prosecution/rape.html#_02> accessed 21st October 2014 126. Khadaroo,

S.T

'California's

'Yes

Means

Yes'

Bill’

(CS

Monitor

2014)

<http://www.csmonitor.com/USA/Education/2014/0829/California-s-yes-means-yes-billhow-it-addresses-campus-sexual-assault>accessed 06/10/2014 127. 'Myths and Truths about Rape' (Rape Crisis 2015) <http://rapecrisis.org.za/rape-in-southafrica/myths-stereotypes-about-rape/> accessed 02/04/2015 128. 'Police given new guidance to combat rape 'myths'' (BBC News 29 January 2015) <http://www.bbc.co.uk/news/uk-31037876> accessed 02/04/2015 129. Rape Crisis Scotland, '‘October news: This Is Not An Invitation To Rape Me. Rape Crisis Scotland launches national campaign to tackle woman-blaming attitudes to rape' (Rape Crisis Scotland 2008) <http://www.rapecrisisscotland.org.uk/news.htm > accessed 28th January 2015 130. Taub.A , 'The lesson of Rolling Stone and UVA: protecting victims means checking their stories' (Vox 5 December 2014) <http://www.vox.com/2014/12/5/7341973/trauma-rapeallegation-uva> accessed 02/04/2015

Abbreviations Abbreviation

Meaning

Page Number

Brit.J.Criminol

British Journal of Criminology Cambridge Law Journals Criminal Prosecution Service Criminal Law Review Child and Woman Abuse Studies Unit European Convention on

11, 15, 21

Footnote (If applicable) 61, 71, 105

6 28

19 138

7, 16 1

20, 24, 78 6

23

114

CLJ CPS Crim.Law.Rev CWASU ECHR

262

HO HUP J.Interpers.Violence J.Pers.Soc.Psychol LS NYUP OJLS ONS OUP SOA YJCEA

Human Rights Home Office

1,10, 11, 24, 25

Harvard University Press Journal of Interpersonal Violence Journal of Personality and Social Psychology Legal Studies New York University Press Oxford Journal of Legal Studies Office of National Statistics Oxford University Press Sexual Offences Act Youth Justice Crime and Evidence Act 1999

263

6 8, 9, 11 6, 8, 9, 11, 29 2 17 8, 9, 25, 26

2,3,4,50,52, 61, 117, 119 18 29, 43, 44, 57 12, 29, 33, 42,44, 57, 143 11 82

8, 10

31, 33, 41, 124, 128 31, 51

27 8, 26 23, 30

132 125 115, 149

The paternalism of doctors under the Abortion Act 1967: unnecessary and unacceptable.

Oriana Frame is a second year student reading Law at University College, Durham University. She has developed a particular interest in public law, and in the regulation of women's reproductive rights.

This paper was prepared as part of the 'Law, Gender and Society' module, under the guidance of Laura Graham.

In this essay the role of doctors in abortion under the Abortion Act 1967 shall be scrutinised. It shall be illustrated that it is the doctor(s) who are given legal emphasis as the final decision-maker and this has explicit impact on a woman’s fundamental right to bodily autonomy and self-determination. This, it shall be argued, is inherently and unjustifiably paternalistic.

The origins of the Abortion Act 1967 are explored in order to understand the original justifications for the two doctor rule. While admitting such a polarized debate may have originally deemed the inclusion of the medical profession ‘necessary’ it is argued that in practice, the level of involvement of doctors is excessive and thus a woman’s autonomy is now being unnecessarily compromised. It shall also be shown that in contrast to the deference afforded the doctor; the way in which the pregnant woman has been legally constructed is outdated and unacceptable. Such contrast has the potential for wider injustice, namely due to the part that it can play in warping the diverse realities of the women who seek abortions. Finally the Section 4162 right to conscientious objection shall be offered as an example of how the Abortion Act 1967 has necessarily placed the rights of two autonomous doctors, above that of the woman, and in doing has risked delay and disproportionate access.

An Original Defence of the ‘Two Doctor Rule’.

When scrutinising the role of doctors under the Abortion Act 1967 the original justifications for including the ‘two doctor rule’ must be noted in order for the following criticisms to be ‘weighed

162

The Abortion Act 1967 s4

264

against the practical and concrete benefits it has provided’.163 Additionally exploring the campaign tactics and the framing of the original Bill as matter of public health, is fundamental to understanding the existing legal construction of women seeking abortion.

Abortion is a divisive topic and compromise is understandable in the context of such seemingly irreconcilable diversities. The crux of the defence for restricting the autonomy of women in relation to abortion is that it ‘affects a third party: the foetus’164. The two sets of rights (the right to life of the foetus and that of bodily autonomy of the mother) are often presented as directly conflicting, with vehement supporters on either side. This construction however is in denial of the clear dependency which in reality, means that ‘the ‘life’ of the fetus […] cannot be regarded in isolation from, the life of the pregnant women’.165 This complexity, combined with the fairly consensus view that ‘the fetus’s value or status increases as the pregnancy advances’166 reveals the exacerbation to lie in the unavoidably intertwined rights of the mother and foetus.

It is in this context that the inclusion of medical professionals as ‘gatekeepers’ was viewed as ‘the price that had to be paid for legislation’;167 essential to de-politicising the conversation and making the legislation workable. Similarly the need for legalised abortion was presented as a ‘public health issue’ which was ultimately more palatable than a direct campaign for women’s right to selfdetermination. This was not necessarily obscure framing as women were dying due to the disproportionate access between those who could afford private treatment and those that had to pursue infamous ‘backstreet’ alternatives. However, this political imagery of desperate and dying women has left a legacy within the Abortion Act of the woman being viewed ‘in terms of irrationality and instability’168 and subsequently in need of professional, medical supervision.

163

Sally Sheldon, Beyond Control: Medical Power and Abortion Law (Pluto Press, 1997)103 Daniel Sokol, ‘Why the Abortion Act deserves to live’ The Guardian (10 April 2012) 165 Paton v UK (1981) 3 EHRR 408 166 Laurie Shrage, Abortion and Social Responsibility: Depolarizing the Debate (OUP, 2003) 72 167 Diane Munday, Abortion Law Reforms: Pioneers of Change (1997, Birth Control Trust) 168 Sheldon, Beyond Control (n 2) 148.

164

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As can clearly be seen ‘women’s claims for reforms of abortion laws have become enmeshed in concerns for the interests in the foetus, as well as competing cultural and religious claims.’169And though it is accepted that woman are unlikely to have an entirely unrestricted right to abortion at any point up until birth, it has been rightly asserted that ‘feminists [have] changed the shape of the debate’.170 While these original justifications and the use of a ‘medical model’171 may have continued relevance in relation to the ‘medical grounds’172 of abortion (as shall be discussed in due course) the description of a doctor as the preferred decision-maker is no longer convincing. It is on this basis that following criticisms are not necessarily mediated by the polarization of the debate.

No Longer ‘Necessary’? A Practical Assessment It is certainly arguable that but for the political reasons outlined above, the need for ‘two registered medical practitioners’ to be ‘of the opinion, formed in good faith’ was never necessary, and exists as ‘a solely legal exercise, offering no clinical benefit’.173 40 years on certainly, abortion is safer and more straightforward and although it may be possible to consider it as falling ‘within the realm of health, physical and mental, and [requiring] medical intervention’174 this would be to critically misrepresent the process. It would also be to wrongly deny that the ‘actual decision whether or not to abort is not normally one that requires expert medical advice.’175 Even within the medical profession itself, it has been noted that the current role of doctors under the Abortion Act 1967, may actually pose a disadvantage in that ‘it has the potential to cause delay which causes distress and can increase clinical risk’.176

169

Stephanie Palmer, ‘Abortion and human rights’ (2014) 6 EHRLR 596

170

Reva B. Siegel, ‘The Constitutionalization of Abortion’ in Rosenfeld and Sajo The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 1062 171 Ibid.

172 The Abortion Act 1967 s1(1) (b-d) 173 Riley and Furedi, ‘Autonomy and the UK’s Law on Abortion’ in Regulating Autonomy: Sex Reproduction and Family (Hart 2009) 174

(n 3).

Sally Sheldon ‘Who is the mother to make the judgement’ In Barnett, H. Sourcebook on feminist jurisprudence (Cavendish 1997) 513 176 Royal College of Obstetricians and Gynaecologists (2008) Briefing Note—Scientific Information On Abortion, available at <https://www.rcog.org.uk/en/news/campaigns-and-opinions/human-fertilisation-andembryology-bill/briefing-note-scientific-information-on-abortion/> accessed 28 Feburary 2015 175

266

That the current role of doctors is, in practice, excessive, is supported by the fact that systems safely exist where abortion is available on demand within the first trimester. The system in the United States whereby abortion within the first 12 weeks, exists as a constitutionally protected right following the decision in Roe v Wade177, is one such example.

In realising then that there is no real justification, in practice, for the extent of the involvement of doctors under the Abortion Act 1967, the following criticisms become considerably more significant.

An Unavoidable Medical Paternalism and Unjustified Interference with a Woman’s Autonomy Reproduction has insightfully been described as affecting ‘women as women’.178 In order to have meaningful bodily autonomy, it is necessary for her to have control over her reproductive future.

However, instead, the decision dually rests with two registered medical practitioners.

If it is accepted that: ‘autonomy is compromised unless offered in a healthcare environment respectful of self- determination, which offers practical support for autonomous decision-making,’179 it can clearly be seen that the role of doctors under the Abortion Act 1967 represents such a compromise.

Doctors are actively expected to impose their own conclusions upon the woman they ‘have control over’;180 in order to ‘protect’181 her. This provides a blatant example of a medical paternalism that has been reinforced by the Courts. Paton v BPAS182 in asserting that the burden of supervising of abortion had been ‘firmly placed by law upon the shoulders of the medical profession’, provides one such example of complete deference to the conclusions of the doctor.

177

410 U.S. 113 (1973) Petchesky. R, Abortion and Woman's Choice : the State, Sexuality, and Reproductive Freedom (Longman 1984)5 179 Riley and Furedi (n 12) 241 180 Oxford English Dictionary (7th edn, OUP 2012) 525 181 Ibid.

182 [1979] QB 276 178

267

Sheldon has even set the standard for paternalistic control as existing where the doctor is merely ‘influencing her course of action, rather than facilitating her arrival at her own decision’.183 In this respect then, medical paternalism is all but unavoidable within the current legal framework.

This level of discretion can be understood, even justified, in relation to the medical grounds (b-d) of section 1(1), which appear to require a more obvious medical evaluation and conclusion. Such expertise is ultimately relevant to informing the mother and can even be considered part of beneficial pre-natal assessment. However, when it is considered that in reality, the vast majority of abortions take place under ‘the social ground’ (s1(1)(a)); this paternalism becomes much more offensive.

This is due to the fact that within the provision, it is simply not clear why the opinion of the doctor should be valued above that of the woman. In light of the vast potential of interpretations that could be applied to ‘injury to the physical or mental health of the pregnant woman or any existing children or her family’ there is the possibility of the doctor having something of a ‘free rein’184 in coming to a conclusion. This is particularly inflammatory when contrasted to the rigidity of the framework imposed upon the woman. The two doctor rule represents an entirely unnecessary, unjustified obstacle to a woman accessing abortion on her own terms.

The Pregnant Woman under the Abortion Act 1967: An Outdated Unacceptable Legal Construction?

Such visible dependence on the conclusions of doctor implies that the pregnant woman either cannot, or should not, be in the position of the final decision-maker. This is a damaging implication that extends far beyond individual cases.

Even if in practice, a doctor may be liberally interpreting the grounds on which to grant an abortion this implication still, legally, stands. That the woman is constructed as incapable by the law is concerning. It certainly successfully trivialises185 her ability to make a decision on her own

183

Sheldon Beyond Control (n 2) 66 Ibid 63.

185 Sheldon ‘Who is the mother to make the judgement’ (n 14) 509 184

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reproductive future. This is clearly the legacy of the original descriptions of women seeking abortions as vulnerable and dependant.

Such a construction exists notwithstanding the undeniable reality that it can ‘only’186 be the women herself who is best placed to evaluate her situation. An easy illustration of this, is the improbability of a woman’s doctor, with whom she is likely to only have a professional relationship with, being more informed than herself in assessing her ‘actual or reasonably foreseeable environment’.187 It is also noteworthy, that in denying that the woman is best placed to make the decision, the Abortion Act 1967 is continually and accurately, identified as being ‘legally detached […]from the process of informed consent used with other medical treatment.’188 The emphasis on the final opinion of the doctor above that of the patient seems to contradict the principle of bodily autonomy that has ‘supreme status’189 within medical ethics. This is despite cases such as St Georges Healthcare illustrating that in a pregnant woman this is not ‘diminished merely because her decision […] may appear morally repugnant’.190 In light of these factors, it is clear that this blatantly unjustified construction of the pregnant woman perpetuates inequality and is simply unacceptable.

An Obstructive Warping of Women’s Reality The ‘stifling [of] the reality of women’s experience’191 continues beyond simply the legal constructions offered by the Abortion Act. In being presented as the final decision-maker, the doctor has legally eclipsed the pregnant woman and her actual reasons for pursing an abortion. This has multiple implications: Firstly, in order to successfully procure an abortion, the legislation demands that women convince a doctor on the basis of a pre-determined framework of reasons which Cornell evocatively describes as

186

Emily Jackson, Regulating Reproduction: law, technology and autonomy (Hart 2001) 71

187

The Abortion Act 1967 s.1(2) Ellie Lee, ‘Tensions in the regulation of abortion in Britain’ (2003) 30 JL & Soc’y 532 189 John Coggan, Jose Miola ‘Autonomy, liberty and medical decision-making’ (2011) 70(3) CLJ 523 190 v S [1999] Fam 26 191 Dr Claire McCann ‘Regulation of Abortion in Northern Ireland’ (Durham University, 12 February 2015) 188

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a ‘stereotype-like grid.’192 In doing so, the real reasons that women are pursuing an abortion are either repressed, or at the very least, generalised. This not only continues to reinforce the notion that there are right or wrong reasons for wanting an abortion but also denies the inherent realism that in pursuing an abortion ‘it is an individual drive and so must be an individual choice’.193 And secondly, in attempting to neutralise the debate on abortion, the inclusion of the two doctor rule has removed the need for a genuine dialogue. The statutory focus on a doctor’s opinion has stifled the opportunity to record an accurate, honest representation of why women pursue abortions.

Such an open dialogue could help address the criticisms of those such as Greer who argue that in offering abortion access, governments are simply abdicating any further responsibility for unwanted pregnancies.194 Additionally, whether there is any truth in imagery that portrays women as ‘unable to protect her cervix from exposure to male hyperfertility’195 could finally be established. Such knowledge would undoubtedly be immensely valuable and could be crucial to understanding the true experiences of women and allowing that to inform the system.

Conscientious Objection On reading the above, it could be argued that in practice it is possible that access to abortion may have ‘outpaced that which the law might appear to allow’196 and that the main issues taken with the role of doctors under the Abortion Act 1967 are on the basis of what it represents. However this would be to ignore that the current requirements can inevitably risk ‘delays and distress’.197 This is necessarily the result of the Abortion Act placing two autonomous individuals with rights of their own, between a woman and a desired abortion. It is the right to conscientious objection that perhaps best encapsulates the difficulties that can arise from this in practice. Section 4 of the Abortion Act

192

Drucilla Cornell, The Imaginary Domain: Abortion, Pornography, and Sexual Harassment (Routledge 1995)

66 193

(n 6) Germaine Greer, The whole woman (Anchor 2000) 195 Ibid 113.

196 (n 27).

197 Ward and Butt ‘Too many abortions: Lord Steel’ The Guardian (24 October 2007) 194

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allows doctors to refuse to ‘participate in any treatment’198 unless it is ‘necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.’199 Due to the complete dependence of abortion access upon the positive actions of the doctor, there is a clear risk of disproportionate access where an individual legitimately refuses to cooperate. This essential vulnerability has been exacerbated in the United Kingdom by a lack of administration.

Namely illustrated by the fact that what constitutes ‘participating in treatment’ has not been qualified past Janaway v Salford AHA200 and the lack of positive obligation to inform a woman of any moral position. Such imprecisions can ultimately mean that women are unable to circumvent the conscientious objector.

In facing an uncooperative doctor women can be forgiven for wrongly believing that they are not entitled to an abortion. Indeed as Jackson has highlighted, it is ‘impossible to tell how many women have been given misleading advice about their eligibility for abortion’.201 Such a reality is unacceptable and amounts, to an extent, to an unregulated system where Sheldon’s statement that ‘if the law serves to protect and entrench any rights it is those of the doctor’,202 appears accurate.

However, it is not argued here that a doctor should not have the right to conscientiously object. But instead, that it should be formally recognised that the two sets of rights are not compatible and results in an unacceptable vulnerability for women. The remedy could lie in widening the understanding of ‘registered medical practitioner’203 to include other types of medical professionals in order to increase the likelihood of the pregnant woman being able to find a suitable substitute, as supported by the Royal College of Obstetricians and Gynaecologists.204

Conclusion It is important however, that despite how often ‘it is not self-evident that a doctors are well qualified

198

Abortion Act 1967 s4(1) Ibid s4(2) 200 [1988] AC 537 201 Jackson (n 2) 81.

202 Sheldon ‘Who is the mother to make the judgement’ (n 16) 513.

203 The Abortion Act 1967 s1(1) 204 (n 16) 199

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to determine whether or not a pregnancy should be terminated’205that they as individuals are not vilified in this debate. The medical profession was included originally for the benefit of women and it is important to remember that he ‘is not legally entitled to allow abortion to any woman who asks for it’.206As such, it is the law that must change.

Perhaps the most fundamental criticism of the role of doctors under the Abortion Act 1967 is the public undermining of the pregnant woman’s right to self-determination, by a third party who, in the end ‘has no interest in the outcome or responsibility’207 for that foetus. This coupled with a legal construction that presents the pregnant woman as incapable of making the final decision, makes the current dependency of abortion access upon the doctors simply unacceptable. Essentially; where it simply isn’t convincing that ‘their medical training equips doctors to decide whether a woman should terminate her pregnancy’208 the need for a doctor to legitimise a decision, which should belong to the pregnant woman, should be removed.

Admitting that women should be the one to make the abortion decision should not be unachievable.

Such a situation has been achieved in an impressive number of other jurisdictions and currently no satisfactorily justification has been given as to why the Abortion Act 1967 must continue to represent one of the ‘formally most restrictive’209 pieces of abortion legislation. The United Kingdom should join the systems where they are unashamed to have a pregnant woman’s informed consent as ‘the cornerstone of its regulation of the termination of her pregnancy’.210

Bibliography Statute The Abortion Act 1967 Books Cornell. D, The Imaginary Domain: Abortion, Pornography, and Sexual Harassment (Routledge, 1995) Greer. G, The whole woman (Anchor 2000) 205

Jackson (n 2) 80.

Sheldon, Beyond Control (n 2) 62.

207 Greer (n 33) 114.

208 Jackson (n 25) 81.

209 (n 34).

210 Christian Lawyers Association v Minister of Health [2004] 4 All SA 31 (T) 206

272

Jackson. E, Regulating Reproduction: law, technology and autonomy (Hart, 2001) Oxford English Dictionary (7th edn, OUP 2012) Petchesky. R, Abortion and Woman's Choice : the State, Sexuality, and Reproductive Freedom (Longman, 1984) Riley and Furedi, ‘Autonomy and the UK’s Law on Abortion’ in Regulating Autonomy: Sex Reproduction and Family (Hart, 2009) Rosenfeld and Sajo, ‘The Oxford Handbook of Comparative Constitutional Law (OUP, 2012) Sheldon. S, Beyond Control: Medical Power and Abortion Law (Pluto Press, 1997) Sheldon. S ‘Who is the mother to make the judgement’ In Barnett, H. Sourcebook on feminist jurisprudence (Cavendish, 1997) Shrage. L , Abortion and Social Responsibility: Depolarizing the Debate (OUP, 2003) Cases Janaway v Salford AHA [1988] AC 537 Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 St George’s Healthcare v S [1999] Fam 26 Articles Ellie Lee, ‘Tensions in the regulation of abortion in Britain’ (2003) 30 JL & Soc’y 532 Diane Munday, Abortion Law Reforms: Pioneers of Change (1997, Birth Control Trust) John Coggan, Jose Miola ‘Autonomy, liberty and medical decision-making’ (2011) 70(3) CLJ 523 Stephanie Palmer, ‘Abortion and human rights’ (2014) 6 EHRLR 596

Newspaper Articles Sokol D, ‘Why the Abortion Act deserves to live’ The Guardian (10 April 2012) Ward L and Butt R, ‘Too many abortions: Lord Steel’ The Guardian (24 October 2007)

Cases from other jurisdictions United States Roe v Wade 410 U.S. 113 (1973) South Africa Christian Lawyers Association v Minister of Health [2004] 4 All SA 31 (T) ECtHR Paton v UK (1981) 3 EHRR 408 Other Secondary Sources 273

Dr Claire McCann ‘Regulation of Abortion in Northern Ireland’ (Durham University, 12 February 2015)

274

In some versions of her story the Brynhildr figure is a valkyrie; in others she is not. How appropriate is it for her to be given the nature of a valkyrie?

Zaynab Seedat is a second-year student reading English Literature at St Aidan’s College, Durham University. Seedat’s paper was produced for the ‘Germanic Myth and Legend’ module under the tutelage of Dr David Ashurst.

In some versions of her story Brynhildr is a valkyrie, in other versions she is not. Thus, this raises questions about her disposition and where, as an ambiguously human and divine creature, she fits into the world order of Norse mythology and legend. Furthermore, in the instances where she is a valkyrie it brings to the fore whether this is the source of her power or not, and thus whether her subsequent actions of vengeance are justified; as a valkyrie, her behaviour can be explained as part of her wild, untamed nature. This leads to the problem of whether or not the Norse mind viewed Brynhildr as a heroic figure avenging herself, or a character from which to extract a didactic lesson from, one which warned against the dangers of over-reaching one’s nature and thereby subverting the system.

Moreover, the question of femaleness is precarious: she can either be viewed as a type of feminist, as she advocates agency and independence, or as someone who in fact works against the feminine agenda. Therefore, the contradictory issues inherent within Brynhildr’s character make her a complex and ambivalent figure worthy of investigation.

The nature of the valkyrie is itself a complicated one, one that can be viewed as a heteroglot composite of shifting identities and selves. In Völundarkviða, although the three valkyries form relationships with human men for seven years, the ‘whole of the eight year they yearned to go’ (st. 3)1 and so they leave their familial connections ‘to seek battles, and never returned again’ (prose introduction). This illustrates their liminal, in-between nature as they are free from human society and its binding norms and values. Furthermore, their identification as swan-maidens in the prose introduction highlights this: ‘near them were their swan cloaks’ and one of the valkyries ‘Swan-white, [was] wearing swan-feathers’ (st. 2). Thus, the connection with swans develops the valkyries as dignified and graceful, rather than brutal and murderous, as battle is only alluded to rather than explicitly described. However, it also depicts them as sub-human, mysterious and unknown, with their ability to shape-shift and fly illustrating their dynamic nature, as they are not quite of the human order, nor part of the animal order. The valkyrie’s in-between state is further highlighted by stanza 30 of Völuspá which repeatedly asserts how the valkyries are ‘ready to ride to the people of the gods’, ‘ready to ride over earth’,2 suggesting how they are part of the divine order, but also curiously apart from it. This is corroborated by Helgakviða Hundingsbana in fyrri which details how ‘there came from heaven creatures with helmets’ (st. 54).3 The noun ‘creature’ demonstrates how their nature cannot be categorically or specifically defined as one that is human.

However, the repetition of ‘ready to ride’ illustrates how being a valkyrie is just another role that a woman has to be ready to undertake in Norse mythology, akin to that of the wife and cup-bearer, a social and military function which they have to be prepared to fulfil. In fact, after marriage, Sváva in 1

‘Völundarkviða’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), p. 102.

2 ‘Völuspá’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), p. 9.

3 ‘Helgakviða Hundingsbana in fyrri’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), p. 125.

275

Helgakviða Hjörvarðssonar ‘was a valkyrie just as before’;4 and Grímnismál notes that ‘they bring the Einherjar ale’ (st. 36).5 Thus, there seems to be no contradiction between the agency and freedom of the valkyrie role, with the subservience and obedience that is required of the wifely function in the human system. This demonstrates that rather than the presentation of valkyries being something that is a unified conception, it is a multivalent and ever shifting perception. This gives validity to Clover’s claim that ‘shield-maidens are a collective fantasy’.6 Hence, this functions as a latent subtext for viewing Brynhildr. In the Nibelungenlied, Brunhild7 is portrayed less sympathetically compared to Kriemhild who is the main focus of the saga; contrastingly, in the Völsunga Saga Brynhildr is one of several protagonists. Interestingly though, in the Nibelungenlied Brunhild is deprived of her valkyrie nature but is accorded the status of Queen of Iceland. This suggests that physical power bestowed from supernatural divine sources is more acceptable in the Norse mind, than power which has no explainable source other than coming from one’s self, especially if that self is one that is feminine. In chapter 6, the Queen is described as having ‘dreadful ways’,8 presumably due to her ‘arrogance’ and pride in her ‘vast strength and surpassing beauty’. However, it is equivocal whether the king’s retinue should ‘inevitably go in great fear of her’ (chap. 6) due to Brunhild’s physical capability, or because of the power that is bequeathed to her by queenship and noble aristocratic status. Nevertheless, the narrator notes that ‘the man whom she would favour would have to be a very brave one’ (chap. 7), which suggests how the very fact of her existence threatens the established, patriarchal structure of power: it would be a ‘shameful way of dying if we are to perish at the hands of women’ (chap. 7). This shows how authority in Norse society is constructed around a shame culture, which functions as the prime motivator in maintaining the heroic social order and gaining control.

Thus in this case, her personality and character are degraded and diminished. She is described as being from the ‘rib of the Devil himself’ (chap. 7) which seeks to remove her from the established human order, demeaning her as satanic and so something that is outside of, or beyond nature.

Startlingly, this also alludes to Genesis (2:22) in which God made woman-kind from the rib of Adam.

The poet may be punning on this in order to illustrate that Brunhild stands outside of the order of created beings. She is not ‘bone of my bones, and flesh of my flesh’ (Genesis 2:23) and so she is not created to complement and strengthen man as his equal. Rather this allusion foreshadows how she rejects her marital role of ‘help meet’ (Genesis 2:18), and by refusing to consummate her marriage with Gunther, she is further described as a ‘foul fiend’ (chap. 10). Brunhild’s identification with the devil depicts her as overwhelmingly proud and haughty, and functions as an explanation for her physical prowess. Consequently, her defeat in the contest of strengths is a way in which her ‘pride has been lowered’ (chap. 7). It also hints at her later transgression and the chaos which her vengeance brings about, and so it demonises her act, rather than approves of it.

Hence, the Nibelungenlied suggests that the only way to deal with such a liminal character is to assimilate her into the honorary space of marriage, from which she can be subdued and controlled, and from where she is forced to internalise the labels of patriarchal discourse, which ultimately dispose her as powerless: ‘at love’s coming her vast strength fled so that now she was no stronger than any other woman’ (chap. 10). The fact that her actual physical constitution changes, suggests the power that a man has over a woman, and also implies how she is another commodity to be conquered, so connecting sexual physicality with heroic prowess. Equally, it implies that Brunhild is only 4

‘Helgakviða Hjörvarðssonar’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), p. 133.

5 ‘Grímnismál’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), p. 56.

6 Carol J. Clover, ‘Maiden Warriors and Other Sons’, The Journal of English and Germanic Philology, 85/1 (1986), p. 36.

7 I have alternately used the spellings of Brynhildr, Brynhild and Brunhild as they have appeared in the texts of the editions which I have used. Whenever I refer to Brynhildr in general, I have used this spelling, as indicated in the question.

8 The Nibelungenlied, trans. A. T. Hatto (London: Penguin, 1965), p. 54.

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physically desirable up until the point of consummation, as her strength and unattainability were part of her appeal. Paradoxically, it is her strength which makes her more vulnerable than other women.

For her, sexual intercourse has more physical repercussions than emotional: ‘she grew somewhat pale’ and ‘his loving had reduced her to this’ (chap. 10). Her paleness can either signify fear or illness, whilst the verb ‘reduced’ conveys how Brunhild has suffered a diminishment in self, as she is subsumed and dominated by patriarchy. Up until that that moment she is constructed by the male gaze and by male desire, and thus after the sexual act there is a process of deconstruction and a consequent loss of selfhood and identity. As Clover notes the virgin, in patristic tradition, is construed as ‘more male than female’ and it is ‘intercourse [which] constructs the female’.9 However, this is also an apt quote from which to view Brunhild. Furthermore, it may indicate how the poet is portraying a picture of women’s strength as temporal, something that is transitory, unreliable and which can be subdued when contrasted with superior male strength. This portrays a fear of female autonomy and independence which is the ‘real fantasy here’10 and which is indeed consequently brought into line.

Thus, the presentation of valkyries ‘tell[s] us less about daughters than they do about sons, and less about female volition than about the power, in Norse society, of the patrilineal principle to bend legend and life to its intention’.11 Similarly, in Thidrek’s Saga Brynhild is not a valkyrie but has ‘supernatural power as long as she retains her virginity’ (chap. 228).12 This may be the reason as to why Brynhild is portrayed less threateningly, as her strength is attributed to supernatural sources. Furthermore, her strength is only ever exhibited in private. Nevertheless, she still upsets the balance of power in the male-female gender dynamic, in the humorous scene where she hangs Gunnar by the nail for his sexual advances.

Consequently, according to Norse society it seems fitting that her power is taken; not only is it construed as not being rightly hers in the first place, but she is not fulfilling her marital obligation because of it. Thus, in Thidrek’s Saga the taking away of her power seems more justified as there are no obvious physical, bodily repercussions. Moreover, this contrasts with the Nibelungenlied which seems to imply that only males should possess supernatural power, as Siegfried is still able to possess his ‘wonderful magic powers’ (chap. 7), and his cloak of invisibility which renders him the strength of twelve men (chap. 6), even though he uses these to subdue Brynhild. Therefore, it seems that the feudalisation of the tale in Thidrek’s Saga is taken further than in the Nibelungenlied, as there is hardly any element of magic at all, and so firmly locates Brynhild and her tragedy in the world of men, rather than in the divine world.

However in the Völsunga Saga, Brynhild is depicted as a shield-maiden as ‘she wants to go warring and win all kinds of fame’ (chap. 25). Yet, even then her valkyrie-like nature has to be tempered and made acceptable by the acknowledgement of her femininity: she was ‘more skilled in handicraft than other women’ (chap. 25). This parallels Völundarkviða, where the three valkyries are ‘spinning dear linen’ (st. 2), which is a curiously feminine and refined portrayal. Brynhild is almost never pictured against a background of warfare and battle, but is rather seen in a more civilised, human environment, which is why she can be classed as a shield-maiden, rather than a valkyrie. According to Andersson, this is a ‘speculative attempt to domesticate her’.13 Rather than using these ‘feminine skills’ (chap.

24) to place her more firmly in the world of femininity, from which position one would be able to secure a marriage and a husband, as her sister does, Brynhild ‘stitched stories of the noble deeds that Sigurd had wrought’ (chap. 25), consequently identifying herself with and apotheosising heroic masculinity. Even though the recording of brave deeds in this manner is an essentially feminist pursuit, the fact that Brynhild engages in it, suggests her isolation, exclusion and longing for the community which she was hitherto a part of. However, this process of feminisation begins much earlier, when Sigurd ‘sliced through the armour, down from the neck opening and out through the sleeves’ (chap. 21) thus not only removing ‘one of the valkyrie’s most important masculine 9

Clover, p. 47.

Clover, p. 49.

11 Clover, p. 49.

12 The Saga of Thidrek of Bern, trans. Edward R. Haymes (New York: Garland, 1988), p. 139.

13 Andersson in Clover, p. 42.

10

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attributes’, as Self notes, but ‘render[ing] the mail coat unusable’ so that Brynhild ‘soon ceases to be a valkyrie and enters the feminine gender’.14 Furthermore, the mail coat was ‘so tight that it seemed to have grown into her flesh’. This indicates how the valkyrie nature is inherently a part of her, and its consequent removal is a mutilation of her subjectivity.

The controlling of her wild, untamed valkyrie nature is also done by Odin himself, as she defies the ultimate patriarch’s command by defeating Hjalmgunnar in battle, when she was supposed to ensure his victory. Therefore, amongst other punishments, Brynhild must marry. For disobeying one patriarch, she must learn to submit to another one. Hence, marriage is used as an institution to control and regulate behaviour, and becomes an expression of power and authority. However, Jochens asserts that ‘marriage provided women with other weapons to handle men, but only unmarried women and virgins engaged in outright combat’.15 In the case of Brynhildr, it is ironic that marriage is the cause of the conflict which inevitably forces her to become the inciter and the whetter, perhaps ‘reflecting the poet’s awareness of women’s bodily weakness as well as their mental strength’.16 Thus, she is compelled to take vengeance in the ‘feminine mode’,17 especially in the Nibelungenlied and in Thidrek’s Saga, where her reduced physical capability forces Brynhildr to have recourse to mental weapons instead. In these versions, Brynhildr seems to be reconciled when she is avenged: ‘Brynhild was no less cheerful than the others’ (Thidrek’s Saga, chap. 348), and ‘Brunhild sat enthroned in her pride’ (Nibelungenlied, chap. 18). Yet, there seems to be a hint of disapproval at her actions, especially in the mentioning of Brunhild gaining pride again.

Comparatively, in the Völsunga Saga when Brynhild in a sense takes up arms once again, she is presented in a more heroic light. In the Poetic Edda, the depiction of battle is done with an almost reverence and glorification of the valkyries: their ‘corselets were spattered in blood, / and from their spears light-beams burst’ (Helgakviða Hundingsbana in fyrri, st. 15). Their presentation is more akin to pure celestial beings, as Helgi in Helgakviða Hjörvarðssonar calls Sváva a ‘bright-faced woman’ (st. 7), and Sigrún, who is Sváva reborn is praised as a ‘wise-hearted woman’ (Helgakviða Hundingsbana önnur, st. 11)18 and as ‘battle-brave’ (Helgakviða Hundingsbana in fyrri, st. 30). These compound epithets show how the qualities of heroic valour, wisdom and beauty amalgamate within the valkyrie nature, to such an extent that even their armour begins to exhibit these decadent and heroic characteristics; the blood is symbolic of their daring courage, the light-beams shooting forth portend the victory that their enlightening intelligence will achieve, whilst the corselet highlights them as peculiarly feminine. Furthermore, in Helgakviða Hjörvarðssonar even their horses become part of the victory-bringing accoutrement: ‘the horses shuddered, and from their manes / fell dew into the deep dales, / hale in the high woods’ (st. 28). The elemental, almost primordial portrayal illustrates how battle is conducted on a natural scale as opposed to a man-made one, highlighting how the valkyries are essentially supernatural creatures, in that they are above the forces of nature.

Alternatively, it also suggests how valkyries are essential to the functioning of the world, as they become part of the natural forces which govern it. Hence, their wisdom, foresight and super strength is absolutely vital in bringing ‘prosperity for men’ (st. 28), portraying them as inseparably tied to the operation of the heroic ethic.

Furthermore, the issue of fate is also a paradoxical one when it comes to the valkyrie nature. On the one hand, they have the role of choosing the slain in battle, which allows them to have an association with fate similar to the norns or the dísir. In fact, Morris believes that the ‘more terrifying aspects of the Norns are personified by the Valkyries’.19 On the other hand valkyries, Brynhild amongst them, seem to be bound by fate: ‘the cruel fates came between’ Sigurd and her, and ‘contrary norns have 14

Kathleen M. Self, ‘The Valkyrie’s Gender: Old Norse Shield-Maidens and Valkyries as a Third Gender’, Feminist Formations, 26/1 (2014), p. 152.

15 Jenny Jochens, Old Norse Images of Women (Philadelphia: University of Pennsylvania Press, 1996), p. 94.

16 Jochens, p. 162.

17 Self, p. 21.

18 ‘Helgakviða Hundingsbana önnur’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), p. 137.

19 Katherine Morris, Sorceress or Witch? (Lanham: University Press of America, 1991), p. 28.

278

pitched us long yearning’ (Sigurðarkviða hin skamma, st. 5 and 7).20 Furthermore, in Helreið Brynhildar Brynhild is described as being ‘born to the worst luck’ (st. 4)21 which depicts her as a tragically heroic fated figure. Thus Gildersleeve argues: ‘for the sorrow and dishonour in which Fate has entangled them, death is the only remedy’,22 from which they can ‘expiate their sins […] and their love be made again pure and perfect’.23 Consequently Brynhild rejects the feminised mode of vengeance, as she views her dishonour at the breaking of the nuptial oaths that she and Sigurd swore (chapters 22 and 25) in a masculine way, and commendably takes it more seriously than Gunnar, who in trying to avoid any oath-breaking, incites Guttorm to kill Sigurd instead (chap. 32). Brynhild cannot bear ‘to have two husbands at the same time in one hall’ (chap. 31). She is unwilling to see the subversion of the social coda to which she subscribes; hence, she sees death as the only way this contradiction can be resolved. It is apt that a woman who was previously a shield-maiden, should want to take vengeance personally, by stabbing herself and requesting that her body be burnt on Sigurd’s pyre (chap. 33). Brynhild takes possession of her own body, and resituates it as the site of inscription and meaning. As Davidson notes, ‘women too had the right of entry into Odin’s realm if they suffered a sacrificial death’.24 Her suicide is an attempt at conscripting herself into the heroic masculine ethic, which Layher points out ‘becomes the master signifier in the Norse gender system’.25 However, Self argues that ‘her suicide might be understood as the despairing act of a person whose subjectivity has been reduced to almost nothing’,26 having always defined it in relation to men. Consequently, she rewrites her subjectivity as Sigurd’s wife,27 rather than her act being interpreted as one of courageous self-autonomy.

Therefore, it certainly seems that ‘strong women are images constructed by male imagination’,28 which gives them the power to also deconstruct these images. Even though Brynhildr’s ‘behaviour justified and explained men’s actions and ultimately the fate of tribes and nations’,29 her autonomy is almost always severely constricted, whether she is a valkyrie figure or not, either by fate or by the controlling gender dynamic. However, Brynhildr’s heroic individualistic conduct in the Völsunga Saga, according to Andersson, ‘eulogise[s] the individual who does what honour demands and despises the consequences’.30

Bibliography of works consulted: Primary: ‘Grímnismál’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), 50-59.

‘Helgakviða Hjörvarðssonar’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), 126-135.

20

‘Sigurðarkviða hin skamma’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), pp. 183-184.

21 ‘Helreið Brynhildar’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), p. 194.

22 Virginia C. Gildersleeve, ‘Brynhild in Legend and Literature’, Modern Philology, 6/3 (1909), p. 20.

23 Gildersleeve, p. 21.

24 H. R. Ellis Davidson, Gods and Myths of Northern Europe (Harmondsworth: Penguin Books Ltd, 1964), p.

150.

25 Layher in Self, p. 145.

26 Self, p. 166.

27 Self, p. 165.

28 Jochens, p. 214.

29 Jochens, p. 89.

30 Andersson in David Clark, Gender, Violence, and the Past in Edda and Saga (Oxford: Oxford University Press, 2012), p. 20.

279

‘Helgakviða Hundingsbana in fyrri’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), 117-126.

‘Helgakviða Hundingsbana önnur’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), 135-145.

‘Helreið Brynhildar’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), 193-196.

‘Sigurðarkviða hin skamma’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), 183-193.

‘Völuspá’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), 5-15.

‘Völundarkviða’, in The Elder Edda: A Book of Viking Lore, ed. and trans. Andy Orchard (London: Penguin Classics, 2011), 102-108.

The Nibelungenlied, trans. A. T. Hatto (London: Penguin, 1965).

The Saga of Thidrek of Bern, trans. Edward R. Haymes (New York: Garland, 1988).

Völsunga saga, trans. Jesse L. Byock (as The Saga of the Volsungs) (London: Penguin, 1999).

Secondary: Clark, David, Gender, Violence, and the Past in Edda and Saga (Oxford: Oxford University Press, 2012).

Clover, Carol J., ‘Maiden Warriors and Other Sons’, The Journal of English and Germanic Philology, 85/1 (1986), 35-49.

Davidson, H. R. Ellis, Gods and Myths of Northern Europe (Harmondsworth: Penguin Books Ltd, 1964).

Gildersleeve, Virginia C., ‘Brynhild in Legend and Literature’, Modern Philology, 6/3 (1909), 343374.

Jochens, Jenny, Old Norse Images of Women (Philadelphia: University of Pennsylvania Press, 1996).

McKinnell, John, Meeting the Other in Norse Myth and Legend (Cambridge: D. S. Brewer, 2005).

Morris, Katherine, Sorceress or Witch? (Lanham: University Press of America, 1991).

Self, Kathleen M., ‘The Valkyrie’s Gender: Old Norse Shield-Maidens and Valkyries as a Third Gender’, Feminist Formations, 26/1 (2014), 143-172.

Quinn, Judy, ‘Women in Old Norse Poetry and Saga’, in Rory McTurk (ed.), A Companion to Old Norse-Icelanidc Literature and Culture (Oxford: Blackwell Publishing, 2005), 518-536.

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Transgender and Consent in Sexual Offence Cases Sophie Hicks is a final year student reading Law at University College, Durham University. She will be returning to the same institution in October 2015 to complete a Masters in Criminology and Criminal Justice (MSc). This paper was prepared as a double module dissertation under the supervision of Ms Laura Graham.

Introduction In recent years, a number of transgender people have been prosecuted under the Sexual Offences Act (SOA) 2003 for failing to disclose their gender history before engaging in sexual activities. Although there is no provision in legislation that states that a transgender person must disclose their “previous” gender to those that they engage in sexual activities with, the common law has developed in such a way that we can conclude that a transgender person has the potential to be prosecuted in such circumstances. This can be seen in the recent cases of R v McNally31 and R v Wilson.

32

The

judgements in these cases show an unjustifiable extension of the law surrounding sexual offences, and additionally the continued infringement of ECHR rights of transgender people. It will therefore be argued that a reform of the law is necessary in order to better balance the sexual autonomy of the complainant and the ECHR rights of transgender people in sexual offence cases.

Chapter One will examine the UK’s current legal approach to transgender people’s rights, and the progress that has been made in recent years in this area. Whilst it will be acknowledged that the UK has progressed immensely in gender recognition, and in the protection of rights of transgender people, it will nevertheless be argued that there is still a great deal of progress to be made before we can celebrate any real accomplishment in this area. It will further be argued that if progression was to be made in this area of the law, then the prosecution of transgender people under the SOA 2003 for

31

R v McNally [2013] EWCA Crim 1051.

32

R v Wilson (Unreported: 6th March 2013).

281

failing to disclose their gender history before engaging in sexual relationships would be eradicated.

Issues explored in this Chapter will be further developed in Chapters Two and Three.

In Chapter Two, the current law regarding the issue of consent in sexual intimacy cases involving transgender people who fail to disclose their gender history will be explored. An analysis of the recent cases of R v McNally33 and R v Wilson34 will first be conducted. It will be argued that the reasoning used in these cases is vastly out-dated and unjustifiable. Additional focus will then be placed on sections 74 and 76 of the SOA 2003, as these are the relevant sections that can, and have (in relation to section 74), been used to negate the consent of the complainant when a transgender person has failed to disclose their gender history. It will be argued that the courts current approach to the prosecution of transgender defendants, in such cases, infringes unjustifiably upon the ECHR rights of transgender people, and further stands out of line with many other sexual offence cases where there has been a â&#x20AC;&#x153;failure to discloseâ&#x20AC;? information by the defendant.

In Chapter Three, after concluding that the law is currently unsatisfactory, an alternative option for how the law should regulate the area will be proposed and examined. It will be argued that the most suitable reform is for the courts to stop prosecution of transgender people under the SOA 2003 when they have decided not to disclose their gender history before engaging in sexual activities. The suggested reform will however leave open the potential prosecution of transgender people under section 76 of the SOA 2003 if they use a prosthetic device on the complainant without gaining consent. It will be argued that this will create a justifiable balance in the law, which protects both the autonomy of the complainant and the EHCR rights of the transgender defendant.

Chapter I: Transgender Rights and Recognition

33

McNally (n1).

34

Wilson (n2).

282

In this Chapter, the recent history and development of the protection of transgender people’s rights will be explored. This is in order to provide context for the modern approach to the protection of transgender people’s rights, and also to show that the approach taken in sexual offence cases involving transgender people who do not disclose their gender history is drastically out of line with other areas of the law. An argument proposing a reform of the gender/sex binary system currently present in the law will also be explored. It will be concluded that the thinking in this area, and the approach taken by the courts, could be reformed in order to have a non-binary system in order to provide better ECHR human rights protection for transgender people. This in turn will stop the prosecution of transgender people when they fail to disclose their gender history.

1.1

Definition of Terms

To begin with, it is important to outline the meaning of a number of terms that will be used throughout this dissertation; in order to provide clarity to the meanings of such. Firstly, it is essential to differentiate between the definitions of sex and gender, as these terms have been used interchangeably until recently and the distinction between them is extremely important.35 Sex means the ‘biological and physiological characteristics that define men and women’.36 This is normally assigned at birth depending on the genital characteristics of the baby.37 Gender on the other hand ‘refers to the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for men and women’.38 It is often expected in society that sex assigned at birth will correspond with gender identity. For example, a person assigned the female sex at birth, due to possessing “female” external genitalia i.e. presence of a vagina and/or vulva, will display feminine gender characteristics and present as a woman. It is therefore assumed that her sex and gender will 35

A Sharpe, ‘English Transgender Law Reform and the Spectre of Corbett’ (2002) 10 Feminist Legal Studies

65, 65-66.

36

World Health Organisation, ‘What is Gender?’ <http://www.who.int/gender/whatisgender/en/> (accessed 1

January 2015).

37

C Toomey, ‘The worst of both worlds’ (Sunday Times Magazine London, 28 October 2001) 34.

38

World Health Organisation (n6).

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correspond in a pattern expected by society.39 Queer theory has however disputed that these two terms exist in a clear binary system. Nevertheless this is how the law currently uses the terms; although the justifications for the current separation and binary definitions will be questioned throughout the Chapter.

As discussed above, the current approach of the law to sex and gender places the terms in a binary system so that an individual can only be identified as either a man, or a woman. 40 This is despite evidence for the existence of at least five different sexes, based on chromosomal criteria,41 and also the fact that some individuals do not self- identify as either a man or a woman.42 The definition of these terms, as used in the law, therefore creates a large problem. By failing to recognise a spectrum of different sexes and genders, the law ignores the preference, and identification, of a number of people within the population. This has led to the creation, and interpretation, of laws, which fail to respect the human rights, such as Article 8 of the ECHR, of transgender people. This could be the reason for the current approach that the courts take in relation to the prosecution of transgender people in sexual offence cases when they have failed to disclose their gender history before engaging in sexual relationships.

However transgender people challenge this strict binary system. 43 This is because they do not identify in conformity with the sex/gender binary system. Transgender is an umbrella term that stands for a range of trans-subjectives.44 This includes, but is not limited to, individuals who identify as

39

M Holmes, What is Gender? Sociological Approaches (SAGE 2007) 21.

40

Gender Recognition Act 2004 s1.

41

A Fausto-Sterling, ‘The Five Sexes: Why Male and Female are Not Enough’ (1993) (Apr) New York Academy

of Sciences 20, 20.

42

S Hines, ‘(Trans)forming Gender: Social Change and Transgender Citizenship’ (2007) Sociological Research

Online 12(1), 10.

43

J Butler, Bodies that Matter (Routledge 1993) 13.

44

A Sharpe, Transgender Jurisprudence: Dysphonic Bodies of Law (Routledge 2006) 1.

284

transsexual,45 individuals who have undergone sex reassignment surgery or have the desire for such surgery, and people who permanently or temporarily under-go gender crossings of the binary system currently in place within the law. In short, their sex and gender do not correspond to society’s normal expectations, either temporarily or permanently. Due to this, the binary system cannot be justifiably presented as two truly distinct categories and therefore enforced strictly within the law. It does not reflect the reality of gender identity. The section below will explore progressive thinking in this area, although it will ultimately show that the law is still falling behind with regards to gender recognition.

1.2

History of Transgender Rights

The case law that has developed in the Strasbourg court, and within the UK, will next be explored.

This will provide an outline of the current law surrounding the enforcement of human rights in transgender cases, and will show how the law in relation to the prosecution of transgender people in sexual offence cases, where they fail to disclose their gender history, is clearly out of line with the present legal approach to transgender people’s rights in many other areas of the law. Through this analysis, it will be concluded that there is no justification for the courts’ current approach in these sexual offence cases.

Firstly, in 1970, in the case of Corbett v Corbett46, the biological sex of a transgender person was reasoned to be the determinative factor to be used by the courts when deciding their legal sex. In this case, Ashley, a male to female (MtF) trans-person was deemed to be male using the ‘chromosomal, gonadal and genital test.’47 Ormod J further concluded that the surgery Ashley had undertaken did not transform her into a woman.48 This set a precedent that biological sex/sex assigned at birth was to be the determinative factor in transgender people’s rights cases before the UK courts. This is even 45

A transsexual person is a person whose gender identity is different from their assigned sex at birth. They

normally alter, or wish to alter, their bodies to match with their gender identity.

46

[1970] 2 WLR 1306.

47

Ibid, 100.

48

Ibid, 106.

285

though many challenges to the approach were brought before the ECHR. 49 These challenges mainly focused on breaches of Article 850 and Article 12 rights.51

However the law now approaches the question of whether a transgender person is a man or a woman in a different way (in most cases). This is due to developments in ECHR case law, and the creation of two pieces of legislation: the Human Rights Act 1998 and the GRA 2004. Yet the courts still seem to be using similar reasoning to that evoked in Corbett52 in sexual offence cases, where a transgender person has failed to disclose their gender history before engaging in sexual activities. Although they do not specifically use the same test, the court is still concluding that gender history must be disclosed if a transgender person’s assigned birth sex does not correspond with their current gender identity.

They are still using sex as the determinative factor; this is out of line with the development of the law explored below.

In Goodwin v UK,53 the ECHR felt the UK’s approach to transgender people’s rights was finally ready for change after being under review in other ECHR cases.54 Although state authorised medical treatment was in operation, which allowed transgender people to have sex reassignment surgery,55 the UK courts were still failing to address ‘the legal implications of the result to which the treatment [led].’56 This was found to be highly ‘illogical’ by the Strasbourg court.57 As a result, the court ruled that it was no longer appropriate to use purely biological factors to determine a person’s sex.58 It was

49

See Rees v UK (1986) 9 EHRR 56, Cossey v UK (1991) 13 EHRR 622, Sheffield and Horsham v UK (1998)

27 EHRR 163.

50

Article 8 of the ECHR is the ‘right to respect for private and family life’.

51

Article 12 of the ECHR is the ‘right to marry’.

52

Corbett (n16).

53

(2002) 35 EHRR 18.

54

See Rees v UK (1986) 9 EHRR 56.

55

Under the National Health Service.

56

Goodwin (n23) 22.

57

Ibid 22.

58

Ibid 29.

286

therefore the first case relating to the UK that stated that gender identity could be a determining factor, and therefore that legal gender could be socially constructed and recognised within the law.59

This ruling created a strong starting point for progression of transgender people’s rights in the UK. This is because the courts started to reason that gender was the determinative factor when enforcing the human rights of a transgender person, rather than purely biological criteria. Additionally, the decisions in Goodwin60 prompted the UK government to reconvene the Working Group on Transsexual People61 and also to introduce legislation to reflect the decision in the case. This resulted in the GRA 2004, which can be said to have made great advancements for the transgender community (whilst still with many criticisms as explored below). In light of this, it therefore seems unjustifiable that the courts have allowed prosecution of transgender people in sexual offence cases when they have failed to disclose their gender history. This issue will be explored further in Chapters Two and Three.

1.3

Current Legislation and Approach to Transgender Rights

As mentioned above, the UK government decided to implement the decision of Goodwin62 into legislation; namely the GRA 2004. This Act allows a transgender person to apply for a Gender Recognition Certificate (GRC), which means that they can have their acquired gender legally recognised.63 Once they have obtained the GRC, they can change their birth certificate and other important documents, and are considered their new gender for all purposes. This means that biological

59

R Sanland, ‘Crossing and Not Crossing: Gender, Sexuality and Melancholy in the European Court of Human

Rights’ (2003) 11 Feminist Legal Studies 191, 196.

60

Goodwin (n23).

61

S Gilmore, ‘Bellinger v Bellinger – Not Quite Between the Ears and Between the Legs – Transsexualism and

Marriage in the Lords’ (2003) CFLQ 295, 6.

62

Goodwin (n23).

63

GRA 2004, s9(1).

287

sex is no longer the determinative factor; gender now determines sex.64 Furthermore, the Act does not require a trans-person to undergo medical intervention, and this means that pre-operative, and nonoperative, transgender people can apply for a GRC.65 This is something that went beyond the expectations of the transgender community at the time, 66 although it is now argued that the legislation does not go far enough, as explored below. It is significant that transgender people do not have to undergo sex reassignment surgery to be legally recognised as their gender. It means that gender is now seen as a much more important factor than biological sex, and it also means that sex and gender no longer have to match for a trans-person to be legally recognised as their acquired gender.

It is clear therefore that the UK has made some progress in the enforcement of transgender rights through the introduction of the GRA 2004.67 Yet the law outlined in the Act stands out of line with the law on the prosecution of transgender people in sexual offence cases where they do not disclose their gender history. Although the law allows a transgender person to be legally recognised as their gender, with or without sex reassignment surgery, the law in the sexual offence cases clearly still wishes for gender and sex assigned at birth to match, or the fact they do not match to be disclosed, in order for the complainant to have given true consent when engaging in sexual activities. An analysis and suggested reform of the GRA 2004 will therefore be discussed in the next section in order to provide a more coherent approach to the protection of all transgender people’s rights.

1.4

64

Criticisms of the Gender Recognition Act 2004

S Whittle and L Turner, ‘”Sex changes”? Paradigm shifts in ‘sex’ and ‘gender’ following the Gender

Recognition Act?’ (2007) Sociological Research Online 12(1), 2.

65

GRA 2004, s2(1)(b).

66

A Sharpe, ‘Gender Recognition in the UK: A Great Leap Forward’ (2009) 18(2) Social and Legal Studies

241,242.

67

A Harris, ‘Non-binary Gender Concepts and the Evolving Legal Treatment of UK Transsexed Individuals: A

Practical Consideration of the Possibilities of Butler’ (2012) 13(6) J I Women’s Studies 57, 65.

288

Particular criticisms that relate to the issue of the prosecution of transgender people who fail to disclose their gender history before engaging in sexual activities will be discussed next; although it must be noted that there are many other criticisms to be made about the GRA 2004.68 The four main criticisms discussed in this section are: the continuation of the strict binary system; the reluctance of the court to grant GRCs in pre and non-operative transgender cases; the two year time requirement before being awarded a certificate; and the continued homophobia within the law. These particular criticisms may provide reasons for why transgender people are still facing the risk of prosecution when they fail to disclose their gender history before engaging in sexual activities. Solutions to fix these problems will also be discussed, and these solutions if implemented may help to prevent transgender people being prosecuted in sexual offence cases.

Firstly, there is a continuation of the imposition of the strict binary sex system within the law; sex and gender, male and female, man and woman are all still seen as strictly separate categories. People are made to choose between being a man or a woman, and they have to make this decision with the intention of remaining as that sex/gender for the rest of their lives.69 Although this may suit some transgender people,70 some gender queer, or gender fluctuating transgender people71 may get left behind in the progression of the law regarding transgender rights. The Act therefore fails to provide some transgender people with any real protection in this regard, especially when they decide not to disclose their gender history before entering sexual relationships. Additionally, the Act marginalises these transgender people further as they have not been recognised within the law, whilst some other transgender people have. Without a GRC it is unclear which rights the court will respect, and enforce especially with regards to those who are currently unable to apply for a GRC or those who do not 68

See S Cowan, â&#x20AC;&#x2DC;Looking Back (To)wards the Body: Medicalization and the GRAâ&#x20AC;&#x2122; (2009) 18(2) Social and

Legal Studies 247.

69

GRA 2004 s2(1)(c).

70

Human Rights Watch, Controlling Bodies, Denying Identities (2011) 6.

71

Home Office, Report of the Interdepartmental Working Group on Transsexual People (London Home Office,

2000) found that it is common for people to switch between genders.

289

wish to apply.72 This is because it is unclear whether a GRC is now the main factor in determining the gender of a transgender person. One solution would be to allow GRCs to remain for those who wish to obtain one, whilst still allowing transgender people who do not obtain a certificate, for whatever reason, to enforce their rights in a similar way. A different solution to this strict binary system is also discussed below in the next section of this Chapter.

Secondly, although the Act allows GRCs to be issued to pre-operative transgender people, it is doubtful whether many are actually granted in practice.73 This is because it is more difficult for a preoperative transgender person to show they have lived as their acquired gender for two years or more.

Furthermore, it also seems unlikely for non-operative transgender people (those who do not wish to under-go sex reassignment surgery) to be granted a GRC.74 This is because it is harder for them to meet certain requirements for the grant of a certificate, such as being able to prove that they intend to stay as one gender until death.75 This also leaves another large number of transgender people in a vulnerable position. Additionally, it leaves enforcement of human rights, such as ‘respect to private life’ under Article 8 of the ECHR, in cases of non-disclosure of gender history in sexual relationship cases, unclear. The solution to this issue also lies in the reformation of the strict binary system, which is discussed in the next section of this Chapter.

Thirdly, a transgender person has to live in their desired gender for two years before being able to apply for a certificate.76 This seems an unnecessarily long time for a transgender person to wait before being able to have their gender legally recognised, as they may face many issues in this time period and may struggle to live in their self-identified gender for this time. There is also the additional problem of deciding how a person has lived in their acquired gender for the required time period. It 72

P Catley, ‘A long road nearing an end? Recognition for transsexual people’ (2003) 25 J Soc Wel & Fam L

277, 282.

73

Cowan, ‘Looking Back (To)wards the Body’ (n38) 249.

74

Ibid 249. .

75

As required under GRA 2004 s2(1)(c).

76

GRA 2004 s2(1)(b).

290

would enable stereotypical judgements to be made about gender, which seems to be taking a step backwards in gender identity recognition. The point still remains however that without having their gender legally recognised, it is likely to leave transgender people more open to prosecution if they fail to disclose their gender history before engaging in sexual activities. This issue has yet to be explored in the courts, however it seems highly unlikely that the courts will prosecute a transgender person with a GRC when they have failed to disclose their gender history before entering a sexual relationship as they are now legally recognised as their acquired gender, and also because a contradiction would be created within the law. Yet, it is clear from recent case law, that transgender people who have not obtained a GRC have been prosecuted. To overcome this problem, the time limit for a grant of a certificate could simply be shortened. A better solution however would be for transgender people not to need a GRC in order to be safe from the potential prosecution of a sexual offence act if they engage in sexual activities without disclosing their gender history. This problem would be resolved by the reform proposal outlined in Chapter Three.

Finally, there is continued homophobia in this area of the law. Transgender people are more likely to be granted a certificate if they are attracted to the opposite gender to which they wish to be legally recognised and, additionally, a trans-person wishing to change their legal sex must also end their marriage in order to gain a GRC.77 This enforces the heteronormative system onto transgender people, which stands out of line with many other areas of the law that now pay respect to the protection of rights for those in gay and lesbian relationships.78 Through the law imposing this heteronormative standard, it reinforces the idea that an individual should only have consensual sex with someone of the opposite biological sex. This means that the court may find a trans-person guilty if they have not disclosed their gender history before having a sexual relationship, especially if they are a preoperative or non-operative transgender person. This heteronormativity was a key issue in the McNally79 case. The decision in this case shows how continued homophobia in the law has transpired 77

Ibid s4(2)-(3).

78

Marriage (Same Sex Couples) Act 2013.

79

McNally (n1).

291

into a case and drastically impacted upon a transgender person’s life. This part of the Act could easily be reformed. It would just simply need to remove sexual orientation as a consideration.

Regardless of the criticisms above, it would be presumed that following on from the developments that have actually been achieved through the introduction of the GRA 2004, that transgender people would not be prosecuted for sexual offences when they have failed to disclose their gender history before engaging in sexual relationships. This is because in the majority of cases, when enforcing transgender people’s ECHR rights, the determinative factor is now gender and not biological sex.80 However it must be noted that a marriage can still be annulled if a person fails to disclose their gender history, and it must be annulled if they wish to gain a GRC.81 Although it is clear that some areas of the law have therefore failed to advance justifiable thinking in gender identity recognition, the courts did have the option to use gender as a determinative factor due to developments in other areas i.e. the enforcement of ECHR rights, and the GRA 2004. Yet this option was not acted upon by the courts in the recent cases. It is therefore unlikely that the legal system will change its approach to these sexual offence cases without a reform of gender recognition legislation. The reform of the legislation, namely the GRA 2004, should address the issues outlined above, and also allow a non-binary system of classification of gender identity for transgender people who do not conform to the strict binary system. This would allow every person’s rights to be respected within the law equally, regardless of whether or not their gender and sex “match”. This could allow different reasoning to be deployed when a trans-person is being prosecuted for failing to disclose their gender history before engaging in sexual activities, and this would hopefully result in the abolition of prosecution in such cases.

1.5

80

The Binary System

L Barnes, ‘Gender identity and Scottish Law: the legal response to transsexuality’ (2007) 11(2)Edin LR 162,

179.

81

Matrimonial Causes Act 1973 s11-12.

292

It is clear in the analysis throughout this chapter that there is still a strict gender binary system present within the law. It can even be argued that it has been enhanced through the recent legislation which imposes a two-gender view of legal recognition. The continued medicalization of the law,82 although it has helped to provide advancement in transgender rights, has further reinforced the two-gender/sex model. This is despite, as Whittle and Turner note, actually disembodying the gender binary system in practice by showing that an individual does not have to be one sex/gender for life.83 In summary of the above criticisms, it can be concluded that there is still a strict binary system present, which makes an individual conform their ‘somatic sex with [their] sexuality and [their] internal sense of sexed/gendered self’.84 The law is therefore requiring transgender people to conform to the heteronormative system so they no longer pose a threat to society. As a result, the law is failing to respect the reality of a spectrum of gender identification.85 This means a great number of transgender people are further marginalised as they do not have their human rights, such as Article 8 and 12 ECHR, respected within the law effectively. The law is not allowing them to be legally identified as the gender/non-gender they define as. It is therefore further imposing “normative” rules onto transgender people, which do not reflect the reality of gender identity.

Due to the law adopting this approach, it fails to take into account the spectrum of genders and sexes that are actually present in society, and to which many people feel they belong. It wishes to make sure all individuals conform to either one sex, or the other, and by doing so leaves open the potential for transgender people to be prosecuted if they do not disclose their gender history before engaging in sexual activities. Currently, it appears that a trans-person has to disclose their sex assigned at birth, 82

Some academics, such as Sanger, believe the continuous use of medicalization has actually taken us a step

back; see T Sanger 'Medicalisation and Trans-subjectivities' (2007) Quest (e-journal) 3 Special Edition: Proceedings of the Gender Research Forum <http://www.qub.ac.uk/sites/QUEST/JournalIssues/Issue3ProceedingsoftheGRF> (accessed 4 February 2015).

83

Whittle and Turner (n34) 12.

84

Cowan, ‘Looking Back (To)wards the Body’ (n38) 247.

85

S Cowan, ‘Gender is No Substitute for Sex: A Comparative Human Rights Analysis of the Legal Regulation

of Sexual Identity’ (2005) 13 Feminist Legal Studies 67, 91.

293

and explain about their gender history, before being able to legally engage in any sexual activity. But what happens if a person does not wish to self-identify as either gender before engaging in a sexual relationship? What happens if a person has always felt like a man, even though he may have, or had, the biological genitalia of a female at birth? Are they required to disclose this fact to a person before engaging in sexual activities with them? Should they be made to disclose these very personal details about themselves?86 In respecting the human and privacy rights of transgender people, the answer to these questions must clearly be that they are not required to disclose such personal details about themselves. However, the current approach of the law does not follow this argument. Instead the law requires a trans-person to disclose these details. If they do not do so, they face the risk of being prosecuted under the SOA 2003.

A simple way to overcome this problem, and the problems outlined in the above section, is to have the gender spectrum reflected in the law. This would allow a person to self-identify as either gender if they so wish, or not conform to the strict binary system, and be afforded legal protection in doing so.

Gender would no longer be a question in the determination of whether to protect a person’s rights in the courts, and this would mean that the law would struggle to find justifications for prosecuting transgender people who have decided not to disclose their gender history before engaging in sexual relationships. Although this would be an extremely noteworthy reform, it is unlikely to be implemented in the near future. The GRA 2004 has made great advancements in gender recognition in comparison to other jurisdictions,87 and therefore it is unlikely to change anytime soon. Although many academics agree and promote the spectrum model, it seems the law will not take this bold step quite yet. Chapters Two and Three will therefore explore the prosecution of transgender people in sexual offence cases in more detail, and propose a reform that is more clearly connected to sexual 86

A Sharpe, ‘Constructing Trans-Cis Sexual Intimacy as Rape: A Novel Cis-Sexist Genre’ (Inherently Human,

23 October 2013) <https://inherentlyhuman.wordpress.com/2013/10/23/constructing-trans-cis-sexual-intimacyas-rape-a-novel-cis-sexist-genre/> (accessed 21 January 2015).

87

A Sharpe, ‘Endless Sex: The Gender Recognition Act 2004 and the Persistence of a Legal Category’ (2007)

15(1) Feminist Legal Studies 57, 64.

294

offence legislation rather than gender recognition legislation. This is not to dismiss the arguments proposed in this Chapter, but in order to draw from them and propose a reform system that is much more likely to be implemented.

1.6

Conclusions

From the analysis conducted in this Chapter, it is clear that the UK has progressed immensely in the recognition of transgender peopleâ&#x20AC;&#x2122;s rights since Corbett.88 However it is also clear that much is still to be done. By imposing the strict heteronormative and gender/sex binary systems into the law, even in the implementation of the GRA 2004, transgender people are not afforded legal protection that truly reflects the reality of gender identity. Although it can be concluded that the most effective way of overcoming the current issues of the enforcement of transgender rights would be to abolish the need for a strict enforcement of the gender binary system, this is highly unlikely to occur in the near future.

Therefore in order to protect transgender people when they do not disclose their gender history before engaging in sexual relationships, a reformulation of the law surrounding consent in such cases would provide a much speedier solution. An analysis of reform surrounding consent in such cases will be conducted in Chapters Two and Three.

Chapter II: Transgender and Sexual Consent

In this Chapter, the SOA 2003 and the prosecution of transgender people for sexual offences when they have failed to disclose their gender history will be explored. In this analysis, particular emphasis will be focused on the two recent FtM transgender sexual offences cases of R v McNally89 and R v Wilson,90 and on sections 74 and 76 of the SOA 2003. It will be shown through the analysis that the law is producing unjustifiable results that stand out of line with recent progression in gender 88

Corbett (n16).

89

McNally (n1).

90

Wilson (n2).

295

recognition, as explored in Chapter One, and also with other â&#x20AC;&#x153;failure to discloseâ&#x20AC;? information cases that can be prosecuted under the SOA 2003. It will be concluded that the current approach taken by the courts is indefensible and in drastic need of reform. It will be argued that this is because the law in this area currently allows unjustified infringement upon the ECHR rights of transgender people, highlights sex as the determinative factor instead of gender, and further reinforces the heteronormative and strict binary system in the law. A reform proposal will be explored in Chapter Three.

2.1

The Sexual Offences Act 2003

The SOA 2003 outlines the current sexual offences in the UK. Although the Act has no separate provisions for the prosecution of transgender people who fail to disclose their gender history, they are open to prosecution in the following offences: rape;91 assault by penetration;92 and sexual assault,93 in specific relation to failing to disclose their gender history before engaging in sexual activities.94 This is because the court has stated that depending on the circumstances and facts of the case, deception as to gender can vitiate consent to sexual activity.95 In R v McNally,96 explored below, it was reasoned that because the complainant had not been fully informed about the gender history of the defendant, her consent should be negated and the defendant found guilty of sexual assault under s3 of the SOA 2003. This is because if the complainant had been aware of this information, it would have affected her decision to participate in the sexual activity.97 Some academics have also agreed with this reasoning by the courts; for example, Rogers argues that if a trans-person fails to disclose their gender

91

SOA 2003 s1.

92

SOA 2003 s2.

93

SOA 2003 s2.

94

Although a transgender person can be prosecuted for other sexual offence crimes, these do not specifically

relate to their transgender identity, and therefore will not be considered in this dissertation.

95

McNally (n1) 601.

96

Ibid.

97

Ibid 600.

296

history, they are failing to respect the sexual preferences of the complainant.98 It will be shown throughout the following sections of this Chapter however that this line of reasoning is flawed and unjustified, and indefensibly infringes upon the human rights of transgender people.

The cases involving transgender people, who have failed to disclose their gender history before engaging in sexual relationships, resolve solely around the issue of consent. As a result, it is necessary to examine sections 74 - 76 of the SOA 2003. However, before a discussion around these sections of the SOA 2003 can take place, it is important to outline the facts of the recent sexual offence cases involving transgender people who have failed to disclose their gender history before engaging in sexual activities. This will show the lawâ&#x20AC;&#x2122;s current position and provide context for the discussion surrounding sections 74 - 76 SOA 2003.

2.2

Recent Case Law

In this section, the two recent transgender cases that have resulted in the successful prosecution of two FtM transgender people will be examined. There has been no recent case law on other transgender identities and therefore they cannot be analysed in detail in this dissertation. However, analogies can be drawn between the FtM transgender prosecutions and potential cases involving defendants of a different transgender identity. It can be concluded that the decisions would be extremely likely to be identical in all transgender identity cases. This is because the reasoning used in the recent FtM cases was independent of the actual trans-identity of the defendant, and instead merely turned on the fact that they were transgender and failed to disclose this fact. Therefore, although only one type of transgender identity is examined in detail, the argument and reform proposed in this dissertation applies to all transgender people.

R v McNally99 98

J Rogers, â&#x20AC;&#x2DC;Further Developments under the Sexual Offences Actâ&#x20AC;&#x2122; (2013) 7 Archbold Review 7, 7.

297

At the time of the sexual relationship the defendant identified and presented as a young male (Justine [the defendant] now currently identities as female and therefore female pro-nouns will be used for the rest of the discussion). At the time of the offence, she was a pre-operative/non-operative FtM (female to male) transsexual; she still had a vagina and had not obtained or applied for a GRC. Whilst identifying and presenting as a male, she engaged in sexual activities with a cis-gender female without disclosing her gender history/sex assigned at birth. The sexual activities included digitally, and orally, penetrating the complainant using her fingers, her tongue and a prosthetic device. She was convicted, after pleading guilty, to six counts of assault by penetration.100 This is because the court ruled that the complainant’s consent had been vitiated due to an active deception by the defendant.101 However the seventh offence, penetration by a prosthetic device, was not prosecuted.102 Justine tried to appeal the decision on the ground that the elements of sexual assault by penetration had not been made out because there was no provision contained within legislation that stated that a transgender person had to disclose their gender history before engaging in sexual activities.103 However, the Court of Appeal rejected this argument because they believed that section 74 of SOA 2003 could be interpreted in such a way as to vitiate the complainant’s consent. The court stated that ‘although in a physical sense the acts of assault by penetration were the same whether perpetrated by a male or a female, the sexual nature of the acts was, on any common sense view, different where the complainant was deliberately deceived by a defendant into believing the latter was male’.104 The court therefore concluded that, depending on the circumstances, deception as to gender could vitiate consent.

This was a very problematic ruling by the court. Firstly, it imposed the heteronormative system into this area of the law, believing unquestionably that this was justifiable and the norm. Through 99

McNally (n1).

100

SOA 2003 s2.

101

McNally (n1) 600.

102

Ibid 596.

103

Ibid 595.

104

Ibid 600.

298

imposing this system onto a large number of people who do not identify as heterosexual, the law failed to acknowledge a range of sexual preferences and the reality of sexual identity in society.

Additionally the court, by making this decision, ruled that Justine, the defendant, was not male even though this was her gender at the relevant time. The court used her sex assigned at birth to determine whether there was a heterosexual relationship, both of which are unjustified means of assessing consent under section 74 of the SOA 2003. Finally, by ruling that certain circumstances would negate consent, but perhaps not others, it leaves the law very open and unclear. This makes it hard for transgender people to know when the law requires them to disclose their gender history. The reform discussed in Chapter Three would inevitably rule out these problems as it proposes to stop prosecution in such cases. These issues only further enforce the need for drastic reform in this area of the law.

R v Wilson105

In this Scottish case, Christopher Wilson, after entering a guilty plea, was convicted of obtaining sexual intimacy by fraud on two counts (under the Scottish Sexual Offences Act 2009). The first concerned a young cis-gender female and the activity was limited to kissing. The second also concerned a young cis-gender female however in this case sexual penetration occurred through the use of a prosthetic device. Christopher was born with a vagina however he identified and presented as a male prior to, and at the time of, the incidents. As this case is unreported, and due to there being no trial, it is difficult to establish with absolute certainty the reasoning used by the courts to justify prosecution. However, as in R v McNally,106 it can be reasoned that the law is appearing to find transgender people guilty of sexual offences when they fail to disclose their gender history because they have committed some sort of ‘fraud’ due to ‘intentional deception’.107

2.3

Consent under the Sexual Offences Act 2003

105

Wilson (n2).

106

McNally (n1).

107

Ibid 595.

299

An examination of sections 74 and 76 will take place in this section.108 This is in order to establish whether consent is justifiably vitiated when a trans-person fails to disclose their gender history.

2.31

Section 76 of the Sexual Offence Act 2003

Section 76 contains the ‘conclusive presumptions of consent’. This section can be invoked when ‘the circumstances are that (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; [or] (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant’.109

Sub-section (b) of section 76(2) is unlikely to be used to prosecute transgender people for failing to disclose their gender history before engaging in sexual activities. The court has never concluded that a transgender person was impersonating someone known personally to the complainant. This is because there is no mistake as to the identity of the person; they were merely identifying as themselves. It is irrelevant to section 76(2)(b) that they were identifying as a gender different from their sex assigned at birth, and did not disclose this fact to the complainant. It is possible that the court could in the future bring a prosecution under this section but it would be poorly reasoned, and just as indefensible as bringing a prosecution under section 74 or section 76(a) of the SOA 2003 in relation to prosecuting a transgender person based on their gender identity.

On the other hand, sub-section (a) has been considered by the court in transgender sexual offence cases where the defendant has failed to disclose their gender history. However, in the cases analysed above, it has not been used to vitiate consent, and instead the courts have turned to section 74 (explored below). This however seems an odd decision by the courts, as the reasoning deployed in the 108

S75 of the Sexual Offences Act 2003 will not be considered as there is no provision in the section containing

an evidential presumption that relates to gender identity disclosure.

109

SOA 2003 s76(2).

300

two recent cases used wording from section 76 in order to justify prosecution. For example, in R v McNally110 the court stated that ‘the sexual nature of the acts was, on any common sense view, different where the complainant was deliberately deceived by a defendant into believing the latter was male’.111 The court clearly argued that the nature of the act had been changed by the ‘deception’ in order to justify the prosecution of the transgender defendant but instead decided to prosecute using section 74. Furthermore, section 76 was even clearly ruled out as a relevant consideration by Leveson LJ. He stated: ‘it was never suggested that the conclusive presumptions applied [section 76 of the SOA 2003], and the relevance of the provision is restricted to the impact on the construction of section 74’.112 This is even though the ‘courts have generally been reluctant to viewing consent obtained by fraud as vitiated under section 74’,113 and the understanding that ‘in theory, convictions might be supported by the conclusive presumption in section 76(2)(a)’.114 Additionally, section 76 has been considered in a number of ‘fraud’ based consent cases, including J v Jheeta,115 R v Devonald116 and R v B,117 albeit not successfully in all, so it could have been assumed that the court would have considered the section in more detail and expanded upon its reasoning for not using section 76 to vitiate consent.

To not prosecute the transgender defendant using section 76 was however the correct decision by the court. Even though, as Sharpe notes, it is possible to argue that the complainants in the cases of R v McNally118 and R v Wilson119 were deceived as to the ‘nature… of the sexual act’,120 turning on the 110

McNally (n1).

111

Ibid 600.

112

Ibid 597.

113

A Sharpe, ‘Criminalising Sexual Intimacy: Transgender defendants and the legal construction of non-

consent’ (2014) 3 Crim LR 207, 209.

114

Ibid 212.

115

R v Jheeta [2008] 1 WLR 2582.

116

R v Devonald [2008] EWCA Crim 527.

117

R v B [2013] EWCA Crim 823.

118

McNally (n1).

119

Wilson (n2).

120

Sharpe, ‘Criminalising Sexual Intimacy’ (n83) 212.

301

facts of the cases, for the offences that were prosecuted, minus the use of a prosthetic device in R v Wilson,121 this would have been difficult to establish. This is because ‘there was no discrepancy between what the complainants thought they were engaging in and what actually occurred.’122 The same sexual acts would still have occurred if the defendants were biologically male.

This conclusion can further be supported by other ‘fraud’ based consent cases that have failed to successfully prosecute defendants using section 76 of the Sexual Offence Act 2003. For example, in R v Jheeta123 a prosecution under section 76 failed because even though the defendant had sent false text messages pretending to be a police officer to the complainant in order to make her continue sexual relationships with the defendant, this did not change ‘the nature or purpose of the sexual act’.124 The reasoning used by the courts in the case, for not allowing the prosecution under section 76 of the SOA 2003, has also been reiterated in the cases of B125 and R v DPP.126 In all of these cases, although there may have been a ‘moral wrong’,127 this still did not change the ‘nature and purpose of the sexual act’ and therefore did not result in a conclusive presumption that consent had failed to be obtained. It is therefore clear that the courts have been reluctant to use section 76 in order to negate consent in other “fraud” based cases and as a result it would have been highly unjustified to prosecute the offences in R v McNally128 under this section.

Additionally, the cases of R v McNally129 and R v Wilson130 can be distinguished from the case of Devonald,131 where deception was found to have occurred under section 76(2)(a). In this case, section 121

Wilson (n2).

122

Sharpe, ‘Criminalising Sexual Intimacy’ (n83) 212.

123

Jheeta (n85).

124

Ibid 2591.

125

R v B (n87) 307.

126

R (On the Application of F) v DPP [2013] EWHC 945, 228.

127

J Herring, ‘Mistaken Sex’ (2005) 7 Crim LR 511, 516.

128

McNally (n1).

129

McNally (n1).

130

Wilson (n2).

302

76(2)(a) was given a wider interpretation than the cases outlined above. The Court of Appeal accepted that the motivation of the defendant could influence the interpretation of the section.132 The defendant in this case pretended to be a 20-year-old female, and seduced a young man (his daughters’ exboyfriend) to masturbate over webcam. The motivation of the defendant was to humiliate the boy.

This however stands in contrast with the complainants perceived motivations of Justine and Christopher in the transgender sexual offence cases. Instead the perceived motivation by the complainants was sexual gratification.133 Additionally, the sexual acts in these two cases took place with people in the same proximity; they could see the person they were engaging in sexual activities with. On these facts, the cases can clearly be distinguished from Devonald.134 This conclusion can additionally be supported by the fact that the judges in both R v McNally135 and R v Wilson136 did not find the elements of section 76 to be satisfied.

To summarise, both recent sexual offence cases, involving transgender individuals who have failed to disclose their gender histories before engaging in sexual activities, have failed to result in the successful prosecution of ‘assault by penetration’ using section 76 of the Sexual Offence Act 2003, or s13(d) of the Scottish Sexual Offence Act 2009. Instead, both cases established consent under section 74, or similar provisions. This is because the ‘nature and purpose of the sexual act’ was not so different as to constitute intentional deception, and therefore could not be reasoned to be a conclusive presumption. This may have been an unintentional decision by the court not to introduce such a presumption under section 76, but it is noteworthy that the court has not introduced such, even though it is unjustifiable that they have prosecuted the offences under section 74.

131

Devonald (n86), which is one of the leading cases on nullifying consent based on intentional deception.

132

Devonald (n86).

133

Sharpe, ‘Criminalising Sexual Intimacy’ (n83) 214.

134

Devonald (n86).

135

McNally (n1).

136

Wilson (n2).

303

On the other hand, for the sexual offence that was not prosecuted in R v McNally,137 penetration by a prosthetic device, it could have been successfully, and justifiably argued that there was a case for prosecution under section 76(2)(a) of the SOA 2003. Additionally, the prosecution for the sexual penetration by a prosthetic device in R v Wilson138 under section 13(d) of the Scottish Sexual Offence Act 2009 is also justified by deploying the same reasoning. This is because ‘the nature and purpose of the sexual act’ was not what the complainant believed it to be, and therefore not what they consented to. The complainants in both cases consented to being penetrated by a penis, yet they were actually penetrated by a prosthetic device worn by the defendant. This makes the nature of the act different, as the sexual activity was not what they believed it to be.

The complainants in both cases may not have consented to the use of a prosthetic device if they were informed before the sexual activity. However it must be pointed out that this conclusion does not infringe upon transgender rights. It is the conclusion to be reached whether or not the defendant is transgender. If a cis-gender male carried out the same activity, it must also be concluded that they would be guilty under this section. This is because the use of the prosthetic device, irrelevant of the gender identity of the defendant, fundamentally changes the nature of the activity that the complainant believes that they are engaging in. Therefore, this is not arguing for the creation of an offence that allows transgender people to be prosecuted for failing to disclose their gender history. Instead, it is allowing every individual in society to be open to prosecution if they intentionally deceive the complainant as to the nature of the act, regardless of their gender identity. This is in order to protect the sexual autonomy of the complainant.139

Additionally, it does not infringe upon Article 8 or Article 14 ECHR rights, or privacy rights more generally, of a transgender person, unlike the offences prosecuted using section 74 explored below.

This is because their gender identity does not come into question when establishing the criteria for 137

McNally (n1).

138

Wilson (n2).

139

J Herring, ‘Human Rights and Rape: a reply to Hyman Gross’ (2007) Crim LR 228, 229.

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section 76. Furthermore, even if it did infringe in some way upon the rights of a transgender person, if for example they believed the prosthetic device to be their real penis in the case of FtM transsexuals, prosecution could still be justified due to the sexual autonomy of the complainant and their right to decide whether they are penetrated by a penis or a prosthetic device.140 The nature/purpose of the sexual activity would still not be what they believed it to be and their rights would outweigh the Article 8 rights of the transgender person. It would be a justified interference by the courts under Article 8(2) of the ECHR.

2.32

Section 74 of the Sexual Offences Act 2003

Finally, section 74 will be considered in relation to the prosecution of transgender people who have failed to disclose their gender history before engaging in sexual activities. Although prosecutions have been successfully used under this section in order to vitiate consent, it will be argued that this is a poorly reasoned and unjustifiable approach by the courts.

Section 74 outlines the general meaning of consent141 and is used in sexual offence cases when section 75 or section 76, considered above, cannot be engaged. It will be shown that the “fraud” cases that have been successfully prosecuted using this section stand out of line with the transgender cases, and therefore the same reasoning cannot be used to justify the prosecution of transgender people who fail to disclose their gender history. Particular focus will be on the fact that transgender people have not actively deceived the complainant.

Firstly, in cases such as Jheeta,142 B143 and R v DPP,144 the court stated that ‘active deception’ could be considered a relevant factor in establishing that consent was lacking under section 74. This is

140

G Doig, ‘Deception as to gender vitiates consent (Case Comment)’ (2013) 77(6) J Crim L 464, 466.

141

SOA 2003 s74.

142

Jheeta (n85).

143

R v B (n87).

305

because the deception influenced the complainant into giving consent to a sexual activity that they may not have otherwise engaged in. This was then considered an applicable consideration in R v McNally.145 The court ruled that consent was nullified because Justine had ‘actively deceived’ the complainant into believing she was a male.146 This is however a problematic conclusion by the court.147 There was no ‘active deception’ by Justine. Instead she identified and presented as a male, which was her gender identity at the time. By concluding that Justine was not male, there was a clear failure by the court to understand gender, especially in light of the GRA 2004. Justine was not deceiving the complainant in anyway, and all she did was not disclose her gender history, or sex assigned at birth, which was in accordance with her Article 8 ECHR right of privacy. 148 This personal information should only be freely given when the transgender person makes the decision to disclose the information. They should not be pressured into doing so, such as this offence seems to require. It was therefore incorrect for the court, on a ‘common sense view’ to rule that Justine had failed to obtain the true consent of the complainant. There is a clear difference between deception and nondisclosure and the courts have failed to appreciate this. Instead, the decision in the R v McNally149 case has unjustifiably blurred the two concepts together and now therefore requires a transgender person to disclose their gender history before engaging in sexual activities, or be open for prosecution because they have “actively deceived” the complainant.

Furthermore, in other failure to disclose cases, material facts have not been considered relevant and therefore have not been required to be disclosed before the sexual activity. In R v EB,150 section 74 of SOA 2003 was not satisfied when a defendant failed to disclose their HIV positive status before 144

R V DPP (n96).

145

McNally (n1).

146

Ibid.

147

Laird K, ‘Rapist or Rogue? Deception, consent and the Sexual Offences Act 2003’ (2014) 7 Crim LR 492,

505.

148

Law Commission, Consent in Sex Offences: A Policy Paper: Appendix C of Setting the Boundaries (London

Home Office, 2000) Vol 2 Para 5.32.

149

McNally (n1).

150

[2006] EWCA Crim 2945.

306

engaging in sexual intercourse. Additionally, religious beliefs, sexual history and wealth are not currently considered relevant factors. Due to the discrepancy between not prosecuting these type of “material” fact cases and prosecuting transgender people who fail to disclose their gender history, it can be said that Article 14 ECHR rights are being breached in an unjustified way.

Finally, in order to find this conclusion under section 74 of the SOA 2003 the court reasoned through a “common sense” view. This ‘common sense’ reasoning used in the case of R v McNally151 is highly problematic. It is a highly subjective concept,152 and allows different people to reach different conclusions. For example, it allowed the court to conclude that Justine was female at the time of the sexual relationship, even though she identified as a male. This casts serious doubts on the authenticity of transgender identity. It furthermore reinforces the systematic transphobia and homophobia of the law, in order to protect gender norms and compulsory heterosexuality. 153 Using a ‘common sense’ view in these cases, it seems that the law is concluding that the biological sex of the transgender person is more relevant than their gender identity.

2.4

Summary of Consent under the Sexual Offences Act 2003

The above section has argued that the courts are finding transgender people guilty of sexual offences, when they fail to disclose their gender history, using section 74 of the SOA 2003. The courts have reasoned that this form of prosecution is allowed because the consent of the complainant has been vitiated due to ‘active deception’, on any ‘common sense view’, by the defendant. In order to successfully prosecute transgender defendants, the courts have therefore blurred a failure to disclose information with an “active deception” and this is problematic in a number of ways.

Firstly, in developing a failure to disclose case into an active deception case, the law is taking a step too far and is extending the law beyond what was intended by legislation. They have transformed the 151

McNally (n1) 600.

152

Doig (n110) 467.

153

Sharpe, ‘Criminalising Sexual Intimacy’ (n83) 221.

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failure to disclose gender history into an “active deception” in order to be able to successfully prosecute the defendants, as other “failure to disclose” information cases have not resulted in successful prosecution (as explored above). This therefore looks as if the court had already reached a decision to prosecute the defendants before applying the law and then reasoned backwards in order to try and support their decision. This is indefensible.

Furthermore, there has been no “active deception” by the defendant in such a case. The transgender person has merely identified as their gender. It appears therefore that the courts have used the biological sex of the transgender person as the determinative factor, even in light of the GRA 2004, which introduced gender as the determinative factor. The law therefore fails to pay respect to transgender identities, and further imposes transphobia and homophobia into this area of the law, as explained above.

Finally, by introducing such an offence into the law, the legal system is infringing upon the Article 8 and 14 ECHR rights of transgender people. Firstly, in relation to Article 8, it appears that transgender people are being forced to disclose their gender history before engaging in sexual activities, or be open to prosecution because they have committed an ‘active deception’. This cannot be justified by the state, and is a clear infringement of their Article 8 right to privacy. Secondly, Article 14 rights of transgender people are also being infringed. By not prosecuting other ‘failure to disclose’ information cases, and prosecuting a failure to disclose gender history cases, the law is discriminating against transgender people. This cannot be justified, as there is no reason for why transgender people should be prosecuted when other defendants who have failed to disclose information are not.

2.5

Conclusions

In this Chapter it has been reasoned through an analysis of recent case law that all transgender people are open to prosecution when they fail to disclose their gender history before engaging in sexual

308

relationships. It has been concluded that this has been allowed due to poor, and indefensible, reasoning by the courts. Additionally, it has been argued that by allowing such prosecutions, the law is unjustifiably infringing upon ECHR rights of transgender people, and has also extended the law beyond its intended scope. A proposal for reform of the law is therefore outlined in Chapter Three.

Chapter III: Reform of Transgender and Consent

In this Chapter, a proposal for reform will be suggested by the author, which includes ideas drawn from Sharpe.154 Taking account of the need to respect the autonomy of complainants in sexual offence cases, the reform will seek to strike a fair balance between the rights of transgender people and those that they engage in sexual activities with. In short, it will be argued that the law should stop prosecuting transgender people for failing to disclose their gender history before engaging in sexual activities, in all cases that merely focus on the gender identity of the transgender person in order to vitiate consent. This is because the law in this area currently infringes upon ECHR rights of transgender people fails to respect transgender identity, and further reinforces transphobia and homophobia in the law. It will also be argued that prosecutions under section 76(2)(a) of the SOA 2003 are justified in cases where a transgender defendant has used a prosthetic device on the complainant without their consent, as this fundamentally changes the nature of the act.

3.1

Justifications for Reform

It is clear through the issues explored in Chapters One and Two that reform of this area of the law should be developed in order to ensure protection of transgender people’s rights. It will therefore be proposed that the approach the courts currently take in “failure to disclose” cases involving transgender defendants should be narrowed. There are three main reasons why the law in this area

154

Sharpe, ‘Criminalising Sexual Intimacy’ (n83).

309

should be reformed by implementing the proposal explored below. These reasons will each be explained in turn.

Firstly, there are compelling public policy reasons against prosecuting transgender people for failing to disclose their gender history before engaging in sexual activities.155 Not only does it infringe upon many ECHR rights of the transgender person, as discussed below, but it also creates a contradiction within the law. The UK currently allows transgender people to legally register as their acquired gender, and also provides funding for sex reassignment surgery. To allow this, and then to allow the prosecution of transgender people in sexual offence cases for failing to disclose their gender history is a major illogicality. Furthermore it reinforces transphobia and homophobia, which have actually tried to be eradicated through the introduction of the GRA 2004, and the Human Rights Act 1998.

Secondly, although respect should be given to the sexual autonomy of the complainant, this does not necessarily act as a trump card to the right of privacy (Article 8 ECHR) of the transgender person156 as Herring has argued.157 A balacning of the rights of both individuals must instead occur. Therefore, it must be shown through Article 8(2) ECHR that the courts are justified in infringing the privacy rights of an individual (the transgender defendant) in order to prevent ‘harm’ to another (the complainant).

The Law Commission has already stated that Article 8(2) of the ECHR cannot be used as a justification by the state in cases involving post-operative transgender people who fail to disclose their gender history before engaging in sexual activities.158 This is because no harm has been caused to the complainant. It is argued that this argument can be further extended to pre-operative/non-operative transgender people, as there is no harm caused to the complainants in these cases also. However it is clear that the courts have not followed this line of reasoning. For example, in R v McNally159 it was

155

Sharpe, ‘Criminalising Sexual Intimacy’ (n83) 208.

156

Ibid 211.

157

Herring, ‘Mistaken Sex’ (n97) 523.

158

Law Commission, Consent in Sex Offences (n118) Vol 2 para 5.32.

159

McNally (n1).

310

stated that there was harm caused to the complainant; this harm was ‘repulsion’.160 However the courts were wrong to conclude that this was a serious enough harm to infringe upon the privacy rights of Justine (the transgender defendant in the case). This is because the “repulsion” was caused by homophobia and transphobia. Although not wishing to trivialise the experience of the complainant in this case, we cannot seek to protect prejudice in this way, especially when there are many laws in place to try and prevent this sort of thinking towards the transgender community. Furthermore, by not extending the Law Commission’s argument in order to protect all transgender people from prosecution, some transgender people are further marginalised and left without protection.

Additionally, on conducting a balancing act between these rights, the Article 8 ECHR right of the transgender person must be given high importance. This is because transgender people ‘are subject to high levels of abuse and violence’161 and this is one of the main reasons why they may wish to not disclose their gender history straight away. It therefore can be concluded that at the moment the ‘primary goal of law in bringing fraud-based prosecutions against transgender people is not to protect sexual autonomy against fraudulent solicitation of sex, but rather to protect gender norms and compulsory heterosexuality’.162 This cannot be justified, and helps to support the reform proposal discussed below.

Finally, there is a legal inconsistency in this area of the law. As Herring has noted, ‘only … [in] very narrowly defined circumstances will a deception “negate” the consent of the victim.’ 163 It is therefore clear that by the state currently allowing prosecution in “failure to disclose” gender history cases, and not in other “failure to disclose” cases, which would be an undesirable extension of the SOA 2003, the court is infringing upon Article 14 ECHR rights of transgender people. They are being prosecuted in a discriminatory manner, potentially due to the consistent transphobia and homophobia within the law.

160

Ibid 596.

161

S Whittle et al, The Equalities of Review: Engendered Penalties: Transgender and Transsexual People’s

Experiences of Inequality & Discrimination’ (London: Press for Change 2007) 23.

162

H Gross, ‘Gender Outlaws Before the Law: The Courts of the Borderland’ (2009) 32(1) Harv J L & Gender

165, 165.

163

Herring, ‘Mistaken Sex’ (n97) 512.

311

This cannot be justified. The law must be made consistent in order to provide a fair and justifiable prosecution system.

The points outlined above provide compelling reasons for why the law should be reformed in the way proposed below.

3.2

Reform Proposal

The main aim of the reform is to abolish the potential prosecution of transgender people under the SOA 2003 when they fail to disclose their sexual history before engaging in sexual relationships when prosecution is based on consent being vitiated due to â&#x20AC;&#x153;non-disclosureâ&#x20AC;? of gender identity. This will still allow the potential prosecution of transgender people when they use a prosthetic device on the complainant, when the complainant believes this to be a penis.

The potential prosecution of transgender people who fail to disclose their gender history before engaging in sexual activities must be reformed in order to bar prosecution. This should be achieved either by the CPS stopping prosecution under section 74 of the SOA 2003, or by the Supreme Court overruling the earlier decisions, such as in R v McNally,164 if a case is presented before them again.

This is because of all the issues that have already been discussed in this Chapter and throughout the dissertation. There is no justification for prosecuting transgender people in such cases.

However, prosecution must be left open to transgender people who use a prosthetic device on a complainant without disclosing this fact. This is because the nature of the act is fundamentally changed when the defendant penetrates the complainant with a prosthetic device rather than a penis.

Prosecution can therefore be successfully reasoned under section 76(2)(a) of the SOA 2003.

164

McNally (n1).

312

Although a FtM transgender person may genuinely believe that this device is their penis, and they have every right in doing so, this gender identity right must be balanced with the complainant’s right to sexual autonomy. Therefore, prosecution should be allowed under the section 76 of the SOA 2003, or section 74 of the SOA 2003 when section 76 cannot be satisfied. This does not create a new offence, but merely allows this form of behaviour to count as conduct that changes the “nature” of the sexual act. There are two main justifications for this proposal. Firstly, the “nature” of the act is fundamentally different when the complainant is being penetrated by a penis, and when they are being penetrated by a prosthetic device. It is not what has been consented to, and there are a number of reasons why a complainant may not consent to such penetration, whether these are on religious grounds, or for health reasons. Secondly, there is no infringement of the Article 14 ECHR right of the transgender person in such prosecution. This is because a cis-gender defendant would also face prosecution for the same act. However, it may be argued that a transgender person may believe the device to be their penis, and therefore this would infringe upon their Article 8 ECHR right of privacy, which would not happen in the case of a cis-gender defendant. The infringement of their Article 8 right can be justified under Article 8(2) of the ECHR however, as there could be harm caused to the complainant in such cases. This is not to say that the right of autonomy of the complainant using Article 8(2) will always prevail in such cases. Each case should instead turn upon its own facts.

Although it is acknowledged that this does leave transgender people open to prosecution in a small number of sexual offence cases, this does not infringe upon their ECHR rights and it necessary to respect the sexual autonomy of the complainant. Additionally, by allowing individual cases involving a prosthetic device to be decided upon their differing facts, the specific circumstances can be taken into account and the most appropriate form of action can be taken by creating a balancing act between the rights of both the transgender defendant and the complainant.

3.3

Conclusions

313

The reform proposed in this section to stop prosecution of transgender people under the SOA 2003, when they fail to disclose their gender identity, can be concluded to be necessary and justifiable.

Additionally, by allowing prosecution under section 76(2)(a) when a prosthetic device is used without the complainantâ&#x20AC;&#x2122;s consent, the correct balance between the protection of ECHR rights of the transgender person, and the sexual autonomy of the complainant, is created. It is heavily proposed that the CPS, and the courts, should adopt this proposal if any further cases were to present themselves.

Conclusions

Throughout this dissertation it has been argued that the law in its current form is unsatisfactory and indefensible, in relation to the prosecution of transgender people for failing to disclose their gender history before engaging in sexual activities.

In Chapter One, it was concluded that the prosecution of transgender people, for failing to disclose their gender history before engaging in sexual activities, is drastically out of line with developments in gender recognition and the enforcement of transgender peopleâ&#x20AC;&#x2122;s rights under the ECHR. It was further acknowledged that if developments in relation to the GRA 2004, and gender recognition, were to occur, this would incrementally help to bar the prosecution of transgender people in sexual cases that turn on their gender identity. Although in this Chapter it was reasoned that these developments were unlikely to occur in the near future, ideas were drawn from such thinking in order to help develop a reform in specific relation to sexual offence legislation, as discussed in Chapters Two and Three.

Chapter Two explored the recent cases that have resulted in the prosecution of transgender defendants for failing to disclose their gender history before engaging in sexual activities, and also the sections of the SOA 2003 that have allowed the courts to successfully prosecute the individuals in these cases. It was concluded in this Chapter that the law is unnecessarily infringing upon the ECHR rights of transgender people in order to protect the sexual autonomy of the complainant, and has extended the

314

law indefensibly beyond its intended scope. It was therefore argued that the law in this area is in drastic need of reform.

Finally in Chapter Three a reform to help better balance sexual autonomy of complainants and the ECHR rights of transgender defendants was proposed. It was argued that the best method of reform would be to bar the prosecution of transgender people for sexual offences that merely turn on their gender identity. This is in order to respect the ECHR rights of transgender people, acknowledge that gender is now the determinative factor rather than sex, and additionally to eradicate the unjustifiable transphobia and homophobia present in the law. Prosecution under section 76 of the SOA 2003, when a transgender person uses a prosthetic device on the complainant, when the complainant believes they are being penetrated by a penis, has however been proposed to remain as an offence, and it has been argued that prosecution in these cases should depend on the individual facts of each case. This is in order to provide protection to the sexual autonomy of potential complainants.

Ultimately, it has been argued that the law in its current form is indefensible. The prosecution of transgender people for failing to disclose their gender history is not only inconsistent with many other areas of the law, but also fails to pay regard to authenticity of gender identity. The discrimination of people in society based on such factors is largely outdated, and the law cannot continue in this form any longer. Reform is not only desirable but very much needed.

Bibliography

European Treaties Convention for the Protection of Human Rights and Fundamental Freedom (European Convention on Human Rights) (ECHR)

Legislation Gender Recognition Act 2004 Human Rights Act 1998 Marriage (Same Sex Couples) Act 2013 315

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Table of Cases Corbett v Corbett [1970] 2 WLR 1306 Cossey v UK (1991) 13 EHRR 622 Goodwin v UK (2002) 35 EHRR 18 R v B [2013] EWCA Crim 823 R v Devonald [2008] EWCA Crim 527 R (On the Application of F) v DPP [2013] EWHC 945 R v EB [2006] EWCA Crim 2945 R v Jheeta [2008] 1 WLR 2582 R v McNally [2013] EWCA Crim 1051 R v Wilson (Unreported: 6th March 2013) Rees v UK (1986) 9 EHRR 56 Sheffield and Horsham v UK (1998) 27 EHRR 163

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