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Gender laws: A brief history

Criminal justice for women

The international treatment

Lydia Grammeno

Sarah Avery

Nicholas McArdle

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TFB 2016 Edition Two The Gender Agenda

E D I TO R I N C H I E F Bianca Newton

E D I TO R S Taylah Mihell Claudia Neal-Shaw Juanita Truong Kate Kemp Kimberly Tran

DESIGNER Joy Li

S P EC I A L T H A N K S Bryce Craig (President) Richard Heng (Vice President)

U T S L AW ST U D E N T ’S S O C I E T Y © This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

F U RT H E R T H A N K S Andrea Forsyth Print Portal 4/102 - 112 Edinburgh Rd, Marrickville, NSW 2204 Tel: (02) 9557 6746 Mob: (02) 0421 446 490 andrea@printportal.com.au

DISCLAIMER All expressions of opinion published in TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest.

The Full Bench (tfb) is published tri-annually in Sydney by:

I M AG E S A N D I L LU ST R AT I O N S

UTS Law Students’ Society PO Box 123 Broadway NSW, 2007 Room CM5A.01.08, City Markets Campus, Cnr of Quay Street & Ultimo Road

All images, unless provided by the designer or commissioned by the TFB for the purposes of this publication, were sourced from royalty-free photo sharing websites, licensed under Creative Commons Zero.

Tel: (02) 9514 3448 Fax: (02) 9514 3427 www.utslss.com


Contents •

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A B O RT I O N L AW S : A N E S SAY Aarahnan Raguragavan

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Isabelle Middleby-Clements

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O H SAY ! C A N YO U S E E . . . B E L I T T L I N G BAT H RO O M B I L L S A N D A N T I - T R A N S G E N D E R H Y ST E R I A

BA R R I E RS TO G E N D E R EQ UA L I T Y

Kimberley Ching

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CO N T E N T S

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F RO M T H E U T S L S S

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President and Vice President's Address

E D I TO R I A L Bianca Newton

E D I TO R ' S Q U E ST I O N Should there be official legislation to support women-only spaces?

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I H E A RT ST R E E T H A R A S S M E N T SA I D # N OW O M A N E V E R Bianca Newton

P ROVO K I N G C H A N G E Zoe Rochford

C I RC L E S W I T H I N C I RC L E S : C R I M I N A L J U ST I C E FO R W O M E N Sarah Avery

U S E I T A N D YO U ' L L LO S E I T Kate Sammut

STO P. H A M M E R T I M E Taylah Mihell v. Francesca Elias Arciuli

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10 W O R D S O R L E S S

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G E N D E R L AW S : A B R I E F H I STO RY

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Nicholas McArdle

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S E N T E N C I N G L AW S : A P RO F I L E O N T H E STA N FO R D R A P I ST

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Lydia Grammeno

N O R R I E : O N E ST E P FO RWA R D Charlotte Regan & Lily Bleach

L E T M E L E AV E Carina Lam

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T H E STAT U S Q U O ( TA ) Kate Kemp

T H E I N T E R N AT I O N A L T R E AT M E N T

Rosie Cotton

J U D G E M E N T DAY Erin Finch

CO N T E N T S

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From the UTS LSS •

B RYC E C R A I G President

RICHARD HENG Vice President (Education)

Achieving equality of any sort should be the hallmark of a progressive society. As future practitioners and leaders of our community, we are in a unique and empowered position to work towards the common goal of gender equality. Outdated and anachronistic perceptions on what it means to be ‘male’ or ‘female’ pervade all facets of our personal, social and professional lives. Gender discrimination exists in many forms; it is often subtle, tolerated and even joked about. It is for these reasons that gender has become an important and necessary aspect of our legal vernacular. This edition isn’t about man-shaming, nor does it signify a revolt aimed at displacing the social fabric. It is about opening up a dialogue, to encourage broadminded informed thinking of how gender and the law interrelate. In flicking through these pages, I hope you find out a little more about the imbalances that exist and how the law addresses (or fails to address) them, whether in relation to workplace safety, consent, transgenderism or gendered biases. Before I hustle, I’d like to take this moment to congratulate Bianca, our Publications Director, for another flawless edition of The Full Bench. I truly hope you enjoy this edition; she has worked arduously to produce it. 04

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Welcome to the second edition of The Full Bench 2016, the official academic journal of the UTS Law Students’ Society (UTS LSS). If this is your first time picking up a copy, allow me to update you on the activities of TFB so far. The first edition of TFB, ‘The Price of Privacy’, focused on the law and policy of privacy that has long been compromised by the rhetoric of ‘if you’ve got nothing to hide, you’ve got nothing to fear’. The edition was a resounding success, so be sure to check it out online if you missed out on a copy. The second edition looks at another matter. Gender. It has been a particularly topical area lately as a result of increased media coverage and a growing progressive movement of recognising and addressing such issues. But this is of course not to say that the current legal response is adequate in any sense. We are unfortunetly still living in an age of great injustice towards the diverse gender and sexuality makeup of our society. The new bathroom laws developing in the United States, the rising statistics of domestic violence and the inadequate sentencing procedures for rape crimes just represent a fraction of challenges in this space. Fundamentally, it is frightening to think that gender still impacts your financial standing, your social value and legal rights. The quality of this edition again comes from the effort of an outstanding team of volunteers. Firstly, I’d like to thank our Publications Director, Bianca Newton, for organising every facet of this publication to perfection. I also thank Richard Heng, our VicePresident of Education, for his support, as well as the entire Education Publications subcommittee for their involvement, insight and contribution. The breathtaking visuals again come from Joy Li, who we are so thankful to have on our team this year. Her artworks work in a seamless harmony with the articles and truly add value to each piece. And as always, I would like to thank our contributing members for submitting their insightful additions to make what is now a well-rounded final product. I hope that this edition can widen your understanding, open your eyes and spark your interest. Ideally, The Full Bench acts to inspire our members to actively engage and advocate in areas of injustice and contribute to the bettering of life for all.


Editorial •

“Woman is the companion of man, gifted with equal mental capacity… If by strength is meant moral power, then woman is immeasurably man’s superior…If non-violence is the law of our being, the future is with women.” —Ghandi

B I A N C A N E W TO N Editor in Chief

W E LCO M E TO TH E S ECO N D E D ITI O N O F TH E FU LL B E N C H FO R 2016! The last couple of years have signaled a dramatic change in the way people have begun to see gender through the eyes of the law. Earlier this year, the government rolled out new advertisements raising awareness of the rising rates of domestic violence. Laws were implemented in some States in America where transgendered people could not use certain bathrooms. People argued for new legislation creating specific female-only train carriages and beaches. In 1984, the Sex Discrimination Act 1984 (Cth) came into force, making it against the law to discriminate against someone on the basis of gender, sexuality, marital status, family responsibilities or because they are pregnant. We have come a long way since 1984 and things have changed again. Today, we are seeing a dramatic increase in the numbers of those affected by domestic violence. Today, we are learning more about what it means to be Transgender, but are there adequate protections in place? This edition would like to explore these issues further and investigate their potential future direction. Our

contributors have produced enlightening and engaging pieces for our readers. Lily Bleach and Charlotte Regan have co-authored a piece exploring the effects of the Sex Discrimination Act 1984 (Cth) on transgendered persons in regards to their legal status. Further, Isabelle Middleby Clements and Zoe Rochford explored consent and the issues surrounding evidence in sexual assault cases. As with the publication of any UTS LSS piece, there are many people to thank for their contributions and creative efforts. Without the dedication of students, TFB would hardly exist! Firstly, we would like to thank the UTS LSS President, Bryce Craig, and the Vice President (Education), Richard Heng, for their unwavering support and assistance. Secondly, without the help of the incredible Joy Li, the aesthetics of TFB would be sorely lacking! As our wonderful designer for this year, we extend our gratitude for her endless hours of work. Be sure to ‘Like’ The Full Bench on Facebook to keep up-to-date with all TFB related news and ways to be involved with TFB this year! E D I TO R I A L

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ED ITO R’S Q U E STI O N

Q: Should there be official legislation to support the implementation of womenonly spaces, including car spots, beaches and compartments on public transport.

B I A N C A N E W TO N Editor in Chief

• Originally, and perhaps naively, I believed these attempts at protecting women were called for. After all, both history and the media have conditioned women as the ‘fairer sex’ to feel vulnerable in confronting situations and shy away from being anything but ‘nice’. Studies have shown that women feel the need to be polite in order to avoid conflict and escape unscathed. Why shouldn’t women have a place where they can feel safe? Over the last few years we have learnt that this space is not always in the home and it certainly isn’t always on the streets. The rising rates of domestic violence and the street harassment doesn’t end when she boards the train or leaves the grocery store, so would it be such a terrible thing to have legislation requiring that certain public transport compartments are solely for women? It would be nice to say that we have reached a point where legislation to prevent the feeling a woman gets walking home alone at night is unnecessary. But we haven’t. Originally, I believed these female-only spaces were a possible answer. But they are not. They are not the answer because secluding women generates the belief that it is a female-focused issue rather than a societal problem. It is not fair, or just, that a woman should be targeted for her gender when the issue is not with her, but with society’s capacity to deal with the root of the problem. We must build on existing legislation and investigate whether it is strong enough to tackle the real issue, and if not, establish new laws that strive towards building a future based on equality of the sexes. I am genuinely supportive of creating spaces for women to feel safe and valued, but a pink carriage and an isolated beach is not the answer. It cannot be. 06

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K AT E K E M P Editor

♦ Do we need women’s only spaces? If you had asked me this six months ago I would have said without a doubt that we need to support women’s only spaces with legislation- bring on the pink train carriages and the pink car spots. Today, I am almost completely opposed to this. The reality of the situation is that Australians have a deeply ingrained cultural view of women; our domestic violence and assault statistics support this. We have a clear issue with violence against women and the competing view that we must do something to protect women. But ‘pink’ spaces are a bandaid solution to a much more complex problem. We need to educate the masses, we need to start from the ground up and break the entrenched cultural beliefs about women. Money that could go towards ‘pink’ spaces should go towards education programs in schools that teach girls and boys that violence against women isn’t okay. It is important to teach them that women deserve to feel safe in a train carriage or on the beach. Bringing in ‘pink spaces’ only re-enforces the idea that violence against women and women feeling safe on streets is a problem for women to deal with not for us as a society to deal with. Women shouldn’t have to ride in a pink carriage to get home from work at night. They should feel safe enough to ride in a regular carriage without fear of being abused or assaulted.

TAY L A H M I H E L L Editor

♦ The legislative implementation of womenonly spaces is recognition of the unfortunate, unpalatable but nonetheless accurate notion that women are, overwhelmingly and disproportionately, physically assaulted by men rather than women. To acknowledge this at law is not to shame men, victimise women or to attempt to create any ‘gender divide’. Rather, the creation and acknowledgement of women’s spaces through legislation should result in a reduction in incidents of physical violence against women in public spaces, and a society in which women feel (and are) safer. In a country where 1 in 3 women do not feel safe in public spaces at night, creating women’s only carriages on trains, for instance, should dissuade violence against women in these locations. On a final note—I (and I would assume most people) hope to one day live in a society where men do not disproportionately hurt women. Until that time, it should be the law’s role to assist in protecting women from gendered violence by implementing safe women’s only spaces.


T H E C O N C E P T T H AT W O M E N - O N LY S PA C E S I S S E X I S T I S M I S C O N S T R U E D. I T I S A P R O - A C T I V E A P P R O A C H T O ENSURING WOMEN FEEL SAFER AND CONFIDENT BUT I M P L E M E N T I N G L E G I S L AT I O N I S N O T F E A S I B L E .

J UA N I TA T RU O N G

C L AU D I A N E A L - S H AW

Editor

Editor

It is not necessary to have legislation to support the implementation of womenonly spaces as sex segregated locations are not the answer to end harassment, sexual assaults, and violence against women. In theory, the concept may seem like a good idea, nevertheless, putting it into practice is often difficult to execute and sustain. For example, the suggestion to have womenonly spaces on public transports is not a new idea. Several countries around the world such as India and Japan have already implemented women-only carriages to combat sexual harassment and assault. This year in April, there was a discussion to introduce women-only pink carriages on trains in NSW. However, there are several issues with such a proposal. Firstly, having women being herded into a pink carriage makes them an easier prey for attack, as their location is clearly identified. Therefore, there is no guarantee that women will be protected. Secondly, there is a lack of consideration for the LGBTI community who may be just as susceptible to an attack due to their appearance and/ or sexuality. Overall, it is important to keep all public institutions and spaces open for all genders without discrimination, which is why such legislation is not needed. Rather than introducing women-only spaces, taxpayers’ money may be put to better use with the increase of security presence and surveillance measures as well as public campaigns and education programs to change the existing attitudes and behaviour towards women.

I think what we’re concerned about here is the safety and protection of women. These potential mechanisms serve to protect more than 50% of the population who have generally been characterised as a vulnerable group. What these mechanisms must not do is further segregate the sexes, which could ultimately be detrimental to the feminist plight. One of my favourite words tossed around in the law is ‘reasonable’. Are these methods reasonable? Is it reasonable to assume that women would feel safer in car parks closer to shopping centre entries? Is it reasonable to assume that separate public transport compartments would protect women from catcalling and violence? There would need to be a framework to which the legal system could create and regulate women-only spaces. There would need to be a clear and direct purpose and/or goal to be achieved in each space. Whether it is to decrease violence towards women in a certain area or ensure the safe travel of women home, these goals would need to be categorised. What will be disadvantageous is to eliminate the role of men in the dialogue around women-only spaces. To have a male representative sharing the concerns on behalf of the male population would be valuable in the decision making around topics such as these. Separation, segregation and exclusivity can be ugly words and have ugly consequences. We must ensure they are not reflected in the decisions we make.

K I M B E R LY T R A N Editor

♦ The concept that women-only spaces is sexist is misconstrued. It is a pro-active approach to ensuring women feel safer and confident but implementing legislation is not feasible. The focus should be on improving women’s safety and deterring crimes. The main concern with the use of female friendly car parks is that it will bring a false sense of security. There is the argument that predators will target these zones and take advantage of the space. There are different approaches that could be taken. CCTV presence could be enhanced and the number of lights could be increased in parking areas to ensure women feel safer when walking home or to their cars. Secondly, a stronger staff presence on trains and the installation of more emergency help points for women to report safety concerns to train guards is more effective. However, it depends on the country. Implementing official legislation could possibly be more effective in places with larger-scale harassment like New York. However, there is ample evidence to reflect that even the law has limits. Likewise, the idea of women-only beaches is not practical since it is not an act of positive discrimination for women but instead isolates women from society on the basis of protecting them from sexual abuse and violence. After all, shouldn’t we be targeting the harassers? The aim should not be to exclude or isolate women. E D I TO R’S R E S P O N S E

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@Janelle Thomy

Legislation should enforce the evolving perceptions of equality in society.

Words

@Sonali Malhotra

Less

@Nicholas Ruff

or

Pink is for girls and blue is for boys. That's how it goes right? Wrong. Gender is socially constructed and the law must get on board. For ‘girls will be boys and boys will be girls. It’s a mixed up, muddled up, shook up world...’ But do we understand the ramifications? It is no secret that there has been debate surrounding the introduction of gender sensitive laws and the reshaping of current legislation to reflect changing perspectives. Is this the role of the law? Is gender an important consideration in the law?

Law reform is fundamental to combatting issues of gender inequality. Yes, gender consideration is needed for legislative reform. @Christina Knezevich

Gendered biases underpinning the law must be challenged. @Mahrukh Hamayun

It’s the elephant in the room which must be addressed. @Jason Corbett

Progression is recognising and accepting certain issues are inherently gendered. @Amanda Ceruti

There should be full opportunity for all in the law work force. @Brigida Johns

Equality for women means advancement for men and women. @Breanna Nobbs

Gender equality is a fundamental human right, needing legislative reform. @Rosie Cotton

Gender needs to be addressed socially first, rather than legally. 08

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G E N D E R

L A W S

A Brief Histor y

W R I T T E N BY Lydia Grammeno

H ow yo u a r e t r e a t e d i n t h e w o r k p l a c e , t h e r i g h t s yo u a r e g r a n t e d a s a c i t i z e n a n d m a ny o f t h e d e c i s i o n s yo u m a ke e v e r y d ay a r e a f f e c t e d by g e n d e r a n d i t s i n t e r p l ay w i t h t h e l a w. Lyd i a G r a m m e n o e s t a b l i s h e s a b r i e f h i s t o r y a n d r a t i o n a l e b e h i n d g e n d e r l a w s from a domestic and international viewpoint.

Our laws play an important symbolic function; especially those that guarantee equal protection and equality. Antidiscrimination laws are designed to prevent pervasive discriminatory practices in our society by establishing a set of principles and providing a mechanism of complaint for those affected. They also attempt to change the way society functions by gradually discouraging and eradicating discriminatory practices. One of the ways that this is achieved is by prohibiting the less-favourable treatment of a person based on a particular ground such

as sex, or gender. Broadly speaking, gender laws attempt to provide the necessary legislative framework that allows for full and equal participation of all people in the public sphere. Whether or not current gender laws are successful in realising this agenda is a question that continues to be debated. However, there is no doubt that laws aimed at preventing discrimination on the ground of one’s gender have taken large strides in recent years and provide an inherent watermark that the behaviour of individuals ought to be measured against. A RT I C L E S

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Where We Have Come From

t i m e

1950–60s: Men as breadwinner, women as domestic housewife

1966:. Ban on forced marriage retirement lifted in Australia

1983: Australia became a party to the CEDAW

1983: The Sex Discrimiation Bill introduced into the senate

1984: The Federal Parliament enacted the SDA

2013: SDA amended to include gender and intersex status

l i n e

Prior to the enactment of anti-discrimination legislation, discriminatory practices that disadvantaged women—especially in workplaces, and in employment advertisements, superannuation and administrative practices—were as common in Australia, despite our democratic traditions, as they still are in many other places today. In the 1950s and 1960s, men were typically expected to take the role of provider in the family, while women were more often limited to domestic concerns. Women who did work outside the home were excluded from some types of work, paid less than men for comparable jobs, and expected to give up their employment on marriage or in the advent of a pregnancy. In fact, the marriage bar deemed women in the Commonwealth public service to have retired upon their marriage up until 1966 when the ban was lifted, making Australia one of the last democratic countries to do so.¹ On 17 August 1983 Australia became a party to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). In 1984, the Federal Parliament enacted the Sex Discrimination Act (SDA), which was one of the key mechanisms for incorporating the rights protected and promoted under CEDAW into domestic legislation. However, this was by no means a smooth process. The Sex Discrimination Bill 1983 (Cth), which was

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introduced into the Senate on 2 June 1983 involved ‘more hours of debate than any preceding piece of legislation had ever attracted.’² The passing of the SDA was also met with intense opposition from large sectors of the community. It was suggested that a piece of legislation such as the SDA would ‘bring about the end of the family, ruin the economy, undermine the male labour force and destroy Christianity and the Australian way of life.’³ Miraculously, we survived and live to tell the tale. In many ways, the passing of the SDA was a defining moment in Australia’s legal and social history. It has been viewed by many as ‘a vital commitment, by the Parliament on behalf of the people of Australia, that sex discrimination was unacceptable and should be prohibited by law.’ ⁴ Over the past 32 years, the SDA has undergone 34 amendments in response to shifting societal views, changes in public policy and international developments aimed at fostering a broader notion of gender equality. For example, in 2013, the SDA was amended to include the grounds of gender preference and intersex status.⁵ Other statutes dealing with gender inequality have also been enacted, such as the Workplace Gender Equality Act 2012 (Cth). Gender laws, together with the statutory responsibilities of the Australian Human Rights Commission, have opened the eyes of many Australians to the inequalities and injustices faced by others on the basis of their gender.


Where Should We Be Going?

¹ Dr Marian Sawyer, ‘Women and Government in Australia’ (18 May 2016) 1301.0 – Year Book Australia 2001 – Australian Bureau of Statistics <http://www.abs.gov. au/ausstats/abs@.nsf/ Previousproucts/1301.0Feature%2 Article52001?open document&tabname=

So far, the SDA has had a positive impact in terms of overt forms of discrimination, but has had a limited affect on addressing systemic and indirect discrimination.⁶ Furthermore, Australia continues to lack a strong body of anti-discrimination jurisprudence as a result of the unclear policies that underpin legislation such as the SDA.⁷ Arguably, an inherent problem with the current approach is that in many instances, the law operates as a solution rather than a prevention by virtue of the complaints based nature of the SDA:

gender discrimination continues to prevail over genuine tolerance, equality and respect. Thus, as future practitioners, politicians, policy makers, commentators, activists, academics, or whatever role we choose to pursue, we have an important role to play for the future of this country and the laws that govern it.

Summary&prodno= 1301.0&issue=2001&num =&view=>. ² The Hon Susan Ryan AO, ‘The ‘Ryan Juggernaut’ Rolls On’ (2004) 27(3)

University of New South Wales Law Journal 828, 830. ³ Ibid 829. 4

Beth Gaze, ‘The Sex

Discrimination Act After

Twenty Years: Achievements, Disappointments, Disillusionment and Alternatives’ (2004) 27(3) University of New South Wales Law Journal 914. 5

Sex Discrimination

Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth). 6

See generally

Australian Human Rights Commission, ‘Face The Facts: gender Equality’ (19 May 2016) < https:// www.humanrights.gov. au/education/face-facts/ face-facts-genderequality>. 7

Neil Rees et al, Austra-

lian Anti-Discrimination Law (The Federation Press, 2nd ed, 2014) 3. 8

Martha Albertson

Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20(1) Yale Journal of Law and Feminism 1, 4-5. 9

United Nations Human

Rights – Office of the High Commissioner, ‘Combating Discrimination Against Women’ (20 May 2016) <http://www.ohchr.org/ EN/Issues/Discrimination/ Pages/discrimination_ women.aspx>.

The general tendency under a sameness of treatment equality framework is to focus on individuals and individual actions. The task under this approach is to identify the victims and the perpetrators of discrimination, as well as to define what were the prohibited activities, the individual injury, and the specific intent involved in each occurrence. Unless they are tied to individuals and discrimination, systemic aspects of existing societal arrangements are left out of the picture. […] Because neither inequalities nor the systems that produce them are inevitable, they can also be objects of reform.⁸ If the law really does have the power to affect change in this area, then it must do so by targeting systemic and institutionalised causes of discrimination, for example by imposing positive duties or mandatory action plans within institutions so that discrimination is neither encouraged, excused or accepted. Australia’s gender laws are not perfect, and in many respects have a significant way to go in order to achieve true equality and change culturally entrenched practices and understandings of gender. With that being said— perhaps we should take a moment to consider those who do not enjoy the protection of laws prohibiting discriminatory practices based on gender. Rights and entitlements for women in conservative, traditional societies in many parts of the world are still heavily restricted. In Saudi Arabia, for example, male guardianship laws treat women as perpetual minors, requiring them to have the written consent of their guardian in order to attend university, get married, work, or travel abroad. Overall, ‘women work two-thirds of the world’s working hours and produce half of the world’s food, yet they earn only 10% of the world’s income and own less than 1% of the world’s property.’⁹ One of the fundamental and possibly the most simple reasons as to why gender laws are just as important today as they were in 1984 is because, unfortunately,

fig 1. Women work twothirds of the world’s working hours

fig 2. Women produce half of the world's food

fig 3. Yet they earn only 10% of the world's income

1% women 99% men

fig 4. And own less than 1% of the world's property

A RT I C L E S

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Norrie:

One Step Forward The Gender Binary in Australian law W R I T T E N BY Charlotte Regan & Lily Bleach

The law’s reliThe court ance on a normthen reviewed the In the last few years, there have been significant social ative conception of Registrar’s subdevelopments in the perception and legal changes male/female bodies, mission that it was sexualities and lives has beyond their scope of surrounding transgendered people. Charlotte been criticised for ignoring power to register Norrie as Regan and Lily Bleach examine the key gender ‘non-specific’ because the biological and lived realities case of Norrie and the interplay the Act only codified male and of transsexual and intersex people of case law with existing female categories. The High Court and marginalising non-binary sex legislation. reasoned that it was unnecessary to identities to unfairly restrict access to consider whether the Act contemplated rights and recognition.¹ The most obvious example is the Marriage Act 1961 (Cth), in the existence of specific categories of sex other than male and female as the Act recognised that a which ‘marriage’ is defined as ‘the union of a man and a woman to the exclusion of all others’.² However, person's sex may be indeterminate.⁶ The chief reason legal developments have increasingly acknowledged for their conclusion was that a sex affirmation progender identity within and outside the normative ideal cedure, as defined by s 32A (b), was predicated on the assumption that not everyone may be classified as by creating multiple pathways for people to alter their legal sex identification.³ male or female.⁷ If the Act did indeed proceed on the The landmark decision in NSW Registrar Of Births, assumption that the only categories of gender were female or male, then s 32A (b) would be redundant.⁸ Deaths And Marriages V Norrie [2014] HCA 11, for example, held that the New South Wales Registrar has Thus the Act did not require that people who remained the power to register an individual's sex as ‘non-specific’, of indeterminate sex after their sex affirmation as an individual’s sex may not only be male or female. procedure be recorded as either male or female. In other By challenging the binary classes of sex that underpin words, the High Court held in support of the proposition our legal framework, the case marks a step forward in brought forward by Norrie that ‘not all human beings the recognition of transgender rights in the Australian can be classified by sex as either male or female’.⁹ legal system. The facts of the case were unusual as they negated – Impact – the law’s dimorphic assumption of gender. The respondent, Norrie May-Welby, was born male. She* under went a sex affirmation procedure in 1989, but felt Norrie represents legal acknowledgement of indivthat her sex remained ambiguous. She applied for a iduals who exist outside traditional notions of gender. change of sex to be registered as ‘non-specific’ in 2009. While the decision focused on the specific wording of the NSW legislation, so it is not legally binding Initially, the Births Deaths and Marriages Registrar on the jurisdiction of other states and territories, (“Registrar”) approved her application. Later, however, the recognition that sex can exist outside male and they revised their decision, stating that her initial Recognised Details (Change of Sex) Certificate was female categories could potentially influence judicial invalid. Subsequently they re-issued her certificate, consideration in other states and territories.¹⁰ recording Norrie’s sex as ‘not stated’. The case was an Norrie’s case was unique in that she was not in a appeal to the High Court from the third instance. period of transition, nor was she confused by her sex. The High Court firstly considered the purpose of Like many androgynous people, Norrie was satisfied that she did not identify with being male or female, the ‘sex affirmation procedure’ under s 32A: to become male or female⁴ or to correct or eliminate ambiguities and believed she had a right to have her ‘non-specific’ relating to sex.⁵ However, Norrie considered the status legally accepted. While earlier legislation only surgery did not resolve her sexual ambiguity, hence her recognised transgender people if they were in a state of transition from male to female or from female to application to be formally identified as having a ‘nonmale, Norrie’s case defies this, illustrating the courts specific’ gender. 12

TH E F U L L B E N C H


willingness to consider sex as something Identity and Intersex Status) Act 2013 (Cth), that is not only reflective of one’s physical reiterates that legally recognising intersex OUR anatomy but rather their own identity and status for the purpose of providing antiL E G I S L AT I O N self-awareness. discrimination protection, ‘is not intended REMAINS The case also espoused the ‘third sex’ to create a third sex in any sense’.¹⁸ It is FOU N D ED apparent the law is in a state of flux. The approach, which accounts for any variation ON ARC HAIC from the male/female binary, such as an law will offer transgender people protection VIEWS OF unspecified sex.¹¹ Some have championed from discrimination yet they will not grant S E X , R AT H E R this approach as a radical challenge to the them full legal recognition, making people rigidity of the gender binary system. question how progressive our law really is. THAN Many members of the intersex comThe recent movement in the United States E V O LV I N G munity, however, expressed dismay that the to allow transgender individuals to use the S O C I E TA L judgement in no way resolved the issues bathroom of the gender they identify further VA L U E S A N D around male and female assignments.¹² illustrates Australia’s limited progress in NORMS. The decision of the High Court does not addressing the relationship between the law alter the existing criteria, which sets and gender-neutral rights. While our legal surgery as a prerequisite for transgender and gender system is coming to the table and becoming less rigid diverse people to register a change of sex. Thus, in their approach to gender recognition, are they truly the issue of sex identification remains whether the ready to ‘play the gender card’? criteria for male and female assignments should * This article refers to Norrie with the female pronoun in accordance be based on self-identification, medical opinion or with the High Court proceedings social recognition.¹³ In many ways, a third sex category can be seen as 1 Julie A Greenberg, ‘Deconstructing Binary Race and Sex Categories: A a way of purifying the existing two sexes by allowing Comparison of the Multiracial and Transgendered Experience’ (2002) 39 people who are anatomically 'impure' to be assigned San Diego Law Review 917; Tey Meadow, ‘“A Rose Is a Rose”: On Producing otherwise.¹⁴ Arguably, it may serve to limit and Legal Gender Classifications’ (2010) 24 Gender and Society 814. marginalise, rather than recognise and validate, sex 2 Marriage Act 1961 (Cth), s 5. 3 Theodore Bennett. ‘“No Man’s Land”: Non-binary Sex Identification in and gender diversity.¹⁵ Rather than creating a third Australian Law and Policy’ (2014) 37 University of New South Wales Law sex category when it may only further stigmatise Journal, 847, 854. those assigned to it, all adults should have the right to 4 Births Deaths and Marriages Registration Act 1995 (NSW), s 32A(a). not specify their sex.¹⁶ In other words, the law would 5 Ibid, s 32A(b). 6 Ibid, 499. de-emphasise sex identification altogether. 7 Ibid, 498. Despite all the apparent gains of the case, Registrar 8 Ibid. of Births Deaths and Marriages (NSW) v Norrie should 9 Ibid, 492. be understood in the context as being a fraction of the 10 Louise Brown and Anna Brown, High Court recognises that “sex” in growing trend of reassessment of sex and gender in NSW may be other than male or female, (2 April 2014), Human Rights Law Centre, <http://hrlc.org.au/high-court-recognises-that- sex-in-nsw-mayAustralian law. be-other-than-male-or-female/>. Our legislation remains founded on archaic views 11 Bennett, above n 3, 855. of sex, rather than evolving societal values and norms. 12 Gina Wilson, On Norrie v NSW Registration of Births, Deaths and The Sex Discrimination Amendment (Sexual Orientation, Marriages (22 June 2013) Organisation Intersex International Australia Gender Identity and Intersex Status) Act 2013 (Cth) <http://oii.org.au/22681/norrie-v-nsw-registrar-of- birthsdeaths-andmarriages/>. amended the Sex Discrimination Act 1984 (Cth) to forbid 13 ACT Law Reform Advisory Council, Beyond the Binary: Legal discrimination as a result of gender identity or intersex Recognition of Sex and Gender Diversity in the ACT, Report No 2 (2012) 32. status.¹⁷ Prima facie, these amendments may insinuate 14 Wilson, above n 13. 15 Bennett, above n 3, 859. a development in the recognition of gender diversity. 16 Wilson, above n 13. . However, the amendments are limited to providing 17 Sex Discrimination Act 1984 (Cth) ss 5B and 5C. protection from discrimination of transgender and 18 Explanatory Memorandum, Sex Discrimination Amendment (Sexual intersex individuals. Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth) 12; The explanatory memorandum of the Sex DisTheodore Bennett ‘No Man's Land: Non-Binary Sex Identification in crimination Amendment (Sexual Orientation, Gender Australian Law and Policy’ (2014), 37(3) UNSW Law Journal 870. A RT I C L E S

13


W R I T T E N BY Carina Lam

Domestic violence has become an increasingly significant issue as of late, evidenced by the Government’s new ‘Stop it at the Start’ campaign. But are employers taking every necessary step to ensure the effected are receiving support at work? Carina Lam writes a brief introduction into the issue of ‘family violence’ leave. The significance of the gender factor in social policy and law has had a steady increase over the last 50 years. It was observed in the 1970s when paid maternity leave was the industrial issue of the time, and the more recent development of gender-neutral paternal leave that parallels the increasing gender balance in modern parenting and domestic household dynamics. The same ‘gender-balanced’ approach can be taken toward domestic violence, also known as family violence. The introduction and use of the gender-neutral term signifies a shift away from prescriptive gender stigmas. It also recognises that violence taking place in the family home affects all members, including children. Pledges made by way of the United Nations and other conventions¹ and national plans² are evidence of attitudinal shifts both nationally, and abroad. Recent changes made by the current government regarding the family violence leave of their own employees goes against the position of the government on this very issue. The Australian Law Reform Commission (ALRC) considers family violence leave a basic core requirement, one to be paid, flexible and easily accessible where necessary. Safeguard measures to maintain confidentiality of personal information and integrity of the leave system³ also need to be in place. The current forms of leave entitlements are: parental leave, annual leave, personal/carer’s leave, compassionate leave, community service leave, and long service leave. Where family violence takes place over a long period of time, people may quickly exhaust their leave entitlements.⁴ The provisions do not sufficiently provide for the needs of individuals experiencing family violence. The ALRC recommends implementing a minimum 14

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statutory entitlement, alongside bargaining and enterprise agreements, to ensure that access to family violence leave is made a priority. This report raises the importance of data collection in relation to both the monetary and non-monetary costs to the Australian economy and businesses in relation to family violence.⁵ Advised by expert panel members from employment, social security, child support, superannuation, migration and income management; the report is indicative that family violence is at the junction of disciplines—as a social, occupational and economic creature. A change in vocabulary seems novel nevertheless. It is a small but significant rouse in the ‘domestic’ or ‘family’ violence discussion. Its message impliedly shifts the strict gender stereotypes held by domestic violence and it promotes a more holistic understanding of an issue that affects all members of families. It is hoped that with this gender-neutral approach, the reports made by the various bodies stated above will be taken seriously and domestic violence leave will be implemented. It is no secret that whether you are a man or a woman being affected, the issue is serious and needs to be handled as such, even by employers who have the potential to make a difference in regards to this matter.

1

UN Convention on the Elimination of All Forms of Discrimination

Against Women. 2

Commonwealth of Australia, National Plan to Reduce Violence Against

Women and their Children (2010-2022) (2011). 3 Fair

Work Act 2009 (Cth) Ch 2, pt 2-2, div 5-9.

4 Australian

Law Reform Commission, Family Violence and

Commonwealth Laws – Improving Legal Frameworks (ALRC Report 117), The National Employment Standards, 17.30. 5

Ibid, 17.32.


Abortion Laws – A N E S S AY –

W R I T T E N BY

Aarahnan Raguragavan

Abortion is a controversial topic that can warrant criminal punishment for the unlawful termination of an individual’s life. But why is it criminal? And in turn, is criminalisation justified? Aarahnan Raguragavan examines both side of the debate, drawing on the law in NSW to examine the arguments behind abortion: right to life and right to choice. As Rankin identifies, abortion is a subject which elicits diverse responses. In Australia, the current law on abortion is governed by state provisions which implies that there is no national uniformity on this issue.¹ The implications of such law are that the scope of this paper is limited to the NSW interpretation on the abortion debate. Reflecting primarily on the Wald judgment and the critical case of CES v Superclinics (Australia) Pty Ltd as a focal point for discussion on issues raised, this paper looks to the justification of arguments for and against abortion.² The arguments against abortion centre on the views of wrongful life and wrongful birth. Further, the inherent right to life and negligence arising out of reckless indifference is looked upon from a criminal perspective and whether there are sufficient grounds to permit abortion. On the other hand, arguments for abortion include rightful termination of life after injuries sustained due to preexisting medical conditions. In conclusion, this essay will provide readers with the opportunity to make up their own mind on the issue and suggest possible reform in order to become more incorporative of changing perceptions on this issue.

THE CURRENT POSITION IN NSW In NSW the current position on lawful abortion is heavily influenced by the Wald test.³ This test focuses on the honest and reasonable belief of a medical practitioner that the foetus presents an imminent danger to the mother’s physical or mental health, rather than the characteristics of the foetus. Much of the law on abortion in Australia, and therefore NSW has been taken from s58-9 of the Offences Against the Person Act 1861 (UK)⁴ which criminalises the intent and actions of a woman who procures the death of a foetus unlawfully. Practically speaking, the only difference in the interpretation and application of such law in NSW is the difference in penalty for the offence. But what makes Abortion criminal? Or does the woman have a necessity arising out of a medical condition that would lawfully permit such practice that deprives the right to life of an unborn child? It is useful to determine when a foetus can be considered a human being in NSW for the purposes of justifying arguments for and against abortion. As Brown infers, violence and subsequent death to a foetus in utero does not amount to murder or manslaughter because under current NSW law a foetus is not treated as a human being.⁵ Abortion, covered under s82-4 of the Crimes Act 1900 (NSW), suggests that intent must be demonstrated to procure a miscarriage. Moreover, as abortion occurs before a child is born, the test conducted in Iby does not provide a sufficient defence to such actions, as there is no sign that there is life failing to satisfy the born-alive rule. This means that in most circumstances it will be difficult for the prosecution to prove beyond reasonable doubt evidence of a heartbeat and independent circulation of the airways. A RT I C L E S

15


Arguments ƒor Abortion

The arguments for abortion, or more commonly known as ‘prochoice’, have grown in popularity as a result of the changing social attitudes to important issues such as privacy, bodily autonomy and special circumstances surrounding pregnancy. There are several arguments that make up the ‘pro-choice’ side of the debate. An area where the necessity defence has been successfully applied is in the area of abortion as held by Levine J in Wald where it was held that the defence of necessity was available to an abortion charge.⁷ In this case, it was held that in order for the operation to be lawful, the accused must have held an honest belief that the woman’s life was at risk as a result of the pregnancy, and that in these circumstances the danger of the operation was not out of proportion to the danger intended. This implies two impor ta nt considerations—that when a child is lawfully aborted, the necessary defence must be proportional to the harm perceived and that in the actions of proportionality; the actions of a medical practitioner must reflect the prevention of risking the woman’s life. Whilst abortion is often exercised in such circumstances, those wishing to under ta ke such a procedure should be fully aware of its intended consequences and make informed choices before pursuing such solutions to terminate the life of another. In more recent circumstances, the necessity principle has been criticised in its application in Sood,⁸ where the appellant was given a two-year good behaviour bond for the unlawful termination of the pregnancy. In this case, it is important to consider the second limb of the Wald test which implies that the proportionality to act must be on reasonable grounds.⁹ Secondly, the application of the Wald test has seen the argument for abortion justified on grounds stemming from social, economic 16

THE FULL BENCH

or medical bases¹⁰ and considered in K v Minister for YACS.¹¹ In this case, the question before the Court was whether the Minister for Youth and Community Services was required to consent to an abortion for a fifteen-year-old girl who was a ward of the state.¹² Her case was made more severe by her willingness to commit selfharm. On these facts, Helsham J authorised that the abortion be carried out, implying that it was in the child’s best interests that it be done.¹³ Therefore, only extreme mitigating circumstances permit the effective exercise of abortion on the consent of the patient concerned. Only then, potentially, can an effective argument be put forward to the rightful exercise of such practice. How is the appropriate duty of care exercised though? Whether or not the doctor is conducting these procedures to a higher standard of care was considered in CES v Superclinics (Australia) Pty Ltd where the failure to diagnose a pregnancy led to claims of damages in tort for the apparent failure to disclose the possibility of deformity.¹⁴ In this case, determining the rightful termination of a pregnancy, in the evaluation of a medical practitioners skill, there must be consideration of an appropriate standard in the duty of care exercised, permitting valid grounds held from the reasonable belief that harm to the patient is imminent in the circumstances at consultation. Thus in the duty of care exercised in terminating the life of an unborn child, a medical practitioner must have beyond reasonable doubt sufficient information that if the pregnancy went ahead, the detriments arising out of possible injury to the child are of greater significance than the possibility of a successful birth. This avoids the possibility of damages sought by a child for injuries suffered as a result of a medical practitioner’s negligence to advise of the possibility of serious pain or other apparent future injuries.


Arguments against Abortion

Most commonly defined as the side of pro-life, an individual perspectives, the right to life is paramount, where the mother who faces the possibility of being aborted has an equal right to life has the right to abort given the circumstances of the pregnancy. It is from this aspect that the right to life be seen as a suras you and I do. While the current provisions of NSW legislation mount element of the individual’s existence. Various faiths do not permit the unborn child to be considered a human being, such consideration must be placed on the equal opportunity of a emphasise the importance of God’s decisions and an individual’s child to have the right to a successful life. Such ethical practice lack of right to question those decisions. Secondly, as a result of the lack of clarity surrounding abortions, would then imply that the law of abortion must only be exercised in the appropriate circumstances taking into consideration the some have argued that medical practitioners have adopted a ‘reckelements of the Wald test.¹⁵ These considerations might one day less indifference’ to human life. Unless an abortion is calculated and appropriately conducted with regard to the proportionality take into account an international perspective as US Supreme Court cases of Planned Parenthood of relevant harm, such conduct CONCLUSION v Casey and in Rowe v Wade¹⁶ reflects the lack of awareness examined the importance of a woman’s privacy when making a decision on whether the abortion path is to be followed. The first major argument in the ‘against abortion’ column is the moral and religious dilemma is poses. From these

1

As argued above in a neutral light, the pro-choice side to abortion is examined from the viewpoint of the mother, where the social conditions as well as the health and wellbeing of the mother giving birth has been evaluated proportionate to the level of harm perceived. On the other hand and often, the religious perspective, Abortion deprives the right of an individual to life. Which side should be followed? Does NSW law reflect the contentiousness of this debate? As this paper has identified, much of the legislation has been virtually implanted from s58-9 of the Offences Against the Person Act 1861 (UK).¹⁹ This legislation has seen a virtual implantation of a century old provision without reform to the current context of the debate. Thus a possible solution to the incorporation of both sides of the debate would be to critically revise the possible punishment or in turn justify such action through an appropriate re-evaluation from some of the arguments suggested above. In turn, a probable and more inclusive solution would be to incorporate new perspectives of the law that are more adequately justified on the public perspectives of the modern Abortion debate in Australia.

above, R v Wald (1971) DCR 25.

11

[1982] NSWLR 311.

Offences Against the Person Act 1861.

12

Ibid.

(UK) ss58-9.

13

Ibid at 939.

Trend in Australian Abortion Law?" (2011)

5

14

Ibid above n 1.

13(2) Flinders Law Journal 1-10.

Commentary on Criminal Law and Process of New South Wales (6th ed., 2015, Federation

15

Ibid above n 2.

2

Planned Parenthood of Southeastern

Mark Rankin, "The Disappearing Crime

3 Ibid

found in Sood.¹⁷ The Sood case suggested that if there are insufficient grounds, where the abortion is unlawfully conducted amounting to a medical practitioner’s failure to act with the relevant duty of care, could constitute unconscionability.

of Abortion and the Recognition of a

4

Woman's Right to Abortion: Discerning a

David Brown, David Farrier and Luke McNamara et al., Criminal Laws: Materials and

Press) 749-50.

16

v Superclinics (Australia) Pty Ltd (1995) 38

6

Crimes Act 1900 (NSW) ss82-4; See further especially, R v Iby (2005) 63 NSWLR 278

Pennsylvania et al. v Robert P. Casey et

NSWLR 47 at [54], [59] - [60] and [66] - [7];

7

Ibid above, R v Iby.

al. 505 U.S. 833 (1992); Rowe v Wade 410

See also, Jo Wainer, ‘Abortion before the

8

R v Sood (Ruling No 3) [2006] NSWSC 762 at [30] per Simpson J.

U.S. 113 (1973).

High Court’ (1997) 8 Australian Feminist

9

Ibid above n 2.

17

Ibid above n 8.

Law Journal 133.

10

Ibid.

18

Ibid.

R v Wald (1971) DCR 25; See further, CES

A RT I C L E S

17


STAY TRUE.

I am a daughter of Vietnamese migrants who came to Australia in the late eighties in search of a better future. My parents have always struggled with the English language so it’s really been my role to help them navigate their way through filling in forms dealing with Government departments and various legal issues. From a very young age this experience made me realise that it was likely there were many more people in a similar position to my parents. I wanted to help those people the same way I’d helped my parents and that’s when it clicked that becoming a lawyer was the thing for me. I am now a full time pro bono lawyer at Clayton Utz. This means that I help to implement the firms pro bono strategy by co-ordinating pro bono matters for our lawyers supervising our pro bono files and working on pro bono cases myself. A large part of my role in the pro bono team is to help our lawyers manage challenges… To listen to Hai-Van’s full story, go to: claytonutz.com/graduates Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.


GENDER EQUALITY: BA R R I ERS TO

S E XUA L A S S AU LT A N D T H E CO N U N D RU M O F CO N S E N T

Why are sexual assault cases still a matter of he said, she said? Isabelle Middleby-Clements investigates the statistics behind these cases and the consequences of maintaining generalised ideas about the victim. W R I T T E N BY Isabelle Middleby-Clements

‘It is well known that women in particular and small boys are liable to be untruthful and invent stories’ —Justice Sutcliffe, 1989

The root cause of violence against women involving sexual assault is a somewhat indeterminable notion. While attempting to find the answer to that question, it is easy to fall into a tangled web of conflicting factors; social inequality, cultural norms, patriarchy, men’s overriding power or gendered social scripts. The list goes on, and to complicate it further, the law steps in. Some have argued that the Australian legal system has a place in the above list while others have strongly contested this idea. Regardless, it has a vital and increasingly important role in governing the issue of sexual assault in the pursuit of justice for victims. It is the one and only structural force in Australia’s modern society, distinguished from the more philosophical notions of cultural change or evolving social perception, that has the potential to provide real time governance of an issue that contributes enormously to the inequality of gender on a larger scale. As French determines when it comes to sexual violence, ‘the knowledge that some men do suffices to threaten all women’,¹ and thus contributes to a culture of systematic gender inequality. Yet, while the potential is abundant, it is a legal system, like many established institutions that is A RT I C L E S

19


D i d s h e h ave b a d r e p u t a t i o n?

YES

She Promiscu

I s s h e a c o m p u l s i ve l i a r? Uneducated

YES

Wa s s h e d r i n k i n g? YES

impeded by the rigidity of the law and the biases of those interacting with it. A system that has in the past, enabled enormous change for gender inequality; but continues today with the struggle of providing adequate justice and outcomes for countless sexual assault victims. In NSW, 65 people per 100,000 in 2014 reported instances of sexual assault² and sexual assault has some of the highest rates of acquittal and the lowest rates of findings of guilt in comparison with other offences. It is an offence which in practice, deeply interacts with evidence law and often detrimentally so. Historically, when a victim of sexual assault interacts with the legal system she has been exposed to a plethora of biased assumptions which majoritively stem from an Australian society that has been dominated by men since its inception. That a woman is probably lying about her assault when she reports it because she is vindictive and vengeful, evident in the 1993 case of R v Johns whereby Justice Bollen stated ‘experience has taught Judges that there have been cases where women have manufactured or invented false allegations of rape and sexual attack. It is a very easy allegation to make. It is often very hard to contradict.’³ That a rape is generally undertaken by a stranger and if a woman is a true victim then she would definitely not delay the reporting of her assault. And undoubtedly the most shocking out of the lot, that a woman could not possibly be sexually assaulted by her husband. Famous English jurist Sir Matthew Hale once pronounced dictum to this effect, which is often quoted but should not be forgotten, ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract’.⁴ Historical statements of this kind should not be ignored, as they are reminders both of how far women have come and how much further we have to go. While on the face of it, it appears that the most outrageous of these assumptions has been overcome; antiquated biases continue to ravage the legal system. This detrimentally affects the criminal justice systems’ status as an objective adjudicator of wrongdoing. Notwithstanding the general trauma imposed upon a woman during a sexual assault trial, there are substantial issues with evidence of consent, or the lack of consent, and juror bias, which has a highly damaging effect on the success of a sexual assault. By no means are these the only issues for victims of sexual assault in the legal system, but they are important ones and should not be glossed over. 20

THE FULL BENCH

“ H E R E , I T I S N OT T H E S C RU T I N Y T H AT I S T H E P RO B L E M ... R AT H E R , I N T H I S P RO C E S S I T I S T H E B I A S A N D D E M O N I S AT I O N O F A W O M A N P E RTA I N I N G TO S T E R E OT Y P I C A L N A R R AT I V E S O F W O M E N AS A SEDUCTRESS OR AN U N R E L I A B L E L I A R T H AT I S D E S T RU C T I V E TO T H E PU RSU IT O F J U STI C E , A N D T H E V I C T I M H E R S E L F.” Rape and sexual assault is renowned as a safe crime to commit by its perpetrators, as it is common knowledge, albeit outrageous, that to prove that a woman was not consenting is a drastically hard task. It must be proved beyond reasonable doubt by the prosecution that a victim was not consenting, resulting in the jury’s attention turning solely to the actions of the complainant during her assault. There is rarely evidence of the sexual assault or witnesses to the assault, so the victim’s actions are subsequently harshly scrutinised in the court.⁵ Generally, the focus of the trial thus swings to the victim, and therefore it is the victim’s credibility that comes under attack. The actions of the accused are side-swiped and all efforts go to framing the female as someone along the lines of an ‘uneducated, emotionally disturbed, mentally deranged low life’.⁶ Here, it is not the scrutiny that is the problem as evidentiary investigations are a necessary element of the defendant’s presumed innocence until proven guilty. Rather, in this process

YES


Single parent household.

u o u s?

• •

T h e r e we r e n o w i t n e s s e s . D i d s h e l e a d h i m o n?

YES

H e's n o t a m i n d r e a d e r.

YES

YES

and highly subjective juror attitudes will perhaps expose themselves behind the jury deliberation room door. In mock Australian sexual assault trial studies on juror attitudes towards credibility, it was shown that males on average were less likely to judge a victim to be credible.⁸ Further, male jurors of lower income and of conservative political persuasion were found to be less favourable to victims. Stereotypical assumptions and biases emerged and it was discovered that forty-four percent of males and thirty-two percent of females believe that rape is a product of a male not being able to control his need or desire for sex. This implies that the responsibility should be removed or somewhat lessened because it was outside of their control.⁹ This does not reveal the reality of both the bias and unfairness in our legal system, yet the unjust narratives that continue to surround women and subsequently impede a victim’s access to justice and therefore, true gender equality, should be noted and acted upon. As French writes, the greatest achievement of the feminist movements of the 20th century is the exposure of a big, dirty secret of systematic female sexual assault and violence that has been hidden behind closed doors for centuries.¹⁰ Now, the challenge that faces the 21 st century is to provide real justice for those women brave enough to keep hauling the secrets out of the closet. it is the bias and demonisation of a woman pertaining to stereotypical narratives of women as a seductress or an unreliable liar that is destructive to the pursuit of justice, and the victim herself. As long as these narratives play out in the microcosm of the courtroom, women will not live in equality with our male counterparts. Until high rates of sexual violence decrease, male assumptions of physical, and mental dominance will reign free. Where there is a shortfall of evidence towards the victim’s lack of consent, a wide and dangerous discretion is placed in the hands of the jury. Those making up the jury must make a probability judgment on the oral or verbal testimony given. The arguments from the defence which will undoubtedly go to discrediting the victim’s statements and procure a lack of credibility and the surrounding context of the case.⁷ It is a natural consequence then, that in instances as such, personal

1

Marilyn French, The War against Women, (Ballantine Books, 1993).

2

Derek Goh and Stephanie Ramsey, ‘An update of long-term trends in

property and violent crime in New South Wales: 1990-2014’ (Issues Paper No 104) [NSW Bureau of Crime Statistics and Research, April 2015], 2. 3

R v Johns, (No. 1 of 1993), summing up to the jury by Justice Bollen, 24

August 1992, from the stated case to the SA Full Court, 4 January 1993. 4 As

quoted in P Easteal and C Feerick, ‘Sexual Assault by Male Partners:

Is the Licence Still Valid?’ (2005) 8 Flinders Journal of Law Reform 185, 186, 6. 5

Australian Law Reform Commission, Family Violence: A National Legal

Response, Report no 114 (2010). 6

Real Rape Law Coalition 1991a, Sexual Assault: The Law v. Women's

Experience, Victoria. 7 Australian

Institute of Criminology, Juror Attitudes and Biases in Sexual

Assault Cases, Report no 344, (August 2007), 1. 8

Ibid, 4.

9

Ibid.

10

Marilyn French, The War against Women, (Ballantine Books, 1993).

A RT I C L E S

21


Oh Say! Can you see...

belittling bathroom bills and anti-transgender hysteria? W R I T T E N BY Kimberley Ching

What does it mean to be transgender? What are the legal effects? These interesting questions were delved into when the ‘Bathroom Bill’ was implemented in North Carolina. Kimberley Ching takes a look at the laws challenging the US and their impact on the steps being made by transgendered people.

In the eyes of us ‘Strayans, America can be likened to buzzwords of the Trump, Kardashian and fast-food conglomerate variety. But in the eyes of the law, America has been enduring a battle concerning transgender rights, specifically where and how those rights can be exercised in the bathroom. The contender: the mean, lean, anti-transgender machine, North Carolina, and their opponent, the US Justice department. Both parties have launched duelling lawsuits over North Carolina’s bathroom bill and have taken up opposite posts on the battlefield. 22

THE FULL BENCH

To provide some perspective, North Carolina’s HB 2 Bill¹ was legislated to ‘create state-wide consistency in regulation of employment and public accommodations’.² The point of contention exists where the bill states that single-sex occupancy in bathroom and changing facilities must be adhered to based on the biological sex, as stated on one’s birth certificate. Signed, sealed and delivered by North Carolina Governor, Pat McCrory, the bill has sparked furious opposition as it is claimed to be based on the sex as biology approach and the myth of transgender predators in bathrooms.


S E X A S B I O LO GY O R S E X A S A N ATO M Y + P SYC H O LO GY ? This legal approach determines sex according to strictly biological factors as argued in the first transgender litigation case of Corbett v Corbett.³ In this case, Ormrod J set a legal precedent that sex was a matter that was purely biological and determined by an individual’s chromosomes and genitals. Even if an individual decided to undergo gender reassignment surgery, this was only held to affect gender, not sex. Further, should a person psychologically identify themselves as female when their genitals are male of nature, and vice versa, Ormrod J distinguished this psychological reasoning to be a matter for their gender interpretation, not a matter for their sex.⁴ It should be noted that this view has been overturned, originally by the Appellate Division of the Superior Court of New Jersey in MT v JT,⁵ and changed towards a legal approach where sex is determined by the congruence of anatomy and psychology. This change has also been recognised and adopted in Australian common law in the case Attorney-General (Cth) v ‘Kevin and Jennifer’.⁶ Chisholm J affirmed that interpreting the words ‘man’ and ‘woman’ when used in legislation, should be interpreted with their ordinary meaning to include postoperative transsexuals who have undergone surgery. He further held that interpreting the two words restrictively, along the vein of the Corbett test, would result in a discriminatory application of the law, unsupported by any express or implied intention of the Parliament.

However, North Carolina still holds firm, relying on the similar, archaic principles of the Corbett test which are no longer deemed good law. By this vein of reasoning, you would think that North Carolina would repeal the bill, yet even in the face of boycotts from corporations, protests and threats from the Federal Government to restrict their funding⁷, North Carolina and her governor are still adamant in their position.

T H E S U P P O S E D ' I N VA S I O N O F P R I VAC Y A N D R I S K T H AT T R A N S G E N D E R I N D I V I D UA L S P O S E I N BAT H RO O M S ' The second tenet supporting this legislation is the myth that this bill will provide protection for people in bathrooms against any sexual abuse or harassment attacks carried forth by transgender people.⁸ This argument, propounded by Conservatives, has generated and fed into transgender stigma in the public which was ultimately responsible for the failure of the Houston Equal Rights Ordinance (HERO).⁹ This stigma is incorrect and is based on a subscription of inappropriate stereotypes to transgender individuals; stereotypes, which are both obsolete and outdated.¹⁰ This is further reinforced by the fact that there have been no cited cases of bathroom sexual assault post the approval of pro-transgender policies.¹¹ The evidence clearly begs the question: when did sexual predators become synonymous with transgender people? What does this ‘relationship’ have to do with transgender rights? Nothing, nothing at all. A RT I C L E S

23


TRANSGENDER RIGHTS IN THE AU ST R A L I A N L EG I S L AT I V E L A N D S C A P E In comparison to the turbulence of transgender bathroom bills in America, it seems that the Australian legislative approach is rather silent. Yes, there have been improvements in the recognition of transgender rights, but as we have witnessed in the case of Norrie, the High Court was still not fully prepared to recognise a separate category of ‘intersex’ or ‘transgender’.¹² In so doing, Australia’s approach has been described as “piecemeal”¹³ due to the Federal government’s Constitutional restrictions. The albeit snail-like pace of the legislature in response to the growing social trend supporting transgender rights is a clear obstacle for transgender individuals. Instead of an entrenched bill of rights or Constitutional provision to rely upon, transgender individuals are forced to navigate the murky waters of State legislation.¹⁴ Despite this State legislation being available, it is both a perilous and arduous path. Its inefficiency is best illustrated in the Human Rights Commission 2015 Annual Report. The report underlined complaints about the Sex Discrimination Act 1984 (Cth) where the two prevailing concerns were 77% with employment and 18% for issues regarding goods, services and facilities.¹⁵

extremists represent to understand the difficulties in the recognition of trans-rights. In light of this, the need for legal and social reform becomes critical. Internationally, there needs to be an informed discussion about transgender rights where belittling bathroom bills and discrimination are no longer permissible; they should be prohibited. Domestically, our legislation also needs to be stronger and aim to protect the rights of disenfranchised transgender individuals. It needs to be functional, responsive and fair. It should not be ruled by antiquated precedent and myth. For what good is there in legislation if it cannot rectify the perils of the modern era? 1

House Bill 2, 3 NC Gen Stat.

2

Ibid.

3 Corbett

Ibid.

5

MT v JT, 335 A 2d 204, (NJ Super) (1976).

6

Attorney-General (Cth) v “Kevin and Jennifer” (2003) 172 FLR 300.

7

Mark Berman, ‘You Belong Just as You Are’: US Government sues North

Carolina over ‘bathroom bill’, The Sydney Morning Herald (online), 10th May 2016 < http://www.smh.com.au/world/you-belong-just-as-youare-us-government-sues-north-carolina-over-bathroom-bill-20160510goqk7t.html>. 8

Rachel Moffitt, ‘Keeping the John open to Jane: How California’s

Bathroom Bill brings Transgender Rights out of the Water Closet’ (2015) 16

Georgetown Journal of Gender and Law 475. 9

Houston Equal Rights Ordinance 2014 (Houston).

10

S O, W H AT N O W ? A short and sweet answer would be the repeal of North Carolina’s beloved House Bill 2. However, in a society where Donald Trump is incredulously now only one of two major presidential candidates, the road towards repealing the bill is not straightforward. You need only look towards the kinds of principles Trump and his band of recalcitrant 24

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v Corbett [1971] P 83.

4

11

Moffitt, above n. 8. Kristen Schilt and Laurel Westbrook, ‘Bathroom Battlegrounds and Penis

Panics’ (2015) 14 Contexts 3. 12

Norrie v NSW Registrar of Births, Deaths and Marriages [2013] 84

NSWLR 697. 13

Laura Grenfell and Anne Hewitt, ‘Gender Regulation: Restrictive,

Facilitative or Transformative Laws?’ (2012) 34 Sydney Law Review 4. 14

Ibid.

15 Australian

Human Rights Commission, Annual Report 2014-2015 <https://

www.humanrights.gov.au/sites/default/files/document/publication/AHRC_ Annual%20Report%202014%E2%80%9315_Web%20version.pdf>.


I

Street Harassment said #NoWomanEver W R I T T E N BY Bianca Newton

Don’t take it seriously, just laugh it off and they will leave you alone. This week a woman in the United States has taken this advice and flipped it on its head. Using sarcasm and wit, a 37-year-old woman in Atlanta called CJ, has come up with the hashtag #NoWomanEver and it has exploded. Women across the world are sharing their experiences of street harassment to demonstrate the ineffectiveness of laws protecting women from such abuse and sexism.

¹

²

A RT I C L E S

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Reading these Twitter comments it is hard not to laugh a little. Did either man in the above scenarios really believe that was charming, or even friendly? Did they really think that wouldn’t come across as completely horrifying? The laughter should stop there. In 2015 the Australian Institute released a survey that revealed some eye-opening statistics about the effects of street harassment. Almost 50% of women surveyed said they had been followed, 40% had experienced unwanted touching or had their paths blocked, 36% had been flashed and almost 80% had been honked at and experienced leering.³

#NoWomanEver: Women explain why street harassment is sexist, not romantic Doctor Bianca Fileborn declares street harassment ‘one of the most pervasive forms of sexualised violence’⁴ against women who are overwhelmingly the victim. While other victims may be targeted on account of their ethnicity or even sexual orientation,⁵ the statistics reveal that women are most at risk and many are still not speaking out about their experiences. Why should they if the law and those creating the law are not behind them? In the last few years numerous polls have been conducted asking the public whether or not they believe laws should be generated to target street harassment as has been done in countries like Portugal. A number of the male responses to this idea were astounding. The responses ranged from “How are we going to meet women?” to “Current laws already deal with serious incidences. If we extend it to staring/looking at someone, we risk banning all human interaction”.⁶ It should firstly be mentioned that landing your eyes on another person is not street harassment. Give women some credit. However, while these responses appear naive, current legislation and the effects of new legislation should be explored. The current law in place stems from the Sex Discrimination Act 1984 which covers sexual harassment in the workplace, educational settings and in the provision of goods and services. This has been utilised in other forms of State and Territory legislation which target forms of sexual harassment.⁷ Evident from the horrific statistics mentioned above, these laws are not designed to target street harassment and the legislation does not protect women from the verbal abuse hurled from cars. 26

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It is understandable that the proposal of legislation that targets street harassment is unnerving as it has the potential to be construed as a very Orwellian step in restricting the movements of everyday people. The important thing about this proposed legislation is drawing a line between the everyday person and the catcaller whose actions are offensive and have the danger of becoming threatening. How this line will be drawn I do not claim to know. What I do know is that sexual harassment and street harassment need to be included in policy and legislation targeted at preventing or responding to sexual violence. If the ‘coward punch’ was taken seriously enough to ignite the changing of laws and the coining of a specific term, surely the government can make room in their national plan to reduce violence against women for antistreet harassment plans.⁸ The issue is moving beyond critical as Doctor Fileborn proves, beyond the Twitter jokes and the shared snickers at a young man’s bold attempts to get your number, the effects of street harassment have the potential to be far reaching. Ranging from ‘visceral responses of anger and shock, through to longer-term effects such as anxiety, depression and, in some cases, post-traumatic stress disorder’.⁹ I want to live in a society where women can be taken advantage of said #NoWomanEver

1

Trends

50% of women said they had been followed

40% of women said they had experienced unwanted touching or had their paths blocked

The ABC, ‘#NoWomanEver: Women Explain why Street Harassment is

Sexist, not Romantic’, The ABC (online), 20 June 2016, <http://www.abc. net.au/news/2016-06-20/nowomanever-women-explain-why-streetharassment-is-sexist/7525420>. 2

Ibid.

3

Molly Johnson & Ebony Bennett, ‘Everyday Sexism: Australian Women’s

Experiences of Street Harassment’ (Brief no 1836-9014, The Australian Institute, 2015). 4

36% of women said they had been flashed

Judith Ireland, ‘The Private Struggle with Public Street Harassment’,

The Age (online), 4 April 2015, <http://www.theage.com.au/comment/ the-private-struggle-with-public-street-harassment-20150401-1mcrwk. html#ixzz4D13aI0OI>. 5

SBS, ‘Whistling and staring at women in the street is harassment - and

it’s got to stop’, SBS (online), 17 March 2015, <http://www.sbs.com.au/ news/article/2015/03/17/comment-whistling-and-staring-women-streetharassment-and-its-got-stop>. 6

Bianca Fileborn, ‘Do we need laws to tackle street harassment?’, The

Northern Star (online), 6 May 2016, <http://www.northernstar.com.au/news/ watercooler-do-we-need-laws-tackle-street-harassme/3018607/>. 7

Bianca Fileborn, ‘Conceptual Understandings and Prevalence of Sexual

Harassment and Street Harassment’ (Australian Centre for the Study of Sexual Assault Resource Sheet, July 2013). 8

Ireland, above n 4.

9

SBS, above n 5.

80% of women had been honked at or experienced leering


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How does our criminal law system benefit both sexes? Zoe Rochford investigates the partial defence of provocation to evaluate the take home message it delivers when it comes to presenting equality of gender.

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“ U N S U R P R I S I N G LY, I T I S I N VA R I A B LY M E N W H O ‘ LO S E C O N T R O L’, PA R T I C U L A R LY I N C I R C U M S TA N C E S W H E R E A W O M A N H A S ‘ P R O V O K E D ’ T H E M .”

The defence of provocation enshrined in section 23 of the New South Wales Crimes Act¹ operates to reduce charges of murder to manslaughter in circumstances where a person may have had an intention to kill, but should not be classified as a murderer. Of course, for anyone versed in the basic principles of criminal law, this concept itself is an oxymoron. Murder, we know, contains two elements:² an element of intention (the mens rea) and an element of action (the actus reus). How, then, if intention to kill exists, can a court recognise that there are classes of people who—despite fully intending to kill, carrying out such killing, and having no legitimate mental impairment or need for selfdefence—do not deserve to be sentenced for murder? The answer lies in what has long been a grey area, both for law and for society. It is the enigmatic idea of 'loss of control’, in which an otherwise reasonable person is provoked into a violent, sometimes murderous rage by the actions of another. When a person ‘loses control’, they are driven so out of their mind with fury that the law deems they are not morally culpable for what happens next. Unsurprisingly, it is invariably men who ‘lose control’, particularly in circumstances where a woman has ‘provoked’ them. The very existence of the partial defence of provocation has two problematic implications: firstly, that the victim had any responsibility in her own murder; and secondly, that there are any circumstances under which society deems it understandable that a man might f ly into a violent rage and kill. This second problem is exacerbated by the use of the ‘ordinar y person’ test in most provocation legislation, including in New South Wales,³ which suggests that it is in some way ‘ordinary’ for men to lose control and respond with fatal violence. The defence is so problematic, in fact, that it has been abolished in various Australian jurisdictions, including Victoria, Tasmania and Western Australia. In New South Wales in 2012, a growing concern about the application of the provocation defence led to an investigation of section 23 by the Select Committee on the Partial Defence of Provocation. The outcome of the investigation was the reformation of section 23: the rebranded partial defence of ‘extreme

provocation’. The material difference between the new section 23 and its predecessor is that the defence is now available only where the conduct to which the accused responded—the ‘provocation’—constitutes a serious indictable offence. On the face of it, this modification mitigates the negative implications of provocation. Men who kill women in reaction to imagined slights, infidelity, taunting or other non-criminal ‘misbehaviour’ will no longer have the option to reduce their sentences of murder to manslaughter. While this appears to be a positive step forward, a closer analysis reveals that the two issues identified earlier remain. Although the circumstances in which men may reasonably lose control and commit murder has been somewhat limited, the act itself is still legitimised as appropriate or understandable. More worryingly, the emphasis on what the victim did, indictable or otherwise, in the lead up to their deaths appears to place more blame on the victims themselves. While most serious indictable offences deserve punishment (or, in ‘battered wife’ situations, deserve to be considered in terms of self-defence), they do not deserve to be punished by murder. Further, given that escalating domestic violence often leads to murder, it is logical to expect that a woman who commits a serious indictable offence while fighting back against her abuser may inadvertently provide the catalyst for the ‘loss of control’ that ends her life. Section 23 of the Crimes Act, despite its new ‘extreme’ name and politically correct makeover, still sends the same problematic message: it is okay to kill a woman if she does something bad to you first. The response of the courts to men who ‘snap’, ‘lose control’ or ‘see red’—all synonyms for an exclusively male aggressive response—is that this behaviour is understandable and even acceptable. ‘We get it’, the judicial system still says to men who kill women. ‘She started it. What you did is not okay, but it is excusable.’ And that response, frankly, is inexcusable.

1

Crimes Act 1900 (NSW) s 23.

2

Ibid s 18.

3

Ibid s 23(d).

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Criminal Justice for Women

What is the difference between men and women in prison? It might surprise you to know that there is a significant difference in the rates. Sarah Maynard looks into the statistics in the hopes of offering different alternatives. S U M M A RY

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2004

2004

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2004–2014

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There are vast differences in the experiences and causes of criminalisation between men and women. Women who have interacted with the criminal justice system are more likely to have come from a background of trauma, sexual and physical abuse, poverty, ill mental health, drug addiction and other adverse circumstances, than men in the same position.¹ This is a key influential factor in women’s subsequent criminal behaviours. In light of the recent projections of rising prison populations in NSW,² and the way in which genderbased experiences impacts the characterisation of these behaviours, a gendered approach to rehabilitative programs is ultimately the key to their success. Female criminalisation more generally, has a closer connection with drug abuse, even where those are not the crimes the women are arrested for.³ Notable examples include prostitution and property crime where the proceeds are often used to fuel addiction.⁴ This drug use is often associated with victimisation in crimes prior to their own offences. For example, women in prison report significantly higher levels of emotional, physical and sexual abuse throughout childhood as opposed to the rest of the community.⁵ The interaction of adverse mental health as the cause of addiction issues, often causing increased recidivism, is also considered more complex for women.⁶ Between 2004 and 2014, the female prison population rose by 55%, compared with 39% for males over the same period.⁷ This has been attributed to both higher arrest rates, and tougher penalties for both men and women, not an increase in rates of offending.⁸ Notably, the higher arrest rates for women, as opposed to those for men, have centred around drug offences.⁹ Moreover, over the same period, the number of arrests of adult females increased by an average of 2.5 per cent per year, compared with 1.7 per cent per year for adult males.¹⁰

Fe male pr i s on popul ati on ros e by 55%

M ale pr i s on popul at io n ros e by 39%

Ye ar ly i nc re as e i n ave rag e ar re st rate 2004–2014

2. 5% 1 .7%

M ale

Fe male

As arrest rates overall have increased, and policing has become more stringent, those that were under the radar before are now being picked up. In 2014 women were being imprisoned at four times the rate that they were 20 years ago.¹¹ However, the role that drug addiction has on this offending is not addressed on a large enough scale in rehabilitative programs or the approach of NSW Corrections to have an impact on the rates of recidivism; Nor is it addressed with an understanding of women’s needs or experiences especially.


The importance of drug addiction on offending rates for women cannot be understated, because it leads to a self-perpetuating pattern of criminalisation. 48% of women convicted of a crime in 2004, were convicted of a subsequent offence within the following 10 years.¹² Women also tend to experience shorter periods of incarceration and convictions for less serious offences, but more frequently returning to prison.¹³ Criminalised women use drugs differently to men, with more women (56%) than men (42%) reporting current or past intravenous drug use.¹⁴ The percentage of prior use of various drugs is contained in the table below:¹⁵ Perc entage of prior drug use D RU G

FEMALES

MALES

Ecst asy

14%

9%

Heroin

20%

14%

Tranquil is er s

30%

1 5%

A nalge s ic s

38%

1 5%

Met han phet am ine

44%

3 6%

Perc entage of prior drug use MALE AND FEMALE

Female

Male

A N X I E T Y D I S O R D E R ( E ST I M AT E )

af fe c ts hal f of a ll fe male pr i s one rs af fe c ts a f if t h o f all male p ris o n e rs Moreover, the impact of separating mothers from their young children means that the impact of the lack of programs targeting this has negative implications for following generations. While there are some programs available through Corrective Services NSW to address this, they are limited by funding and spaces available.¹⁸ This is especially significant given that 61% of female adult prisoners are mothers, compared to 51% of adult male prisoners having children.¹⁹ For the Indigenous prison population, this is even more problematic; 80% of Indigenous women in prison are mothers,²⁰ and the rising rates of female prisoners exceeding the rise of male populations is largely attributed to the sharp increase in imprisonment of Indigenous women.²¹ All of these issues are exacerbated for incarcerated Indigenous women. Indigenous women are 16 times more likely than nonIndigenous women to be imprisoned, consisting 30% of the current female prison population.²² This is compared with 24% of male prisoners being Indigenous.²³ Moreover, as previously addressed, Indigenous women are much more likely to have children. Indigenous women are 20 times more likely than non-Indigenous women to be substance abusive, whereas Indigenous men are 9 times more likely than non-Indigenous men to do the same, and up to 93% of Indigenous offenders have mental health issues.²⁴ Pr i s one r s wi th c hi ldre n

56%

INDIGENOUS AND NON-INDIGENOUS

42 %

Furthermore, 86% of women in prison experience adverse mental health, compared with 72% of men.¹⁶ 51% of female prisoners are estimated to have anxiety disorders, where 20% of men are.¹⁷ These mental health issues are attributed to both past trauma, and continuing difficulty of circumstance and are directly relevant to the development and continuing difficulty with drug addictions both in and out of prison. In order to rehabilitate offenders, these causative issues must be addressed. Mental health

non- I ndi g e nous M ale s : 51 %

non- I ndi g e nous Fe male s : 61 %

I ndi g e n o u s Fe male s : 8 0 %

I ndi g e nous wome n i n pr i s on FAC T S & F I G U R E S

m o r e l i ke ly t o be imprisoned

FEMALE

m o r e l i ke ly to abuse substances

MALE

A DV E R S E E F F EC T S

su ffered by 86 % o f female prisoners

suffered by 72 % of male pr i s one r s

3 0 % of fe male pr i s one r s

24 % of male pr i s one r s

93 % of I n d ig e n o u s fe male p ris o n e rs s uf fe r m e nt a l he alth i ss u e s A RT I C L E S

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ADMIN USE O N LY

and governmental support and resources in terms of their ability to target the issue on a large enough scale.This ultimately leads to the continual construction of new prisons because of rising prison populations, and the growing issues with disparate demographic representation behind bars. Ultimately, the current lack of programs addressing these issues is to the detriment of the taxpayers’ pocket, the Indigenous community, the women’s children, criminalised women, and the community at large. 1

Australian Institute of Criminology, Female Drug Use and Criminal Behaviour, Crime

Facts Info. issue no.65 6/1/2004, <http://www.aic.gov.au/media_library/publications/cfipdf/cfi065.pdf>. 2

Ibid.

3

Ibid.

4

Ibid.

5

Willis, K. & Rushforth, C., The Female Criminal: An Overview of Women’s Drug Use and

Offending Behaviour, 2003, Trends and Issues in Crime and Criminal Justice, no. 264, Australian Institute of Criminology Canberra. 6

Ibid.

7

Australian Bureau of Statistics in Women in Prison Advocacy Network & Zara Ali, I’m still

your mum, 2015, p. 3. 8

BOCSAR, Why is the Prison Population Growing?, 2014, <http://www.bocsar.nsw.gov.au/

Pages/bocsar_media_releases/2014/mr_bb95.aspx>. 9

Jessie Holmes, BOCSAR, NSW Police Recorded Female Persons of Interest: Has there

been an increase in the 10 years to June 2013? Crime and Justice Statistics Bureau Brief issue no 94, May 2014, <http://www.bocsar.nsw.gov.au/Documents/BB/bb94.pdf>. 10

The increase in levels of incarceration of female prisoners, and the overrepresentation of Indigenous women, reflects an exaggerated impact on Indigenous children. It may also have the potential to cause greater future criminalisation for the children of both non-Indigenous and Indigenous prisoners, further entrenching already detrimental impacts of cycles of criminalisation, poverty, and the separation of Indigenous children from their parents. The need for rehabilitative programs that target the causative impact of past trauma, and the inability to overcome substance abuse issues because of lack of support in the community and family, is therefore especially vital for women, and their children. There have been successful programs addressing this, such as the NSW Drug Court, and the mentoring program offered by the Women in Prison Advocacy Network. They are however, limited by community 32

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11

Ibid. Women in Prison Advocacy Network, Women in Prison Paper, 2014,

12 Agnew-Pauley,

W. Holmes, J. BOCSAR, Re-offending in NSW, Crime and Justice

Statistics Bureau Brief, Issue paper no.108 August 2015, <http://www.bocsar.nsw.gov.au/ Documents/BB/bb108.pdf>, Pg 4. 13

Op cit. Women in Prison Advocacy Network.

14

Australian Institute of Health and Welfare, The Health of Australia’s Prisoners 2012,

Canberra: 2013, p. 78. In Women in Prison Advocacy Network, Women in Prison Paper, 2014, <https://www.wipan.net.au/publications/WomeninPrisonPaper_WIPAN_130814.pdf>, p. 4. 15

Ibid.

16 Korff,

J. Aboriginal Prison Rates, 2016, <http://www.creativespirits.info/aboriginalculture/

law/aboriginal-prison-rates#toc3>. 17

Ibid.

18 Women 19 20 21

in Prison Advocacy Network & Zara Ali, I’m Still Your Mum, 2015.

Ibid. Ibid. Ibid.

22 Korff,

J. Aboriginal Prison Rates, 2016, <http://www.creativespirits.info/aboriginalculture/

law/aboriginal-prison-rates#toc3>. 23

Ibid.

24 Korff,

J. Mental Health at its Worst in Prison, <http://www.creativespirits.info/

aboriginalculture/law/mental-health-at-its-worst-in-prison#axzz49NIJe8fb>.


USE IT and you'll

LOSE IT W R I T T E N BY

A 20 year prison term or chemical castration— which would you choose? Kate Sammut explores the Indonesian reaction to rape offenders by examining the moral and gender based perspectives on this punishment and its potential consequences.

T H E D E AT H SENTENCE

Kate Sammut

Indonesia made headlines last month with the passing of new regulations under Law No. 23/2002. With the new changes, child rapists whose offences cause trauma, mental disorders, sexual diseases, sexual dysfunction or death, as well as rapists of more than one child victim, will receive either:

A L I F E S E N T E N C E O R 10–20 Y E A R P R I S O N T E R M , A S W E L L A S ...

C H E M I C A L C A ST R AT I O N A N D M I C RO C H I P I M P L A N TAT I O N ¹ A RT I C L E S

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Use it and you'll lose it

Effectiveness?

The reform was triggered after public outraged ensued following the gang rape and murder of a teenage girl by a group of 14 men and boys whilst walking home from school in the Bengkulu province, in Sumatra, in early May.² With this new law, Indonesia joins a handful of countries including South Korea, Poland and Russia, which also use chemical castration as a form of punishment.³ Several states in the United States and Australia also administer drugs to reduce sexual desire in men.⁴ For instance, Queensland, New South Wales and Western Australian courts can mandate the use of chemical castration for ‘dangerous sex offenders’ on release from prison. In Victoria, antiandrogen treatment can be made a condition of parole by the Parole Board.⁵

34

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It’s easy to see why the move is controversial. As noted by Hamid Dabashi (Professor of Iranian Studies and Comparative Literature at Columbia University), when the government becomes involved in legalised castration, ‘the spectre of the forced sterilisation under the Nazis is immediately invoked.’⁶ Therefore, when deciding whether such measures can be justified, the question begs to be asked: is castration an effective way of avoiding sexually deviant behaviour? Legislators argue that castration is justified and appropriate, in that castration allows perpetrators to be released without endangering the public in that their urges are brought under control. Small studies of the drug cyproproterone on volunteers in Scandinavia and Italy found that chemical castration was as effective as surgical castration (in which relapse rates have been found to drop from between 17 percent and 50 percent to just 2 percent after the operation). The most dramatic reductions among chemical trials were seen in paedophiles.⁷ Similarly, a German study found that up to half of the castrated men still could have erections and sex, but their desire was weakened or even extinguished. Over 80 percent no longer masturbated; 70 percent gave up sex.⁸ These results suggest the common argument—that rape is all about power, not sex, and therefore castration won't work— is incorrect. However, the Royal Australian and New Zealand College of Psychiatrists notes that studies of sex offender treatments are often not reliable due to methodological problems.⁹ An article published in the British Medical Journal reports that there is ‘weak evidence for interventions aimed at reducing reoffending in identified sexual abusers of children’¹⁰ and another review states the ‘research is so weak that, were the treatment not so plausible it would have to be regarded as empirically unsupported.’¹¹ In addition, androgen-suppressing medication may only be effective for rare individuals with ‘paraphilias’, a psychiatric diagnosis of abnormal sexual orientation. Many sex offenders are motivated more by hatred, anger aggression and dominance as oppose to sexual paraphilia, yet in places like Florida and Montana, all rapists are targeted indiscriminately.¹² Dr Fred Berlin (Johns Hopkins University psychiatrist and expert on treating sex offenders) argues that this imposes ‘a medical intervention in the absence of evidence that forced treatment is likely...to be effective’ and make ‘no effort to medically assess whether [castration] is appropriate for an individual.’¹³

Facts

Small studies of the drug cyproproterone on volunteers in Scandinavia and Italy found that chemical castration was as effective as surgical castration.

Relapse rates have been found to drop from between 17% and 50% percent to just 2% after the operation.

The most dramatic reductions among chemical trials were seen in paedophiles.

A similar German study found that over 80% no longer masturbated; 70% gave up sex.


Kate Sammut

Morality? Ultimately, aside from effectiveness, chemical castration raises ethical and gender-based questions. While not as controversial as surgical castration, (which is viewed as cruel and unusual punishment by Amnesty International among other groups), many would argue forced castration is immoral, regardless of what form it takes.¹⁴ While courts may be persuaded to let chemical castration stand because it is theoretically reversible, it is conceivable that, as argued by Atul Gawande (surgeon at Brigham and Women’s Hospital), ‘if this line is crossed, politicians would have little to stop them from seeking forced treatments to control other behaviours, such as adultery (for which castration has historically been a punishment), prostitution, or the consumption of pornography’.¹⁵ Given we already have drugs to limit libido, hunger, and depression, it is no stretch to say laws could mandate even wider uses of medicines to control the population.¹⁶ Many people see rapists as a special case, thus having no objections to extreme measures to stop them from raping again.¹⁷ This was highlighted when the president of Indonesia said ‘Extraordinary crimes need to be handled in extraordinary ways’, after signing the fasttracked regulations.¹⁸ From a gender standpoint, many have argued against chemical castration not because it is immoral, but because it appears sexist. It has been pointed out that women are spared having their genitals mutilated when women are just as capable, and have committed, the same crimes as the castrated male offenders. Depending on your view of this argument, it does weaken the case of effectiveness of castration as an overall method of preventing rapes. Further, depending on the perspective, it could be classified as immoral purely on the basis that this punishment discriminates based on gender. However, although we are all, justifiably so, angered by the report of rape cases, it is precisely at these moments that ‘we need to be reminded of the more fundamental issue: namely, the inadvertent delegation of even more power of violence to the state’.¹⁹ Requiring castration for rape means we have decided it is acceptable to treat prisoners as less than human. Is this the price we are willing to pay?

1

Haeril Halim and Nurul Fitri Ramadhani, ‘Indonesia

to impose castration for child rapists’, The Jakarta

Post (online,) 26 May 2016, [16], < http://www.asianews. network/content/indonesia-impose-castration-childrapists-17963>. 2

Simon Lewis and Yenni Kwok, ‘Indonesia Introduces

Chemical Castration for Sex Offenses Against Children’,

Time (online), May 26 2016, [3], <http://time.com/4348788/ indonesia-chemical-castration-sex-offenses/>. 3

Victoria Ho, ‘Indonesia will now chemically castrate

child sex offenders’, Mashable (online), May 27 2016, [10], < http://mashable.com/2016/05/27/indonesia-chemicalcastration/#SIxf29gZ3kqY>. 4

Maggie Hall, ‘Treatment or punishment? Chemical

castration of child sex offenders’, The Conversation (online), April 22 2014, [2], < http://theconversation.com/ treatment-or-punishment-chemical-castration-of-childsex-offenders-25495>. 5

Ibid.

6

Hamid Dabashi, ‘Rapists: Is castration a solution?’,

Aljazeera (online), 12 June 2014, [25], < http://www. aljazeera.com/indepth/opinion/2014/06/rapists-castrationsolution-201461273228520644.html>. 7 Atul

Gawande, ‘The Unkindest Cut -The science and

ethics of castration.’, Slate (online), July 13 1997, [8], < http://www.slate.com/articles/health_and_science/ medical_examiner/1997/07/the_unkindest_cut.html>. 8

Ibid, [9].

9

Royal Australian and New Zealand College of

Psychiatrists, Submission to NSW Joint Select Committee,

Sentencing of Child Sexual Assault Offenders, 28 February 2014. 10

Marnie E. Rice and Grant T. Harris, ‘Is androgen

deprivation therapy effective in the treatment of sec offenders?’ (2011) 17.2 Psychology, Public Policy, and Law. 11

Niklas Långström, Pia Enebrink, Eva-Marie Laurén, Jonas

Lindblom, Sophie Werkö, Karl Hanson, ‘Preventing sexual abusers of children from reoffending: systematic review of medical and psychological interventions’ (2013) The

BMG. 12 Atul

Gawande, above n7, [11].

13

Ibid.

14

Hamid Dabashi, above n6, [25].

15 Atul

Gawande, above n7, [13].

16 Ibid. 17

Ibid.

18 Haeril 19

Halim and Nurul Fitri Ramadhani, above n1, [5].

Hamid Dabashi, above n6, [25].

A RT I C L E S

35


V. TAY L A H M I H E L L

F R A N C E S C A E L I A S A RC I U L I

Affirmative

Negative

STOP.

Hammer Time. It is clear that there are areas where men and women are simply are not equal. This is also true of the Family Court. Or is it? Taylah Mihell and Francesca Elias Arciuli take opposing sides as to whether men are significantly disadvantaged in the family law courts because of their gender.

A F F I R M AT I V E

N EG AT I V E

Taylah Mihell

Francesca Elias Arciuli

The Australia Bureau of Statistics states that children are more likely to live with their mother than their father after their parents separate; and of the children who have a natural parent living elsewhere, almost four in five (79%) have a father living elsewhere.¹ The statistics are clear: men are less likely to have sole (or shared) custody of their child after separation. Is this because men do not apply for or want custody? No. This is despite men’s ongoing desire to maintain active relationships with their children after separation, evidenced through the rise in father’s rights movements such as Dads in Distress and the welcome introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), which seeks to ensure children have meaningful relationships with both parents. If you read the Family Law Act 1975 (Cth), it seems clear that men and women are considered equal in family law proceedings. In custody disputes, sections 60CA and 65AA state the ‘paramount concern’ for the court is the wellbeing of the child involved. It is important, 36

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Arguments that men face prejudice vis-à-vis women in family law disputes are informed by the belief that society favours children remaining with their mothers. However, that argument is undermined by various counter-claims and the failure to consider aspects of family law where women are, in fact, disadvantaged. A 1992 study found that only 10% of custody cases are contested in court, and fathers received sole custody in 31% of these cases. This is quite a high percentage considering that, in the majority of families, women held primary caring role prior to the dispute.⁴ Counter-claims have also been advanced that women, in fact, face prejudice in custody disputes as a result of being typecast as a caregiver. US research has found that women are held to a more rigorous standard of parenting than fathers, with studies attesting to their subsequent discrimination for ‘poor conduct’, such as extramarital affairs, which do not impact perceptions of the father as a role model when determining the best interests of the child.⁵


“remember the law does not exist in a vacuum...despite the intentions of legislation.”

“the maintenance of decisions that reflect traditional gender roles has the capacity to harm both”

however, to remember the law does not exist in a vacuum, immune from social and cultural implications and associated biases, despite the intentions of legislation. What is deemed to be in the best interests of the children—as mentioned above, the ‘paramount concern’ for the court—negatively impacts fathers in issues of child custody. When parents divorce, it is statistically more likely that the mother will have spent more time throughout the child’s life being involved in their personal care.² The Family Court may assume what is in the best interests of the child is to remain with the more ‘primary’ carer. This is when fathers are adversely affected in family law proceedings. Though fathers are typically less involved in their children’s lives for legitimate reasons —such as having to work full-time to ensure the family can be financially provided for³—the determining factor for the ‘best interests of the child’ is the history and nature of the child’s relationship with both parents. If a mother has been around a child more, this can influence the court’s decision to appoint custody to mothers, even where fathers are just as competent and loving. Family courts must acknowledge the gender bias inherent in their system; that society’s pressure on fathers to work and mothers to stay home to care for young children adversely affects working fathers who, by fulfilling society’s pressure to work rather than stay home and care for children, are less likely to be viewed as the primary parental figure, less essential to the child’s wellbeing. Society’s pressure on men to be distant providers, protectors and children’s occasional play mates, is detrimental to families and, when at play in family law, certainly adversely affecting men.

The detriment of this same stereotype, which sees a woman’s primary role as caregiver and homemaker, also devalues their work and work in divorce proceedings with the division of marital and family assets.⁶ Women that do fill this traditional, domestic role receive shares of marital property ‘well below the mean share for women overall’.⁷ This outcome ignores the economic and social realities of divorce, with many women who were homemakers in their married lives experiencing a decrease in their per capita income following divorce, while their ex-husbands experience an increase.⁸ The issue is compounded by job insecurity, as these women also face the detriments of more limited job opportunities and a lesser life-long income as a result of the wage gap, and sacrifices in full-time work that they may have made to accommodate family goals prior to the dissolution of their marriage.⁹ The inadequate amount of child support payments to cover the cost of child rearing ¹⁰ counters assertions by some men’s rights groups that fathers are prejudiced against in the determination of payments to custodian mothers, with some labeling it as ‘extortion’.¹¹ These assertions are damaging and reinforce the view that men in the eyes of the law and society, are reasonable, while women are emotional, malicious, unreasonable or unfit to make their own decisions. ¹² Finally, women can also experience gender bias in relation to family violence matters. In the past, men’s rights groups have sought to combat the purported inequity as a result of perceived gender bias by calling for a presumption in favour of children’s joint residence.¹³ This has been said to privilege parental contact over the safety of the mother and children, particularly in cases of family violence, and reinforces the male parent as a role model in cases where this may not be justified. The assertion that men experience significant prejudice in the family courts because of their gender, vis-à-vis women, is simply not valid. Yet ultimately, the maintenance of decisions that reflect traditional gender roles has the capacity to harm both men and women, in the courtroom environment and beyond.

1

Australian Bureau of Statistics 2015, Family Characteristics and

Transitions, Australia, cat. no. 4442.0, ABS, Canberra. 2

Jennifer Baxter, ‘Father’s involvement in children’s personal care

activities’ (2012), Growing Up in Australia: The Longitudinal Study of

Australian Children Annual statistical report 2011, Australian Institute of Family Studies, Canberra. 3

Ibid.

4

Miranda Kaye & Julia Tolmie, ‘Fathers’ Rights Groups in Australia

and their Engagement with Issues in Family Law’ (2003) 2(5) Australian

Journal of Family Law, 17 <http://www.xyonline.net/sites/default/files/

9

Kaye,%20Fathers%20rights%20groups.pdf>.

10

5 Lynn

11

Kaye & Tolmie, above n 1, 15.

Advocate 17(1), 22. 27.

12

Barry Maley, ‘Reforming Divorce Law’ (2012) 3(1), Australian Family

6 Ibid.

Association Journal <http://www.family.org.au/114-publications/afa-

7

Maley, above n 5.

journal/afa-journal-vol-33-no-1-2012/190-reforming-divorce-law>.

8

Schafran, above n 2, 24.

13

Hect Schafran, ‘Gender Bias in Family Courts’ (1994) Family

Ibid. Ibid, 27.

Kaye & Tolmie, above n 1, 15.

HAMMER TIME

37


The Status Quo(ta) ∙

Remember reading about the differences between men and women in management? It turns out, the inequality between the sexes can, in part, thank outdated legislation. Kate Kemp explores the consequences.

W R I T T E N BY Kate Kemp

Australia implemented anti-discrimination laws regarding gender over 25 year ago. There was hope that such laws would protect women in the workplace and see the fulfilment of true equality… Unfortunately these laws fall short. Significantly. While they target explicit gender bias they do little to counter-act the cultural belief that woman are less qualified for the workforce then men. Today inequality within the workplace is still rife, only 15.4% of CEO positions are held by women in Australia. And overall only 36% of management positions are held my men—this includes mangers at your local pizza place to CEOs around the country.

f i g 1 . I neq u ali ty w i thin the work pl ace 1 5.4 %

36%

84.6 %

CEO s

6 4%

Manage r s Female

M ale

The message is clear and simple: Men dominate Management. This problem is not unique to Australia - it is a global issue with woman being locked out of management positions around the globe. In Norway the problem became so significant that the Norwegian government mandated that 40% of all public-limited firm boards had to be made up of women by 2008. The ‘woman quota’ as it has

∙ 38

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been dubbed, was a startling success. It was such a success that in 2010 the Australian Human Rights Commission suggested that Australia also implement a ‘woman quota’. A watered down version of the law in Norway at the most. It stated that all government boards, senior ranking roles of public service and all companies that worked for the government had to be made up by women. Despite the golden example of Norway, Australia did not choose to legislate on a women’s quota. There are discussions once again about whether Australia needs a ‘women quota’. The issue is divisive. At its root is the discussion of where workplace gender inequality comes from. On the one hand, you have the argument that gender inequality is the fault of the woman who does not aspire to executive leadership roles. This idea is largely refuted by research that indicates that the issue is not that women do not want to hold leadership roles but rather that they are not given leadership opportunities. This brings us to the other side of the debate. Workplace inequality is the result of a lack of opportunities for women and therefore the women quota is the magical solution that women have been waiting for. This argument is also not entirely valid. While the ‘women quota’ does help elevate the struggles of women to obtain leadership roles, it cannot tackle the underlying workplace culture that suggests that men are more suited to leadership roles. This brings us to the final argument which states that ‘women quotas’ provide a mere bandaid solution to a much larger and more


complex cultural issue in which society inherently believes that men make better managers and leaders in the workplace and women make better mangers and leaders in the home. This last point draws us close to the heart of the issue in Australia: we have an alarming cultural problem with the way society continues to view women in the workplace and unfortunately no women quota is going to completely solve the issue. In society we are bombarded with the image of the ‘boss bitch’, the female leader who is, at best a tyrant or at worst a crazy controlling bitch, like Suits’ Jessica Pearson. And if we aren’t bombarded with images of mean working mummies than we are flooded with images of the hot secretary (take Joan in Mad Men for example). These are the main perceptions society sees when ‘women in the workforce’ is mentioned. So, play the bossy bitch or the temptress secretary? The choice is yours ladies. Considering the above, it is clear that Australia needs a shake up when it comes to gender in the workplace. The ‘women quota’ does little to overcome the attitude that women are lesser contributors to the workforce and in some situations, it enforces this idea by way of appearing that woman are receiving positions based on the quota instead of their actual skills and merit. The woman quota also fails to deal with the issue of the gender pay gap which is still alarmingly prevalent even once women reach executive positions.

However with that said, it should be noted that ‘women quotas’ are shown to be successful at reinventing the image of women in the workplace. With more women in leadership roles the position of the female CEO is strengthened because it becomes less of a unique situation and more normal, which is the ultimate goal of gender workplace equality. So with all that said, what should be done to fix issues with workplace gender equality? Some have argued that companies need to take an active approach at promoting women into leadership roles. Others have turned to the law and questioned its role in workplace equality. The Workplace Gender Equality Act 2012 replaced the Equal Opportunity for Women in the Workplace Act 1999 in order to make room for a strengthened legislation that improved and promoted equality in the workplace. The aims of this legislation involve supporting employers to remove barriers to the full and equal participation of women in the workforce. This objective should be applauded, but without detailing the specifics of ensuring this aim is carried out, we will reserve the right for the time being. Should the law take a stronger stance? Is it the law’s place? While, the woman quota may not be the best policy to adopt all hope is not lost for Australian woman. Change is happening, it is gaining momentum and it is good. The status quo is on the way out.

A RT I C L E S

39


THE W R I T T E N BY Nicholas McArdle

INTERNATIONAL How has Australia reacted to the domestic violence issue? We are beginning to understand its relevance in a domestic atmosphere, but how is the country dealing with the issue as a member of the international community? Nicholas McArdle takes a look at the approach of other countries and compares them to Australia.

40

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Whilst it is important to review Australia’s domestic legislative commitment to combat Violence Against Women (VAW), it is equally essential to focus on international efforts to address what has become a global problem. It was estimated, in a recent study on VAW in Europe, that 13 million women (7% of women aged 18-74) had experienced physical violence in the course of the 12 months before the survey interviews. Additionally, it was found that one in three women (33%) had experienced physical and/or sexual violence since the age of 15.¹ The EU’s most recent legislative steps to combat VAW is demonstrated in the Istanbul Convention,² an international human rights treaty that opened for signatures in 2011 and came into force in 2014. The treaty specifically addresses the issue of VAW by directly prohibiting VAW and outlining states’ positive obligations in response to gender-based violence through prevention and prosecution. Unfortunately, there is no UN treaty that acts in such a way. The Convention on Elimination of All Forms of Discrimination Against Women 1979 (CEDAW), a UN treaty signed by Australia in 1983, explicitly prohibits all forms of discrimination against women but it does not define VAW or gender-based violence. Further, it does not establish positive obligations on its parties to prohibit, prevent and punish acts of VAW, something that the Istanbul Convention has successfully been able to do. The Istanbul Convention has quickly become an exemplar model for international human rights that has been able to unify human rights bodies by codifying a normative standard for nations with different jurisdictions.

Despite its European origin, the treaty has been described as a groundbreaking new chapter in combating VAW, with a strong potential to become a global norm-setting instrument.³ Luckily for Australia, Article 76 allows countries that aren’t members of the Council of Europe to gain accessibility in what would represent an international unification of support in preventing VAW. It would also give Australia the opportunity to rectify previous embarrassing oppositions to the expansion of the Committee Against Torture’s ambit to include VAW as a form of discrimination,⁴ an essential evolution in the emerging international legal norm that the Istanbul Convention has successfully developed. Jurisprudentially, there are similarities between CEDAW and the Istanbul Convention, such as ‘due diligence’ obligations that attributes state responsibility for the wrongful acts of non-state actors. This standard ensures that the state takes all reasonable and necessary measures to ensure that the event doesn’t occur, otherwise they are subject to liability.⁵ This standard encourages a proactive approach by states, something that is essential in preventing VAW. However, the specificity of the Istanbul Convention is unparalleled as it contains the most inclusive nondiscrimination clause in international law to date and is only the second treaty to define gender.⁶ By doing so, the gender-specific terms codifies the law at an international level and sets an example for recognition in other VAW treaties. The inclusion of specific provisions such as sexual violence, forced marriage, psychological violence, stalking, female genital mutilation, forced abortion and forced sterilisation creates a comprehensive approach to include all A RT I C L E S

41


forms of VAW and broadens the scope to uniformity amongst European countries. Additionally, the convention eradicates social, cultural and religious patterns that undermine women’s rights, by disallowing these factors as justification for acts of violence. CEDAW allows states to make reservations about these particular provisions. Comparatively, the Istanbul Convention strictly limits the power of states to make such reservations (Article 78) with the adoption of a ‘zero tolerance policy’. Interestingly, there has been a jurisdictional conundrum whereby acts of violence have occurred outside of the jurisdiction, giving perpetrators a ‘passport to impunity’. Female genital mutilation and forced marriages are a common example of this, as they don’t always occur within the state. The Istanbul Convention has strengthened the accountability for such cases by listing the offences on the basis of territoriality and nationality by enabling prosecution of acts of VAW even if they are not criminalised in the territory they were committed. Furthermore, the convention places positive obligations on parties to undertake risk assessments in relation to lethality, seriousness and risk of repeated violence. This demonstrates the convention’s innovative practical aspect that places obligations on the state to prevent the violence from happening and to take steps to ensure it does not happen again. Another key aspect of the treaty that sets it apart from others is the encouragement of interdisciplinary values. It places emphasis on educational practices to promote equality, the importance of non-violence, measure of conflict resolution and the teaching of gender-based violence. 42

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It has also recognised the increase of online offences and has placed private sectors such as the media, information and communication sectors to be held liable (Article 17). Lastly, and somewhat most importantly, the Istanbul Convention has implemented a monitoring mechanism to ensure parties are complying with the convention. The Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) is comprised of a team of experts that are tasked with overlooking the government bodies’ compliance and efficient implementation in accordance to the treaty obligations. Recently this year, the European Commission proposed EU’s accession to the Istanbul Convention, reaffirming the EU’s solid commitment to fight against gender-based violence. This begs the question, when will Australia join the international fight to rid the globe of this epidemic?

1

European Union Agency for Fundamental Rights, Violence against

women: an EU-wide survey. Results at a glance (March 2014), http://fra. europa.eu/sites/default/files/fra-2014-vaw-survey-at-a-glance-oct14_ en.pdf, 15. 2

Council of Europe Convention on preventing and combating violence

against women and domestic violence 2011 (Istanbul Convention), CETS No: 210. 3 Olga

Jurasz, ‘The Istanbul Convention: A New Chapter in Preventing and

Combating Violence Against Women’ (2015) 89 Australian Law Journal 619. 4

Ruth Barson, ‘Evolution of international law to tackle violence against

women’ (27 November 2014) Human Rights Law Centre. 5

See, eg, Opuz v Turkey (Application No 33401/02), Judgement, 9 June

2009.. 5 Above

n 3.


Sentencing Laws: A PROFILE ON THE STANFORD RAPIST

A couple of months ago, a boy was found guilty on three counts of felony sexual assault. The convictions carried a potential sentence of 14 years in prison. Prosecutors fought to have him imprisoned for six years. On June 2, 2016, the presiding Judge sentenced the boy to six months confinement in the Santa Clara County jail. The boy’s name was Brock Turner, but that’s not the important part of the story. The important part is that he will be jailed for six months after sexually assaulting an unconscious woman, and this punishment for his ‘20 minutes of action’ appears to be a mere slap on the wrist. This is certainly not the first time a more lenient sentence has been delivered. Feminist writers like Clementine Ford have reported that lenient assault sentences send the wrong message. The outcomes of assault cases like those involving Ricky Nixon and Mathew Newton, tend to reflect poorly on the Australian legal system.

W R I T T E N BY Rosie Cotton

Following the article written by Isabelle Middleby-Clements earlier in this edition, Rosie Cotton examines the recent case of Brock Turner, the Stanford Rapist, to question the legal process of sentencing. A RT I C L E S

43


S E N T E N C I N G L AW S :

A couple of months ago, a boy was found guilty on three counts of felony sexual assault. The convictions carried a potential sentence of 14 years in prison. Prosecutors fought to have him imprisoned for six years. On June 2, 2016, the presiding Judge sentenced the boy to six months confinement in the Santa Clara County jail. The boy’s name was Brock Turner, but that’s not the important part of the story. The important part is that he will be jailed for six months after sexually assaulting an unconscious woman, and this punishment for his ‘20 minutes of action’ appears to be a mere slap on the wrist.¹ This is certainly not the first time a more lenient sentence has been delivered. Feminist writers like Clementine Ford have reported that lenient assault sentences send the wrong message. The outcomes of assault cases like those involving Ricky Nixon and Mathew Newton, tend to reflect poorly on the Australian legal system.² It begs the question, how does sentencing work? How is it possible for one man to receive the maximum penalty of fourteen years of imprisonment and a standard non-parole period of seven years, and another to be imprisoned for six months? To begin, sentencing is a challenging process as it involves the consideration of multiple factors to ensure consistency and maintaining like cases be treated in a similar manner by applying precedent. Section 3A of the Crimes (Sentencing Procedure) Act 1999 establishes the purpose for which a court can impose a sentence. According to the common law, Veen v The Queen reflects the nature of this section: ‘…Sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others 44

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when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions’.³ There was a period where a movement was led towards developing a system of guideline judgments in some Australian jurisdictions. It was in the New South Wales of Criminal Appeals Jurisic⁴ in addition to a subsequent judgment handed down in 1999, that judicial discretion was emphasised over the restrictions of mandatory minimum terms or grid sentencing.⁵ This means sentencing guidelines are not formally binding which allows for a judge to maintain their judicial discretion. On a federal level, there are no legislative provisions for sentencing guideline judgments. In 2001 case Wong v The Queen [2001] HCA 64, there was judicial commentary surrounding the possible lack of constitutional validity as a result of legislative influence. Therefore, the important thing to realise is that sentencing remains a difficult process that requires the consideration of many factors whilst following precedent. So, where does the public come in? The 1960s saw the rise of the victims’ movement and a surging increase in the public opinion concerning court cases. When crime rates rose and government intervention programs seemed futile, the views of the public on sentencing became louder. As a result, the public has become another party to the criminal justice process. The public’s involvement and exposure to cases as a consequence of the growing media influence in high-level matters leaves the people with a desire to a harsher response to crime.⁷


A PROFILE ON THE STANFORD RAPIST

Santa Clara County Superior Court Judge Aaron Persky, who drew criticism for sentencing Brock Turner to six months in jail for sexually assaulting an unconscious woman. (Jason Doiy/AP)

The media’s part in this revolves around capturing high-profile court cases with confrontational and sensitive issues such as domestic violence, but often failing to explain how the court came to their decision. The following factors also play a part in affecting the defendant. • The case of Veen v R demonstrated that issuing a longer sentence is no longer a deterrent for offenders as this case emphasised that ‘a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risk of further offending by the offender’.⁸ • Outside of a sentence, in cases like Turner’s, the defendant is also affected by the Sex Offender’s Registry as well as the completion of rehabilitative courses. This spotlight on sentencing still refrains from providing a sufficient answer to the question of why sentencing can be so diverse depending on the facts of the case.

Whilst the victim’s impact statement regarding the actions of Brock Turner has broken the hearts of many, including mine, the need for judicial discretion and consistency in sentencing is still important. However, what is possibly more important is the maintenance of faith of in the justice system. The case of People of the State of California v Brock Allen Turner (2015)⁹ was an example where this faith was tested. It is up for debate whether legal review should be conducted into the current process of sentencing. What should be considered is the education of the public. As it stands, the media infiltrates the mind of the people and influences us to see a case in a certain way. The justice system needs to take this into account and move into the 21st century and ensure people understand how a judgment is delivered. Perhaps this way, judges will maintain their ability to follow precedent whilst keeping the faith in the system alive. This article offers no comfort to the victim of Brock Turner. Her words depicting the horrific event broke the hearts of many, including mine. What happened to her was inexcusable and the sentence does not reflect the horrific nature of the crime, nor does it do anything to assist in the seriousness of campus rape in the United States. What the victim should keep in mind is that Turner’s ‘slap on the wrist’ has triggered a worldwide response into sexual assault crimes, and the public’s voice matters.

1

Rebecca Sullivan, ‘Father of Convicted Rapist Brock Turner defends

his son’s crime as victim’s statement goes viral’, News (online), June 7 2016 <http://www.news.com.au/lifestyle/real-life/true-stories/fatherof-convicted-rapist-brock-turner-defends-his-sons-crime-as-victimsstatement-goes-viral/news-story/11419a146492972a5a3916fc53f664ae>. 2

David Kelsey-Sugg, 'Media Distorts our Perceptions of Sentencing’,

ABC’s The Drum (online), 26 April 2013, <http://www.abc.net.au/news/2013-04-26/kelsey-sugg-the-mediadistorts-our-perceptions-of-sentencing/4652996>. 3

Veen v The Queen (No 2) (1988) 164 CLR 465 at 476.

4

Jurisic (1998) 45 NSWLR 209.

5

Library of Congress, Sentencing Guidelines: Australia (1 May 2015)

<https://www.loc.gov/law/help/sentencing-guidelines/australia.php>. 6

Ibid.

7

Karen Gelb, ‘Myths and Misconceptions: Public Opinion versus Public

Judgment about Sentencing’ (Working Paper, Sentencing Advisory Council, July 2006) 8. 8

Veen v The Queen (No 2) (1988) 164 CLR 465 at 472.

9

People of the State of California v Brock Allen Turner, S223698, (First

Appellate District, Division Two, San Francisco County Superior Court) (2015).

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Judgement Day WITH ERIN FINCH

Unlike the fight against the machines that Sarah Connor prophesied, today’s generation face their own Judgment Day on a regular basis when laws are delivered on their behalf. So, it’s 2:14 am, August 29 1997 and like Skynet, we have become self-aware. Interested in leading the human resistance? Ask Erin Finch a question about your looming Judgment Day!

ASK ERIN

‘Hi Erin, I was out to dinner with some friends and the issue of the pay gap arose. One of my friends argued that the pay gap doesn’t exist, as he doesn’t see it in his everyday life? Is he blind or am I crazy to believe that the stories are true and women are, in fact, not being paid the same or being offered the same kinds of career opportunities?’ •Sonali Malhotra 46

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ERIN'S JUDGEMENT

Hi Sonali, This has certainly been a controversial topic as of late. You are not the first to question the pay gap, and ultimately, its existence. First thing’s first. The gender pay gap is a reality. Studies conducted by the Workplace Gender Equality Agency report that, on average, a ‘man working full-time earns $1,587.40 per week whereas a woman working full-time earns $1289.30 per week. That equates to difference of $298.10 per week.’¹ When the data is investigated, and elements such as the women’s majority in the field of part time are taken into account, the approximate gender wage gap becomes 19%.² This 19% does not mean that women doing the same job as a man are earning 19% less, but that a woman has a 19% less chance at earning the same role and career opportunities. As a result, women have less chance in earning the same as her male counterpart.

T H E G E N D E R PAY G A P I S A R E A L I T Y.

Whilst there has been evidence to show industries like Construction and Health Care have reduced the gender pay gap in their field, one particular industry that will affect prospective UTS Law students, is the significant pay gap for barristers. Ladies, prepare yourselves for the figures. A recent article published in the Sydney Morning Herald revealed the statistics collected by principal research from ANU’s Centre for Social Research and Methods, Ben Phillips, to remove the rose tinted glasses of all hopeful female law students. According to the statistics, a male barrister declares a taxable annual income of $169,000 in comparison to the average $60,000 claimed by a female barrister. This is a 184% pay gap. This figure becomes slightly less when taking into account the average work hours of the male barrister as opposed to those of the female barrister, but this gap still reflects one of the greatest examples of the gender pay gap issue.³ Those continuing to deny the existence of a problem have argued that women simply choose not to explore greater career opportunities, or that their lifestyles do not allow for stricter working hours. These arguments are not only unfounded, but an excuse for the prevailing sexism in the workplace.

However, pay gaps do exist that favour women. Bankwest Curtin Economics Centre and Workplace Gender Equality Agency have stated that, ‘gender pay gaps are highly variable when looking at part-time employees. The average part-time gender pay gap when assessed at a base salary level is -4.4% (the negative sign indicating the gap is in favour of women). The part-time gender pay gap across industries ranges from -43% to 23.2% when the base salary measure is used, and even more widely from -60.5% to 29.5% when total remuneration is used.’ ⁴ This status is altered when the pay of part time roles are increased and the positions offered are on a more senior level. This means that, whilst women tend to dominate part time positions, they also occupy positions which are significantly lower paid.⁵ Regardless of whether the gap is positive or negative, it exists within the field many of us law students aspire to work in. Further, the number of organisations and industries committing themselves to reducing the gender pay gap reveals society’s hopes for seeing women and men operate on the same level. As argued earlier in this edition by Kate Kemp, the legislation needs to reflect the changing role of women in the workforce. This means existing legislation should be modified to include stricter rules to enforce on workplaces to ensure women are given the same right as any male applying for the job. And if it is found the law should not intervene, then society must step in to ensure society moves in the right direction. After all, who’s afraid of a little competition? Much Love, Erin Finch

1

Workplace Gender Equality Agency, ‘National Gender Pay Gap at Record

High of 18.8%’ (Media Release, 26 February 2015). 2

Jessica Irvine, ‘Australia’s Top 10 Jobs with the Biggest Gender Pay Gap

Revealed’, The Sydney Morning Herald (Sydney) June 9 2016 <http://www. smh.com.au/comment/australias-top-10-jobs-with-the-biggest-genderpay-gap-revealed-20160608-gpezg8.html#ixzz4B2dKwOBl>. 3 Jessica

Irvine, ‘Australia’s Top 10 Jobs with the Biggest Gender Pay Gap

Revealed’, The Sydney Morning Herald (Sydney) June 9 2016 <http://www. smh.com.au/comment/australias-top-10-jobs-with-the-biggest-genderpay-gap-revealed-20160608-gpezg8.html#ixzz4B2dKwOBl>. 4

BCEC, WGEA, ‘Gender Equity Insights 2016: Inside Australia’s Gender

Pay Gap’ (Gender Equity Series Report, Bankwest Curtin Economic Centre & Workplace Gender Equality Agency, 2016) 7. 5

Ibid.

J U D G E M E N T DAY

47


The Full Bench 2016 Edition Two – The Gender Agenda

Make sure that you ‘like’ the TFB Facebook page for updates on all things TFB related! For those interested in contributing, tri-annually calls for contributors are made to members via social media, email, and out fortnightly newsletter, The Buzz. For more information on how to contribute or any other queries, please contact the 2016 UTS LSS Publications Director, Bianca Newton, at publications@utslss.com.

2016 the full bench ed 2  
2016 the full bench ed 2  
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