By Rebecca O’Brien
Baroness Kennedy is a leading barrister and expert in human rights law, civil liberties and constitutional issues. She became a life peer in 1997 and her opposition to encroachments on the right to jury trial has awarded her the Spectator’s Parliamentary Campaigner of the Year Award 2000. She is currently Chair of Justice (the British arm of the International Commission of Jurists), was Chair of Charter 88 from 1992-1997, and Chair of the British Council from 1998-2004. She also chaired the Power Inquiry and helped to produce the Power Report in 2006 which reported on the state of British democracy. As a barrister, she has acted in many prominent cases, such as the Brighton Bombing, the Michael Bettany espionage trial and the Guildford Four appeal. In 1992 she wrote ‘Eve was Framed’, which focussed specifically on how women are affected differently by the law, and how they were treated unequally because of this. For her work for women, she received the Times Newspaper’s Lifetime Achievement award in 1999.
In your book Eve was Framed, which was published in 1992, you write this: “Our call for gender equality has led to a hamfisted, literal interpretation of equality with no consideration of the context of the women’s lives”. What do you mean by this?
As a feminist, I began to see the ways in which the law did not work for women, and I became a champion for equality. During the ’70s we got the legislation we all pushed for, which was the Sex Discrimination Act and the Equal Pay Act. Equality was the name of the game, and if you called yourself a feminist you were still a pretty rare person; you were often seen as a bra-burning harridan. What was interesting to me was that I began to see that calling for equal treatment was misunderstood; judges would say to you “We’ll give you equality for your client. She’ll get exactly the same sentence as I would have given a man.” The answer was that one wasn’t asking for simple equality in that way, one was seeking to have treatment as equals that meant having to understand the context of women’s lives. The courts often failed to understand the reality of life for women, the circumstances in which they ended up committing crime, and that a punishment that might seem the same as a man’s was particularly draconian to a mother of small children who might have committed a crime because she was finding it hard to make ends meet. To treat her in the same way as you would a man coming before the court was inappropriate because the children then were going to suffer the consequences of this sentence as well as the mother, and whether you liked it or not women tended to be the primary carers of the children. It’s still rare for it to be men. So there was this rather silly literal interpretation of what equality really meant. This has led to a huge proliferation of women in prison, yet they aren’t committing any more serious crimes than they ever did; it’s all pretty low level stuff. The vast majority of the stories of the women who have ended up in prison is that they are themselves victims; the highest proportion of women in prison have themselves been subject to domestic violence, child abuse, child sexual abuse. They’re also often people with problems of addiction to alcohol or drugs, or they have mental health problems. You have to ask yourself, “Why?” It is usually because of terrible early experiences. While this is also true of many men in the system, it is particularly true of women because we know that in life women often have been subjected to this kind of oppressive behaviour, which is a power play. The courts have to understand what goes on beyond the courtroom doors if they want to deliver justice.
Justice is not simply what is in front of you. To treat as equals those who are not equal only creates further inequality.
You also say that “It can and does make a difference to have judges who are receptive to a female analysis of violence, who demand that legal doctrine is sensitive to its context and who render their judgements accordingly”. What do you mean by ‘female analysis of violence’?
As early second-wave feminists, we often made the mistake of thinking that the law could be neutral and we would ask for neutrality, yet in fact that doesn’t deliver justice. When I first started doing cases on domestic violence judges would say to me “But we all know what violence is like, we all know what it might be like to be assaulted.” But putting it on a par with something like fisticuffs between men is not understanding the kind of fear that can be created in a woman by someone who is much more powerful physically, and also powerful in terms of the relationship. Judges would often say, “Why didn’t she leave?” What was not understood was the psychological toil; if women experience violence and are then put in fear of it being done again, living with that fear takes a toll on people. Getting that understanding into the courtroom was important, and sometimes it involved getting expert testimony so that judges could understand that it creates a psychological freezing, the way it which it disempowers the women psychologically so that they didn’t feel that they could leave. Also working with the jury to give them an understanding of what it’s about, and defying the myth/stereotype that it is passive and meek women who succumb to this. You were also confronted with the view that judges often had, and some women did too, that if a woman held down a job or had a life outside the home then somehow she must be independent enough to not have to be that dependent on her violator. But actually this isn’t true, because if in her emotional life she was made to feel as though she had no value, and she swallowed this sense of herself either when she was younger or when she was in this relationship with a particular man, the damage this does to the psyche can run so deep that women become incapable of feeling that they have autonomy, making it impossible for them to leave. Any of us subjected long enough to that kind of controlling power from somebody else could succumb to it. It happens in relationships where there is a discrepancy of power irrespective of gender. It is about the nature of the relationship, who had the power in that relationship, and who had that sense of disempowerment. It can happen in different circumstances, I think that the best way of being a good lawyer is to really understand our world and understand the circumstances that make up people’s lives and to try and bring that into the courtroom.
Do you think the courtroom has become more understanding of domestic and sexual abuse?
It definitely has. This is now an interaction between public debate and public policy, and then eventually [between public policy and] what happens in courtrooms, therefore people sitting on juries know more and bring this when considering evidence. But we still have a long way to go on the business of handling these kinds of cases, partly because people come to the courtroom with various stereotypical ideas of what is appropriate behaviour for men and for women.
Do you think the recent development of interviewing witnesses beforehand and using the video in sexual abuse trials is beneficial to the victims?
I’m actually not in favour of this, which may surprise people because I have argued for much greater sensitivity for these cases for all my professional life. For some it is necessary because otherwise they would never be able to give evidence. However, I think this should be a real rarity. We do need, particularly for women and children, to provide the kind of support that makes it possible for them to give their evidence. This is partly because I believe that the
accuser should also see it, but also it is better for a jury to see the people giving evidence because it is much more powerful because it lets their story be told more effectively. When juries see people on a screen, even though it is much more comfortable for the person giving evidence, it is never as effective because it is as though they’re watching television: it takes the reality away, you lose the way in which we measure people in terms of their authenticity and their truthfulness. The remedy is that we’ve not normally provided people with the kind of support that they need.
You referenced this in your book as “The hijacking of women’s movement campaigns for attacks on civil liberties”. Do you see any way that this could be prevented while maintaining the advantages?
I always say, when campaigning, that with change we should beware of what we advocate, because sometimes the powers that be jump on these changes as politicians always want to say what they introduced. But then these systems could be used for other areas, such as terrorism. When we as feminists introduce these systems to treat the historic imbalances, they are never just used to treat these historic imbalances; they’re seized upon by government, often in a very authoritarian way, to purposes that I think degrade the justice system. It’s almost impossible to maintain the advantages while preventing the systems from being hijacked. I gave examples in the book, for example the ways in which legislation to stop stalking has been used to prevent political demonstrators who visit particular places to demonstrate. You have to be very careful with the ways of transmuting quite inventive processes that we as feminists have introduced into the law for women’s benefit. Women are not just people who give evidence in court against perpetrators. We’re also people who sometimes end up in the dock and we have to be careful that the protections that exist will exist for us, too. For example, when I hear women who talk about lowering the burden of proof in rape cases in order to get convictions more readily, I say, do not wish for that because that will absolutely make it easier for miscarriages of justice to take place across the board, as they’ll introduce it in relation to women but a year later it will be travelling somewhere else.
There is always the difficult balance for law both to lead society to be more just and to reflect society’s opinion as it is. Would you say that this could hinder development of the law relating to sexism that isn’t yet fully recognised by all (for example with catcalling)?
Change really takes place with changing attitudes, and the law can play a role in changing attitudes. By introducing the Sex Discrimination Act back in the ’70s it didn’t make a difference overnight, yet it gave us a tool with which then to argue for better conditions for women, for women to be given a fair crack at the whip about getting into exclusively male professions. But there is no doubt that when you introduce law that is well ahead of public opinion that you end up finding that it is not adhered to. While we believe in the jury system, which I do, one of the problems is that our society is still hugely patriarchal and makes judgements about women’s bodies all the time, as seen in newspapers and television. When we’re talking about catcalling, at the low end of the scale, we have to try to persuade our male colleagues to also call it out when it’s taking place. Men have to come on board with us to try and get the change around this. Law is only going to be as good as what is happening in the wider society, so we can try and use law as a tool but we have to also recognise that it has its limitations, because people come with the attitudes of the world beyond the courtroom door.
Would you say the law also fails those affected similarly because of their race or class?
When I first wrote Eve was Framed , I said that I’m using this as a paradigm for the other ways in which the system fails people who are on the outside, because it is a system that has essentially been made by men of a particular kind of background. White men of a particular class background mainly occupy the places where law is made, while huge inroads have been made by the presence of women, it is still insufficient. But in the same way there are conjunctions between class and gender, class and race, race and gender; all these create multiple ways of disadvantage, but each of them are disadvantages on their own. Anybody also discriminated against because of their race or class also faces similar myths and stereotypes, particularly when the judiciary is so unrepresentative of society as a whole.
Would you say there have been any positive changes since you first wrote the book in 1992 and then the new introduction in 2005?
Yes absolutely, huge changes have taken place. There are many more women in the judiciary – it’s still not satisfactory, but we’re moving ahead. We have also created systems to try to make this all more effective. Are they all good things that have happened? No. We have seen terrible attacks on legal aid, the effects of which will be particularly punitive to women, as women are often poorer than men. We’ve really damaged the greatness of our system by doing that.
What would you say your main aim or area that the law should focus on improving?
I think the law and the legal profession are going to have to be very vigilant on attacks on rights. Leaving the European Union is very worrying because it [the EU] has done very positive things for the quality of our lives and the law created to harmonise our engagement with Europe. We’ve played a hugely important role in the creation of that law and the betterment of law around environmental rights, employment rights, rights of women in the workplace. All this has been put in jeopardy. So we should be alarmed as women about what is taking place, we will have to be very vigilant about the ways in which austerity has been used to slash the availability of legal aid for cases that make a difference to women’s lives and to the lives of their children. We need to be very cautious and alert to the ways in which the quality of our lives is currently being undermined by what is taking place.