THE STARK CONCLUSION from this review of women and criminal justice is that despite the dramatic changes which have taken place in women’s lives over the last four decades, women are still facing iniquitous judgements and injustice within the legal system. All the legal reforms have produced only marginal advances. Myths and stereotypes still pervade the courts. Women still have to struggle for credibility, their perceived deceptiveness is not yet a thing of the past, they are confronted with unspoken beliefs of ‘double deviance’, where they are not just breaching criminal law but also ideas of appropriate womanhood and femininity. They are not the gender most judges have in mind when they think of the ‘reasonable person’; that person more often than not remains intractably male. In rape cases, women continue to face unacceptable cross-examination and with the arrival of social media are even more at risk of having their past sexual conduct paraded in front of the jury.
In the last 25 years women’s organisations have turned up the volume on their discontent with the law. The arrival of greater numbers of women in Parliament has undoubtedly shifted the debate. These women MPs, from all parties, have fought hard to place women’s issues on the agenda and, despite ridicule and accusations of political correctness, they have instigated legal reform. The former Cabinet minister Harriet Harman led the way. Maria Miller and Anna Soubry have taken up the banner.
But some of the reform has had poor outcomes. Blanket bans do not work and banning the use of sexual history as evidence lacked nuance and consideration of the rare but real circumstances when sexual history is relevant. While we learned that old-fashioned gendered language sustained subordination, what women in Parliament did not realise was that ‘neutral’ language carries pitfalls too. In public documentation and reports the language is now frequently made gender neutral, using ‘he/she’ in reports about domestic violence or rape, for example. Domestic violence is certainly perpetrated against men, as is sexual abuse and stalking and rape. But how often? Most domestic violence and abuse and sexual violation is perpetrated against girls and women. Girl children experience more childhood abuse. Girl children are killed more than boy children. Serial killers prey on women; they do not prey on men unless they are men who are deemed by patriarchal values to be lesser men – namely homosexuals. Men are sexually harassed but not often. So what has happened is that gender-neutral language has masked those facts. In hiding the workings of gendered inequalities behind a curtain of ungendered language, we sustain patriarchal ideas and practices.
We have spent a lot of time in recent years pulling down the barriers to women’s achievement and trying to ensure that places of power have women there in significant numbers. It is without question vital to have women in senior positions in decision-making bodies and reforming the judiciary must remain a matter of urgency. We know that diversity produces different and more equitable outcomes. However, that also means moving beyond the safe, already acculturated appointee. There is a default position in most organisations never to appoint those who might rock the boat, when rocking is precisely what is needed.
But in trying to drive change at the top, too little attention has been paid to the lives of ordinary women and the pay differentials they face, the uncertainty created by zero-hour contracts and the gig economy. We have always known that financial independence enables women to make choices; it means they do not have to accept abusive relationships either in their private lives or in their places of work. They can move on. But the current miserable economic system which has driven down wages, disempowered workers in the name of flexibility, made housing unaffordable and largely destroyed the welfare system has been disastrous for women. There can never be equality under the current economic system where market fundamentalism rules our lives. There is nothing liberal, liberating or generous-spirited about neo-liberal economics. It has led to the disgraceful enrichment of a few at the expense of the many and created a culture in which money has become the supreme value. Masculinity and male potency are now confused with big bucks. This is why genuine gender equality will only ever be achieved if we pay attention to wider inequality.
Gender and other forms of discrimination are particularly prevalent in those aspects of our social organisation which have deeply forged hierarchies: police forces, armed forces, highly structured corporations, any place where progress upwards can be dependent on patronage or appraisal by superiors whose tendency is to replicate what has gone before. Such organisations, and this includes big law firms, should be on their mettle when it comes to their processes for advancement. In combatting modern-day slavery, companies and firms and all public bodies are required in their annual reports to document the active measures taken to ensure exploitation and slavery are not taking place in their supply chains. Those same companies and bodies should be expected to report on the progress of women and people from minorities in their workforce, not just on the pay gap but on their promotions to senior level.
There have been incredible changes to women’s lives – social, political and economic – but these have not been accompanied by great change in underlying attitudes. Conventional gender norms persist because they are sustained by deeply embedded power structures. They keep women under-represented in the highest echelons of law and business, politics and the media by undervaluing women and margin-alising them. The same power structures also expose women to disproportionate levels of poverty and sexual exploitation and make them vulnerable to violence. I have little doubt that women’s progress in education and work and their greater claim on power is a factor in the increase of harassment and sexual violation on our streets, campuses and on social media, in clubs and the workplace. It is a means of informal social control. Women are expected to adjust their behaviours to deal with potential transgression. Not men. They are called upon even by other women not to drink too much, not to go out late, to avoid certain places, to dress appropriately, and this is part of what women are taught from girlhood.
Patriarchy persists because power does not readily cede its clout. People who have known entitlement are rarely keen to surrender it. Unless we recognise that the world itself is engineered in ways that do not fully nurture women and determine to change some fundamentals, law will fail to deliver just outcomes. We can monsterise individual men like Savile, Weinstein and Worboys, but the hard work is the more difficult task of changing attitudes and cultures and of building an equitable system for men and women both.
Women are angry and we have to harness their rage against male misconduct and malfeasance into a grander ambition for change. To turn men into the enemy is futile. I do not believe we will ever see true equality if our society is constructed around ideas which create huge chasms between men and women, or between those who have and those who have not. Understanding this female anger is hard for men. Most men also face inequality but of different kinds. Many black women have resisted feminism for a long time because for them the experience of racism, which they share with their menfolk, is usually a source of greater pain. They have watched their men being emasculated and disrespected by white men and women, by police and other sources of power, and they understand why such racism makes them reach for hyper-masculinity, as an expression of their maleness, even if they as women often pay the price. We hear criticism of black absentee fathers but not why they are absent. We rarely discuss how masculinities are constructed and how cultural and class experiences lock us into certain ways of behaving that give us some sense of a powerful self.
Working-class women frequently have similar emotions about gender roles and can also be leery about feminism because they see their husbands, partners and sons losing face, without meaningful work after deindustrialisation. Yes, they are in jobs but crappy jobs, doing work that carries no respect, with none of the camaraderie that bound men of previous generations together. These women cannot see contented futures for their sons; instead they see drug abuse and disrupted relationships. My own father was a dispatch hand in newspapers, an unskilled job that is now mechanised, but his self-respect came from his role as a trade unionist, collecting dues, organising workers to ensure their welfare was considered and their wages fair. He liked looking after the members of his chapel, as his branch was called. The destruction of trade unions disempowered people, particularly working-class men, and if ever there was an opportunity to bind men and women together in the creation of better working conditions it is now, when work is being casualised and protections for workers destroyed. Men who feel the wheels coming off the vehicles of their power often cling hardest to old-fashioned manifestations of maleness, wanting to retain rigid demarcation of roles.
A man in an audience I was addressing asked what would happen to men in this new equal world I was advocating, as though, like a redundant shipyard or steelworks, they would be dismantled and sold for scrap. He was having difficulty imagining how there might be any fulfilment for men in a society where there is gender equality. While it is right that all of the jobs and roles currently held by men should be open to women, and some of the preserves of men and the social goods they claimed for themselves will have to be shared, it would not be bleak for them either. The sex might be better for them too.
If we un-gender work and pay decent wages so that many more men might be encouraged into the caring roles, which an ageing society desperately needs, we might solve some of our biggest societal challenges. We should be training many more men as counsellors and social workers, youth workers and community leaders, nursery staff and classroom-support staff, ancillary workers in hospitals. It is women who have been raised to look after others, to feed them, to tend to their needs, but it should not be so any longer. We need large numbers of men in these roles. We need to recalibrate wage claims and working hours so that more people work less and have time for play and for family. But all of that means a rebooting of the welfare state and an ambitious use of the public purse, which in turn requires fairer taxation and no one at the top taking vast salaries and bonuses. We have serious skills shortages, with too few electricians, roofers, plumbers, engineers, construction workers and plasterers, which women and men could be meeting. It fills me with gloom that we are spending £50 billion on Brexit when it could be spent on creating a world-class health service, or housing for everyone, or training places so that people can acquire new skills.
The right to our bodies and to a sexual life – whether gay, straight, bi, trans or fluid in our identity – is another vital part of equality. And we should be tolerant of difference. It is about experiencing our bodies in the world as active participants not as passive receivers. Our sexuality is integral to our sense of self, just as it is for men. Sexual equality means completely respecting the sexual autonomy and integrity of the other in any sexual interaction. It isn’t complicated and should be seen as fundamental to human relations. Men are facing a shake-up in what they took for granted. If they have to think first before making a move on a woman or another man, that is all to the good. That is how behavioural change starts and predatory or exploitative conduct ends.
Women’s anger at the system’s failure is wholly justified; and let us be clear, the #MeToo campaign is a form of civil disobedience. Women have broken the normal rule of turning to the law when it comes to abuse. They are choosing to cut out the law and due process because they have been affording them little comfort. When they complained about rape, sexual assault or sexual harassment they have been traduced as liars or fantasists or bullied into secret settlements. Now they are blowing the whistle, naming and shaming on social media. They are prepared to risk libel suits and civil lawsuits, saying ‘Come and get me if this is not true.’
However, that cannot be the way forward. I have spent a large part of my life asking questions about which parts of law are man-made concoctions to maintain male ascendancy and which infantilise women and maintain their second-class status. I have looked for ways to reform those dynamics and achieve fairness. However, I believe there are some rules in our system which are not gender specific and which have to be maintained. High standards of proof, and the obligation that the state carries that burden of proof, are non-negotiable if we are to preserve liberty – the liberty of women and men. These protections are in all our interests. Punishment without trial is dangerous. People should not lose their liberty or suffer other detriments or carry the stigma of an accusation without due process to establish the accuracy of the claim. That is a human right.
Feminism is about justice if it is about anything, and that means for men as well as women. Justice for women is not secured by reducing justice for men. I do not want to see women calling for a lowering of the standard of proof to gain convictions in rape cases, nor do I want to see men losing their jobs for minor transgressions like commenting on clothes or being overfamiliar. There has to be due process. We have to put in place proper systems of complaint with proportionate remedies. I do not think the answer to crimes against women is about throwing away the key and simply imprisoning more men for longer, except where there is a pattern of behaviour indicating a continuing risk to women. We have to find better ways through this morass. Reaching for authoritarian ‘law and order’ responses always rebounds on women too.
The law has been confronted with its failures and should now be looking for ways to address its massive shortcoming. However, the system is in crisis. In 2016 the Public Accounts Committee told MPs that the criminal justice system was at breaking point. After 20 years of successive brutal and counterproductive cuts, the system is now broken. Since the introduction of austerity policies in 2010, the Ministry of Justice has lost 40% of its budget, more than any other Whitehall department, which is an indicator of the value the government attaches to justice. Legal aid has been slashed and women have suffered the consequences disproportionately because of the effects on family law, welfare, immigration, prisoners’ law and crime. Access to justice is now being framed as a welfare issue and not as a fundamental right – which is what it should be.
Unsurprisingly there is a consequential recruitment and retention crisis at the criminal bar. The level of debt new entrants have to deal with, the collapse in fee levels and the toll taken by conducting cases which are inadequately resourced has resulted in a haemorrhaging of young lawyers from the profession, particularly women. There is little incentive for debt-saddled lawyers to opt for a career in legal aid work. More than a third of criminal barristers are reconsidering their employment options as criminal practice offers such a poor income and a miserable work-life balance. The situation is particularly acute for those lawyers with caring responsibilities because of the demands placed upon barristers and solicitors outside of court hours and the fact that childcare often costs more than you are paid for a hearing in the criminal courts. It is often forgotten that barristers are self-employed so there is no holiday pay, no parental leave pay, no sick pay, no pension and you pay a huge whack of your earnings into chambers for clerking. Solicitors are facing a similar withdrawal from criminal practice for all the same reasons. The cuts also mean that cases are ill prepared for prosecution as well as defence. Corners are cut. Money is not available for experts or translators. Evidence is not analysed for want of time and resource. There is non-disclosure of evidence by police and prosecution that can be vital to a case. People are appearing in court unrepresented. As a result, the guilty walk free and the innocent are wrongly convicted. Judges are in despair and lawyers are suffering really low morale. The only way to save the system from irredeemable decline is to have a serious independent review of what is happening and restore the legal aid system.
The idea of securing greater justice for women in this climate is remote. There has to be a cultural shift within society if we really want equality, but it will only be achieved if we constantly call out the practices that sustain inequality. This is a job for men and women together. Real reform will only come about when men join women in calling for it. The law has a powerful part to play. Change involves consistent intellectual effort. People resist it; it is only human to cling to long-held beliefs, but we have to keep making the argument that this is about our shared humanity. This is about human rights. This is about justice.