The Scarlet Letter | Season 1 | Episode 1 | Rosemary Hunter Part 1

Have you ever wondered what a case decision might look like if it were written from a feminist perspective? In this special episode of The Scarlet Letter, host Dr Tamara Wilkinson introduces the first part of an eye-opening presentation by Professor Rosemary Hunter of Queen Mary University, London. In her many years of challenging the idea that legal judgments are set in stone, she co-organised the Feminist Judgment Projects. This was a projectin which academics and practitioners gathered to imagine themselves as a judge sitting on the court of a case, rewriting the final case decision from a feminist perspective. Professor Hunter began her academic career in Australia at the University of Melbourne, then at Griffith University in Brisbane before moving to the UK in 2006. In the UK, she was a Professor of Law at the University of Kent and then moved to Queen Mary University in 2014. As of 2025, Professor Hunter has since returned to Kent Law School as a Professor of Law and Socio-Legal Studies.

First published 2017.

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Transcript | The Scarlet Letter | Season 1 |Episode 1 | Rosemary Hunter Part 1

Tamara Wilkinson: [00:00:00] Good morning. I'm Tamara Wilkinson and welcome to this special episode of The Scarlet Letter, the monthly podcast of the Feminist Legal Studies Group at Monash University's Faculty of Law. Today we have something a bit new and exciting to share with you. A couple of weeks ago, the Feminist Legal Studies group at Monash University put on our first official event, which was a presentation by Professor Rosemary Hunter of Queen Mary University in London, on the topic of the Feminist Judgment Projects, which she has led in the UK and Australia.

Professor Hunter began her academic career in Australia at Melbourne University. She has worked at the Justice Research Centre in Sydney and was the Director of the Sociolegal Research Centre and Dean of the Law Faculty at Griffith University before she moved to the UK in [00:01:00] 2006. In the UK, Professor Hunter was a Professor of Law at the University of Kent before moving to Queen Mary University in 2014.

Among her many, many achievements, she was the chair of the International Working Group on Gender and Law, chair of the Socio Legal Studies Association, founding editor online of Feminists at Law, and an academic member of the Family Justice Council of England and Wales. We're going to present Professor Hunter's seminar to you in two parts, as it's quite long.

So without further ado, please enjoy this enormously interesting and relevant presentation.

Rosemary Hunter: Thank you very much. And thank you to Janice and to Becky for inviting me. It's a real pleasure to be here and to talk about some of my research and hope to you know, very happy to answer your questions and get a discussion about some of it. Okay. So, Some of you might be [00:02:00] aware of the Feminist Judgment Projects something that I've been working on for a number of years now yeah, almost 10 years and so this is a series of projects that have involved rewriting judgments in existing cases from a feminist perspective.

So taking the original case and then imagining how, if there had been a feminist judge or a different feminist judge. sitting on the court, how might they have written that decision as at the same time. So, using all of the same only the material that was available to the court at the time, only the facts that were available, only the sort of background information that was available, the law as it was at the time and if you can, with all of those constraints, produce a legally plausible judgement, then that's a very powerful argument to suggest that the original That judgment wasn't inevitable, that there could have been a different way of writing it, and that feminist theory could have been put into practice in this particular way.

So there have been a great number of these projects. The first one [00:03:00] is in Canada who published their first six judgments in 2008 and then a variety of other countries. The New Zealand book is going to be launched at the end of this year, and then there's some projects currently ongoing in international law, Scotland, India.

I've just been talking to some women in Mexico who are thinking about setting up a project, so it's really sort of taken off internationally. And what these projects have done is, is demonstrated, you know, many different ways in which a judgment might be feminist including, you know, applying feminist theory, feminist legal theory.

Or trying to achieve some kind of gender justice, or sort of taking the, the classic areas, the sort of rape, sexual harassment family law, and applying the kind of arguments about including women's experience into law. While as I said, sort of trying to remain plausible as a judgement and working within those real world constraints.

But the one real world constraint that of course the feminist judgement [00:04:00] projects don't work within is the constraint of judicial culture or judicial ideologies. The sort of notion about what it's appropriate for judges to do and what the limits are of what judges can do. Because the whole aim of these projects is to push the envelope, is to go beyond those limits, those ideological limits.

And say, you know, what would it look, look, look like if we were taking a particular perspective rather than one that says, no, you can't go there. And so the, in, in sort of broader debates about judicial diversity, this kind of raises an issue about what kind of difference, you know, working within the constraints of judicial ideology can women judges make and the, the, you know, sort of started off being about women judges.

Is it simply symbolic? Is it simply just that it's important to have women judges because it sends a message that the, you know, the judiciary is representative of the entire community, that everybody's involved in important, you know, senior level judicial [00:05:00] decision making or is there something more substantive about it?

Is it possible that different judges make different kinds of decisions? And some of the argument has been about, well, women Perhaps, you know, so there was an original argument about women taking a different point of view because they had a different attitude to justice. So you, you, some of you will be familiar with the sort of ethic of care versus ethic of justice debates.

And I think, you know, empirically it's, it's reasonably clear that women judges, many women judges don't share that kind of point of view, but they might well bring a different life experience to The bench, which might mean that they judge in a different way and some of us have also been arguing about, well, perhaps we wouldn't expect women judges generally to make a difference, but to, that we might expect feminist judges to make a difference, and there's an article of mine called, Can Feminist Judges Make a Difference?

from 2008, which sort of set out those that argument theoretically about what you might expect a feminist judge as opposed to a woman [00:06:00] judge to do. And what I've been doing, or some of the research that I've been doing since then has really been to explore that issue empirically. And that empirical research has involved me sort of doing some case studies on individual judges who have, in one way or another, identified as feminist.

So Marcia Neve has been one of them and I've written about her in a as a chapter in a book called Gender and Judging. Justice Betty King, who is on the Victorian Supreme Court wrote some very interesting what we would say are feminist judgments in sentencing cases in relation to domestic violence and domestic homicide.

And I've published a piece on her with Danielle Tyson that's just come out earlier this year in the UNSW. Law Journal. I'm doing some ongoing research with my colleague Erica Rackley about Brenda Hale who of course is now the President of the UK Supreme Court but has a background as an academic and a law reformer and is you know, makes no secret of the fact that she is a feminist and [00:07:00] takes a feminist perspective to judging.

And I'm also doing some work around what feminist judging might look like in The lower courts where, where it's not just about writing judgments, but about dealing with litigants and exercising different kinds of discretion at that level. But the major source for this paper that I'm going to to use is a set of interviews that we conducted as part of the Australian Feminist Judgments Project.

So, that project as a whole was thinking about I was trying to think about the, the contributions of feminist jurisprudence to to law. And as, so as well as writing the imagined or imaginary judgments, rewriting judgments, we also conducted a series of, we, we looked at sort of cases where we thought feminism had been put into practice by judges.

And we conducted a series of interviews with judicial officers. Who were willing to be interviewed by something called the Australian Feminist Judgements Project about their judicial practice [00:08:00] and about how feminism might be relevant to their judging. And so those, we conducted 42 interviews in all.

41 of them were with women and 1 with men. 6 of them really didn't say anything at all about How they thought feminism was relevant to judging or they maintained that it wasn't relevant to judging, but of the remaining 36 that was the sort of distribution of them. Some of them had been on more than one court, but the we didn't get anyone from the high court and there's sort of mostly in the state jurisdiction.

There's some in federal jurisdictions as well and mostly sort of intermediate trial courts and lower courts, although with some superior court experience. And obviously, I can't break it down any further than that, because, of course, they were all interviewed on the basis of anonymity and confidentiality, and I can't say anything that might tend to identify people.

And so the, Yeah, I mean, [00:09:00] we sort of interviewed people by reference to people we knew and snowballing and So on and so forth. So who were, who either identified as feminist or were sympathetic to feminism or were willing to be interviewed by us. So what, I mean, we are not, sort of not claiming that these are representative in any way.

They're just, you know, what this particular group of people said about how they do judging. And we are also, I suppose, not claiming that. What, because as we well know if we do this kind of research that what people say they do necessarily lines up with what they actually do. But at least these are, these are accounts of what people thought they would do or represented themselves as, as doing or being interested in doing in terms of the way that feminism might be brought into judging.

And I should also say a word about what counts as feminist. So because. We know that feminism is a very varied and wide ranging set of ideas. And so what I'm using [00:10:00] to the term to refer to here is sort of broadly embracing anything that promotes the interests of women or draws on feminist theory or is motivated by feminist values.

So, for instance, where an interviewee has identified a particular practice as feminist, I haven't tried to second guess them and think, you know, yes that is or no that isn't feminist. If she says it's feminist, then it is. But by the same token, I might have ascribed things to people as being feminist, even though they might not necessarily identify it as feminist.

We also have to observe that feminist values might motivate a more general kind of humanism. So a concern to judge inclusively is likely to embrace not only women but other groups who have been traditionally marginalized. By the legal system and the fact that something might be considered feminist, such as a commitment to equality, for example, doesn't mean that it can't also be considered as an element of some other philosophy, such as liberalism or anti racism [00:11:00] and so on.

So, so this is something that I frequently get asked about when giving these kind of talks. Well, you know, what What's feminist about that? Isn't that, isn't it this, isn't it that? So feminism isn't the residue that's left over when all other possibilities have been exhausted. There might well be overlaps between feminism and other approaches.

But I'm taking the sort of broad view but you could also see it as part of a, of a sort of progressive agenda. Certainly will overlap with other progressive agendas. So The first thing that I'm going to talk about is, is how people talked about doing feminist judging. And so at the most general level, the interviewees and the judges in our case study were observed drawing on combinations of feminist epistemologies, feminist values, and feminist practices in their judicial work.

So the feminism influenced how they thought, what they believed, and what they did. And what they did and said. So, for many people, so, the [00:12:00] starting point was that they had a feminist consciousness and that that informed their judicial thinking generally and that was also evident in the case studies so for example, one magistrate said that feminism probably informs my worldview and so when I'm making moral judgments I'm sure that it informs my decision making as anyone's background does.

And more specifically, judicial officers displayed many of the hallmarks of feminist thinking as applied to judging that have identified, that I identified in my theoretical article. So they, for example, asked the woman question, which is the thing about thinking about how apparently neutral rules and practices impact differently on women.

And so they might have perceived unfairnesses and injustices. In particular situations where a male judge might not have that perception. They understood the specificity of women's lives and women's experiences. So they understood about things like the gender dynamics in families, the gender division of labour the, the [00:13:00] notion of, of violence as something that involves power and control, the difficulty of leaving an abusive relationship, and the sort of experiences of women's bodies and women's lives around pregnancy, childbirth, caring for children and menopause and so on. And so they and that was sort of particularly notable. I mean, some of you might be familiar with a case that was decided by Justice Neve. She was the leading judge in the Victorian Supreme Court called Giller and Procopets which was, it sort of involved torts and breach of so it was, De facto property division and damages for injuries caused by domestic violence and breach of privacy, as I recall.

And she, she, the claimant had been given a fairly, was largely dismissed by the trial judge. And, you know, found to be not particularly credible. And the claims that were found to be credible were minimised significantly in terms of their effects. And, and when they went, when it went to the Court of Appeal [00:14:00] Justice Needham just took a very different view of the claims that this woman was making.

And their credibility and plausibility and the, the effects that the experiences that she described would have had on her which then made a huge difference to the damages that she was awarded and so on. So, that's a sort of good example of all of that. As well as drawing on their own life experiences as women judicial officers were sensitive to the life circumstances of women who were very different from themselves.

And so, for example, here's a, a quote from one magistrate who said, well, you know, I'm a white middle class woman. I can't pretend to know what it's like to be many of the women who come in front of me or being married to many of the men who come in front of me. In the domestic violence list. But a good feminist knows what they don't know.

And so rather than making judgements based on my own experience, what I have to do is say, tell me your story. And listen to the particular story [00:15:00] that you were trying to tell me, which I know will be different from my own experience. And The, of course, awareness of difference and the position of marginalized people in society in the legal system, as I said earlier, very often extended to other groups and issues other than gender.

And again, here's another judge who said, well, as a feminist, I have a, because I have an understanding about the barriers that are put in front of women, that makes it more easy for me to understand the barriers that are put in front. of other people as well, and so I'm sensitive to other forms of discrimination as well as gender.

So, these sort of quotations also illustrate that one element of feminist knowledge is familiarity with the social context in which legal issues coming before the courts arise. And that might also include familiarity with research evidence on matters such as the feminization of poverty or the gendered nature of domestic violence or the cycle of violence and that kind of feminist background [00:16:00] knowledge might also include awareness of international human rights standards and, and CEDAW in particular was mentioned as something that people would have in their minds when they were involved in decision making.

Okay. So then moving on to feminist values. And Okay. Lady Hale has observed that decision making which promotes equality is what she says consistent with the fundamental principles of law and as such can hardly be a source of objection. And indeed it would be difficult to object to any of the feminist values that were embraced by the judicial officers that we observed and interviewed.

Including the, an ethic of care, including inclusivity. Addressing inequality and striving for the possibility of justice. So a handful of interviewees referred to the value of being inclusive. For example somebody said everything we do I think we should try and include rather than exclude.

And the notion [00:17:00] that feminism is about taking everybody's perspective into account rather than Privileging a particular section of society. And one of the judges noted that she frequently referred to the Equality Before the Law Benchbook. To ensure that everyone appearing before the court was appropriately recognised and accommodated.

Others talked about recognising inequalities and addressing them as far as possible. We're trying to ensure substantive rather than merely formal equality. And in the sort of family law context, this came up in relation to, you know, the difference and, but recognising the equal value of breadwinner and homemaker contributions and in Justice King's judgments, sort of very strongly affirming rights, women's rights to autonomy and not to be controlled by men.

So this is one quote from one of Justice King's judgments. Our community, parliaments, the courts have repeatedly said women are not chattels. They're not something that is owned by a man. Your wife was entitled to leave you. She had the right to do so. She didn't have to [00:18:00] tell you where she was going.

She didn't have to tell you if she was having a relationship with someone else. You had no right to control what she did. So those, that's a sort of strong statement that you don't often see in, in, well, certainly we didn't see in any of the other sentencing judgements from any of the other judges on the Victoria.

One interviewee maintained that what a judge should do is to try try for the possibility of justice, not through the indifferent application of legal rules, but through attention to the particularities of the litigants and the, and the issues in each individual case. And then in terms of practices Interviewers described a number of general feminist practices which might be used at any relevant point in order to operationalise feminist knowledge and values.

So one of these was acknowledging and engaging with emotion rather than taking the more traditional judicial stance of supposed dispassionate objectivity. So here's a quote from one judge who said, You can [00:19:00] do it differently. You can engage with emotion and grief. We're told that we shouldn't, and we tell juries that they shouldn't, but that's wrong.

And that's why so many people have a bad experience of the legal process. But we could, we could still do the job of adjudication, but we could engage with the emotion and grief. We don't have to sound like such swear word cold bastards. And, another strategy was actively seeking information, so perhaps information hadn't been put before the court, but The judge would then ask for it in order to get to a fair or a just result, and especially in sentencing, but not confined to that.

So that might include, if some people hadn't mentioned a defendant's domestic situation, they might ask about it. You know, are they the primaries of care, carers of children? How old are the children? What arrangements would be made for them if their mother went to jail? Might also extend to calling for additional psychological reports or other expert evidence or material that might support alternatives.

And some also mentioned getting [00:20:00] additional information, for example, in child protection proceedings the mothers asking for details of the mother's circumstances or asking questions about any history of violence in a family law case. And asking. for going off and looking at additional literature which gave the conceptual understanding, you know, pay equity case about valuing women's work which hadn't been put before the court or put before the tribunal by the advocates.

And then a further step along this line involved making use of the court's resources as part of a problem solving approach where other sources of assistance were unavailable. So here's a magistrate talking about, you know, here's a woman, she's on her third shoplift. It's an illness, but I don't have a social worker's report because she's not facing jail, so she can't get legal aid.

So that avenue is shut off to [00:21:00] her, but I do have a mental health nurse, so I'll get her to talk to him. If I can dismiss it under the Mental Health Act, then what follows from that is that she might get the treatment and the the resources that she needs to work through whatever is making her shoplift, and that might be a good result.

She also went on to acknowledge On the other hand, having that on your record might not be such a good result if you were wanting to do other kinds of things. So she said, you know, this, this also might be an illustration of the problems of feminist meddling in people's lives. So she was very sort of reflexive about what she was doing, but sort of trying to help out in this, in that situation and using the resources that she had.

And then of course another well established feminist judicial strategy is that of affirming and validating women's experiences of trauma and victimization and abuse, taking care to hear and believe and acknowledge what has happened to women before the court and the effects that it's had and to acknowledge that it was wrong.

[00:22:00] And another magistrate noted the importance of particularly in a small community of sending messages of vindication and support to victims of violence. So even if perhaps there was a prosecution for a domestic violence offence and there wasn't quite enough evidence to prove the case on the, you know, beyond reasonable doubt.

She would nevertheless say, but I don't want you to think that I didn't believe you. I, I believe that this is what happened. It's just that there's some other countervailing evidence that makes it impossible for me to record a conviction. But please make it clear, if the woman's not in court to say to the prosecutor, please make it clear to her that she was believed.

And if it happens again, she must come back. So she says, you don't want to send the message that there's no point going to law. You want to send the message to the prosecution saying, if you get better evidence next time, you could get a conviction. So just making that encouragement. Now, of course, the flip side of validating women's experience is also holding violent men to account.

[00:23:00] And that was another sort of theme in the interviews. Also a theme in Justice King's sentencing judgements. So, often in response to claims that defendants had lost control and killed their partner she often identified their actions as in fact the product of unprovoked anger and rage. And she gave them lectures on the need to control their anger, and the need for men to control their anger rather than giving vent to it.

And also some others talked about holding men to account in terms of discharging family responsibilities. So not, you know, expecting the woman to do all the child caring and then dropping in at some point and saying, I want contact or I want the kids or whatever it is if they haven't taken responsibility.

Also got the point there about educating defendants about the unacceptability of violence. And again, this is same magistrate who just had this. So many fantastic quotes. She said, I always say to blokes, I don't know if you grew up in a house where there was violence, and if they say yes, then she'd say, well, you know, little kids work out [00:24:00] how to behave by looking at why are you sending this message to your children.

If they see you being violent, that's how they'll learn. And if they say no, then she'd say, well, if you didn't grow up in a house with violence, why should your kids grow up in a house with violence? So just, she said it really gets their attention. You know, they've got a short attention span. I've got a limited amount of time.

I've worked out that this is about what I can say in order to get that point across.

Tamara Wilkinson: Thank you so much for listening to the first part of Professor Rosemary Hunter's seminar. You can catch part two of the seminar next month. Thank you for listening to this special episode of the Scarlet Letter. You can find us on SoundCloud, iTunes, or on our blog, which is found at feministlegalstudies. wordpress. com. And as always, don't forget to subscribe to the Scarlet Letter to make sure that you never miss an [00:25:00] episode.