The Scarlet Letter | Season 1 | Episode 2 | Rosemary Hunter Part 2

Professor Rosemary Hunter kicks of the second part of her presentation with a compelling discussion on the intersection of gender and law, shedding light on the often-overlooked influence of feminist perspectives in the judiciary. From it's roots, the legal system is unfair. Through better courtroom management, procedural justice, and problem-solving approaches, she highlights how the system could be more inclusive and fair to marginalised groups. Professor Hunter illuminates how the legal system also works against feminist judges, including challenges like judicial neutrality, legal precedent, and that it is only when feminist arguments are 'put' to judges, that judges can actually make feminist change.

First published 2017.

The Scarlet Letter podcast is produced by the Feminist Legal Studies Group. This podcast features interviews with feminists connected to the law, discussing their life, work, and feminist perspectives. It's perfect for anyone passionate about feminist legal scholarship.

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Transcript | The Scarlet Letter | Season 1 |Episode 2 | Rosemary Hunter Part 2

Tamara Wilkinson: [00:00:00] Hello, I'm Tamara Wilkinson, and thank you for joining us on The Scarlet Letter for part two of our special presentation by Professor Rosemary Hunter on the role that feminism plays in the judicial system in Australia. If you haven't had a chance to listen to part one as yet, I'd recommend you take a few moments to do that now, as we're just going to dive right in at the middle point of Professor Hunter's presentation now.

Rosemary Hunter: So obviously, as well as interacting with litigants, feminist practices included interactions with the law and that might include criticizing gender biased laws or authorities and also ensuring that that good laws, so feminist inspired, for example, law reform activities were given full effect. But in [00:01:00] terms of for example, examples of dealing with Precedents that judges found problematic, you know, they're bound by them, they have to apply them, but it doesn't mean that they can't make a comment on them.

So one judge, this is a Court of Appeal Judge Phillips is a evidence case about similar fact evidence and it sets a very high threshold for when similar fact evidence will be accepted. And the, the actual case involved someone who, you know, had a sort of a clear modus operandi of, you know, knocking women out and having sex with them effectively when they refused to do so.

And the, the High Court had said that there wasn't sufficient similarity between these cases. So, anyway, she said, I had to deal with Phillips. And I said, as politely as I could because the High Court almost seemed to be saying there's nothing remarkable about a bloke trying to have sex with girls when they don't want to, and being violent to achieve those ends.

So I said something like, Well, Heichol obviously didn't mean that, because that would be a very stupid thing to say. So it's obviously not [00:02:00] what they were saying. And she kind of did the most that she could to interpret the precedent and limit it as far as she possibly could. And she says again, you know, cases to do assumptions about girls.

Girls will complain, girls will report, girls making it up for no reason. I've had a shot at those, and I've had a shot at some of the defences too, in relation to consent issues. So she would make comments even where she had to apply the law, but nevertheless make it clear that she was not happy with it.

And and so then the converse of that is, as I've said, sort of giving progressive law reforms their full effect. And so this sort of examples of that, people talked about examples of that in relation to the sort of breadwinner, homemaker, equal valuation of contributions in the Family Law Act Justice King in relation to the abolition of provocation in Victoria, sort of saying things like, you know, provocation has been abolished in this state and rightly so you know, following on from that protection of complainants that's allowed in evidence [00:03:00] legislation, so one of the magistrates talked about how difficult it was in a committal hearing to, to protect complainants from bullying cross examination and enabling them to give their best evidence.

And she said, you know, she gets strong resistance from defense counsel and her colleague, her other magistrates say, look, don't bother. It's too hard. But she says, no it's up to me. The legislation is there. It's about my bravery in applying the law and being solid. So it was not an easy thing to do but it was something that she felt that she had to do in order to protect complaints and implement the legislation.

And again, sort of giving full effect to domestic violence legislation. A lot of magistrates are very reluctant to grant exclusion orders, but, you know, realising that they're there, they're there for a reason, and so you need to use them in appropriate cases. And in fact, a number of the judges had been involved in law reform activities.

Often also in pursuit of their feminist [00:04:00] principles. So for example, one intermediate court judge, she had dealt with her frustrations about the perpetuation of rape myths in higher court authorities, which meant that she was, when she was giving jury instructions required by the law, often to say things to juries that were quite wrong she said by getting involved in law reform on the subject in order to change that area.

And another Superior Court Judge in her law reform work was able to abolish a particularly objectionable common law doctrine that she'd encountered in her judicial role which was a tort law doctrine. So moving on to the when. When do when are there sort of opportunities for doing these kind of feminist practices?

So the, I suppose the, the, the, The big area that a lot of the interviewees talked about was in relation to procedure. So, quite a few interviewees, and especially those sitting on tribunals and lower and intermediate courts, identified their main [00:05:00] feminist contribution as being managing the courtroom, and conducting hearings so as to create a better environment for litigants.

And, you know, Running hearings in a more people sensitive way reducing formality, enabling claimants to tell the story they wanted to tell, not feeling intimidated, not allowing sexist language in the court paying specific attention to the position of victims and Sort of implementing evidence legislation as I talked about preventing abusive cross examination preventing counsel from making prejudicial statements based on rape myths and stereotypes proactively ensuring that special measures such as screens or remote witness facilities were available, so not waiting for to be asked, but actually saying this is a case where I think that this ought to be put into effect.

So some, and some interviewees located their approach to courtroom management within a broader commitment to procedural [00:06:00] justice, which entails concerns with how litigants experience the court process and ensuring fairness for all participants. Others mentioned their interest in therapeutic jurisprudence and problem solving approaches which aim to make the court process helpful rather than harmful to litigants and which seek to address litigants problems holistically rather than focusing narrowly on the legal issues and processing people through the system.

So that example of sort of trying to get Help with mental health help was a good example of that, and that was certainly a judge who would have been quite heavily influenced by therapeutic jurisprudence. And the other, the other place where the this kind of concern with values of procedural justice or therapeutic jurisprudence or an ethic of care might come in is in the actual writing of judgments.

So the way in which litigants are addressed and the way in which they're written about. So, for example One judge says, well, there's always this mantra when you say to judges, who do you [00:07:00] write judgments for? And they often say, oh, the parties or the primary audience or the losing party because you have to explain.

But that's often a mantra and they don't actually sort of put it into practice. And then they say, oh, and then there's also the appeal court and the lawyers and the rest. And actually, it's the appeal court and the lawyers who they really write for. But this judge was very clear about writing for the parties and what that meant, and what that meant in practice was using language that they'd understand and being careful about how you write about them.

So if you have to make adverse findings about them, or make comments on their character or why you didn't accept their evidence, then you can do that in a kind way and in a way that isn't denigrating. She was very conscious about that and also several of the judges had been coroners and they talked about writing coronial decisions, inquest judgments in a way that makes people feel that the, their loved one, you know, has been understood [00:08:00] as a person.

So I always give a narrative about the person, short description about who died, because they're someone's son, daughter, mother, father. There's someone to somebody. So it's, if you reduce them to volumes of material about their blood pressure and their heart rate and who threw the first punch, it trivialises their lives.

So it's important to flesh them out. Let the family know that you have heard about who they knew as a person and making that clear. And in terms of substantive decision making, at every point there's the possibility to bring in these kind of practices. Decisions about admissibility of evidence.

Decisions about assessments of credibility. Analyzing the facts. Formulating jury instructions. Exercising discretion. Interpreting legislation. Developing the common law. A number of judges who were at that level talked about how they could develop into areas, you know, where they have novel issues and could develop it in a feminist way.

We've talked a little bit about sentencing considerations, so not just the actual exercise of [00:09:00] sentencing discretion, but the kind of considerations that would come in. So that, that some of the feminist judges had, had added to. So is it, what, ways of thinking about, so for example, one of the judges talked about changing the whole approach to child sexual offences, so to understand the harm to the child was about.

The breach of trust and the sort of exploitation of their position of vulnerability rather than loss of sexual innocence, you know, so that's a, that was a sort of an example of doing that and of course assessing damages and I gave the example of masking me in the Giller and Prokopets case.

Since, yeah, I quite like this one who was saying, you know, in terms of the development of the common law if terra nullius can be overturned when it was upheld for such a long time. Then there was a different way of thinking about that. Why can't you do that in relation to women's issues or other social justice issues?

And then the other sort of way in which they could contribute very much was not actually making a decision in an individual case, but contributing to judicial conversations either as part of a collegial court, if it's a [00:10:00] court of appeal, or just outside the court. So in the lunchroom, in various ways, judges discuss their cases.

You can influence and have an influence so that might then influence the other judge in the other case. So people often say, Oh, this is all very well when you're talking about appellate decision making because you're going to be one of a college, a number of judges and you can talk to them. But you can, but it was also clear that you could interview influence other individual decision making by having conversations with other judges behind the scene.

And some of them in fact have been involved in. Judicial education processes behind the scenes, either within their court or more generally. Introducing and making sure that issues around gender and gender justice had been volunt and truly addressed. And then the kind of areas of law that most commonly came up tended to be ones that you might expect.

They're basically ones about people. But, in civil law, sort of mainly taught personal injury, industrial injury, [00:11:00] and then there's a sort of, they're the sort of most common ones, and then there were the other areas that were mentioned by some people, and the ones on the bottom line are ones that, the work that we're doing with Lady Hale sort of suggests they're the area, you would add those areas, those areas in which she is sort of having a feminist effect.

Now obviously there are real limitations to what judges can do, if you're dealing with a case that doesn't raise any kind of remotely gender issue, like most of what Justice Neve did, so I looked at all of her judgments in the first three years in the Court of Appeal. About 30 percent of them raised gender or feminist issues.

The other 60, the other 70%, there was not a thing in sight. Most of the civil work was like eye wateringly boring, you know, construing of commercial contracts. There's not a feminist issue there, no matter how hard I tried. So there's an awful lot that just doesn't give you the opportunity to to use a feminist approach, and then judges also talked about the law not letting them go there, gender bias [00:12:00] precedence, mandatory sentencing legislation, which makes it very difficult to, you can't exercise discretion anymore, or in some appellate courts, you know, you can see that an injustice has been done, but there's no appealable error of law the judicial ideology, the notion about what's appropriate and then some of them also said, well, I need feminist arguments being put to me to enable me as a feminist judicial officer.

And one said, you know, I came here, I thought I could be an agent of change, and I was a bit of a shock to realise that I can't just pull it out of the air, I have to have the arguments put to me, and if those arguments aren't put to me it's difficult to, to to make that, the kind of difference that I would like to make.

Right, so, conclusion. So what I tried to do in the conclusion was kind of compare feminist judgement projects with real life judging, feminist judging. Okay, so the feminist judgement projects have tended to, because they're For the second thing, more consciously informed by feminist theory have tended to apply across a wider range of areas.

So, you know, we've had environmental judgments and constitutional law and [00:13:00] commercial areas. So a whole range of things, you know, because feminist theory has covered just about everything. So it's possible to do as a theoretical exercise which doesn't necessarily happen so much in practice. But obviously within the feminist judgment projects, we're also not Do you, having to, because we can choose which judgments we write about, we don't have to operate in those areas of law where there's no scope or contend with gender biased precedents because the whole point is to change the precedent in your imagined judgment, not reliant on having feminist arguments put to you, and perhaps a bit more free to introduce extrinsic research and evidence.

But what the real world judges show is the sort of all the different aspects of the role not just writing judgments, but all the various ways in which feminist sensibilities can be brought in. Much more about sentencing and tort law assessment of damages than we've actually done in the feminist judgment projects.

But a lot of confluence in terms of how it was done in terms of the epistemologies and values and practices. So perhaps we thought, in [00:14:00] fact, feminist judging might be more of a shared enterprise than we had expected. Why did this come as a surprise? Well, and then it occurred to me, of course, that there's a huge difference between what feminist judges will say to us in a confidential interview, and what they can publicly say as, about themselves as judges.

And there's a, there's a sort of real sense that, If you talk about feminism, then that evinces some kind of bias or is, means that you're pursuing some kind of agenda. It's destructive of judicial neutrality, and although us as academics have had the arguments about how that's not the case, it's very difficult for a sitting judge to make those kind of things.

So perhaps we need to look less at what judges say about what they do, and look more at what they actually, quietly, do. You know, under the radar doing in fact.

I'll just join with me in thanking Rosemary. I can't think of a better, I can't think of a better [00:15:00] paper that connects theory and practice to be the first paper from our new feminist legal studies group.

So thank you Rosemary and thank you very much for coming. Oh my goodness, very much. APPLAUSE

Tamara Wilkinson: At this point, Professor Hunter invited questions from the audience. Our microphones weren't able to pick up the questions particularly well, so I'm going to paraphrase them now for you. This was the first question.

When you listed the substantive decision making criteria, were there any considerations about the prospectivity or the prospective consequences of the judge's decisions? For example, in sentencing, if they're sending a woman to jail but she's the primary caregiver, what that might mean in terms of the effect on the household?

Or if she's sending the husband to jail and he's the primary breadwinner?

Rosemary Hunter: Yeah, definitely, yes. And so obviously they, I mean they would say I've had a case where, but they couldn't. Go into detail about individual cases. So it was, it was [00:16:00] less easy for them to do that. But yes, certainly they would say, I'm seeking this information because I want to know what will be the consequences.

For example, if I put the woman in jail and, and I will try not to so we'll try to head off bad consequences. There was another one example where talking about spousal maintenance and the fact that they were Talking about wanting arguments put to them, desperately trying to get lawyers to make arguments for spousal maintenance because they knew that this woman would be in poverty if she didn't get it.

And having real difficulty trying to convince people because this, you know, this is just norm that you don't do spousal maintenance, but understanding what the consequences would be if people didn't get it. So yes, very, very much so. The second question was, can you say a little bit more about the comments you made about emotion?

Tamara Wilkinson: I was looking recently at some of what Sarah Ahmed has written in the UK, about the connections between emotions and justice, and one of the things she argues is that [00:17:00] traditionally emotion has not played a role in law, but that there can also be problems with the articulations of emotion in law, because they're often attached to and help articulate social norms.

What I'm interested in is whether the judges either said anything about the particular kinds of emotional articulations they're thinking about, or if you have any reflections on it. Yeah, no, that's, that's a good point. And I suppose that when I said that the feminist judgment projects have been more conscious of feminist theory, I mean, what a lot of the judges said was, I'm not a feminist theorist.

Rosemary Hunter: I didn't, I went to law school before they had feminist legal theory. I've picked up my Feminism from practice and from experience and from doing a bit of reading and from this, that and the other so it's completely, you know, uninformed and, and so they're not reading Sarah Ahmed but I think what they mean when they're talking about acknowledging emotion is acknowledging pain and and hurt [00:18:00] and sorrow, grief, so the, the kind of emotions that Bring people before the court as often as victims.

And, and acknowledging those kind of emotions. Yeah, I think that that's what they're talking about particularly. The third question we had was, I was pondering the concept of neutrality while you were speaking, and so many of the strategies that you were talking about that these judges employ, that they name as feminist, challenge their notions of neutrality in the court, and that's obviously a key feminist project, challenging neutrality and the harm neutrality brings.

Tamara Wilkinson: What it made me think about was whether or not there are such strong limits to the feminist project as a judge because of the strong constitutional requirements around neutrality and independence and institutional integrity that come from having a separation of powers. And does that limit what the judges can effectively do as feminists?

Rosemary Hunter: See, I don't, I think our evidence shows it doesn't limit what they can do. It limits what they can [00:19:00] say. But I don't think it limits what they can do. If they are doing all of these things, or if they think that they're doing all of these things, then So I think the limits on what they can do are not to do with ideological notions of judicial neutrality.

I think there's certainly to do with what they feel that they can say that they're doing or what they can advocate doing. And I think that they're about, more about You know, the fact that you're bound by precedent, and there's vast areas of law where you don't have the opportunity to bring any of this in at all.

They're the, they're the real limits rather than the, the notion of neutrality per se. But I also, yeah, and I think that, as I said, as academics, we've spent a lot of time, and I've written about, you know, the difference between, that all of this kind of, In my view, it comes within the notion of neutrality, because it's actual impartiality, it's inclusive, it's making sure that everyone's included, rather than the [00:20:00] partiality of having a legal system which is built on the perspectives and experiences of one small section of the population.

But, you know, a judge doesn't have time or the ability to make that argument, and so I think it's probably easier for them to not talk about it, but to do it.

Tamara Wilkinson: And finally, we had one last question, which was, Have you looked at the extent to which male judicial officers consider themselves to be feminist?

Rosemary Hunter: Yep. A little bit. And in fact,

we stopped trying to interview. So we interviewed one man because a lot of his colleagues said you should talk to X because he's It's really sympathetic and supportive and all the rest of it. And we talked to X, and the interview with X was so disappointing and wishy washy and nothing that we thought so X, you know, might well have been very supportive of his female colleagues [00:21:00] and his feminist colleagues, but he wasn't, he couldn't talk about being a feminist judge and so we, we stopped trying.

But I think there's definitely more work to be done there. I, I think it's important. that, so just as not all women are feminists, not all feminists are women. And so I think it's, and certainly if we want to see these kind of practices, if we think that they're a good thing and we think that they should be, done more broadly, then we need men to be doing them as well.

The project that I'm doing with Erica on the UK Supreme Court, so we're looking at Lady Hale, but also all the other justices as well. And I think, I think there's probably three feminists on the UK Supreme Court. And two of them are men. But they're kind of, they're part time feminists. So it's interesting sort of working out, and what, what cases trigger them to, Trigger their feminist sensibilities and which ones don't, and we're working on that at the moment.[00:22:00]

Tamara Wilkinson: Thank you so much for joining us today for part two of Professor Rosemary Hunter's presentation. And, as always, thank you for listening to The Scarlet Letter.