VOLUME
3:2
DECEMBER 2016
163-473
  • SEXUAL VIOLENCE, DOMESTIC ABUSE AND THE FEMINIST JUDGE

    Heather Douglas
Abstract

One of the enduring problems identified by feminist legal scholars is the difficulty of implementing feminist legislative reforms in practice. In part, this occurs because myths and stereotypes about issues such as ‘“real rape’” and domestic violence continue to be reflected and sustained by some barristers and judges in trials and other court procedures. In this context, Christine Boyle speculated, over twenty years ago, on what difference a feminist judge might be able to make in a sexual assault case. Boyle’s question has been taken up and extended to other areas of law in feminist scholarship and feminist judgments projects in recent years. Interviews conducted as part of the Australian Feminist Judgments Project provide an opportunity to further explore the question of what difference a feminist judge might be able to make in a criminal case. Forty-one judges agreed to be interviewed on the basis of their identification as feminists. Many discussed the challenges they face in cases involving issues such as sexual assault and domestic violence and how they have responded to these challenges. This article considers how they perceive that their feminist worldview influences their approach to decision-making. Drawing on the interviewees’ comments, the article identifies feminist approaches to understanding key legal concepts, managing the courtroom, controlling the admissibility of evidence and cross- examination, and approaches to language.

Keywords
Australian Feminist Judgments Project; domestic abuse; feminist perspectives; sexual violence; feminist judge
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Introduction

One of the enduring problems with the legal process that has been identified by feminist legal scholars is the way women’s evidence of sexual violence is excluded, marginalised and disbelieved. Myths and stereotypes have developed around “real rape” and legal rules were introduced, initially by judges, which reflected and sustained these myths and stereotypes. In this context, Boyle speculated, in 1985, on what difference a feminist judge might be able to make in a sexual assault case.1 Interviews conducted with judicial officers as part of the Australian Feminist Judgments Project2 provide an opportunity to further explore the question of what difference a feminist judge might be able to make in a sexual offence case. I include domestic abuse cases in this discussion as well, because similar issues around the stereotyping and silencing of women also proliferate in this sphere. This article draws on the judges’ interview comments and considers how they see their role in relation to addressing outdated assumptions, myths and stereotypes surrounding sex offences and domestic abuse and in the treatment of witnesses who testify in their courtrooms. The article begins by reviewing some of the ongoing issues that scholars have identified about the prosecution of sexual offences and with respect to domestic abuse before outlining some of Boyle’s key arguments. It then briefly reflects on the possibilities that have been opened up by feminist judgments projects, which have flourished in recent years3 before considering the strategies identified by the interviewees. In the final section, I draw some conclusions about the role of feminist judging in cases involving sexual violence and domestic abuse.