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Feminism and the Labour Left: a perfect political union?
Socialist and feminist politics have sometimes had a difficult relationship in the past, but an intersectional approach can move past these issues. This article looks at the importance of culture and policy, and sets out four ways feminist policies should feature in Labour’s programme for 2018 and beyond.
Published April 2018, Volume 26, Issue 1, Renewal a journal of social democracy
Socialist politics has sometimes had a difficult relationship with issues of gender inequality and feminism, but, since at least the 1980s, the Labour Party has committed itself to championing gender equality alongside issues of class and economic equality.
This article examines the relationship between socialism, Labour, the Labour Left and feminism historically, before turning to key feminist policies and debates in the present, in order to suggest how gender should feature in Labour’s programme for 2018 and beyond.
Socialism and feminism have the potential to be reconciled. The theory of ‘intersectionality’, an idea coined by Kimberle Crenshaw in the 1980s, offers a way forward. Applying an intersectional approach involves identifying the different strands of people’s experiences and vectors of identity and oppression stemming from gender, race, class, disability, religion and immigration status. This has yet to become mainstream within political parties, but it is vital for Labour to take intersectionality seriously if we are to deal effectively with all the facets of inequality in twenty-first century Britain.
Socialism and feminism in history
Marxism and feminism have often occupied a tense and uncomfortable position alongside each other in politics. Some feminists contend that marxism is inherently masculine, pursuing the interests of the white, male working class and focusing on class inequality to the exclusion of gender inequality. According to lawyer and feminist legal scholar Catherine MacKinnon, marxism focused on how the state manifests class power and inequality and how a class-based society can be transformed.1 It offers little space for thinking about gender as a distinct axis of inequality and oppression. MacKinnon succinctly sums up the divergence between feminism and marxism: ‘sexuality is to feminism what work is to marxism: that which is most one’s own yet most taken away.’2 Feminism and marxism, in this reading, have fundamentally different priorities. Women were also generally marginalised from radical and liberal politics in the nineteenth century. The Chartists famously demanded universal manhood suffrage in the 1840s. And MacKinnon highlighted the fact that liberal thinker John Stuart Mill’s famous petition in Parliament in 1866 for women’s suffrage was partially justified on the basis that ‘the majority of women of any class are not likely to differ in political opinion from the majority of men in the same class.’3 The class of a woman’s husband often determined her position in society. Gender inequality has not always been at the heart of left politics.
The traditional focus of the Labour Party in the early and mid-twentieth century was often on ‘labourist’ issues, neglecting women’s and ethnic minorities’ roles in society. Men and class were prioritised over women, gender and other vectors of inequality. This stemmed partly from the socialist ideologies that shaped the early Labour Party, and, even more so, from the significance of trade unionism to the party. The trade union movement has historically represented a particular sub-section of society: broadly, white working-class men who are union members, and who are particularly likely to be in stable, skilled or semi-skilled manual work. The visibility of women at the top of trade unions is woefully lacking, even though we now have our first female TUC general secretary, Frances O’Grady. In the many years she has worked for the TUC, O’Grady has consistently aimed to challenge the ‘male, pale and stale’ stereotype and shift the movement ‘to a profile that better fits a six million plus membership that is now 50:50 men and women’.4 Trade unions are, however, still largely controlled and dominated by white men. The lack of women in leadership roles will inevitably impact upon the prioritisation of women’s workplace issues, such as gender discrimination and sexual harassment.
It took collective action from women within the Labour Party and labour movement more broadly from the 1960s to the 1990s to demand that gender inequality was put firmly on the Party’s agenda. Eventually all-women shortlists were introduced at the 1993 Labour Party conference, and a record number of Labour women MPs were elected in 1997 under Tony Blair’s leadership. This initiative was a move from the centre of the Party. Yet many on the Labour Left had also championed gender equality and the representation of women in politics in the 1980s: in local government, Labour in places like Sheffield and the Greater London Council created women’s committees, gave grants to feminist organisations, and fought for gender equality. This inheritance must be built on today.
Prostitution: a flashpoint issue
In recent years, the leadership of the Labour Party and some trade unions have championed the full decriminalisation of prostitution. This would allow men the right to use their capital to buy women’s bodies; those bodies would become just another mode of production in the free market. Prostitution is a gendered issue: approximately 80,000 people, mostly women, are prostitutes in Britain, and the majority of buyers are men.5 The gendered dynamic of prostitution is lost on Aslef, however, a British trade union for train drivers, whose membership base comprises of 20,287 men and 1,067 women, and which backed a motion for the decriminalisation of prostitution, which was put to a vote at the TUC Congress.6 Former deputy Labour leader and feminist Harriet Harman intervened in the debate and condemned the move arguing it would ‘legitimise their exploitation’.7 Delegates voted overwhelmingly against the motion. Jeremy Corbyn and John McDonnell have both also supported decriminalisation; both have a long history of supporting the English Collective of Prostitutes, a campaign group that seeks the decriminalisation of prostitution. At Goldsmiths University in 2016, Corbyn said, ‘I am in favour of decriminalising the sex industry. I don’t want people to be criminalised. I want to be [in] a society where we don’t automatically criminalise people. Let’s do things a bit differently and in a bit more civilised way’.8 He does not support the criminalisation of men who buy sex (the ‘Sex Buyer Law’) either.
While the criminalisation of women who work as prostitutes further victimises them, calls for full decriminalisation imply that the purchase of women’s bodies can be civilised. This is a highly questionable claim: statistics show over 50 per cent of prostituted women in the UK started being paid for sex acts before they were 189; over 50 per cent prostituted women have been raped and/sexually assaulted;10 9 of 10 prostituted women report wanting to exit prostitution but feel unable to.11 In Germany, where prostitution is legal, the consequence is increased demand and soaring supply. Prostitutes can be hired in a similar way to hiring an uber and 99 euros buys access to King George Brothel where it is possible to have sex with as many women as are available and the drinks are included.12 Sex in a context of inequality – payment for a woman’s body – is unequal and consent cannot make it equal. In 2014, the European Parliament passed a non-binding resolution in favour of criminalising the purchase of sex because it reinforces the objectification of women and sustains prostitution.13
How have some trade unions and the leadership of the Labour Party got the issue of prostitution so wrong? We can trace their views back to early Marxists and socialists’ assumptions about class, capitalism and work. Marx himself stated that ‘prostitution is only a specific expression of the general prostitution of the labourer’.14 Marx believed prostitution simply represented the exploitation and degradation of wage labour. Selma James, a supporter of Jeremy Corbyn and the first spokesperson of the English Collective of Prostitutes, argued that women’s work, whether outside the home, in the home, or in the bedroom, should be compensated with a wage (hence her most well-known campaign, ‘Wages for Housework’). The Left of the Labour Party, the English Collective of Prostitutes, and some trade unions are working to monetise and unionise all ‘work’ (ironically a capitalist and libertarian argument), without recognising the intersections of structural inequality that underpin prostitution. Rather than seeking to include prostitution within a capitalist framework of ‘labour’, efforts should focus on eliminating an industry that is designed to exploit women in often vulnerable positions. Without an intersectional approach to understanding issues that affect minority and disadvantaged groups in society, the left appears to apply a monolithic trade union and labour-based approach to all issues. Work does not always liberate people.
Of course, prostitution remains a relatively marginal issue in British politics. But examining it points to conclusions about how gender fits into Corbyn’s political project. It is telling that in July 2015, when Jeremy Corbyn first stood as leader of the Labour Party, he produced a six page manifesto, ‘Working with Women’, which stated that his aim is to ‘achieve equal and better pay for all, and support career progression for all women through better trade union recognition and collective bargaining’.15 But feminist issues cannot be subsumed into class inequality. Labour needs to recognise this.
Gender and feminist issues in Corbyn’s politics The Labour Left argues, with some justification that Corbyn’s anti-austerity strategy speaks to women’s needs, since women have been the main targets and victims of Tory austerity policies.16 By prioritising the public sector, in particular the NHS, education and social welfare, which employ many women and which women are more likely to rely upon, Labour argues that it is ensuring women’s needs are met. But this still focuses on work and economics.
Second wave feminists sought to make the private political. As critical theorist and feminist Nancy Fraser states, feminism ‘rightly criticised the constricted political vision that was so intently focused on class inequality that it could not see such “non-economic” injustices as domestic violence, sexual assault and reproductive oppression’.17 Under Corbyn’s leadership, Labour needs to take more seriously these ‘non-economic’ injustices. In 2016, when Jeremy Corbyn stood for a second time as leader of the party, he produced a 10 point manifesto ‘to rebuild and transform Britain’, but there was no specific point relating to women: rather women were shoehorned into education and securing an equal society.18 Labour’s 2017 General Election manifesto was widely popular, but paid scant attention to gender inequality.19 The party needs to do better.
One policy floated by Jeremy Corbyn in 2016 caught the attention of the public: the introduction of women-only, or gender segregated, train carriages to reduce sexual harassment by men towards women. The policy was met with public ridicule. Critics contend that it is a throw-back to the 1970s that is symptomatic of Jeremy Corbyn’s understanding of gender politics. In fact it is a policy that has roots in the late nineteenth century. Women-only train carriages were introduced in 1874 by the Metropolitan Railway and officially abolished by British Rail in 1977. This policy proposal puts the onus on women’s behaviour, encouraging them to sit in segregated train carriages because of a belief that some men will always sexually harass women, just as some anti-rape strategies place the onus on women’s behaviour, as women are told to dress modestly, to drink responsibly and to return home at a sensible hour because some men will always rape. The emphasis is on women’s behaviour: what women could and should do to prevent men from abusing them. Instead the focus should be on perpetrators of sexual assault and harassment and their behaviour towards women.
Gender segregation is a much debated issue in feminist theory. Feminist scholar Andrea Dworkin contends that mainly right-wing women and men legitimize gender segregation under the ‘separate-but-equal model’.20 This model justifies the perpetuation of the subordination of women to men by suggesting that the genders are inherently different. In the case of train carriages, men and women ride separately, yet each is doing equally what is appropriate to their gender. In the case of prostitution, according to Dworkin, the sexual subordination of women to men is seen to be in the nature of things and a logical premise of social organization. The left needs to reject all understandings of gender based on a ‘separate-but-equal’ model.
There are many policy proposals that Labour could adopt to demonstrate a commitment to tackling gender inequality in an intersectional way. I will share just a few preliminary ideas of potential changes to domestic policy.
The sex buyer law: Eliminating prostitution
The introduction of the Sex Buyer Law for prostitution, which criminalises buyers of sex, de-criminalises prostituted women and ensures state investment for women exiting prostitution. Failure to end the demand for prostitution signals a failure of the state to end violence against women (see above for the statistics of violence against prostituted women). The Sex Buyer Law has been adopted in Northern Ireland, Ireland, France, Canada, Iceland, Norway and Sweden. Sweden was the first country to introduce the law in 1997 and subsequent research has shown that:
- Street prostitution halved between 1999 and 2008 and there is no evidence women were simply displaced to indoor prostitution or prostitution was advertised online.21
- The number of men paying for sex in Sweden declined. In 1996, 13.6 per cent of men reported buying sex by 2008 this figure reduced to 7.9 per cent.22
- Public attitudes have changed towards the law. In 1996, 45 per cent women and 20 per cent men supported criminalising sex buyers by 2008, 79 per cent women and 60 per cent men were in favour of the law.23
- According to the National Criminal Police, Sweden has become a more hostile destination for traffickers.24
Prostitution disproportionately impacts upon the lives of vulnerable and marginalised women whom are exploited under conditions of sex inequality. The Labour party is a political party that strives to create a more equal society. In a gender equal society, prostitution would be an issue confined to history books. To achieve the elimination of the sex industry, the Labour party must adopt to Sex Buyer Law. It is the only law that has evidenced a marked reduction of prostitution and thus safety for women.
Quotas for women
Quotas for women in male-dominated professions, which includes but is not limited to Members of Parliament, the judiciary and the boardroom. The Labour party is the only political party to champion all-women shortlists for Members of Parliament and consequently the Labour party has the greatest number of women in parliament. An effective democracy requires the representation of a cross-section of society rather than one demographic background. Britain has failed to introduce gender quotas in any public sphere. The dogmatic argument is: we live in a meritocratic society, and if you work hard, you will succeed. However, the Labour party understands better than any other party that structural inequality means people are not competing on an equal playing field. Privileged white men have an advantage over others in terms of their capital, gender and race, which has led to them being disproportionately represented where power is wielded.
Gender quotas ensure the redistribution of male power, which is a core principle of feminism. Since Norway, Iceland, Finland and Sweden’s introduced a law on quotas for women in boardrooms, these countries have nearly doubled the average percentage of women on boards to around 34 per cent, which is a stark contrast to countries without quotas in place (at about 18 per cent).25 I am a strong advocate of quotas for women in the judiciary. Government judicial diversity statistics in 201726 show that women comprise only 28 per cent of all court judges, 24 per cent of Court of Appeal judges and 22 per cent of High Court judges, which is consistent with 2016. The gender imbalance between male and female judges in the UK is amongst the worst in Europe. Gender quotas in the judiciary have been tried and tested, having been introduced in the International Criminal Court, the European Court of Human Rights and the Belgium Constitutional Court, which ensures a more equal gender balance in the judiciary.27 Should the Labour Party attain political office, Baroness Shami Chakrabarti would become the Attorney General and gender quotas could firmly be on the agenda. In her book, Of Women: In the 21st Century Chakrabarti28 sets out a compelling argument for quotas in the judiciary as well as other fields.
A radical transformation of rape law
Britain’s rape laws are not working. Approximately 85,000 women are raped in England and Wales every year, that’s around 11 rapes of adults every hour; only around 15 per cent of those who experience sexual violent report to the police;29 conviction rates for rape are far lower than other crimes with only 5.7 per cent of reported rape cases ending in a conviction30; and only around 57.9 per cent of rape prosecutions result in a conviction.31 Women are often reluctant to report cases of rape, given that during investigations and at trial women’s sexual history is put under the microscope; women are expected to relive intimate and often traumatic memories before non-medical professionals; and they are often at the mercy of an under-resourced CPS and police force who are expected to present a robust case.
To prove rape, it must be shown beyond reasonable doubt that the defendant did not have a reasonable belief that the complainant was consenting to penetration. Consent means ‘if she agrees by choice, and has the freedom and capacity to make that choice’.32 But how can a woman be free when she is not equal? MacKinnon33 proposes a radical transformation of existing rape laws. At present there is a presumption that if sex happened, the woman consented to it unless the prosecution proves she did not. MacKinnon argues that even if there is consent that does not make sex equal, mutual or welcome but it can make it tolerated. Just because a woman allowed sex to happen to her under the threat of being arrested or losing her job or being deported, it does not mean that she wanted it. It means a man exerted institutional power over her. Yet this is consensual sex according to the criminal law. MacKinnon explains that coercive submission can merge with consent because threatening conditions are a normal feature of gender relations under conditions of inequality so much so that they appear as sex.
MacKinnon proposes redefining rape laws by assessing the circumstances of inequality. This starts from a premise that rape is a crime of inequality that includes gender amongst other inequalities.34 Consent as it’s currently defined in law should be only one facet of analysis. The law should take into account inequality – such an analysis starts with the interactions and power base of the defendant in contrast to the complainant. This would involve an analysis of the hierarchal power relations of the complainant and defendant and consideration of whether the sex was welcomed, desired and based on mutuality. The larger structures of inequality in which accuser and accused are imbricated should be taken into account; men should not be able to ignore these broader power relations. Using one’s power to put someone in a position where they agree to a sexual act should not be acceptable.
Universal childcare and paternity leave
Universal childcare is a policy championed by the Labour Party. At the party’s annual conference in 2017, shadow Education Secretary Angela Raynor committed to universal childcare for two to four year olds for up to 30 hours a week regardless of family income for 38 weeks of the year.35 While this is a progressive policy, it does not go far enough to assist women, who largely remain responsible for the bulk of childcare and as a consequence often forgo career advancement. Labour should commit to funding childcare from birth to school age for up to 35 hours a week for 50 weeks of the year, and upon the child reaching school age, the party should commit to funding after school childcare.
Not enough fathers opt to take paternity leave. Currently the government ensures one or two weeks paid paternity leave for fathers, which frankly is appalling and certainly does little to encourage men to parent their children in the same way mothers are expected to. The UK is lagging behind countries that champion gender equality with innovative paternity policies.36 In Sweden, fathers receive 90 days paid paternity leave, which cannot be transferred to the mother. In Iceland, parents can split their nine months post-birth parental leave in half. Mothers are allocated three months and fathers are allocated three months. It is left to the parents to decide how to divide the remaining three months. Neither parent can transfer their three months of leave. The Labour party can lead the way in advocating for gender equality amongst parents by offering mothers and fathers equal and well-paid childcare leave.
Labour must build on the work of feminist scholars to put gender, as well as economic inequality at the heart of its programme. But policies are not the whole story: culture is significant too.
The culture of the Labour Left
As the ‘liberation’ movements of the 1960s and 1970s insisted, oppressed groups like women and black people need to organise themselves to fight their own oppression. Women must have a platform at the top of the Labour party to enable them to speak for themselves. 45 per cent of Labour MPs are women, but they are not so well represented in leadership positions. In September 2015, there was a political and media furore over the appointment of Corbyn’s first shadow cabinet. During the leadership campaign Corbyn promised that half of his frontbench team would be women, in order to build ‘a society where women and men exist as equals and flourish’.37 Yet the top five positions – Leader, Deputy Leader, shadow Chancellor, shadow Home Secretary and shadow Foreign Secretary – were held by white men. The majority of women were relegated to junior ministerial positions. Corbyn was accused of ‘bro-socialism’. Despite Corbyn’s later efforts to ensure gender parity, the party still has a male Leader, Deputy Leader, Chancellor of the Exchequer, London mayor and General Secretary. The Labour party has never had a female leader (excepting interim leaders), Chancellor of the Exchequer or London mayoral candidate. The under-representation of women in positions of power in the Labour party will impact on where feminism is positioned on the political agenda. Given the Labour party’s roots in socialism and labourism, with their masculine biases, more needs to be done.
A troublingly pervasive feature of left-wing Labour activist politics is misogynistic online abuse. It is true that abuse is a feature of politics right across the spectrum including in the Labour Party. When Yvette Cooper stood against Jeremy Corbyn in the Labour leadership election in 2015 she experienced a tirade of abuse, particularly from Jeremy Corbyn fans, including Twitter messages like, ‘Labour leadership contest: Yvette Cooper appeals to family vote with childcare pledge. Stupid cow’.38 Angela Eagle had a brick thrown through her constituency office window after challenging Jeremy Corbyn’s leadership in 2016. Eventually she stood aside to make way for Owen Smith, who came under fire for sexist ‘jokes’, reminding us that no one part of the political spectrum has a monopoly on sexism. Misogynistic online abuse could have the effect of discouraging women from participating in Labour politics. It should be alien to all parts of the Labour Party.
Following the Harvey Weinstein scandal, many women came forward to report incidents of sexual harassment, assault and rape in politics. Bex Bailey, former member of the Labour Party’s National Executive Committee, courageously told her story of being raped by a Labour party member and being dissuaded from bringing a complaint by another Labour Party member due to fears it could impact on her career prospects.39 Allegations of sexually inappropriate conduct towards woman have been made against high profile Labour MPs, some of whom were suspended. Corbyn rightly condemned Westminster’s culture of ‘warped and degrading’ sexual harassment, but given the huge respect for Corbyn in the party, he needs to use the influence he has, reiterating the message that sexist abuse (indeed online abuse generally) is anathema to the Labour Party’s values over and over until such a time as it has been stamped out. Human rights barrister Karon Monaghan QC has been appointed to undertake an independent investigation into how the Labour has handled complaints of sexism, discrimination and abuse, and to assess the party’s procedures. It is to be hoped the investigation and concluding report will provide a frank review of much needed procedures to encourage women to report incidences of abuse. For example, how can the Labour party ensure anonymity of complainants? It is necessary that a complainant’s identity remains anonymous, otherwise the fear that a complainant’s identity could be leaked to the media will discourage complainants from coming forward and ensure impunity for perpetrators.
While the left of the Labour Party still has a long way to go to achieve gender equality, there are feminist Labour MPs who have a record of successfully lobbying across the political spectrum. This year Stella Creasy MP organised a feminist cross-party voting bloc which forced the government to back down and allow Northern Irish women access to NHS-funded abortions in England and Wales. Jess Phillips MP is organising Labour women MPs to work together to scrutinise the domestic violence bill, and social security reform for women, putting women at the centre of Labour’s industrial strategy and focusing on carers. A feminist voting bloc that supports women has the potential to create tangible policy change. But these feminist issues need to be at the heart of everything the party does. Potential and challenges lie ahead for the left of the Labour Party. If a Corbyn-led Labour party reflects upon its historically male roots, as well as its gender policies and appwould be a force to be reckoned with. Intersectionality is a means of representing every cross section of society without excluding one group. The Labour Party has always been a party committed to eradicating inequality but inequality does not just relate to class, it encompasses gender, race, nationality, disability, religion and so much more. People want policies that relate to their experiences, and experiences of inequality are always intersectional. Charlotte Proudman is a barrister in family law and public law at Goldsmith Chambers, Affiliated Researcher at the Department of Sociology, University of Cambridge, and has a PhD from Cambridge on the law and policy on FGM in England.
1 C.MacKinnon, ‘Feminism, Marxism, Method, and the State: An Agenda for Theory’, Signs: Journal of Women in Culture and Society, 1982.
2 C.MacKinnon, ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence’, Signs: Journal of Women in Culture and Society, 1982.
4 See Frances O’Grady profile, https://www.tuc.org.uk/frances-ogrady-tuc-generalsecretary.
5 Paying the Price: A Consultation Paper on Prostitution, Home Office, 2004.
6 ‘TUC leaders reject call to decriminalise prostitution’, Independent, 13.9.17, http:// www.independent.co.uk/news/uk/politics/tuc-leaders-prostitution-decriminalisereject- call-trade-union-conference-sex-workers-a7944561.html.
7 ‘Harriet Harman clashes with unions at TUC conference over attempts to legalise prostitution’, Telegraph, 12.9.17, http://www.telegraph.co.uk/news/2017/09/12/ harriet-harman-clashes-unions-tuc-conference-attempts-legalise/.
8 ‘Jeremy Corbyn: “I favour decriminalising the sex industry”’, Guardian, 4.3.16, https://www.theguardian.com/politics/2016/mar/04/jeremy-corbyn-decriminalisesex- industry-prostitution.
9 Paying the Price: A Consultation Paper on Prostitutin’, Home Office, 2004.
10 M.Hester & N.Westmarland, Tackling Street Prostitution: Towards an Holistic Approach, Home Office, London, 2004.
11 M.Farley, ‘Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder’, Journal of Trauma Practice, 2003.
12 Feargus O’Sullivan, ;Now You Can Hire a Prostitute Like You Hire an Uber’, CityLab, 22.4.14, https://www.citylab.com/life/2014/04/now-you-can-hireprostitute- you-hire-uber/8941/; Conor Creighton, ‘A Visit to One of Germany’s All-You-Can-Fuck Brothels’, Vice, 16.7.14, https://www.vice.com/sv/article/ mvb49p/a-visit-to-one-of-germanys-all-you-can-fuck-brothels-432.
13 ‘Punish the client, not the prostitute’, European Parliament press release, 26.2.14, http://www.europarl.europa.eu/news/en/press-room/20140221IPR36644/ punish-the-client-not-the-prostitute.
14 K.Marx, Economic and Philosophic Manuscript of 1844, ed. D.J.Struik, New York, International Publishers, 1964, p.133, footnote.
15 J.Corbyn, Working with women, 18.7.15, p.4.
16 See, eg., S.James & N.Lopez, ‘A woman’s place is in the Labour manifesto’, Morning Star, 5.6.17, https://www.morningstaronline. co.uk/a-7d9a-a-womans-place-is-in-the-labour-manifesto-1.
17 Nancy Fraser, ‘How feminism became capitalism’s handmaiden – and how to reclaim it’, Guardian, 14.10.13, https://www.theguardian.com/ commentisfree/2013/oct/14/feminism-capitalist-handmaiden-neoliberal.
18 ‘Jeremy Corbyn’s 10 Point Manifesto ‘To Rebuild And Transform Britain’, Huffington Post, 4.8.16, http://www.huffingtonpost.co.uk/entry/jeremy-corbynsfull- 10-point-plan-to-rebuild-and-transform-britain_ uk_57a30d8ce4b06c6e8dc6af2a.
19 Labour Party manifesto, 2017, https://labour.org.uk/manifesto/.
20 A.Dworkin, Right wing women, Perigee Trade, 1983.
21 English summary of the Evaluation of the ban on purchase of sexual services (1999-2008), Swedish Ministry of Justice, 2010. See also: M.Waltman, ‘Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law’, Michigan Journal of International Law, 2011.
22 Demand Change: Understanding the Nordic Approach to Prostitution, Coalition Against Trafficking in Women Australia, 2013.
23 M.Waltman, ‘Sweden’s prohibition of purchase of sex: The law’s reasons, impact, and potential’, Women’s Studies International Forum, 2011.
24 Evaluation of the ban on purchase of sexual services, Ministry of Justice, Government Offices of Sweden, 2.7.10, p.37.
25 ‘Women on corporate boards globally’, Catalyst, 16.3.17, http://www.catalyst.org/ knowledge/women-corporate-boards-globally.
26 ‘Judicial Diversity Statistics 2017’, 20.7.17, https://www.judiciary.gov.uk/about-thejudiciary/ who-are-the-judiciary/diversity/judicial-diversity-statistics-2017/.
27 K. Malleson, ‘The case for gender quotas for appointments to the Supreme Court’, UKSC blog, 23.5.14, http://ukscblog.com/case-gender-quotas-appointmentssupreme- court/.
28 ‘Of Women: In the 21st Century by Shami Chakrabarti review’, Guardian, 22.10.17, https://www.theguardian.com/books/2017/oct/22/of-women-in-the-21st-centuryshami- chakrabarti-review-gender-inequality.
29 An Overview of Sexual Offending in England and Wales, the first ever joint official statistics bulletin on sexual violence released by the Ministry of Justice (MoJ), Office for National Statistics (ONS) and Home Office in January 2013.
30 L.Kelly, J.Lovett and L.Regan, A gap or a chasm? Attrition in reported rape cases, 2005.
31 ‘Reported rapes in England and Wales double in four year’, Guardian, 13.10.16, https://www.theguardian.com/society/2016/oct/13/reported-rapes-in-england-andwales- double-in-five-years.
32 Section 74 of the Sexual Offences Act 2003.
33 C.MacKinnon, ‘Rape redefined’, Harvard Law and Policy Review, 2016.
34 In the decision of Akayesu of the International Criminal Tribunal for Rwanda [Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment 598 (2 September 1998)] rape was redefined internationally for the first time: “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”. Non/ consent is absent and coercion can include a range of circumstances.
35 ‘Shadow education secretary Angela Rayner unveils universal childcare plans for two to four-year-olds’, Evening Standard, 26.9.17, https://www.standard.co.uk/news/ politics/shadow-education-secretary-angela-rayner-unveils-universal-childcare-plansfor- two-to-fouryearolds-a3644181.html.
36 ‘These 10 countries have the best parental leave policies in the world’, World Economic Forum, 24.8.16, https://www.weforum.org/agenda/2016/08/these-10- countries-have-the-best-parental-leave-policies-in-the-world.
37 ‘Welcome to Jeremy Corbyn’s blokey Britain – where ‘brocialism’ rules’, Telegraph, 14.9.15, http://www.telegraph.co.uk/women/life/welcome-to-jeremy-corbyns-blokeybritain- where-brocialism-rules/.
38 ‘Labour’s sexist above of its own is shocking, says Yvette Cooper’, Telegraph, 26.9.15, http://www.telegraph.co.uk/news/politics/Jeremy_Corbyn/11893926/Labourssexist- abuse-of-its-own-is-shocking-says-Yvette-Cooper.html.
39 ‘Labour appoints independent expert to examine sexual harassment complaints’, Independent, 3.11.17, http://www.independent.co.uk/news/uk/politics/labour-sexualharassment- investigation-independent-examiners-bex-bailey-a8036501.html.
Why does police mishandling of evidence only make headlines in rape cases?
The media frenzy around the Liam Allan and Isaac Itiary trials will only act to deter future complainants from coming forward.
Published 21.12.2017, the Guardian
How do cases that highlight problems around disclosure in criminal trials become a media frenzy? That is what happened following the collapse of two rape cases in the last week. The trial of Liam Allan collapsed after it transpired that the Metropolitan police failed to disclose relevant evidence that might support the defence case until moments before the trial. A second case, the trial of Isaac Itiary, collapsed after material was not given to the defence team until his lawyers asked for it.
Scotland Yard confirmed that all of its current sexual offences investigations are to be reviewed to ensure compliance with disclosure legislation. These cases have rightly highlighted the systematic issues about fair disclosure, which have the potential to cause injustice for defendants and complainants alike.
But what is regrettable is a disproportionate focus on failed rape prosecutions when collapsed trials for other crimes are widespread, yet they rarely hit the headlines. A report in oanuly this year concluded that the police did not properly disclose evidence in four out of 10 crown court cases, resulting in delays and collapsed trials. Rather than investigating disclosure in all serious criminal cases, one well-rehearsed story emerges: complainants in rape trials often lie or are slightly unhinged – the cliched woman in the attic of Gothic fiction – and so, defendants should be granted anonymity.
Unusually, it was the prosecution’s own barrister, Jerry Hayes, who uncovered the lack of disclosure. He said: “I would like to apologise to Liam Allan … there could have been a very serious miscarriage of justice.” This is the same Jerry Hayes (a former Tory MP) who was publicly criticised after saying on Question Time in 2013: “Clearly they weren’t raped because the person wasn’t prosecuted,” while making an argument in favour of anonymity for defendants in some rape and sexual offences cases.The microscopic reporting of collapsed rape trials is part of a broader backlashagainst the Harvey Weinstein allegations and the #MeToo movement, which exposed endemic sexual harassment and even rape. The reporting of the Allan and Itiary cases has the power to regress, not progress, gender equality.
More needs to be done to encourage women to report cases of rape. But this does not entail granting defendants anonymity
The judge in the former case explicitly said that: “Mr Allan leaves the courtroom an innocent man without a stain on his character.” However, the reporting on cases such as these, with a focus on a few text messages out of 40,000, may leave future victims less likely to come forward.
The reporting of the Allan case sends a message to women that your allegation of rape might not be believed if you claim that a sexual encounter was consensual and later report rape; it might not be believed if you have ever discussed rape fantasies; and that your sexual preferences will be made public. This contrasts with the law, which says a woman can withdraw her consent to sexual intercourse at any time.
Bizarrely, the CPS has guidance on charging women who falsely allege rape and/or domestic abuse but not any other serious crimes. An overzealous emphasis on prosecuting alleged false rape complainants has resulted in the UK prosecuting more cases than the US – 109 women between 1999 and 2014. Yet, only 3% of rape reports are false.
Prof Lisa Avalos, who has researched the prosecution of alleged false rape reports, argues that fear of prosecution deters complainants from coming forward. I vividly remember a friend of mine who was raped asking me whether she should report the incident because she might not be believed and she could be prosecuted. I felt angry by the stark reality that she could be re-victimised by a system that is supposed to support her and ensure justice is upheld.
Rape is one of the most under-reported crimes. In England and Wales, about 13% of reported rapes end in a conviction – that is, conviction on a range of charges from rape to lesser offences such as sexual assault and others. More needs to be done to encourage women to report cases of rape. This does not entail granting defendants anonymity in rape cases. On Tuesday, justice secretary and lord chancellor David Lidington told the BBC’s Today Programme that he would keep an open mind about granting rape defendants’ anonymity.
But why not grant defendants’ anonymity in murder, terrorism or paedophilia trials? What materially distinguishes rape? Perhaps it is the fact that the complainants are overwhelmingly female. There is no empirical evidence that women who make complaints that they have been sexually violated in the most egregious way are less likely to tell the truth than any other category of complainant. Let’s not forget that naming those accused of rape can result in other women coming forward to report other incidents of assault by the same perpetrator.
The lesson learned from the Allan and Itiary cases is that drastic public funding cuts to the criminal justice system degrade justice. Radical reforms of the current disclosure process are needed in all criminal cases. This will require increased public funding of an under-resourced public body and perhaps sanctions for non-disclosure. Reform of the justice system should be the message we learn, rather than a moral panic that some women lie about rape.
Year in Review: Charlotte Proudman Looks Back on 2017
1. Baroness Hale appointed as the first woman supreme court president
Baroness Hale was sworn in as the first woman President of the Supreme Court of the United Kingdom on 2 October 2017. Occupying the highest legal position in the country, Baroness Hale has broken the final glass ceiling in achieving the most senior legal appointment in the country. She has shown through some of her judgments that “women are equal to everything”. This is the motto – Omnia Feminae Aequissimae –that she had engraved on a coat of arms when she was appointed to the Law Lords in 2004. Baroness Hale is no longer a lone woman in the highest court of our country, as Lady Justice Black joins her, the second woman to be appointed to the Supreme Court. They sit alongside 10 white men from largely elite backgrounds.
- Gender inequality pervasive amongst the judiciary
A homogenous group of socially privileged white men are still disproportionately represented in the most powerful judicial positions in the country. Government judicial diversity statistics in 2017 show that only 28% of all court judges, 24% of Court of Appeal judges and 22% of High Court judges were female, which is consistent with 2016. The gender imbalance between male and female judges in the UK is amongst the worst in Europe. Recognising the importance of gender balance to promote justice and fairness, I am a strong advocate of quotas for women in the judiciary. It is a system that has been tried and tested, having been introduced in the International Criminal Court, the European Court of Human Rights and the Belgium Constitutional Court, which ensures a more equal gender balance in the judiciary. Should the Labour Party attain political office, Baroness Shami Chakrabarti would become the Attorney General and gender quotas could firmly be on the agenda. In her book, Of Women: In the 21st Century Baroness Shami Chakrabarti sets out a compelling and robust argument for quotas in the judiciary, which, has the power to persuade even sceptics.
- Sexual harassment in the legal profession
Post-Harvey Weinstein, sexual harassment in the workplace has remained in the media eye. The #MeToo campaign that followed allegations of abuse from Hollywood stars, media icons and politicians, led to women sharing their stories of rape, assault and sexual harassment at the hands of men. Lawyers shared on twitter their experiences of sexism, bullying and harassment in the workplace. A group of barristers established an anonymous “Behind the Gown” twitter account to highlight the abuse of male power at the Bar that has led to the exploitation and marginalisation of women.
As sexism in the legal profession gained traction, I took part in a few media debates that garnered attention mainly due to those on the other side espousing sexist attitudes towards women. On Good Morning Britain solicitor Nick Freeman argued for the introduction of a three-year statute of limitation for sexual assault cases. It is an ill-conceived and retrograde step which will have the inevitable effect of deterring, discouraging or disqualifying women from coming forward and reporting historical cases – as the evidence from the United States makes clear.
Also in the news is Ben Emmerson QC of Matrix Chambers, a high profile human rights barrister accused of sexually assaulting a colleague. An independent review by Dame Laura Cox QC into Matrix Chambers’ handling of a serious of sexual misconduct allegation concluded that some of the actions of senior management had been “wholly inappropriate” and that there were “institutional failings”. It appears even human rights chambers may not be free of sexism and sub-optimal practices around them.
The Equality and Human Rights Commission established by statute in 2006 recently wrote to five Magic Circle law firms – Allen & Overy (A&O), Clifford Chance, Freshfields Bruckhaus Deringer, Linklaters and Slaughter and May – to warn that it could take legal action if they fail to respond to sexual harassment complaints in the workplace. The EHRC is asking firms to “delegate responsibility for ensuring a shared understanding and effective implementation of the legal guidance on sexual harassment, as defined in the Equality Act 2010.” The firms must respond by 19 January 2018.
Meanwhile, the head of the Bar Council, Andrew Landon QC, has written to all heads of Chambersadvising them of the Bar Council’s zero-tolerance approach to, and guidance on, sexual harassment, and to ask Chambers to review their policies on sexual harassment and equality. The legal profession, which is responsible for upholding the rule of law, must also be held accountable for discrimination and sexual harassment against women. Achieving gender parity within the legal profession is one step towards changing the male dominated culture in the profession that creates the conditions for sexual harassment and discrimination, which can have devastating effects for women lawyers.
- Key challenges for BAME lawyers
Race diversity remains a core challenge in the legal profession. The Lammy Review, conducted by David Lammy MP, is an independent review into the treatment of, and outcomes for, BAME individuals in the criminal justice system. It exposes the racial bias in our justice system that has devastating consequences for Black and Ethnic Minority individuals.
In an article celebrating Black History Month in the UK, Chambers Diversity shared the experiences of BAME lawyers in the legal profession. Female lawyer Funke Abimbola explained that she had “experienced both racial and gender-based discrimination in my career”. Representation of BAME court judges is between 8-9% in London and the Midlands. The BAME population in the UK is around 6%. The question is: how many BAME court judges are women from socially deprived backgrounds? Social deprivation is better understood with the concept of ‘intersectionality,’ which is used to define the multiple layers of discrimination individuals can experience on the basis of gender, class, nationality, disability and religion. These different aspects of identity can impact upon people’s experiences of structural inequality and oppression.
Abimbola contends that, “Because gender diversity has been the focus of attention for several years, this has been at the cost of advancing the race agenda. This now means that race diversity is 20 years behind gender diversity.” The promotion of gender equality has the potential to impact upon 51% of the population including BAME women. Achieving diversity does not involve pitting gender against race or measuring the success of gender equality against race equality when the intersecting patterns of marginalisation are complex and inter-related. It is important that any analysis of discrimination includes gender, class, and race, in order to show people’s different experiences of marginalisation.
- Diversity can set law firms apart in a competitive market
Diversity is fast becoming a means of distinguishing between law firms and identifying those that have a male, pale and stale image. In a competitive legal market, clients are now focusing on law firms’ diversity. The diversity argument, which was originally pioneered in business, has proved successful. Catalyst research shows that companies with a higher percentage of women in executive positions have a 34% higher total return to shareholders than those with lower numbers of women. The argument is that increasing and sustaining diversity, generates new ideas and enhances productivity and efficiency that leads to growth and healthier profit margins. An article promoting the business case in law firms under the guise of achieving diversity encourages “diverse attorneys to write articles and op-eds – especially those who describe their own personal experience and journey being a diverse attorney”.
The Law Society published a report titled “Diversity and inclusion in law firms: the business case” which argues that diversity is important because it is the law, the client base and profession is changing and diversity can mean achieving equality policies. A quasi-capitalistic enlightened self-interest rationale for encouraging gender equality may be effective. However, I have long been wary of applying such crude profit-maximising arguments to the law. The rule of law is underpinned by principles of justice, fairness and equality, rather than financial imperatives.
Overall then, strides have been made towards exposing gender inequality and achieving gender equality. The next 12 months will doubtlessly reveal whether the ramifications of a post-Weinstein era can translate into tangible and durable, improvement in the lives and career opportunities for women.
There is a witch hunt happening right now – but it’s not against men
In the past, women were symbolically burnt at the stake or drowned in a public spectacle. In a more civilised society, women are today put on trial by media with vultures picking apart their personal history, which is transformed into sensational headlines.
Published 7 November 2017, Independent
Over the past month, allegations about sexual abuse have rocked Hollywood, the media and now Parliament. What was once considered part and parcel of the workplace – a grope here and a sexist comment there – is being queried and challenged. Courageous women have collectively put their head above the parapet and shared their experiences of wide-ranging abuse in professional contexts. In doing so, they are redefining the acceptability of men exercising power and privilege over women who often find themselves in subordinate positions. This has the capacity to be a watershed moment for gender equality. But, with almost clockwork inevitability, a backlash has ensued, with members of Parliament and some sections of the press branding the movement a “witch hunt”.
The choice of terminology, “witch hunt”, is highly instructive. Demeaning women’s lived experiences of abuse to accusations of a “witch hunt” is a reactionary attempt from members of Parliament to Donald Trump to conceal structural inequality. The language of “witches” and “hunts” is in itself sexist – after all, how many male witches have you come across? The term is intentionally used by the powerful to convey visceral images of hysterical women hunted, tried by death and burnt at the stake before their community.
Centuries ago, “witch” was used to describe an evil and otherworldly oppressor, who was put on trial due to people’s irrational fears that they could become victim to women’s black magic. Today, women are still portrayed as “witches” possessing sexually-potent power, condemning men to victimhood. The term is used to portray perpetrators of abuse as unwitting victims to a modern and sophisticated cult of feminist troublemakers. In an unusual twist, men who put women on trial for being witches historically are now defining themselves as victims. Victimhood in masculinity has gained currency with resounding arguments that feminism is defunct and the opposite sex is now the real victim. But men are not victims of a moral panic; they are being held to account for sexual harassment, abuse and rape.
Two Halloweens ago now, I took a trip from Cambridge, Massachusetts, to Salem. It was a surreal experience: Inordinate sums of money spent visiting former homes of witches while graveyards are transformed into tourist attractions. In the 17th century, it wasn’t such a quaint town – around 19 people were hanged after claims they were bewitched by the devil. Typically these women were unconventional; they may have been childless and unmarried at an age when such expectations were the norm; they may have had a bad reputation and “questionable” – in other words, unconventional – morals.
Joan of Arc and Anne Boleyn are two controversial women who sought power in patriarchal societies and were condemned as witches. Joan of Arc in the 15th century commanded a French army of men to many victories. Dressed as a man reportedly to protect herself from the male gaze, Joan of Arc’s defeated opponents thought she was a witch in disguise. Both women met a tragic end: Burnt at the stake and beheaded.
In the past, women were symbolically burnt at the stake or drowned in a public spectacle. French philosopher Michel Foucault contends that Western penal systems historically performed punishment in public as a method of deploying power over a community who were taught that non-conformity results in brutal consequences. In a more civilised society, women are today put on trial by media with vultures picking apart their personal history, which is transformed into sensational headlines. The purpose is to cast doubt on women’s credibility. Stale and regressive questioning of women’s conduct is the focus of all daytime talk shows, from “have sexual accusations gone too far?” to “why didn’t women speak out earlier?”
The relentless, unsparing, voyeuristic scrutiny of women’s behaviour maintains power over them, as women are expected to justify their actions when they do not conform to a script of how women ought to act when sexually abused, a script shaped by hegemonic male power. Kate Maltby experienced reprisals after going public with Damian Green’s alleged inappropriate behaviour towards her. Jan Moir, writing for the Daily Mail, referred to Maltby as a “pushy lady,” “poison” and “disingenuous”.
The cost of women speaking out is high – personal onslaughts, vitriol and threats to career advancement. It begs the question: Why would women speak out, rather than why don’t they? Centuries ago women were warned against non-conformity with the threat of public execution. Today, women who dare challenge the dysfunctional status quo do so at risk of public character assassination and ridicule.