Helena Kennedy on the demasculinisation of legal systems worldwide
by Raisa Ostapenko on 5 March 2015
The Wood-Legh room of Straithard house was filled to capacity. The final speaker of the “Women of Achievement” series would be the Baroness Helena Kennedy of the Shaws – one of Britain’s leading barristers and human rights experts. Born to a devoutly Roman Catholic family in Glasgow, Scotland, Lady Kennedy is a champion of civil liberties and the exemplification of a Renaissance woman: a BBC broadcaster; a Labour member of the House of Lords; President of the Helena Kennedy Foundation, which provides financial bursaries and mentoring to disadvantaged students; Principal of Mansfield College, Oxford; and Honorary member of Lucy Cavendish College, Cambridge.
Lady Kennedy has received more than thirty honorary doctorates. In 2004, she was awarded the Grand Cross, Ordine al Merito della Repubblica Italiana from the Italian government and, in 2006, the Commandeur, Ordre des Palmes Académiques from the French government. She is also a former chair of the Human Genetics Commission and a former member of the International Bar Association’s Task Force on Terrorism.
“One of Oxford’s greatest mistakes is not keeping a woman’s college,” admitted Lady Kennedy. “We need places where women can learn together.” The strength of Lucy Cavendish College, she explained, is its understanding that women’s lives do not always follow “normal” or expected patterns. In fact, some of the most successful women are those who take the road less travelled or come from unexpected backgrounds. She gave the example of the Deputy President and first woman Justice of the Supreme Court of the United Kingdom, Baroness Brenda Hale of Richmond, who spent the first eighteen years of her career in academia.
The United Kingdom, believes Lady Kennedy, is in great need of more female judges in high courts so that those voices that were silent when the law was written could be better represented. Nevertheless, the country’s justice system has come quite a long way since the 1970s, when it was believed that clients preferred to be represented by men and phrases such as “we don’t take women” were pronounced regularly. Due to her tremendous work in making the law more receptive to the needs of women, Lady Kennedy is in high demand amongst female clients.
One of the essential themes of that evening’s lecture was the question of why it is so difficult for women to get justice. Lady Kennedy believes that the problem is the very nature of law, which is “coded masculine all the way through.” She questioned whether the law could truly be called neutral if it is intrinsically defined to benefit men, and concluded that it could not, because it does not always reflect the reality of women’s lives. Quoting American philosopher Ronald Dworkin, Lady Kennedy said that there is a difference between “treating people equally” and “treating them as equals”. The latter involves demonstrating equal respect and consideration, which cannot be achieved unless people are assessed as individuals.
She provided the following example: the number of women in Britain ending up in prison for trivial offenses has tripled over the past years, because law enforcement officials are trying to ensure that men and women are punished equally for misdemeanors. Nevertheless, according to Lady Kennedy, the cost of incarceration is often much greater for women than it is for men. Not only are intimate partnerships more likely to disintegrate if the female is imprisoned, most women who are convicted of offenses come from challenging familial structures, e.g. they are the sole providers or have dependent children who end up alone. For this reason, Lady Kennedy believes that “template” decisions should be avoided.
She also established the importance of redefining concepts when appropriate. Domestic violence, for instance, is not necessarily restricted to the use of physical force. Controlling or fear-inspiring environments are often sufficient for women to live in misery with their partners. Being conscious of the various forms that human rights violations can take allows courts to make better decisions.
Over the course of her career, Lady Kennedy came to understand why it was “so easy” for lawyers defending male perpetrators in rape and domestic violence cases to win. “All you had to do was undermine the credibility of the women in the eyes of the jury; in subtle ways, but ones that play into expectations for the behavior of women,” she explained. Those women who conformed to societal expectations were able to “juice” the system and benefit from it, whilst those women who departed from the traditional route suffered. The conclusion, said Lady Kennedy, is that men are able to attain impunity when it seems that women have not measured up to appropriate standards of womanhood, an implication that “unruly” women “do not deserve the protection of the law.”
“Legal systems everywhere have come out of patriarchy,” said Lady Kennedy. Oftentimes, there was also an added element of religious tradition, which, though largely eliminated from popular discourse in most secular societies, still informs the nation’s law and affects the lives of women. This problem is not exclusively European. Peacekeeping forces from the African Union, for instance, have been raping women in Somalia, but there is no reliable system that makes it possible for women to bring their rapists to court. Lady Kennedy has spoken to women in Iraq who say that, though life under Saddam Hussein was unpleasant, at the very least they were allowed an education. Now, under ISIS, educated women are targets of execution, and child marriage, honour killings, and rape practices have been restored.
There is resistance to legal reform in many parts of the world. “Even when laws are introduced, they are ignored,” she explained. In Ethiopia, for instance, there are laws against child marriage and female genital mutilation, but these practices are still encouraged in society. Most importantly, it is not always men who are “to blame”. Women themselves are often responsible for maintaining cultural practices and bringing new generations of women into the traditional mindset.
Politicians across cultures value and encourage community, said Lady Kennedy, but it is within communities that the ghastliest of traditions arise. In some societies, parents can disown or even kill their children for marrying outside of their religion. In others, women can be beaten for appearing outside without a male escort. The most unfortunate aspect of this issue is the fact that speaking out about these practices brings shame to the community and is considered an act of betrayal, so victims remain silent.
Lady Kennedy has praised the Magnitsky Act approved by the U.S. Congress and President Obama in November – December 2012 to punish Russian officials responsible for the 2009 death of Russian lawyer Sergei Magnitsky by prohibiting these perpetrators from travelling to the United States and using the American banking system. She believes that great change can be more easily effected if similar acts are introduced against human rights violators worldwide.
Raisa Ostapenko (2014) M Phil (Modern European History)
Photo credits: Anastasia Kozlovtseva