The female perspective

The #metoo movement, which is causing nearly everyone to reassess their attitudes and interactions with others, has so far torn through the entertainment industry and, in New Zealand, the legal profession. But some still refuse to read the memo.

One of the editors of a new book on feminism and the law has made this point. While the law is ‘‘purportedly neutral’’, said Canterbury University senior law lecturer Dr Rhonda Powell, it actually has a built-in bias. Efforts to add a feminist perspective to law are not adding a bias, but removing one.

The editors of Feminist Judgments of Aotearoa New Zealand – Te Rino: A Two-Stranded Rope present an example of a female police officer on the West Coast who said she had been intimidated by a man whose car had been searched by police. A District Court judge downgraded the charge of intimidation to a lesser one of disorderly behaviour. The Supreme Court then found that his right to freedom of expression trumped her right to privacy.

The story would look very different through a feminist lens. Behaviour designed to frighten or intimidate women may look merely ‘‘disorderly’’ to a male judge. Women can interpret the potential threat implied by a man visiting her home.

Like clockwork, another case offered a perfect illustration of how judges sometimes get it wrong. There was widespread disbelief when Judge John Brandts-Giesen discharged a man without conviction in the Queenstown District Court in December.

A Queenstown man, who has name suppression, admitted to assaulting his wife, daughter and another man after discovering a text message between his wife and the man, who was his best friend. As well as assaulting the man, he kicked his wife in the ribs and grabbed his daughter by the throat when she tried to intervene.

Judge Brandts-Giesen appeared to sympathise with the offender, telling him that ‘‘there would be many people who would have done exactly what you did, even though it may be against the law to do so’’. While the offending was spontaneous and explosive, it had to be seen in context, the judge said. The consequences of conviction would be ‘‘out of all proportion’’.

This was prehistoric thinking, a defence of violence as an explosion of sudden passion or offended male pride. It is close to the infamous domestic violence justification that says some women deserve it.

But a different lens has been applied to the case. When the Crown appealed, prosecutor Mary-Jane Thomas argued that the judge erred, including in his assessment of the gravity of the offending, and an appeal judge agreed. The man has since been convicted.

There is an impatience for change, expressed by the #metoo movement and books such as Feminist Judgments of Aotearoa New Zealand – Te Rino: A Two-Stranded Rope. At the book’s launch, a lawyer explained that women still have the weight of numbers against them. While 61 per cent of those in legal profession in 2016 were women, only 24 per cent of law firm partners, 17 per cent of Queen’s Counsel and 29 per cent of the judiciary were women.

Change needs to come faster.