The `Ideal' Victim v Successful Rape Complainants: Not What You Might Expect

This article proposes that feminist legal critics need to be able to explain how some rape cases succeed in securing convictions. The means by which rape cases are routinely disqualified in the criminal justice system have received widespread attention. It is well established in feminist legal critique that female complainants are discredited if they fail to conform to an archaic stereotype of the genuine or ‘real’ rape victim. This victim is not only morally and sexually virtuous she is also cautious, unprovocative, and consistent. Defence tactics for discrediting rape testimony involve exposing the complainant's alleged failure to comply with the sexual and behavioural standards of the normative victim. This understanding of how rape complain(an)ts are disqualified is not predictive, however, of the complainants whose cases succeed in securing convictions. This article reviews some successful Australian rape cases and considers the ways in which they disturb feminist understandings of how rape complaints are discredited in the criminal justice system. It proposes that recent research analysing the discourse of rape trials provides a way of explaining the apparent discrepancies between the ‘ideal’ rape victim and successful complainants. This revised version was published online in July 2006 with corrections to the Cover Date.     

Extending the Reach of Human Rights to Encompass Victims of Rape: M.C. V. Bulgaria

This note analyses a recent case of the European Court of Justice in which the applicant, a 14-year old rape victim, alleged that Bulgarian criminal law violated her rights under Articles 3 and 8 of the European Convention of Human Rights in pursuing a practice of only prosecuting rape where there was evidence of the use of physical force and active resistance. In upholding the applicant’s claims, the Court re-affirmed the positive obligation on states to adopt measures to ensure that fundamental rights under the Convention were secured. In particular, in the case of rape, this required the enactment and application of criminal laws effectively prescribing all acts of non-consensual sex and not just those involving physical violence. In this way the Court affirmed not only that rape was, in essence, a violation of personal sexual autonomy but also that legal systems which failed adequately to protect against all forms of rape risked operating in breach of Convention obligations.Application no. 39272/98, 4 December 2003.     

Verbal and Physical Abuse Toward Mothers: The Role of Family Configuration,Environment, and Coping Strategies

This paper focuses on parental maltreatment, a rarely documented phenomenon. We prospectively examine factors that can increase the risk of abusive behavior toward mothers. The purpose of this study is to examine the relationship between a stressful family situation, parental divorce, and verbal and physical aggression toward mothers. We use a large Canadian sample of adolescents who have been followed since kindergarten. At age 15, we assessed verbal and physical abuse toward mothers, as reported by both mothers and their adolescents. Multinomial logit modeling revealed that parental divorce was associated with a greater risk of physical aggression directed toward mothers by adolescents. Family environment and parental coping strategies partially mediated that relationship. Mothers who divorced, and remained divorced, were at greater risk of being assaulted by their adolescent children. A positive family environment, reflecting a better parent–child relationship, partially diminished this risk. However, support-seeking behavior on the part of mothers increased the risk of abuse, concurrent with tyrannical strategies often mobilized by abusive children.     

Imperilled Muslim Women, Dangerous Muslim Men and Civilised Europeans: Legal and Social Responses to Forced Marriages

How is it possible to acknowledge and confront patriarchal violence within Muslim migrant communities without descending into cultural deficit explanations (they are overly patriarchal and inherently uncivilised) and without inviting extraordinary measures of stigmatisation, surveillance and control so increased after the events of September 11, 2001? In this paper, I explore this question by examining Norway's responses to the issue of forced marriages. I argue that social and political responses to violence against women in Muslim communities have been primarily culturalist. That is, the violence is understood as originating entirely in culture, an approach that obscures the multiple factors that give rise to and sustain the violence. The culturalist approach enables the stigmatising and surveillance of Muslim communities. I approach this argument in two parts. In part one I discuss two important and influential books written by women who identify their concerns as feminist and who lay out the case for considering the problem of forced marriage as a problem of controlling fundamentally unassimilable and culturally inferior Muslims. I explore these works as paradigmatic of the culturalising or culturalist move. In part two, I review a variety of legal initiatives in Norway, first contextualising them as part of a larger European venture to control Muslim populations and then examining what they share conceptually with the approaches in part one. I end with how we might begin to develop an anti-racist response to the problem of violence against women.     

V.A.T., Taxation and Prostitution: Feminist Perspectives on Polok

Debates concerning the taxation of prostitution have occurred in taxation law and in feminist literature. This article will integrate the case of Polok v. C.E.C. [2002] E.W.H.C, 156; [2002] S.T.C. 361, within the feminist legal canon. The case is discussed in the context of the argument of the European doctrine of fiscal neutrality, which dictates that, regardless of legality as amongst member states, if an activity is levied to V.A.T. in one member state, V.A.T. should be levied on it in all member states. The doctrine of sovereignty accepts the possibility that the integrity of the V.A.T. system may be compromised by the levying of tax on illegal activities, in terms of the cooperation between tax and other aspects of the U.K.’s legal system. European law, feminist law, commodification and the marketplace are all considered within the context of these principles. The article also considers the place of Polok within standard feminist texts on prostitution. Different paradigms of prostitution define different aspects of prostitution as ‘problems’, and the article considers the implications within a feminist reconstruction of Polok of this. The article suggests that the challenge for a feminist analysis of Polok is to remain within the realm of European tax and competition law, and to render the perspective of the employees of the Polok taxpayers part of the substance of the deliberations of the case.     

The Bleak House of Surrogacy: Broidy v. St Helen's and Knowsley Health Authority

This note examines the British case of Broidy v. St Helen's andKnowsley Health Authority in which Margaret Broidy was unsuccessful in anegligence action against the defendant Health Authority following an emergency caesareanoperation in which a hysterectomy had been performed as `essential'. Of particularfeminist interest is the fact that Broidy's claim for, inter alia, the costs of asurrogacy arrangement to be carried out in California was refused on the basis that it wasnot reasonable – the chances of success of the surrogacy arrangement being deemed tooremote. Set within the context of an increasingly prolific number ofworld-wide surrogacy stories, the Broidy decision is analysed as providing a recentillustration of some of the difficult implications of the reproductive option which surrogacyhas now become.     

Wives are Told: Don't Blame the Bank, Sue Your Solicitor: Royal Bank of Scotland v. Etridge (No. 2) and other appeals [1998] 4 All E.R. 705

This case note considers the Court of Appeal decision in Royal Bank of Scotland v. Etridge (No. 2) and other appeals [1998] 4 All E.R. 705. It concerns the familiar scenario of a wife jointly mortgaging (or providing a guarantee for a mortgage of) the family home in order to secure financial support for a business run by her husband. The House of Lords decision in Barclays Bank v O'Brien [1994] A.C. 180 has given rise to a range of litigation in this area, and the spotlight has now moved from the banks to an examination of the quality of advice given by solicitors. The banks have heeded the warnings in O'Brien and now insist that wives are told to obtain independent legal advice. It will be seen that, following Etridge, if the bank tells the solicitor to give the wife legal advice upon undertaking the transaction, that will be sufficient to protect the bank, notwithstanding that the advice was either inadequate or even not actually given. The onus to ensure that proper advice is given is shifted squarely on to the solicitor. The note concludes that the decision is indicative of the shift of judicial opinion against wives seeking to avoid charges over matrimonial homes and in favour of banks. This revised version was published online in August 2006 with corrections to the Cover Date.     

The international political economy of the global land rush: A critical appraisal of trends,scale, geography and drivers

Over the past few years, agribusiness, investment funds and government agencies have been acquiring long-term rights over large areas of farmland in lower income countries. It is widely thought that private sector expectations of higher agricultural commodity prices and government concerns about longer-term food and energy security underpin much recent land acquisition for agricultural investments. These processes are expected to have lasting and far-reaching implications for world agriculture and for livelihoods and food security in recipient countries. This paper critically examines evidence of trends, scale, geography and drivers in the global land rush. While this analysis broadly corroborates some widespread assumptions, it also points to a more complex set of drivers that reflect fundamental shifts in economic and geopolitical relations linking sovereign states, global finance, and agribusiness through to local groups. Only a solid understanding of these fundamental drivers can help identify levers and pressure points for policy responses to address the challenges raised by large-scale land acquisitions.     

Parity,Power and Representative Politics: The Elusive Pursuit of Gender Equality in Europe

In recent years the concept of parity democracy has rapidly risen up the European political agenda. Using a threefold typology of sex-quotas, this article undertakes a classification of the measures taken by the 15 old E.U. member states to improve the gender balance in representative assemblies. This is then used as the basis for an exploration of the advantages and disadvantages of the parity approach as a tool to promote gender equality, including the constitutional obstacles which stand in its way. The article goes on to present a comparative study of several national systems in which attempts to achieve parity democracy have been pursued, concluding that, in order to maximise their effectiveness, parity measures must operate within a system of unbiased political structures and be properly adjusted to suit the particularities of individual national electoral regimes.     

Embodying the Law:Coker and Osamor v. The Lord Chancellorand the Lord Chancellor's Department [2002]I.R.L.R. 80 (Court of Appeal)

In Britiain, it is unlawful,regardless of the motive of the discriminator,to refuse to give a woman a job because of hersex. On the other hand, the U.K. case ofCoker and Osamor v. The Lord Chancellor and theLord Chancellor's Department suggests that itis permissible, by `pre-selecting' anindividual man, to rule out any possible femalecandidates. The singular facts of this caseshould not disguise the troubling conclusionthat while sex (and race) discrimination maysometimes be blatant and deliberate, morefrequently it is subtle and routine. Furthermore, discrimination is much moredifficult to challenge, let alone eradicate,when it is embedded in the system. This notestarts from the premise that, while sexequality requires more than the appointment ofwomen to influential posts, that is, at least,a start and if it is decided in advance thatappointments will be made only from a smallcircle of `acceptable' people there is a realdanger that the idea of the `establishment' asa self-perpetuating (white) male enclave willbe confirmed.     

Not `Social Justice': The Housing Association, the Judges, the Tenant and his Lover Fitzpatrick v. Sterling Housing Association [1997] 4 All E.R. 991; [1998] 1 F.L.R. 6 (C.A.); [1999] 4 All E.R. 705 (H.L.)

This note analyses the decision of the House of Lords in Fitzpatrick, which held that gay partners could fall within the legal definition of ‘family’ for some purposes. The note argues that despite the real (if overstated) benefits that this case bestows on gay partners in the form of legal rights, under analysis, the decision self-deconstructs to reveal that it is grounded on the principle of discrimination on the basis of sexuality. However, it is also suggested that the encounter between discursive legal reasoning (underpinned by normative heterosexuality), and aversion of the family which is ‘other’ to this discourse, is one which leaves its mark on law, as the potential undermining or deconstruction of law’s normative assumptions. The note further argues that although this decision is properly seen as a moment in the struggle for gay rights, it also serves as a reminder that the fortunes of critical theories and political movements that seek to challenge the legal paradigm of the white, heterosexual male are inextricably linked. Fitzpatrick, whatever else it is, is also an object lesson in the debt that current campaigns for gay legal rights owe to feminist critiques of, and campaigns that have successfully challenged, the role of this norm in legal discourse. This revised version was published online in July 2006 with corrections to the Cover Date.     

Mix-Ups, Mistake and Moral Judgement: Recent Developments in U.K. Law on Assisted Conception

Hard cases make bad law. In a matter of months, two such cases involving assisted reproduction have appeared before the U.K. High Court and legislation has been enacted. The common threads between them are consent and fatherhood. The first case concerns a ‘mistake’ resulting in sperm from the wrong man being used to create an embryo for a couple and the second the revocation of consent by a man to his former partner being allowed to use an embryo they created together. Furthermore, Parliament has intervened, passing legislation which sets out when sperm from a dead man may be used by his former partner to generate an embryo. This note argues that the three developments cannot be reconciled with one another and that the cases in particular, decided on a narrow legal basis, convey contradictory messages, leading in at least one instance to a gross injustice.