《民法典》时代的劳动者私生活安宁权：确立与实现

劳动者私生活安宁权的生成，既得益于《民法典》的颁行，又源于网络化时代劳动者私生活安 宁权益保护的迫切需求。从权利性质上看，劳动者私生活安宁权兼具自由权和社会权双重属性。然而，在当下 其权利实现却面临诸多困难，表现为与雇主监督管理权的矛盾及冲突，《民法典》隐私权保护框架的不周延性 以及劳动法保护规范的滞后性。研究建议，就劳动者私生活安宁权的实现路径来看，一是要对《民法典》的保 护路径予以细化和调整，二是要在劳动法中创制新的制度与规则对劳动者进行特别保护。与此同时，应遵循 “两 步走”策略，以协调《民法典》保护与劳动法保护之关系，从而充分实现劳动者的私生活安宁权益。     

Sexting girls: technological sovereignty and the digital

This essay explores the contemporary fact of girls sexting. Instead of theoretically granting girls a form of technological sovereignty while sexting as sexual empowerment, it pauses to take a selfie of the adult subjects – parents, educators, and sex-positive feminists and queers – attached to this form of agency for girls. If sexuality remains an alluring reparative trap by offering, through a reverse discourse sustained by the plasticity of girlish whiteness, a way of transforming girls as objects into subjects, this essay problematizes that gesture as a racially normative one, reading it further alongside the relation of technology to sexual difference. To speculate on how the scenography of sexting could be seen differently by adults, this essay suspends the search for authentic meaning and knowledge, following an intuition that we cannot presently see anything behind the image of the sext. After examining how criminal law breaks the tension in the definition of “the girl” between vulnerability and agency by extending objectification through child-pornography law, the essay takes a speculative turn with feminist readings of the question of modern technology to consider the analytic and pedagogical purchase of the non-sovereignty of the girl who sexts.     

``Is Alec a Rapist?' – Cultural Connotations of `Rape' and `Seduction' – A Reply to Professor John Sutherland

This article is a response to an essay written by an academic in English Literature, Professor John Sutherland. Through close textual analysis,Sutherland purports to resolve a well-known literary question: whether the sexual encounter outlined in the Victorian novel Tess of the d'Urbervilles should be classified as rape or seduction. The present article rejects his conclusion on the matter. An(equally) close analysis of the fictional text in question and of Sutherland's gloss, demonstrates the partiality of his critique, both in literary-critical and critical-legal terms. In addition, examination of the conceptual and historico-legal context regarding the notions of rape and seduction on both sides of the Atlantic highlights parallels between Sutherland's own partiality and that of the law. In short, the apparent objectivity of the textual analysis and subsequent critique undertaken by Sutherland is revealed as a continuation of legal and patriarchal prejudices defining rape and seduction. The use of close textual analysis as the key critical device promotes the apparent probity of his findings. Locating them in an essay collection designed for mass lay public consumption completes the circle – from partisan scholarship to `informed' popular prejudice. This revised version was published online in July 2006 with corrections to the Cover Date.     

Dancing on the head of a pin? Foetal life and the european convention

The case of Vo v. France represents the latest phase of the European Court of Human Rights’ thinking on the scope of Article 2 of the European Convention on Human Rights (the right to life) in relation to foetal life where a foetus had been lost owing to a medical accident. The Court by a majority decided that, “even assuming” Article 2 applied to the instant case (albeit to the life of the pregnant woman rather than that of the foetus), it had not been violated. While the facts in Vo were extreme and exceptional, the Court will shortly hear the case of D v. Ireland concerning access to abortion for foetal anomaly, an application made under Articles 3, 8, 10 and 14 of the European Convention. If the case of D were declared admissible, the Court would then have to consider whether a denial of access to abortion for foetal anomaly constitutes inhuman and degrading treatment contrary to Article 3, or an interference with a pregnant woman’s right to respect for private life under Article 8 (and if so, how the doctrine of the margin of appreciation applies). The Grand Chamber precedent of Vo displays ambivalence about whether Article 2 should apply to foetal life, and its resort to the “even assuming” formula spared Member States the difficulty of having to justify their various abortion regimes, by reference to this Article. It remains to be seen whether in a case like D that is directly concerned with abortion, the Court will take a more definite stance on the correct balance to be struck between the State’s interest in protecting foetal life and the Convention rights of pregnant women. Vo v. France [G.C.], judgment of 8th -July 2004, no. 53924/00; D v. Ireland [4th section], no. 26499/02, oral hearing on admissibility and merits, 6 September 2005     

Secrets in the bedroom: Adolescents' private use of media

This essay discusses the functions of solitary media use within the ongoing daily emotional lives of adolescents. I review evidence suggesting that adolescents find in solitary TV watching and especially music listening, the opportunity, first, to cultivate a newly discovered private self: teens use media to explore numerous possible selves including those that are desired and feared. Second, I propose that solitary media experiences provide adolescents an important context for dealing with stress and negative emotion. Popular music listening allows adolescents to internalize strong emotional images around which a temporary sense of self can cohere.An earlier version of this paper was presented at the fifth biennial meetings of the Society for Research on Adolescence, San Diego, California, February 10–13, 1994. Much of the research upon which this paper is based was funded by NIMH grant No. 1 R01 MH38324 awarded to Reed Larson and Maryse Richards.Received his Ph.D. in Human Development from the University of Chicago. Research focuses on the temporal and emotional organization of daily life, especially in adolescence and within adolescents' families.     

The Queen and the `Bolton Seven'

This note examines the case of a group of gay men who, having engaged in consensual sexual acts together, became known as the `Bolton Seven' following their conviction in 1998 for offences of buggery and/or gross indecency. More particularly the note scrutinises the implications of the ages of the participants (one of whom, at 17 , was unable to give lawful consent to sexual intercourse with a man) in the light of the enactment of Part I of the Sex Offenders Act 1997 which introduces a system of compulsory registration by some convicted and cautioned sex offenders with the police (including men convicted of, or cautioned for, buggery or gross indecency). The note explores the justification for inclusion of these offences within the remit of the1997 Act together with the cultural construction of gay men as predatory and as constituting a risk to younger members of society. It also analyses some of the effects of the registration requirement in terms of it constituting a potential violation of fundamental rights such as equality and respect for private life. This discussion is located particularly within the context of the jurisprudence of the European Court of Human Rights and the introduction of the Human Rights Act 1998 in the U.K.. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Duty to Protect Women from Sexual Violence in South Africa

In 1998 Ghia Van Eeden was sexually assaulted by a serial rapist who had escaped from police custody due to the negligence of the South African police authorities. Claiming that the State owed a common law duty of care to potential victims to protect them from violent crimes, Van Eeden sought damages for the harm she had suffered. In a path-breaking decision, the Supreme Court of Appeal (S.C.A.) found that a duty of care did indeed exist and that its execution had to be considered in line with the constitutional requirement to protect women's right to be free from violence and the constitutional obligation to develop the common law so as to promote the spirit, purport and objects of the South African Bill of Rights. Examining the Van Eeden decision in terms of its substantial development of the circumstances in which the State may be judged liable for a wrongful omission, this note positions the S.C.A.'s decision in the context of the evolving case law of the Constitutional Court on sexual violence and ultimately questions its practical significance for addressing the prevalent abuse of women in South Africa. This revised version was published online in July 2006 with corrections to the Cover Date.     

“Gender is No Substitute for Sex”: A Comparative Human Rights Analysis of the Legal Regulation of Sexual Identity

U.K. regulation of sexual identity within a marriage context has traditionally been linked to biological sex. In response to the European Court of Human Rights decisions in Goodwin and I.,² and in order to address the question of whether a transsexual person can be treated as a “real” member of their adoptive sex, the U.K. has recently passed the Gender Recognition Act 2004. While the Act appears to signal a move away from biology and towards a conception of sexual identity based on gender rather than sex, questions of sexual identity remain rooted in medico-legal assessments of the individual transsexual body/mind. In contrast, because transsexual people in some parts of Canada have been able to marry in their post-operative sex since 1990, contemporary debates on the sexual identity of transsexual people in British Columbia and Ontario do not focus on the validity of marriage, and more frequently centre upon the provision of goods and services, in human rights contexts where sex is said to matter. Currently in Canada this is prompting questions of what it means to be a woman in society, how the law should interpret sex and gender, and how, if at all, the parameters of sexual identity should be established in law. This article seeks to compare recent U.K. legal conceptualisations of transsexuality with Canadian law in this area. As human rights discourse begins to grow in the U.K., the question remains as to whether or not gender will become an adequate substitute for sex.See Johnson “Gender is no substitute for Sex” Daily Telegraph, 24 February 2004. I am being disingenuous here as the author of the article is arguing that replacing the term sex with gender in relation to transsexuality is erroneous and an annoying Americanism, whereas I am arguing that neither term is adequate. Goodwin v. U.K. [2002] 35 E.H.R.R. 18; I. v.U.K. [2002] 2 F.L.R. 518.     

‘This Spider Web of Woman's Life’: Private Space and Community Life in Peter Abelard

This essay explores such complex and ambiguous presentation of convent life in Helen Waddell's novel Peter Abelard (1933), considering Heloise's fear of women's communities as expression of concerns central to women's writing published in Britain during the 1920s and 1930s. Waddell uses Peter Abelard to intervene in these contemporary debates about private and public spaces. The dislike which her Heloise expresses for women's communities may, given the text's feminist ideology, seem surprising, but, as discussed, similar anxieties are voiced in texts by several of Waddell's contemporaries, and the novel is shaped by this tension between private, autonomous individual and shared public space. Peter Abelard is read in relation to selected journalism of Vera Brittain and Winifred Holtby (late 1920s), Virginia Woolf's A Room of One's Own (1928) and Dorothy Sayers' Gaudy Night (1935).     

The Beauties of Kashmir: Nila Gupta's Representations of War from a Distance

Abstract: This essay examines Nila Gupta's literary representation of the conflict in Kashmir in her short story cycle The Sherpa and Other Fictions (2008). Born and raised in Canada, Gupta has a diasporic perspective and a feminist political stance that values women's solidarity and political involvement across borders. Her short stories explore the feminist thesis that the sexual crimes committed against girls and women at times of conflict are a direct consequence of the appropriation of women's bodies for symbolic uses within the dialectics of patriarchal nationalisms. However, her stories' restrained style and their publication in a small activist press preclude easy commodification in a global market avid for narratives of ethnic violence. By reading Gupta's creative texts in relation to academic studies of communal sexual violence and nationalism, humanitarian reports on refugees and gendered violence and journalistic accounts of the conflict, this essay attempts to assess the power of literature to offer nuanced and complex representations of violent conflict and its consequences. Special attention is paid to the representation of life in the officially designated ‘migrant camps’, to the difficult issue of the social stigmatization of rape victims and to the many ways in which women are implicated.     

Sexual Abuse and Claims in Tort: Limitation Periods After <Emphasis Type="Italic">A v</Emphasis><Emphasis Type="Italic">Hoare (and Other Appeals)</Emphasis> [2008] and <Emphasis Type="Italic">AB and Others v Nugent Care Society; GR v Wirral MBC</Emphasis> [2009]

The claimants brought civil suits against child care institutions and authorities for the sexual abuse to which they were subject whilst under the defendants’ responsibility. These cases were not initiated until the claimants were well into adulthood and began recognising the harms they had suffered, and as a result, their claims were time-barred at first instance. However, after A v Hoare (and Other Appeals), in which the House of Lords significantly altered the laws on limitation, their cases were reheard and allowed to proceed. In this respect, AB and Others v Nugent Care Society; GR v Wirral MBC demonstrates the benefits of the ruling in Hoare; but at the same time, this note argues that the Court of Appeal utilises a problematic conceptualisation of the harm of sexual abuse and the case highlights the potential for inconsistency and uncertainty in such delayed claims following the decision in Hoare—which is not the panacea it initially appears to be.     

The identity of ‘the other’ for sexual violence victims: is there anything new in sexual violence prosecutions before the International Criminal Court?

Despite the spectacular development in the field of international criminal law, critical feminism stresses the narrow scope of the sex and gender crimes in the Rome Statute establishing the first permanent International Criminal Court. The current international criminal law discourse, as expressed by recent case law, is geared towards the protection of certain groups targeted on account of their distinctiveness within the framework of a conflict situation, and gender is not recognized as one of these group identities. The question whether international criminal law on sexual violence applies only to inter-group conflicts brings to the fore an uneasy likelihood of exclusion of some recently emergent situations where identities of the conflicting parties transcend a particular ethnicity or nationality, and where victims of sexual violence belong to the same group as their perpetrators. The article argues that, rather than the Rome Statute or newly introduced rules and regulations, a significant obstacle in developing gender justice is the narrow interpretation of sexual violence to inter-group hostilities.     

Unequivocal Victims: The Historical Roots of the Mystification of the Female Complainant in Rape Cases

Historically, numbers of women complainants in rape trials have been regarded suspiciously, or prejudiced in that their credibility has been seriously called into question, or undermined, both from within and outside the courtroom. Arguably, public and legal perceptions as to the expected conduct and behaviour of the stereotypical rape victim have been grounded in the belief that genuine women who allege rape should act and portray themselves as unequivocal victims. This suggests that the contemporary construct of the female rape victim and her associated stereotypical image should be considered not solely as a legal derivative but also within a wider cultural context. This article explores the historical influences that shaped the cultural construct operating in the U.K., in particular, the societal and legal attitudes of the mid-Victorians towards women and sexual violence, creating an historical mystification around the construct of the female rape victim and the crime of rape itself. Reference is made to a number of cases reported in The Times newspaper between 1850–1885 which underline the requisite portrayal of the rape complainant as an unequivocal victim. It is argued that the relocation of this historical and socially constructed mythological imaginary within the context of the law and the trial process has disproportionately contributed to the modern scepticism which surrounds the female complainant. This revised version was published online in July 2006 with corrections to the Cover Date.     

Netta syrett's lesbian heroine

This article discusses Judgment Withheld (1934) in which Netta Syrett makes it clear that the most likeable character, Mimi Landsfeld, is a lesbian. This was unusual, other writers being too afraid of prosecution to depict lesbianism sympathetically, particularly after Radclyffe Hall's The Well of Loneliness was banned in 1928. The article also shows how Syrett combined her established reputation as a writer of popular fiction with offering her middlebrow readers varied and controversial portrayals of sexual relationships, including homosexuality. The article concludes with comments on Syrett's personal life, thereby placing her novels in context.     

A Local Authority v JB [2020] EWCA Civ 735; [2019] EWCOP 39

In Re JB, a local authority, concerned with the risk the respondent posed to vulnerable women, successfully appealed against an order made in the Court of Protection that declared JB, an autistic man with impaired cognition, possessed capacity to consent to sexual relations. In this recent decision, the Court of Appeal has arguably reset the last 15 years of jurisprudence concerning P’s capacity to make decisions in regard to sexual relations. Previous case law focused on P’s ability to consent to such relations, and whether P understood the information relevant to that decision. Notwithstanding the abundance of legal authority, including the recent appellate judgments of Hayden J in London Borough of Tower Hamlets v NB and AU (consent to sex) [2019] EWCOP 27. and B v A Local Authority [2019] EWCA Civ 913. there was a lacuna in the existing law in relation to what information was relevant for the purposes of assessing the issue of capacity to consent to sexual relations. Judges have traditionally adopted a protectionist stance in understanding “the information relevant to the decision” under s3(1) of the Mental Capacity Act 2005 (MCA), with an emphasis on whether P understood the risks of pregnancy and sexually transmitted diseases. However, the Court of Appeal in Re JB has broadened its interpretation of ‘relevant’ information to also include the ability to understand the importance of a partner’s consent to such relations. This is a welcome change to previous courts’ interpretations of the ‘nature’ of the sexual act, moving from an approach focused on the physical sexual mechanics to one which views the nature of sex as a mutually consensual engagement. However, a fundamental shift in how we view such cases is likely to have far-reaching consequences, particularly for local authorities and professionals seeking guidance in relation to their care planning.

     

“Some Things Are Just More Permissible for Men”: Estonian Nurses' Interpretations of Sexual Harassment

Studies of sexual harassment in nursing have provided conflicting evidence as to who perpetrates more harassment, physicians or patients. This study, the first Estonian qualitative analysis of sexual harassment in the work-place, contributes to the discussion by setting a comparison of the perception of the two parties (i.e. male physicians and male patients) at the centre of the analysis. The study extends prior research that explains sexual harassment in the light of already existing theories by analysing how women themselves understand it. The aim of the study was to discover how nurses describe and interpret sexual harassment in their everyday hospital work. Following the principles of constructivist grounded theory, 21 interviews were carried out with female Estonian nurses. The analysis revealed the hospital hierarchy to be the context within which the nurses interpreted sexual harassment: physicians were placed at the top of the hierarchy, patients at the bottom, and nurses in the middle. Nurses sensed their power position over patients, which is based on the latter's respect for nurses; similarly, they assumed male physicians to have respect for female physicians. Within this hierarchical context, nurses interpreted physicians' sexual advances to be more abusive and disturbing than patients', as they related it to physicians' position of authority. At the same time it appeared that flirting by physicians was considered pleasant or even welcome, whereas flirting by patients was dismissed.     

A Defining Moment: A Feminist Perspective On The Law of Sexual Harassment in the Workplace in the Light of the Equal Treatment Amendment Directive

This article considers, from a feminist perspective, the introduction of the European Equal Treatment Amendment Directive (E.T.A.D.) and its impact on the law of sexual harassment in the United Kingdom. Since feminists identified sexual harassment as a problem for women in the 1970s, feminist legal scholars have focused their attention on the law as a means of redressing it. Bringing claims in the U.K. has been difficult because of the absence of a definition of sexual harassment and reliance in the Sex Discrimination Act 1975 on a comparator approach. These problems are illustrated by the recent House of Lords decision in Pearce v. Governing Body of Mayfield Secondary School(2003). The failure of the House of Lords in Pearce to understand sexual harassment as an issue of substantive equality for women makes the introduction of the European law all the more the pressing. The author discusses the implications of the changes embodied in the E.T.A.D. in the light of feminist theory. She argues that the changes envisaged constitute welcome developments which will make it easier to remedy workplace sexual harassment. However, it is also likely that problems will remain for women in establishing sexual harassment claims, particularly if concepts of reasonableness and unwelcome behaviour continue to form part of the legal definition. This revised version was published online in July 2006 with corrections to the Cover Date.     

Love Scenes and Garden Plots: Form and Femininity in Elizabeth von Arnim’s Elizabeth and Her German Garden

Abstract

This essay reads Elizabeth von Arnim’s Elizabeth and Her German Garden (1898) in relation to Alfred Austin’s garden book, The Garden That I Love (1894). The Garden That I Love presents the garden as a retreat modelled on the Horatian ideal, in which a man retires from public life to enjoy a peaceful rural existence. Von Arnim shows how the garden, or rather the good of retreat that the garden represents, is well-nigh inaccessible to a female subject. At the same time, she wants to claim the garden’s seclusion for the female subject. Ultimately, von Arnim takes the idea of feminine retreat to an unexpected extreme, generating, in certain passages of her text, a perverse garden fantasia that celebrates feminine autoeroticism and sexual self-sufficiency. Notably, it is specific aspects of the form of the garden book that allow von Arnim to develop her ambivalently feminist, unabashedly utopian vision of feminine withdrawal and retreat.     

Law’s Gendered Subtext: The Gender Order of Restaurant Work and Making Sexual Harassment Normal

Analysing sexual harassment law in British Columbia, this paper argues that in highly sexualised work environments, in which practices including sexual ‘jokes’ or innuendo may be common, law embodies and (re)creates the gendered subtext of the workplace. When a complaint of sexual harassment from a sexualised workplace is raised in a legal forum, a complainant has an obligation to clearly object to the sexual remarks, ‘jokes,’ banter, etc.—which may be the ‘norm’—to show the conduct in question was unwelcome. At the same time, however, a workplace may be structured, in part by law, in a way that restricts employee resistance to uncomfortable sexual experiences. This is the case, I argue, for women working in full-service restaurants when it comes to sexual interactions with customers. This paper explores how restaurant work, in the Canadian context with a focus on the province of British Columbia, is organised in a manner that makes women vulnerable to enduring sexually harassing practices as a routine part of their jobs.     

The Gothic,the Death Drive and Angela Carter

Abstract

This essay situates Angela Carter's The Bloody Chamber and Other Stories (1979) in a 1970s era in which a feminist reclaiming of various things—the streets, the night, as well as fairy tales—is the order of the day. It examines the complex nature of Carter's status, in this context, as a controversial writer. Is Carter a writer who contests or colludes with the forms of reality presented in and by her fiction? This question may be seen as framing the main debate about Carter as a ‘problematic’ or ‘polarizing’ figure. The different sides of this argument are assessed in this essay. From reading ‘The Bloody Chamber’ as an exemplary reworking of the Gothic, and itself one of Carter's fictions of the death drive, the essay reaches a clear conclusion of its own regarding the vexed contest/collude dimension of Carter's storytelling.