Dr Molly Bellamy hears from Baroness H Kennedy

Dr Molly Bellamy hears from Baroness H Kennedy

A pilot for single-judge rape trials in Scotland has been proposed by Lady Dorrian with the declared intention of improving low conviction rates (51%) in cases of rape. The proposal, which would see cases entered into the pilot tried without a jury and the verdict placed in the hands of a Judge, has proved to be contentious; sparking spirited debate surrounding the issue of jury bias in cases of rape or sexual assault, and threats of boycotts from lawyers. Given the nuanced and sensitive nature of this topic, the necessity to consider multiple perspectives is paramount.

I have sought insight on the polarising subject from four esteemed women in the legal profession, with a diverse range of opinions. Over the coming issues of Legal Women I will present their perspectives on this complex developing story.

MB: You are, perhaps, or have become, more than any other lawyer in the UK, the advocate for women who have experienced gender-based violence, women whom, as you’ve said often, have been failed by the criminal justice system. You’ve spoken out and written extensively about them. How did this undertaking come about?

HK: Well, in the early eighties when I was beginning to write articles about the way in which women experienced the legal system, I was broadcasting a little bit about it and being asked to come on radio or television, just to discuss the growing concern about this… you've got to remember at this time, the seventies was the period when the women's movement got off the ground and a lot of questions were being asked about why it was that women were still facing inequality in our society, and all of the institutions were coming under scrutiny? And the institution that I was involved in, of course, was the legal system, and I did become very conscious of the ways in which the system failed women and the way in which women were judged somewhat differently. There were double sexual standards. What might be perfectly acceptable in male behavior was certainly not acceptable when it came to women. And to, in some way, denigrate a woman in the eyes of a jury and to reduce her and turn her into a ‘harlot’ always damaged her. And it made it very difficult for her to secure justice if she had been the victim of rape, or of domestic violence, or a 'bad mother' somehow.

MB: You wrote a programme note recently, for a play called Dixon and Daughters1 by Deborah Bruce about gender violence today, and it was put on at the National Theatre in association with a prison theatre group called Clean Break. That programme note lent a lot of background insight to the themes of the play to do with male violence and you talked there about a ‘culture of masculinity that is so deeply ingrained in our lives that women also buy into it’.

Well the Dixon and Daughters play was very interesting to me because it really did cover that that complex set of loyalties that there are. And as well as the business of predatory behaviour by a father, you'll remember that the play starts with the exiting from prison of the mother of the family. She had gone to prison because she had basically lied to protect her husband. It was that business of women having so much invested in men for their own survival. You know, the head of a household, the breadwinner, so on, that the idea of an existence without the man was just not an option.

Well the Dixon and Daughters play was very interesting to me because it really did cover that that complex set of loyalties that there are. And as well as the business of predatory behaviour by a father, you'll remember that the play starts with the exiting from prison of the mother of the family. She had gone to prison because she had basically lied to protect her husband. It was that business of women having so much invested in men for their own survival. You know, the head of a household, the breadwinner, so on, that the idea of an existence without the man was just not an option.

MB: Yes. In that programme note you talked about the problem of misogyny…

HK: One of the things that has become clear to me about misogyny is that it's a way of thinking. I don't think it's about hatred. It's about a way of thinking, which is about male entitlement, that the people who should be running the world are male. And so women breathe that in from a very early age. They're sort of, socialized to accept the idea that the way to happiness is to find yourself a good man who's got to be able provide for you well and for your children and so on. And even if you're a career woman that's still sort of seeded into your expectations of what a fulfilled life looks like. So for many of the women that I acted for over the years, they felt - I mean, it was that thing that they felt, that in order to please a man they had to accept his criticisms of them, their sense of failure either sexually or as a mother or as a homemaker or in whatever capacity. And so often it leads to a total lack of self-worth. In the early years, when I was doing these cases, acting for women who had been abused, there was a question that was always asked by lawyers, by judges who were mainly men at that time, which was but if someone were doing that to you, why would you want to stay? And what happens of course, is that the sapping of a person's sense of worth and their sense of self leaves them imagining it's their fault. And women really also feel the same thing. I must have done something that made him do this to me. Why does he do it to me? I must have somehow failed in the behaviours that are expected of women. Either in intimacy or in relationship or whatever. And so there were patterns that I started to see in the cases that I was doing; where there was that self-blaming and women staying in relationships, partly because of course, they often had children, and they felt that there would be social stigma of being a woman who's without a man.

MB: Stigma yes, for not being able to hold it together.

HK: Absolutely. I mean, the women I acted for, always felt that somehow they were responsible for what happened. And then, during that period in the eighties, I did a whole set of cases, and by the late eighties I was becoming very interested in this as a subject.

There were women in academia in the United States, who were writing a bit about a ‘learned helplessness’; meaning that somehow women are encouraged to stay in these relationships. And there's a way in which they feel that there are no steps they can take without there being consequences, fearing the level of violence that might meet them if they were to take that step. And so, through the eighties I was learning about this combination of emotions experienced by women.

MB: So that’s when you decided to write Eve Was Framed?

HK: I only wrote my book, Eve was Framed in 1992. And I did that because in 1991, I became a Queens Counsel.

MB: I see.

HK: I felt that it gave me the authority to be able to speak out… if I had been some young lawyer who’d been seeing these things, I would've been dismissed. But once I was a Queens Counsel and I was recognized as being an advocate of some substance,then I was able to say, there are things wrong with this system.

MB: Of course.

HK: So that was one of the things I often did through the eighties, speak out about judges making ridiculous decisions and deciding that, for example, women with short skirts deserved what came to them. We forget those terrible times…

MB: So what about bias amongst women?

HK: Oh, I absolutely think that sometimes the people who are toughest on women are other women. And it's why when I was writing my first volume of Eve was Framed, or another rather different book more recently, I spoke about how my own grandmother used to sort of say there'd be no bad men if there were no bad women. And I remember seeing, on an occasion when I was a small child going through Glasgow Central Station, a woman who was very, very drunk and heard my own mother saying, There's nothing worse than a drunk woman

...And those sort of judgements on women, I mean, that's the problem, women who enter into the courtroom are judged by these other standards. And so it's not a simple thing of applying the law. The whole business of judging, is cultural.

And the interesting thing was, somehow a link was being made between, believing a woman and her sexual behavior or her lack of control. Somebody might be sexually promiscuous, but they know when they've been raped and that they weren't consensually involved. But truths seemed to get mixed up in ideas about what makes an appropriate woman.

MB: So is the question of cultural bias in the jury population a valid argument for having single judges?

HK: I was on a platform quite recently with Brenda Hale, Lady Hale, of course the President, and a judge from the Old Bailey, Wendy Joseph who has written a book about sitting as a judge. We were on a panel where one of the questions asked was, 'in sexual offences against women, would you get rid of the jury and have the verdict in the hands of a judge?’ and it was very interesting! All three of us felt that the jury should absolutely be retained. Now that's partly about believing in the role of the public in our legal system, and it being a way to bring community sensibilities into the courtroom. But of course, it also brings the bad along with the good. I'm a firm believer in having three magistrates taking part. I think it's important that you have the community involved in the legal system, but there is no doubt in my mind that there is a lot of bias amongst certain people who sit on juries. And some still have the old fashioned idea that if a woman is drunk then she has made herself available to men. Or, if she's dressed with inappropriate clothing, or, if she is exposing too much of herself - that she's somehow inviting sexual assault. And that notion lives to this day and it's going to take a long time to remove it from men and women, and from the culture.

MB: Yes it’s interesting how pervasive those ideas still are.

HK: And it is so interesting when you have children, I've got two boys and a girl - they're all grown up now, and I'm a grandmother - but I still did the thing that most mothers do with regard to their daughters, which was that I warned her about being out too late, about being in any place which was going to make her vulnerable. And the importance of, you know, being with friends and not separating from the group.

MB: Putting the responsibility on her…

HK: Yes and that's what we all do! We do it with girls now from a very young age, we're saying to girls who are still in primary school, little girls, that you've got to be careful and what is it we're asking them to be careful about? We're saying, you've got to be careful because there are certain men out there who will prey upon you, may do things to you, and the way that you can avoid all of that, is by self-protecting, selfsafeguarding. It's that business of expecting the victim to safeguard themselves rather than dealing with the perpetrator. So, the dial is almost always pointed towards the person who is the complainant. And as women we breathe it in, this sense that if something goes wrong, we think I must have done something that allowed this to happen to me

MB: Yes, we can internalise that misogyny, and it leads to women being silenced.

HK: You'll remember that in 2017, we had the whole business of Harvey Weinstein, and women coming out saying that he had sexually violated them, and that they hadn't felt able to speak out because their careers would be ruined. And we know that that's one of the reasons why women in so many circumstances don't make the complaint against someone. There's hardly a woman who hasn't had to deal with unwanted physical contact, with having things said things to her, with predatory behaviour. I experienced it myself when I was a young barrister and I had to avoid certain people. I was a young barrister. Or, you know, you had to avoid certain people.

MB: Do you think that increased awareness has changed attitudes?

HK: I'm big believer that the way in which you change attitudes and the way in which we will end up dealing with misogyny in our society (because I'm afraid, we see it everywhere) is to understand that: the more you have women in every area of life, in the world of advertising, education, politics, and the courts - then you're more likely to have shifts and changes in attitudes.

And it's important to carry our male colleagues with us on all of this. There are good men who denounce this kind of behaviour too. I mean, not all men behave like this, but unfortunately, most women have experienced it.

So we have to address it in the schools, but law also has a role to play. I do believe that although you shift cultures largely through education, the exchange of ideas and people empathising, and understanding what it feels like to be at the receiving end of misogyny - I still think that the law operates as a structure, as a framework, which reminds people of the seriousness of something and it creates the boundaries. What I thought was interesting in the play Dixon and Daughters was the experience of the young girl as a student, who felt that her teacher was not behaving appropriately sexually, but that that was somehow her fault. The play was also showing that those minor transgressions accumulate, and affect women's choices; the character in the play for instance, was about to withdraw from being a student

MB: And is this awareness of how women are affected by misogyny at the personal level, in terms of their sense of self, their subjectivity – is that awareness that language filtering down into the criminal justice system?

HK: Absolutely. I mean, that whole thing of ‘lived experience’ yes! The language has changed… it’s about listening to those who have had these experiences. It's a big thing because if you think about it for so long, women were not listened to. When the Jimmy Savile scandal hit the headlines (in 2012), it was pointed out that it wasn't that women hadn't complained, women had complained, but nobody had done anything about it! They chose to protect the institution, it was the BBC then, and the establishment. And you see it happening too in Parliament, in the church, this protecting the institution, protecting the Oxbridge College, where the institutional reputation is placed ahead of the experience of the individual. So that, I think, has been challenged.

MB: Yes.

HK: I think our society has become much more willing to learn from the psychotherapeutic world, from psychiatrists, psychologists, from those who counsel people who've experienced things which have left them with trauma. And I remember when I started at the bar, there was a real resistance to having psychologists or psychiatrists come and give evidence in court, judges were not inclined to be - they didn't see it as real medical science, and we've had to travel a long journey to have that accepted. But we now know, that people who experience rape or abuse as a child, experience effects that are long lasting. So we've got much greater understanding…

MB: So something is shifting ?

HK: There's definitely a different think! And young women are not going to be as accepting. I frequently have these conversations with older women of my generation, who say, oh, for heaven's sake, we all had these experiences, and we just had to sort of, you know slap somebody's hand, and say, don't do that to me. And we all survived, and we haven't been traumatised. This was a ‘robust’ view of how you can deal with male misbehaviour. Whereas a younger generation is saying, Why should we have to do that? Why should it be on our shoulders to deal with male misbehaviour?

MB: Different times.

HK: We were entering the male world then, I mean, in the world of work I knew that I could not arrive in court saying I'm sorry I'm late, because my child minder or my nanny didn't turn up.

(laughter)

You had to basically bluff it and pretend that your car you know, was the problem. And if you said something was wrong with your car, everybody in the court nodded because that was what the men all said. And so you learned very quickly that you had to play it by the male rules. And I think that young women now, which is great, have decided I'm not going to play it by the rules and deny the fact that I've had a child and deny the fact that I'm still experiencing the consequences.

I do think that we as older women have to support young women who are basically not prepared to put up with some of the things that we put up with.

MB: There's been a lot of strong male voice reaction in relation to the Lady Dorrian proposal… what's at stake there do you think?

HK: Well, there are two things: Lady Dorrian is suggesting the possibility of judge only trials. My concern about that is that some of the judges haven't quite got it right yet either. And so, I don't know that that's necessarily going to be the solution. One of the other problems in Scotland, and it's been challenged now by the Lord Advocate, who's also a woman, is that Scotland is very committed to the corroboration rule. And we did away with the need for corroboration in rape cases. Whereas, in Scotland it is absolutely one of the ground rules of the Scottish system. And what does it mean? It means that you have two sources of evidence. And so well you don't ever have a witness. I mean almost invariably you don't have a witness, and that’s what would constitute corroboration. So for example the Lord Advocate is saying that a woman's distress after, should be used as corroboration. Whereas there's case law in Scotland, says that someone being distressed is not corroboration. The expression of an emotion is not enough.

So the Lord Advocate is trying to have that shifted and there's quite a lot of opposition from male advocates there, and you know, changing the system is very hard. I've been involved in a project just recently with women parliamentarians in the Middle East and you hear from them that they've been through so many of those struggles that I

went through back in the seventies, and they're basically talking about trying to get domestic violence law through, and there’s opposition from male parliamentarians, and they've been trying for years in some jurisdictions to get proper acknowledgement that domestic violence is a crime.

MB: Yes, so these concerns we are talking about are felt by a vast number of women not just in the UK but around the world, women who have experienced overwhelming trauma, as you say.

HK: A lot of my work now is international. What is happening to women in Afghanistan now that the Taliban has returned, is a form of apartheid, which of course is an international crime. Women have been denied their citizenship, their civic value. They’re not allowed to participate, to have a voice. Freedom of expression is not available to them. They can't be lawyers and judges or teachers, or get an education or healthcare! And it was pretty cruel, I thought recently, that they closed down all the beauty parlour places that people go to in order to have their nails painted or their hair done, places where women can gather and where they can tell each other, so and so is a teacher and she's in her basement giving lessons to girls, get your daughters to go. Places where they would share knowledge and information – have just been closed down.

MB: Ominous! I was just thinking how the play Dixon and Daughters captured that sense of coercion you are talking about, the silencing, the isolation, with its empty set, and its doors bursting open suddenly and closing, giving off a sense of ominous presence – theatre can do that!

HK: Theatre… and now television, and radio - the whole business of coercive control got played out on the radio in the Archers, when it had a theme where one of the women was experiencing gaslighting…. So there are great ways, you know, of shining a light on what these experiences are. And that's because, of course, there are more and more women involved in their creation.

Dr. Molly Bellamy

Molly holds a PhD in Sociolinguistics and Education and an LLM in Dispute Resolution. She has held university posts for many years as a Senior and Principal lecturer. She has worked in the legal sector as a case worker for Bail for Immigration Detainees (BID) and currently teaches at the University of Law and is engaged in independent research.

In the next issue of Legal Women Molly will be talking to academics about the cross fertilisation between the University and the professional legal sector.