WOME
O JUSTICE AROUND TH T S S E C N’S A C EW OR LD
JUSTICE INTERNATIONAL
RUN THE WORLD 2023 ISSUE 2
ACKNOWLEDGEMENT OF COUNTRY
We would like to acknowledge the traditional custodians of the land on which our editorial team and readers reside, and pay our respects to their Elders past and present. We extend that respect to the Aboriginal and Torres Strait Islander people reading this publication.
RUN THE WORLD
CONTRIBUTORS EDITOR-IN-CHIEF Isabella Larsen
DESIGNERS Wendy Tran Jessie Liu
MANAGING EDITORS
Nerine Chan Isabella Ouyang Vivian Zhang
Isabella Larsen Nikki Nair Sophie Nguyen
WRITERS
EDITORS Chiara Ly Rachael Rozengurt
Jay Williams
Grace Wong
Ella Robinson
Wendy Tran
Lauren Chau
Jessie Liu
Maddison Klar
Nerine Chan
Jacqueline Ge
Caroline Sinn
TABLE OF CONTENTS Editor’s Address
.................... 5
Justice For You, Injustice For Me
.................... 6
The Front Line
.................... 11
A Place at the Table
.................... 14
The Reasonable Man & The Invisible Woman
.................... 19
The Silenced Lambs
.................... 23
Dear Readers,
EDITORS’ ADDRESS
Welcome to the second issue of Run the World 2023! This time, our issue has the theme of, ‘Justice International - Women’s Access to Justice around the World.’ There’s no doubt that justice as an issue of gender remains of resounding importance in Australia, whether that be in the courts, the workplace, or the area of human rights. It’s only normal that our discourse remains focused on the places that we live in; the experiences and systems we are familiar with. But, times have changed, with discourse on current affairs now readily available through a myriad of platforms. It is this accessibility that has promoted a shift towards global integration, bringing to light the shared qualities that echo across prominent social issues present in all of our own communities. The continued development of international law has promoted, on an institutional level, the necessity to pay attention to, and create awareness of, issues that exist outside of our own bubbles. Women have used mediums that defy language barriers, working in the spheres of the arts and the media to highlight the concerningly prevalent lack of redress they have historically faced and continue to experience. Achieving justice for women on a global scale is as important now as it has ever been. Ensuring the judicial support of ALL women, through adapting legal tests and altering our view of women’s ‘place’ in the career landscape, needs to be at the forefront of society’s mind. Because it is the small steps and changes that will ultimately lead to equality for women internationally. It is by understanding how womens’ experiences mirror each other across the world that we will be able to actively promote the equality and acceptance necessary to see real, positive change. Thank you for reading and enjoy this issue! We hope it informs, provokes, and fascinates you as much as it did our team when putting it together. Isabella, Nikki, and Sophie
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Arguably the crime most difficult to identify, modern slavery continues to plague international law enforcement with elusive, highly organised methods of concealment. It’s amorphous criminality encompasses child and sex trafficking, forced labour, debt bondage and forced marriage,[1] creating a multifaceted social crisis with no obvious solution. One of the last countries associated with human trafficking is our own. Yet Australia’s immunity to modern slavery remains a well-perpetuated façade, with an estimated 1,900 victims of human trafficking remaining unaccounted for to this day.[2] The sheer proximity between Australia and Thailand, Indonesia and the Philippines stimulates a transnational supply chain that often slips beneath international radars. Despite the country’s ‘Tier 1’ anti-trafficking status[3] and varied sources of legal recourse,[4] several legislative steps must be taken in order to further prevent the proliferation of modern slavery. Several instances of human trafficking have been brought to the media’s attention: the 2001 case of Puongtong “Noi” Simaplee exposed her 15-year struggle as a sex slave in Surry Hills, exacerbated by a punitive law enforcement process that ultimately led to her death in custody.[5] Furthermore, the alarming scale at which Australia’s sex trafficking industry operates came to light during R v Wei Tang, [6] wherein 5 Thai women were found to have been trafficked and solicited as illegal prostitutes by Tang, forming the first criminal conviction for a slavery offence in Australia. Since then, the nation’s legal response has been swift and reactive. Coupled with the formal criminalisation of modern slavery practices under the Criminal Code Act 1995 (Cth),[7] the implementation of the Victim’s Support Scheme in 2013[8] allows victims of modern slavery critical access to resources and support. Eligible victims can claim up to $5000 in financial assistance for economic loss and immediate needs, alongside funeral fees, recognition payments and up to 22 hours of counselling.[9] More recently, Australia’s accession of several humantrafficking related UN treaties resulted in the Modern Slavery Act 2018 at both state and Commonwealth level, which targets transnational corporations and their employment processes. At a Commonwealth level, the act establishes a national Modern Slavery Reporting Requirement, requiring businesses with annual revenues of $100,000,000+ to prepare annual modern slavery statements to aid the prevention of mass forced labour schemes. Ultimately, the raft of domestic legislation regarding human trafficking has become more specific over time, both defining and targeting the root causes of trafficking in persons on a global scale. Australia’s relations with South East Asia have demonstrated a concerted effort to strengthen transnational law enforcement efforts currently, Australia co-chairs the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process).[10]
[1] Modern Slavery Act 2018 (NSW) sch 2. [2] Australian Human Rights Commission (2023). Fighting Tech-facilitated Slavery. [online] humanrights.gov.au. Available at: https://humanrights.gov.au/about/news/fighting-tech-facilitated-slavery [Accessed 29 Sep. 2023]. [3] U.S. Department of State 2023 Trafficking in Persons Report (2023). Australia. [online] United States Department of State. Available at: https://www.state.gov/reports/2023-trafficking-in-persons-report/australia/ [Accessed 29 Sep. 2023]. [4] Australian Government Attorney General's Department (2022). National Action Plan to Combat Modern Slavery 2020-25. [online] Attorney-General’s Department. Available at: https://www.ag.gov.au/crime/publications/national-action-plan-combat-modern-slavery-2020-25 [Accessed 29 Sep. 2023]. [5] Burn, J. (2017). Legal Narratives, Human Trafficking and Slavery in Australia. History Compass, 15(5), p.e12368. doi:https://doi.org/10.1111/hic3.12368. [Accessed 29 Sep. 2023]. [6] The Queen v Tang [2008] HCA 39. [7] Criminal Code Act 1995 (Cth) div 270-271. [8] Victims Rights and Support Act 2013 (NSW) pt 4. [9] NSW Victims Services (2023). Victims Support Scheme. [online] Victims Services. Available at: https://victimsservices.justice.nsw.gov.au/victims-services/how-can-we-help-you/victims-support-scheme.html [Accessed 29 Sep. 2023]. [10] The Bali Process (2023). Bali Process Membership: Australia. [online] The Bali Process. Available at: https://www.baliprocess.net/baliprocess-members/ [Accessed 29 Sep. 2023].
Yet these efforts are still not enough. Professor of Law and Anti-Slavery Australia Director Jennifer Burn AM refers to modern slavery as an “ongoing battle”,[11] aggravated by new methods of digital communication. Increased access to encrypted social platforms has enabled a new wave of technology-facilitated slavery and trafficking issues, exacerbated by COVID’s distractive pressures on federal law enforcement.[12] The introduction of legislation targeting preliminary attempts to solicit vulnerable persons for the purpose of trafficking would allow federal police to engage a more proactive approach towards trafficking, as suggested by the 2023 TIP report.[13] Non-legal response recommendations from the 2023 Trafficking in Persons Report suggest a more preemptive approach. The implementation of screening amongst vulnerable groups such as domestic workers, asylumseekers and undocumented migrants would allow for proactive filtering and recovery of high-risk individuals. Crucial to the anti-slavery effort is education. Training immigration and enforcement officers to recognise the early indicators of trafficking would create a screening process in itself. Educating students, agriculture and hospitality workers to recognise physical traits within victims would strip modern slavery of its nebulous shroud, exposing it as the exploitative and degrading crime that it is. Because ultimately, trafficking is the complete confiscation of basic human freedoms. We are a country that emphasises freedom and choice. With our thumb on the global pulse and a sturdy rule of law, Australia must be on the front lines of the war against modern slavery.
[11] UTS Social Impact Framework (2022). Hidden in Plain sight, Slavery Is in the Here and Now. [online] University of Technology Sydney. Available at: https://www.uts.edu.au/partners-and-community/initiatives/social-justice-uts/social-impact/case-studies/hi dden-plain-sight-slavery-here-and-now [Accessed 29 Sep. 2023]. [12] Australian Human Rights Commission (2023). Fighting Tech-facilitated Slavery. [online] humanrights.gov.au. Available at: https://humanrights.gov.au/about/news/fighting-tech-facilitated-slavery [Accessed 29 Sep. 2023]. [13] U.S. Department of State 2023 Trafficking in Persons Report (2023). Australia. [online] United States Department of State. Available at: https://www.state.gov/reports/2023-trafficking-in-persons-report/australia/ [Accessed 29 Sep. 2023].
References Australian Government Attorney General's Department (2022). National Action Plan to Combat Modern Slavery 2020-25. [online] Attorney-General’s Department. Available at: https://www.ag.gov.au/crime/publications/national-action-plan-combat-modern-slavery-2020-25 [Accessed 29 Sep. 2023]. Australian Human Rights Commission (2023). Fighting Tech-facilitated Slavery. [online] humanrights.gov.au. Available at: https://humanrights.gov.au/about/news/fighting-tech-facilitated-slavery [Accessed 30 Sep. 2023]. Burn, J. (2017). Legal Narratives, Human Trafficking and Slavery in Australia. History Compass, 15(5), p.e12368. doi:https://doi.org/10.1111/hic3.12368. NSW Victims Services (2023). Victims Support Scheme. [online] Victims Services. Available at: https://victimsservices.justice.nsw.gov.au/victimsservices/how-can-we-help-you/victims-support-scheme.ht ml [Accessed 29 Sep. 2023]. The Bali Process (2023). Bali Process Membership: Australia. [online] The Bali Process. Available at: https://www.baliprocess.net/bali-process-members/ [Accessed 29 Sep. 2023]. U.S. Department of State (2023). Australia. [online] United States Department of State. Available at: https://www.state.gov/reports/2023-trafficking-inpersons-report/australia/ [Accessed 30 Sep. 2023]. University of South Australia (2023). Escaping exploitation with nowhere to go: Barriers in accommodating survivors of human trafficking and modern slavery. [online] Home. Available at: https://www.unisa.edu.au/media-centre/Releases/2023/escaping-exploitation-with-nowhere-to-go-barriers in-accommodatingsurvivors-of-human-trafficking-and-modern-slavery/ [Accessed 30 Sep. 2023]. UTS Social Impact Framework (2022). Hidden in Plain sight, Slavery Is in the Here and Now. [online] University of Technology Sydney. Available at: https://www.uts.edu.au/partners-and-community/initiatives/social-justice-uts/social-impact/case-studies/hidden-plain-sight-slavery-here-and-now [Accessed 29 Sep. 2023].
A Place at theTable Lauren Chau LaurenChau This article makes reference to concepts of ‘womanhood’, ‘femininity’, ‘women in law’ and other related terms. These terms are used in hopes of representing the experience of cis-gender women and of those who may be assigned-female-atbirth (AFAB), female-identifying, non-binary, genderfluid, and/or transgender. You are seen and heard. Viewer discretion is advised. The following content is not to dishearten, invalidate or devalue one’s own experience. It is to question, inspire, and empower action.
Edited by Chiara Ly
Experience and Challenge Woven into Tapestry
TheDinnerParty
Figure 1. Images of Judy Chicago’s feminist art installation, The Dinner Party (1974-9) (DannyWithLove 2021).
Pioneering feminist creatives, Judy Chicago conceptualised and executed what is often regarded as the first epic feminist artwork through her installation, The Dinner Party (1974-9). With thirtynine intricate place settings, Chicago materialises the convoluted, yet individual, narrative of womanhood. The artist captures the nuances of gender, sexuality, culture, and fertility, which, together, captures the experience and challenges of female-identifying individuals throughout history into woven tapestry and sculpted ceramic. Likewise, in the cross-section of a law student to a practising lawyer, each individual holds limitless value in their lived experience, later manifesting into distinct passions, moral compasses, and achievements. Women in law have become the hallmarks of extraordinary feats of balance and accomplishment,
resilience and ambition, strength and intelligence, self-advocacy and social justice, as well as hard-work and patience. Woven into tapestry and sculpted into ceramic are their fights for justice and their stories in further shaping the legal realm. Widely known for her coining of the term “intersectionality”,[1] Kimberlé Crenshaw is the quintessence of “women in law”. Crenshaw is an AfricanAmerican legal scholar and civil rights activist, studying and teaching at the renowned institutions of Harvard Law School, Cornell University, Columbia Law School, and University of California as her homes of study and teaching. Notably, in her journal article ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,’[2] Crenshaw argues against the court’s narrow approach in a discrimination claim brought by a group of black women: DeGraffenreid et al. v General Motors Assembly Division.[3] [1] Defined as “the interconnected nature of social categorizations such as race, class, and gender, regarded as creating overlapping and interdependent systems of discrimination or disadvantage; a theoretical approach based on such a premise.” Oxford English Dictionary (online at 30 September 2023) ‘intersectionality’ <https://www.oed.com/dictionary/intersectionality_n?tab=meaning_and_use#335059764>. [2] Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) 1989(1)(8) University of Chicago Legal Forum (‘Crenshaw’). [3] DeGraffenreid et al. v General Motors Assembly Division, 413 F. Supp. 142 (E.D. Mo. 1976).
The race and sex discrimination case was dismissed by the courts due to its potential to unleash “Pandora’s box”[4] of uproarious litigation as the plaintiffs could not file for both suits. In particular, Judge Harris Wangelin ruled that “the prospect of the creation of new classes of protected minorities … clearly raises the prospect of opening the hackneyed Pandora’s box.”[5] It is unacceptable that race and sex discrimination claims are to be defined by black men and white women respectively.[6] Just as Chicago brought nuance to the experience of womanhood in art, Crenshaw explores how her race, culture and gender intersect to create unique experiences of oppression. She therefore reveals the insufficiency in the court’s refusal to acknowledge the injustice uniquely faced by black women and urges for the recognition of those forgotten in the intersection.
Figure 2. Image of Judy Chicago’s feminist art installation, The Dinner Party (1974-9) (Photo by Donald Woodman) (Brooklyn Museum 2018).
Meticulously crafting the plates to rise and fall in height, as pictured in Figure 2, Chicago symbolises the elevation and liberation of historical women as they moved towards greater recognition, greater access, and greater accomplishment.[7] On the other hand, one can argue its expression of the inconsistent journey to justice, as the plates continuously strive to reach beyond the second-dimension. Again, women in law are perfectly analogous. Facing new forms of challenges time and time again, those who share the trials and tribulations of womanhood have had to challenge and reach beyond the norm. From shattering the glass ceiling, shovelling space for other women in law, protesting cultural standards or calling out for the voiceless, it has been a continuous and difficult fight for equality and equity.
[4] Ibid 145. [5] Ibid. [6] (n 2) Crenshaw. [7] Judy Chicago Discusses The Dinner Party 2019, video recording, Nasher Sculpture Center, Texas. [8] Kerri Lee Alexander, ‘Patsy Mink’, National Women’s History Museum (Biography, 2019) <https://www.womenshistory.org/educationresources/biographies/patsy-mink>.
Permanent Housing The purpose of this article is to form a narrative detailing the experiences and challenges of women in law, where these stories may find permanent housing; it is to start conversation on accomplishments of justice by women and spark hope for potential passions and goals. As Chicago found permanent housing in the stories of historical and mythical women through her art installation The Dinner Party , women in law are unprecedentedly breaking new ground in the global legal sphere and opening up new paths for the next generations of lawyers to continue to achieve. Women in law are finding and fighting for their place at the table.
[9] Ibid. [10] Ibid.
Patsy Matsu Takemoto-Mink was, indeed, an individual who fought beyond the limits of what was seen and expected to establish new ground for Asian-Americans. Despite studying at the University of Chicago Law School and passing the bar, she faced obstacles in securing employment due to her interracial marriage.[8] From this obstacle and many more, Mink unravelled a series of “firsts” as she became the first JapaneseAmerican woman to start her own practice and practise law in Hawaii, the first Asian-American woman to serve in Congress, the first woman of colour elected into the U.S. House of Representatives, and the first AsianAmerican to run for U.S. President.[9] Defending her values and experiences as a Japanese-American woman in an interracial marriage, Mink’s career was charged with struggles for educational equity, gender and racial equality, and affordable childcare.[10] Mink selflessly demonstrated the uneasy, unsimplified, and at times unsatisfactory path to justice, though she also demonstrated how the unthinkable can be reached through belief in your values.
bibliography A Articles/Books/Reports Alexander, Kerri Lee, ‘Patsy Mink’, National Women’s History Museum (Biography, 2019). Crenshaw, Kimberlé, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) 1989(1)(8) University of Chicago Legal Forum.
B Cases DeGraffenreid et al. v General Motors Assembly Division, 413 F. Supp. 142 (E.D. Mo. 1976).
C Other Oxford English Dictionary (Online at 30 September 2023) ‘intersectionality’ (def 2).
THE REASONABLE MAN & THE INVISIBLE WOMAN: Assessing the Tort of Negligence as a Means for Women to Achieve Justice Written by Maddison Klar Edited by Jessie Liu & Nerine Chan
Justice is a difficult concept to encapsulate with any singular definition or set of characteristics. It refers to fairness,1 moral correctness,2 the application of the rule of law,3 the resolution of conflicting claims,4 and the award to every individual what is due.5 It is omnipresent and amorphous. Most of all, justice crystallises in its absence – and the presence of injustice is affronting and unmistakable. Thus, one conception of justice arises through reference to the negative: it is the absence, or correction of, injustice. This conception is harmonious with justice-focused theories of tort law.6 The area of negligence is particularly apt for exploring how justice of this form might be achieved, given how causation of demonstrable harm is ‘part of the prima facie case’.7 The background of the tort of negligence, as it exists generally in Anglo-American legal systems, will thus be used as our framework to explore the gendered distribution of justice. From the outset, no overt issues regarding negligence law and its treatment of gender appear. After all, any person of any gender who has experienced a relevant injustice may seek correction through an action in negligence, and the ‘reasonable person’ is, by definition, genderless. However, the unquestioning and uncritical acceptance of the genderless (and, to that end, classless and raceless) nature of the reasonable person is blindly idealistic to the point of detriment. The reasonable person was born a man.8 Although the scope of this article unfortunately leaves inadequate space for a nuanced discussion of intersectionality, it is important to note that the ‘reasonable person’ is primed equally to take on other characteristics of its creator – including education, class, and race to name a few. Historically, the reasonable man has carried with him every connotation, caricature and oversimplification of masculinity. The afterthought of a small change in nomenclature does not extinguish the inheritance of this masculinity.9 [1] Ethics Unwrapped 2023, Justice, University of Texas, accessed [2 October 2023] <https://ethicsunwrapped.utexas.edu/glossary/justice>. [2] Cambridge Dictionary, Justice, accessed [2 October 2023], <https://dictionary.cambridge.org/dictionary/english/justice>. [3] Marilyn Warren, ‘What is Justice?’ (Newman Lecture, Mannix College, 20 August 2014) <https://www.supremecourt.vic.gov.au/sites/default/files/assets/2017/09/d8/a12b0b429/whatisjusticenewmanlecture.pdf>. [4] Standard Encyclopedia of Philosophy 2021, Justice, Stanford University, accessed [2 October 2023], paragraph 1 section 1.1 <https://plato.stanford.edu/entries/justice/#JustMappConc>. [5] Markkula Centre for Applied Ethics 2024, Justice and Fairness, Santa Clara University, accessed [2 October 2023], <https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/justice-and-fairness/>. [6]Tudor, I 2015, ‘Tort Law from the Perspective of Corrective and Distributive Justice’, Journal of Public Administration, Finance and Law, vol. 7, no. 7, pp. 171-175, accessed [2 October 2023], <https://www.jopafl.com/uploads/issue7/TORT_LAW_FROM_THE_PERSPECTIVE_OF_CORRECTIVE_AND_DISTRI BUTIVE_JUSTICE.pdf>. [7] Scordato, MR 2022, ‘Three Kinds of Fault: Understanding the Purpose and Function of Causation in Tort Law’, University of Miami Law Review, vol. 77, no. 1, pp. 149-212, accessed [2 October 2023], <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4384542>. [8] Dent, C 2017, ‘The ‘Reasonable Man’, his Nineteenth-century ‘Siblings, and their Legacy’, Journal of Law and Society, vol. 44, no. 3, pp. 406-432, accessed [2 October 2023], <https://www.jstor.org/stable/45179850>. [9] Forell, C 1992, ‘Reasonable Woman Standard of Care’, University of Tasmania Law Review, vol. 11, pp. 1-16, <http://classic.austlii.edu.au/au/journals/UTasLawRw/1992/1.pdf>.
The reasonable man has existed in opposition to, and often to the exclusion of, the unmentioned reasonable woman. Where he is steadfast, logical, reliable, rational, the (un)reasonable woman is illogical, irrational, weak, wavering, hysterical. Although we have slowly become more willing to accept this male-female dichotomy as false, at least when it is presented in such extreme terms, the core biases associated with male and female archetypes are still deeply entrenched in our society.10 The default remains that men think while women feel. Men are tough, women sensitive. Men are assertive leaders, and women gentle caregivers. Men are reasonable, and women emotional. The reasonable ‘person’ is not genderless. Male always has been, and continues to be, the default setting for our representative ‘person’, and this biased status quo is reinforced by our perception of reason as a masculine trait. The substitution of an inoffensive genderless ‘person’ cannot undo decades of case law and social norms. The effects of this bias trickle in each area of negligence law where reference to this supposed reasonable ‘person’ is made. This person appears often in the context of ‘reasonable foreseeability’, which forms the basis for determining the existence of a duty of care, identifying whether a breach has occurred, analysing causation, and making calculations related to damages. 11 This is a rather alarming state of fact. We are not dealing with a simple issue of careless misspeaking or inadvertent political incorrectness – gender-based prejudice is built into the foundations of our justice system. However, this is not to say that the law of negligence fails women entirely. After all, men and women share a great number of characteristics, and a significant overlap will naturally exist in the behaviours of the ‘reasonable man’ and the ‘reasonable woman’. Instead, the issue lies firstly in the fact that the reasonable person is based on the short-sighted presumption that the reasonable man and woman’s behaviour will always be identical. Then, secondly, the reasonable person does not even represent a fair (if reductive) middle ground – it asserts that the reasonable man is the reasonable person. The unmentioned chasm between the reasonable person (i.e., man) and the reasonable woman leaves in its wake a series of obstacles that every case involving a female plaintiff (or indeed, a female defendant) must surpass – obstacles that male plaintiffs and defendants, being the blueprint, will never even have to contemplate. [10] Pavco-Giaccia, O, Little, MF, Stanley, J & Dunham, Y 2019, ‘Rationality is Gendered’, Collabra: Psychology, vol. 5, no. 1, pp.1-15, <https://online.ucpress.edu/collabra/article/5/1/54/113043/Rationality-is-Gendered>. [11]Bonython, WE 2013, ‘Whose reason is reasonable? Reasonableness, negligence, and the mentally ill defendant’, Juridical Review: Law Journal of Scottish Universities, no. 3, pp. 181-198, <https://pure.bond.edu.au/ws/portalfiles/portal/31120436/Am_Whose_reason_is_reasonable.Reasonableness_negligence_and_ the_mentally_ill_defendant.pdf>.
These potential points of failure are vast and varied, from women being held to inexplicable standards of reasonableness as defendants 12 to being spurned as imperfect and contributory victims,13 left unprotected in blindspot of ‘unforeseeable’ victimhood,14 or stranded without recourse or restitution at the end of a successful claim because their harms are not of the correct (masculine-connoted) form.15 The common thread here is the devaluation and dismissal of women and their experiences. They are treated as the outlier, not the ordinary, and their validity is called into question as themes of anxiety (previously hysteria), overreaction, and capacity to conduct sound reasoning are invoked. The façade of the reasonable person is arguably even more insidious than the overt reference to the reasonable man – reliance upon the reasonable man, sexist though it might be, is at least upfront in its prejudice. The reasonable person, on the other hand, contains the same unaddressed bias but veils it with a thin layer of ineffectual political correctness. What are the implications of this, then, for women accessing justice across the world? It seems easy to dismiss, or at least minimise, this issue of negligence law on the basis of its obscurity. Negligence is only one aspect of tort law, after all, and torts are only one available method of claiming justice. However, in the same way that it is incorrect to treat this issue as one of simple, unconnected language misuse, it is incorrect to confine the implications of this discussion to negligence law, or, indeed, tort law, alone. Even before any consideration 16 of analogy, the reasonable man himself appears in every corner of Anglo-American law. The idea that women may only access justice when their needs happen to fit the mould of a reasonable man is affronting. It is an injustice. If we wish to see all women obtain justice, we must not become complacent. We must continue to evaluate and criticise, to identify injustices and be vocal about them when we do. We must awaken ourselves to the deep and complex entanglement of the patriarchy in all aspects of our society 17 – it is in the light and recognition of injustice that true justice for women can be achieved.
[12] Unjust standards reasonableness for fem. defendants - Sayers v Harlow UDC [1958] 2 All ER 342. [13] Contributory victims [14] Unforeseeable victims [15] ‘Correct’ types of harm - differential treatment of psychiatric harm, ‘Is Nervous Shock Still a Feminist Issue?’ [16] Ubiquity of the RM [17] L Bender 1988, ‘A Lawyer’s Primer on Feminist Theory and Tort’, Journal of Legal Education, vol. 38, no. 1/2, pp. 3-37.
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