This commentary responds to claims that research by Cheryl Thomas ‘shows’ no problem with rape my... more This commentary responds to claims that research by Cheryl Thomas ‘shows’ no problem with rape myths in English and Welsh juries. We critique the claim on the basis of ambiguous survey design, a false distinction between ‘real’ jurors and other research participants, the conflation of attitudes in relation to abstract versus applied rape myths, and misleading interpretation of the data. Ultimately, we call for a balanced appraisal of individual studies by contextualising them against the wider literature.
The tensions between opposing theories and political stances vitalise the feminist dialogue. It m... more The tensions between opposing theories and political stances vitalise the feminist dialogue. It may only be combined with respect, partial understanding, love, and friendship that keeps us together in the long run. 1
Although exact figures are elusive, a significant proportion of women seeking asylum in the UK wi... more Although exact figures are elusive, a significant proportion of women seeking asylum in the UK will have experienced, or will claim to have experienced, rape in their country of origin (Ceneda 2003). For many women, this will form a key part of the narrative as to why they fled. In addition, although it will not be a determining factor in all asylum applications, a woman’s claim of rape may be relevant to a range of crucial considerations, including the seriousness of past harm suffered and thus the future risk and prospects for safe return ‘home’. Despite this, to date, both the ways in which such alleged experiences of rape are disclosed by asylum-seekers, and the ways in which such disclosures are then responded to and evaluated by UK decision-makers have received little attention.
Reflects on Nicola Lacey's influence on the author's thinking, writing and career develop... more Reflects on Nicola Lacey's influence on the author's thinking, writing and career development.
This collaborative piece explores the experiences of three friends, in three different law school... more This collaborative piece explores the experiences of three friends, in three different law schools, who have used the same non-textual pedagogical classroom exercise. The exercise, which is based on a card game, is played without verbal or written communication and has been employed with undergraduate and graduate students, from within civil and common law systems. One objective of the exercise is to invite students to learn in a performative way by doing rather than simply reading or writing. Another is to foster classroom conditions in which students experience social (and legal) rules as context-specific, and recognize that these experiences are complicated by their individual commitments, which may or may not be reconcilable with broader and more entrenched group norms and practices. In this essay we reflect upon the challenges of teaching with this non-textual tool in the law-school classroom and celebrate the ways in which students are eager to confront and develop their own l...
Refugee advocacy and support organisations have long sought to draw attention to the significant ... more Refugee advocacy and support organisations have long sought to draw attention to the significant proportion of women seeking asylum in the UK who have experienced rape in their country of origin. While a disclosure of rape will not be a determining factor in all asylum applications, it may be relevant to a range of crucial considerations, including the seriousness of the harm suffered and the prospects for safe return ‘home’. Despite this, there are still gaps in our knowledge and understanding about the ways in which claims of sexual violence are disclosed by women seeking asylum, and responded to and evaluated by decision-makers.
This paper illustrates how turning to art rather than focusing solely on legal reform can form pa... more This paper illustrates how turning to art rather than focusing solely on legal reform can form part of an alternative response to gender inequality that allows for deeper understandings of social (in)justice. We show how the Scottish Feminist Judgments Project – a collaborative endeavour by legal academics, practising lawyers, judges, artistic contributors and representatives from the third sector – can offer those who engage with our art the experience of hearing and seeing law in different ways. More specifically, we explore how art can open law up to scrutiny, render vivid the impact of legal decisions, and create richer and more democratic communities of understanding. At the same time, by discussing knowledge differentials and the quandaries of creating art ethically, we also highlight some of the challenges involved in engaging in artistic-legal collaboration.
This article is a response to ‘Losing Sight of Women's Rights: The Unregulated Introduction o... more This article is a response to ‘Losing Sight of Women's Rights: The Unregulated Introduction of Gender Self-Identification as a Case Study of Policy Capture in Scotland’ by Kath Murray, Lucy Hunter Blackburn and Lisa MacKenzie, published in Scottish Affairs 28(3). Murray et al. sought to explore the legal status of women, particularly with regard to discrimination legislation, and concluded that the interests of trans women had begun to systematically erode the interests of non-trans women in Scotland. In this response, we aim to correct some of the erroneous statements made by Murray et al. about legal definitions of sex and gender, and about discrimination law. In critically engaging with Murray et al.’s argument we aim to build a much-needed clearer understanding of law and policy on sex and gender in Scotland, particularly as it relates to the application of the Equality Act 2010. We argue that, in that claiming that there has been policy capture in Scotland, Murray et al. ha...
In recent years, growing concerns have been expressedincluding in the press and social media-over... more In recent years, growing concerns have been expressedincluding in the press and social media-over the apparently inadequate responses of many United Kingdom (UK) universities to complaints of student sexual violence and misconduct (SSVM). In this article, we underscore universities' legal, ethical, and civic responsibilities to students, which require them to implement effective regimes for the prevention and sanctioning of such behaviour. We suggest, however, that current responses are moving in the wrong direction. More specifically, universities are too often turning (back) towards adversarial and procedural paradigms, developed within the criminal justice system, where the persistence of a 'justice gap' in cases of rape and sexual assault has been well documented. We argue that this 'criminal justice drift' may frustrate the possibility for more tailored, transformative, and trauma-informed processes for addressing SSVM within higher education institutions. This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited.
This article lays out the inner workings of the new Scottish Feminist Judgments Project (SFJP). A... more This article lays out the inner workings of the new Scottish Feminist Judgments Project (SFJP). Against the backdrop of our discussions at the FJPs meeting in Onati, it discusses the ways in the which the SJP has evolved, including the methodological and theoretical choices that have shaped the project so far. The SFJP is part of a collective and collaborative endeavour that forms part of a critical mass strategy for change. It also offers its own unique insights into the ways that issues such as national identity, as well as gender, can influence the extent to which feminist voices can challenge the legal cultures and traditions in a particular jurisdiction. Although FJPs are only one way of challenging legal orthodoxy, they offer an opportunity for wide scale collective activism and critique across different legal jurisdictions and cultures that could help to bring legal cultural change. El presente artículo expone los procesos internos del nuevo Proyecto de Tribunal Feminista Esc...
Feminists have spent decades trying to reform laws and evidential procedures relating to sexual a... more Feminists have spent decades trying to reform laws and evidential procedures relating to sexual assault. Using the current Scottish context as a case study, I will argue that while efforts to reform the text of the substantive as well as evidential and procedural aspects of the law have been largely successful, in practice the impact of these reforms has not always been felt. Drawing on contemporary examples from Scotland, and setting these within the broader context of similar problems and arguments in other jurisdictions such as England and Wales, Australia and Canada, I will examine the ways in which the ‘laws on the books’ have not always translated smoothly through to ‘law in action’. The aim is to highlight an ongoing failure on the part of those charged with applying the law (judges, legal professionals, juries) to do so appropriately, raising the question of whether it makes sense for feminist scholars to try to engage with what seems like the entrenched ‘sensibilities’ of c...
Feminists have analysed the problematic way in which rape law has evolved in the shadow of the mi... more Feminists have analysed the problematic way in which rape law has evolved in the shadow of the mind/body dualism. This paper will extend this analysis to the problems arising when consent to sex is “intoxicated consent”. One central question is the whether consent is a state of mind or a set of actions or behaviours, performed in certain way, to signify consent. Whether one believes consent to be a state of mind or an action, adding intoxication to the mix renders the problem yet more intractable for criminal law. If consent is a state of mind then being in an intoxicated state can make it extremely difficult to come to a settled state of mind about consent since intoxicants clearly affect the cognitive capacities and it is often also of course, difficult for others to ascertain one’s state of mind. However if consent is an action, alcohol/drugs again can impair the physical and verbal abilities to the extent that action is either impossible or, again, difficult to read. Either way ...
The authors have also participated in several fora investigating the relationship between feminis... more The authors have also participated in several fora investigating the relationship between feminist legal theory, performance and embodiment over the duration of this project that have contributed to our understanding of the issues that this paper provokes. These include: 'Why and How? Theoretical and Methodological Directions in Law, Feminism, Gender and Sexuality' U.
This essay offers an analysis of the criminalisation of certain sexual practices that have been (... more This essay offers an analysis of the criminalisation of certain sexual practices that have been (wrongly) labelled as assaults. It discusses the criminal cases both in Scotland and in England and Wales that address the question of whether sadomasochism (SM) counts as sex or violence, and thus whether consent can work its "moral magic" to render SM lawful. 1 The essay examines the legal approach to SM in both jurisdictions, and the (hetero)normative construction of certain kinds of sexual subjects as perverted and "risky", before moving to enquire as to the possibility of Scots law offering a discursive and legal space for SM sex. In doing so, it will be argued that while both jurisdictions have criminalised consensual assaults, thus marking out pleasurable pain as both wrong and harmful, there may ultimately be room for the Scottish courts to interpret the existing law in a way that is more open to allowing consensual SM sexual interactions. It is possible, therefore, that those practising SM sex have cause to be optimistic about the role of the Scottish courts in rendering their sexual choices legitimate. A. THE LAW ON SADO-MASOCHISTIC "ASSAULT" There seems to be some divergence in approach between the English and Scottish courts on criminalising assaults. In R v Brown, 2 the House of Lords held by a majority of 3:2 that, established exceptions aside (such as tattooing, sport, medical treatment * The author is grateful to Findlay Stark for editorial assistance.
The barriers that prevent or delay female victims of sexual assault from disclosing to criminal j... more The barriers that prevent or delay female victims of sexual assault from disclosing to criminal justice authorities, and the obstacles that often disincline professional and lay decision-makers from finding such narratives credible, have been well documented. This article explores the extent to which such difficulties may be replicated, and compounded, in the case of female asylum-seekers; it will examine the complex ways in which the structure and processes, as well as the heavily politicised context, of asylum decision-making may contribute towards a silencing of sexual assault narratives. The article will explore the ways in which the intersection of race, ethnicity, gender, culture, religion, language and nationality present distinct challenges to women asylum applicants for whom an alleged rape is a part of their claim, and reflect on some of the difficulties this presents in terms of assessing the credibility of sexual assault allegations, and of the overall asylum claim.
This commentary responds to claims that research by Cheryl Thomas ‘shows’ no problem with rape my... more This commentary responds to claims that research by Cheryl Thomas ‘shows’ no problem with rape myths in English and Welsh juries. We critique the claim on the basis of ambiguous survey design, a false distinction between ‘real’ jurors and other research participants, the conflation of attitudes in relation to abstract versus applied rape myths, and misleading interpretation of the data. Ultimately, we call for a balanced appraisal of individual studies by contextualising them against the wider literature.
The tensions between opposing theories and political stances vitalise the feminist dialogue. It m... more The tensions between opposing theories and political stances vitalise the feminist dialogue. It may only be combined with respect, partial understanding, love, and friendship that keeps us together in the long run. 1
Although exact figures are elusive, a significant proportion of women seeking asylum in the UK wi... more Although exact figures are elusive, a significant proportion of women seeking asylum in the UK will have experienced, or will claim to have experienced, rape in their country of origin (Ceneda 2003). For many women, this will form a key part of the narrative as to why they fled. In addition, although it will not be a determining factor in all asylum applications, a woman’s claim of rape may be relevant to a range of crucial considerations, including the seriousness of past harm suffered and thus the future risk and prospects for safe return ‘home’. Despite this, to date, both the ways in which such alleged experiences of rape are disclosed by asylum-seekers, and the ways in which such disclosures are then responded to and evaluated by UK decision-makers have received little attention.
Reflects on Nicola Lacey's influence on the author's thinking, writing and career develop... more Reflects on Nicola Lacey's influence on the author's thinking, writing and career development.
This collaborative piece explores the experiences of three friends, in three different law school... more This collaborative piece explores the experiences of three friends, in three different law schools, who have used the same non-textual pedagogical classroom exercise. The exercise, which is based on a card game, is played without verbal or written communication and has been employed with undergraduate and graduate students, from within civil and common law systems. One objective of the exercise is to invite students to learn in a performative way by doing rather than simply reading or writing. Another is to foster classroom conditions in which students experience social (and legal) rules as context-specific, and recognize that these experiences are complicated by their individual commitments, which may or may not be reconcilable with broader and more entrenched group norms and practices. In this essay we reflect upon the challenges of teaching with this non-textual tool in the law-school classroom and celebrate the ways in which students are eager to confront and develop their own l...
Refugee advocacy and support organisations have long sought to draw attention to the significant ... more Refugee advocacy and support organisations have long sought to draw attention to the significant proportion of women seeking asylum in the UK who have experienced rape in their country of origin. While a disclosure of rape will not be a determining factor in all asylum applications, it may be relevant to a range of crucial considerations, including the seriousness of the harm suffered and the prospects for safe return ‘home’. Despite this, there are still gaps in our knowledge and understanding about the ways in which claims of sexual violence are disclosed by women seeking asylum, and responded to and evaluated by decision-makers.
This paper illustrates how turning to art rather than focusing solely on legal reform can form pa... more This paper illustrates how turning to art rather than focusing solely on legal reform can form part of an alternative response to gender inequality that allows for deeper understandings of social (in)justice. We show how the Scottish Feminist Judgments Project – a collaborative endeavour by legal academics, practising lawyers, judges, artistic contributors and representatives from the third sector – can offer those who engage with our art the experience of hearing and seeing law in different ways. More specifically, we explore how art can open law up to scrutiny, render vivid the impact of legal decisions, and create richer and more democratic communities of understanding. At the same time, by discussing knowledge differentials and the quandaries of creating art ethically, we also highlight some of the challenges involved in engaging in artistic-legal collaboration.
This article is a response to ‘Losing Sight of Women's Rights: The Unregulated Introduction o... more This article is a response to ‘Losing Sight of Women's Rights: The Unregulated Introduction of Gender Self-Identification as a Case Study of Policy Capture in Scotland’ by Kath Murray, Lucy Hunter Blackburn and Lisa MacKenzie, published in Scottish Affairs 28(3). Murray et al. sought to explore the legal status of women, particularly with regard to discrimination legislation, and concluded that the interests of trans women had begun to systematically erode the interests of non-trans women in Scotland. In this response, we aim to correct some of the erroneous statements made by Murray et al. about legal definitions of sex and gender, and about discrimination law. In critically engaging with Murray et al.’s argument we aim to build a much-needed clearer understanding of law and policy on sex and gender in Scotland, particularly as it relates to the application of the Equality Act 2010. We argue that, in that claiming that there has been policy capture in Scotland, Murray et al. ha...
In recent years, growing concerns have been expressedincluding in the press and social media-over... more In recent years, growing concerns have been expressedincluding in the press and social media-over the apparently inadequate responses of many United Kingdom (UK) universities to complaints of student sexual violence and misconduct (SSVM). In this article, we underscore universities' legal, ethical, and civic responsibilities to students, which require them to implement effective regimes for the prevention and sanctioning of such behaviour. We suggest, however, that current responses are moving in the wrong direction. More specifically, universities are too often turning (back) towards adversarial and procedural paradigms, developed within the criminal justice system, where the persistence of a 'justice gap' in cases of rape and sexual assault has been well documented. We argue that this 'criminal justice drift' may frustrate the possibility for more tailored, transformative, and trauma-informed processes for addressing SSVM within higher education institutions. This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited.
This article lays out the inner workings of the new Scottish Feminist Judgments Project (SFJP). A... more This article lays out the inner workings of the new Scottish Feminist Judgments Project (SFJP). Against the backdrop of our discussions at the FJPs meeting in Onati, it discusses the ways in the which the SJP has evolved, including the methodological and theoretical choices that have shaped the project so far. The SFJP is part of a collective and collaborative endeavour that forms part of a critical mass strategy for change. It also offers its own unique insights into the ways that issues such as national identity, as well as gender, can influence the extent to which feminist voices can challenge the legal cultures and traditions in a particular jurisdiction. Although FJPs are only one way of challenging legal orthodoxy, they offer an opportunity for wide scale collective activism and critique across different legal jurisdictions and cultures that could help to bring legal cultural change. El presente artículo expone los procesos internos del nuevo Proyecto de Tribunal Feminista Esc...
Feminists have spent decades trying to reform laws and evidential procedures relating to sexual a... more Feminists have spent decades trying to reform laws and evidential procedures relating to sexual assault. Using the current Scottish context as a case study, I will argue that while efforts to reform the text of the substantive as well as evidential and procedural aspects of the law have been largely successful, in practice the impact of these reforms has not always been felt. Drawing on contemporary examples from Scotland, and setting these within the broader context of similar problems and arguments in other jurisdictions such as England and Wales, Australia and Canada, I will examine the ways in which the ‘laws on the books’ have not always translated smoothly through to ‘law in action’. The aim is to highlight an ongoing failure on the part of those charged with applying the law (judges, legal professionals, juries) to do so appropriately, raising the question of whether it makes sense for feminist scholars to try to engage with what seems like the entrenched ‘sensibilities’ of c...
Feminists have analysed the problematic way in which rape law has evolved in the shadow of the mi... more Feminists have analysed the problematic way in which rape law has evolved in the shadow of the mind/body dualism. This paper will extend this analysis to the problems arising when consent to sex is “intoxicated consent”. One central question is the whether consent is a state of mind or a set of actions or behaviours, performed in certain way, to signify consent. Whether one believes consent to be a state of mind or an action, adding intoxication to the mix renders the problem yet more intractable for criminal law. If consent is a state of mind then being in an intoxicated state can make it extremely difficult to come to a settled state of mind about consent since intoxicants clearly affect the cognitive capacities and it is often also of course, difficult for others to ascertain one’s state of mind. However if consent is an action, alcohol/drugs again can impair the physical and verbal abilities to the extent that action is either impossible or, again, difficult to read. Either way ...
The authors have also participated in several fora investigating the relationship between feminis... more The authors have also participated in several fora investigating the relationship between feminist legal theory, performance and embodiment over the duration of this project that have contributed to our understanding of the issues that this paper provokes. These include: 'Why and How? Theoretical and Methodological Directions in Law, Feminism, Gender and Sexuality' U.
This essay offers an analysis of the criminalisation of certain sexual practices that have been (... more This essay offers an analysis of the criminalisation of certain sexual practices that have been (wrongly) labelled as assaults. It discusses the criminal cases both in Scotland and in England and Wales that address the question of whether sadomasochism (SM) counts as sex or violence, and thus whether consent can work its "moral magic" to render SM lawful. 1 The essay examines the legal approach to SM in both jurisdictions, and the (hetero)normative construction of certain kinds of sexual subjects as perverted and "risky", before moving to enquire as to the possibility of Scots law offering a discursive and legal space for SM sex. In doing so, it will be argued that while both jurisdictions have criminalised consensual assaults, thus marking out pleasurable pain as both wrong and harmful, there may ultimately be room for the Scottish courts to interpret the existing law in a way that is more open to allowing consensual SM sexual interactions. It is possible, therefore, that those practising SM sex have cause to be optimistic about the role of the Scottish courts in rendering their sexual choices legitimate. A. THE LAW ON SADO-MASOCHISTIC "ASSAULT" There seems to be some divergence in approach between the English and Scottish courts on criminalising assaults. In R v Brown, 2 the House of Lords held by a majority of 3:2 that, established exceptions aside (such as tattooing, sport, medical treatment * The author is grateful to Findlay Stark for editorial assistance.
The barriers that prevent or delay female victims of sexual assault from disclosing to criminal j... more The barriers that prevent or delay female victims of sexual assault from disclosing to criminal justice authorities, and the obstacles that often disincline professional and lay decision-makers from finding such narratives credible, have been well documented. This article explores the extent to which such difficulties may be replicated, and compounded, in the case of female asylum-seekers; it will examine the complex ways in which the structure and processes, as well as the heavily politicised context, of asylum decision-making may contribute towards a silencing of sexual assault narratives. The article will explore the ways in which the intersection of race, ethnicity, gender, culture, religion, language and nationality present distinct challenges to women asylum applicants for whom an alleged rape is a part of their claim, and reflect on some of the difficulties this presents in terms of assessing the credibility of sexual assault allegations, and of the overall asylum claim.
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