Inherently Brief: Volume 35

Russia bans Trans* people from driving

Catherine Ravenscroft, Durham University

Last month Russia enacted a new law effectively banning people with certain illnesses from driving. Within the listed illnesses are those viewed as “personality and behaviour disorders”, for example transsexualism and other “disorders of sexual preference”.

The move was justified by the Russian government on the basis of a need to reduce the high rates of traffic accidents occurring each year. The country currently has some of the worst figures for road accident fatalities in the world and it is believed that stricter controls on those given the opportunity to drive will make the roads safer.

Nevertheless, the Act has received international criticism due to its potentially detrimental effects on the transgender community. Jean Freedberg, of Human Rights Campaign Global, argued that the ban is “simply another example of the Russian government’s increased campaign of persecution and discrimination against its LGBT population”. Like other critics, Freedberg fails to see the logic behind connection that the Russian government has drawn between gender identity and driver ability. As Shawn Gaylord, of US-based Human Rights First, argues, “banning people from driving based on their gender identity or expression is ridiculous”. He also expresses concerns that it could deter transgender people from seeking mental health services due to a fear of losing the right to drive.

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Inherently Brief: Volume 34

Snapshots of law, gender and sexuality news from the past couple of weeks.

The Debate on whether Women should be able to Freely Breastfeed in the UK

Chelsea Seals, University of Manchester

There has been uproar this December as a woman, Louise Burns, was asked to cover herself up with a napkin whilst breastfeeding in Claridge’s, London.  A group of 25 mothers stood outside the five star hotel and breastfed in protest what they consider to be outrageous and ‘embarrassing’ behaviour by Claridge’s.  The group ‘Free to Feed’ organised the demonstration. This is group who believe that women should have the right to breastfeed their child wherever, and whenever it is necessary. Emily Slough, the founder of the Free to Feed organisation started up the movement after she was called a ‘tramp’ for breastfeeding her chid in public. She made the comments ‘We are here to show Claridge’s they are not above the law. But they have said nothing to us, they are pretending we’re not here’. Slough continued, ‘Every time something like this happens, many women are put off for life from breastfeeding. We’re here to challenge that stigma and show women it’s normal and natural’. Claridge’s responded to this by saying that they support breastfeeding, however they would prefer it was done discretely.

The Claridge’s debacle has raised the debate once again as to whether it is appropriate for women to breastfeed in public. Nigel Farage of UKIP commented that women should sit in corners to avoid offending people. However, while the display of breastfeeding is usually discreet in most cases anyway, when celebrities such as Rhianna and Miley Cyrus expose their breasts in public for ‘fashion’ or publicity reasons there is no outcry or offended people.

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Inherently Brief: Volume 31 (Part 2)

Snapshots of law, gender and sexuality news from the past couple of weeks.

The Human Trafficking and Exploitation Bill (NI)

Sarah Thin, Durham University

On the 20^th of October, the Northern Irish Assembly passed the Human Trafficking and Exploitation Bill, a controversial new law which purportedly seeks to combat human trafficking and sexual exploitation by, inter alia, criminalising the act of paying for sexual services.  It is likely to become law by mid-2015.  By targeting the buyer as opposed to the seller (a novel approach within the UK), the proposals aim to recreate the supposed success of the ‘Swedish model’, the idea behind which is to reduce demand within the sex trade thereby reducing levels of sex trafficking.

There has been heavy criticism of the proposals: a survey of sex workers has found that 98% of them oppose the proposals and 61% believe the new law would make them less safe.  Many argue that the Swedish model ‘strips women of their agency and autonomy’ by criminalising the consensual buying and selling of sex, has increased the stigmatisation of sex workers, and its success appears to have been greatly exaggerated.  While no-one would deny that human trafficking is a major problem in today’s society, claims that the majority of sex workers in Northern Ireland are victims of trafficking have been shown to be unfounded, and many believe the plans will simply force the sex trade further underground, making it even more difficult to combat the issue and provide support to victims.  These proposals, while presumably well-meaning, conflate the two separate issues of trafficking and consensual sex work and are likely to be at best ineffective, most likely very harmful.  We must hope that the new campaign for a similar law in England meets with a more considered approach. 

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Inherently Brief: Volume 31 (Part 1)

Snapshots of law, gender and sexuality news from the past couple of weeks.

US Supreme Court (Sort of) Decides on Same Sex Marriage

Jesse Bachir, Durham University

Following last year’s decision in Windsor, same-sex couples and LGBT advocacy groups across the United States have been filing suits against State governments challenging the Constitutionality of same-sex marriage bans.

So far, almost every Court (with one exception) in the United States has found marriage bans to be unconstitutional either under Federal Constitutional law or State Constitutional law. Most recently, earlier this month, the Supreme Court denied a petition to review 7 cases from lower Federal Courts on the constitutionality of marriage bans. In denying review of the cases, the decisions of the lower courts stood (all of which found the bans unconstitutional), and the stays of execution issued by the lower courts were removed. That brings the total to 32 States with equal marriage.

The Supreme Court effectively, though indirectly, decided the issue for the rest of the country – in allowing the lower court decisions to stand, clear judicial precedent has been made.  The lower courts in all 7 of the denied review cases found the marriage bans to be unconstitutional for the same reasons. In denying review, the Supreme Court implicitly agreed with the rulings of the lower courts and avoided wading into the politically charged topic.

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Criminalisation is not enough: regulate the exploitative revenge porn host websites

Nikki Godden, Newcastle Law School

(Image from Stop Revenge Porn Scotland Campaign)

Chris Grayling, the Justice Secretary, has announced that the Government is ‘very open to having a serious discussion’ about the problem of revenge porn, in response to the call from Maria Miller, former Culture Secretary, for a change in the law to address the ‘appalling’ practice ( Justice Questions, House of Commons, 1 July 2014 : Column 745). This ‘appalling’ practice, whereby men (most commonly) distribute intimate and sexual images or videos of women (usually partners or ex-partners) on the internet without consent, is becoming more prevalent in the UK. And the effects of revenge porn upon its victims can be significant. Media reports highlight that victims have experienced personal and professional degradation and humiliation which have, in some cases, led to suicide.

The gender dimensions to revenge porn cannot be ignored. First, revenge porn is typically not an isolated abusive incident in a relationship but rather is one – albeit relatively new – method of control and violation in a wider context of domestic violence (see Scottish Women’s Aid’s Briefing Stop Revenge Porn on this point). Secondly, the fact that it is by far more common for men to distribute images/videos of women and girls contributes to and entrenches the sexual objectification of women, the sexualisation of young people, and gender inequality more generally. As such, it is important that the Government address this growing problem. It seems that the way it will do so is to consider creating a new criminal offence, or amending existing sexual offences to capture all instances where pornography is distributed without the subject’s consent. However, while further criminalisation may be helpful, the focus should be on preventing revenge porn by better regulating internet behaviour, which is a dimension of resolving this developing problem that has typically been absent from public discussions and proposed responses.

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Commodifying women’s safety

Nicole Westmarland

Professor in Criminology, School of Applied Social Sciences, Durham University

Can mobile phone apps help to protect women from domestic and sexual violence? A recent study suggests that they might do more harm than good, as Nicole Westmarland explains.

(Reposted from Trouble and Strife with permission and thanks.)

At Durham University’s Centre for research into violence and abuse, one of our recent research projects  looked at the use of ‘apps’ in relation to domestic and sexual violence (a link to the full report is at the end of this post). When we present this research or talk about it with students, it’s often the more ‘extreme’ rather than the more mundane, everyday examples that get the audience’s attention and the gasps of disbelief. The biggest gasps come when we talk about apps that have been developed specifically to track and harass women, most notably the ‘Track Your Wife’ app which has over 10,000 downloads and enables men to add a tracking device to their partner’s phone and track them in real time anywhere in the world. But, horrible as the existence of this app is, it is not the focus of my blog post or even the focus of our research.  We were more concerned about apps that claimed to be helping to keep women safe.

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Clare’s Law: A Turning Point in the Law for Preventing Domestic Violence?

Kate McLaren, a third year LLB student at Newcastle University.

Domestic violence in England and Wales is still a prevalent issue, with Home secretary Theresa May stating in her press release that 88 women were killed by their partners last year. The “Clare’s Law” scheme, named after Clare Wood who was killed by her violent partner in 2008 without any knowledge of his history of violence against women, will enable police to make disclosures about such violent histories, a move which Clare Wood’s father Michael brown stated “could, quite possibly, have saved her life”.  The scheme, which has been piloted in Greater Manchester, Wiltshire, Nottinghamshire and Gwent is now to be rolled out nationally in England and Wales, after having made 111 disclosures in the four pilot areas, and will allow police to disclose violent offending in two ways: one , a right to ask for information on whether a partner has a history of domestic violence, and, two, a right for a concerned third party, such as a neighbour or friend, to make an application. It also allows for police to disclose information proactively in prescribed circumstances, through a Domestic Violence Protection Order. Where the police feel that violence has been threatened or used against a victim and their safety may be at risk, an order may be issued either on the spot, with a Magistrate’s Court hearing the case within 48 hours of the notice.

Although giving vulnerable women who are at risk of domestic violence the ability to know about a partner’s violent past, there is significant concern surrounding the law from various charities.

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Is Article 8 ECHR the ‘Feminist Article’?

Helen Fenwick is a Professor of Law at Durham Law School. This post is also published at Human Rights in Ireland.

 This post concentrates on Article 8 ECHR to argue that it can be viewed as sympathetic to feminist goals since, due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life, it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg. in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women, and unlike Article 14 (the guarantee of freedom from discrimination), which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights, Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Other ECHR Articles are also relevant. Article 3 would also support recognition of positive obligations, (see McGlynn, Clare (2009) ‘Rape, torture and the European convention on human rights’ ICLQ 58 (3)) including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found, a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands).

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Domestic Violence and the Limits of (Media Interest in) Human Rights

Colin Murray (Newcastle Law School). This post was originally posted on Human Rights in Ireland and is reproduced here with permission and thanks.

Human rights cases rarely seem to generate media interest unless some populist bogeyman, like Abu Qatada, has successfully scuppered a government policy by running to the European Court of Human Rights in Strasbourg. In the UK in particular, the confluence of human rights claims by figures such as Qatada, and the distrust of European institutions (irrespective of whether those institutions form part of the Council of Europe structures or belong to the European Union) amongst sections of the press, combine to make certain cases “newsworthy”. Other decisions, such as the European Court’s rejection of Irene Wilson’s petition earlier this month, have gone largely unreported (with the exception of human-rights interest blogs, such as the UK Human Rights Blog).

Following his conviction for a brutal attack which marked the culmination of over 30 years of emotional and physical abuse, Ms Wilson’s husband received an 18-month sentence, suspended for three years, in 2008. In passing this sentence, local press reported that the judge hearing the case took account of her husband’s ‘previous good character, the fact he had admitted guilt at the earliest opportunity and because the probation services believed that his remorse and embarrassment were genuine’. In response to the leniency of this sentence, Ms Wilson launched a high-profile campaign to raise awareness of domestic violence in Northern Ireland. This campaign included claim that the approach to her case by Northern Ireland’s courts and prosecuting authorities was inadequate to protect her right to private and family life (Article 8 ECHR).

The facts of the case reveal many of the difficulties a justice system faces in dealing with domestic violence. Ms Wilson’s initial statements to the police conflicted with her later accounts of her abuse, and she at one stage reconciled with her husband. But police and prosecution services persevered with the prosecution, and when the decision was reached to charge her husband, Ms Wilson was able to separate from him permanently. During subsequent media interviews Ms Wilson has praised the attitude of Police Service of Northern Ireland (PSNI) officers and their willingness to pursue the case; ‘I can honestly say that the staff at the domestic abuse unit on Strand Road are very helpful’. In this regard the lessons of earlier official strategy documents, which indicated that in 2005 the PSNI was dealing with around 400 domestic abuse incidents every week.

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Inherently Brief: Volume 13

In our first post in the new academic year, a number of contributors have gathered a string of scintillating stories from across the country and around the world.

Abortion

On time limits…

Polly Broad

Maria Miller, the Conservative minister for women’s issues and equality as well as secretary of state for culture, media and sport, has recently voiced her support for a reduction of the legal limit for abortions, from 24 weeks to 20 weeks. She cites advances in medical technology to support her opinion, arguing “what we are trying to do here is not to put obstacles in people’s way but to reflect the way medical science has moved on”. Many have objected to Miller’s argument that many more babies are surviving at 24 weeks or below, pointing, for example, to statistics from the Office of National Statistics in 2010 which showed that only 12% of babies born before 24 weeks lived for at least a year.

Miller’s statement has worried many pro-choice activists. Darinka Aleksic, the campaign co-ordinator for Abortion Rights, said: “The fact that the minister responsible for women and equalities wants to restrict access to abortion, one of the most important women’s health services, is really alarming.” Meanwhile, Jeremy Hunt the recently appointed Health minister, called for the legal abortion limit to be halved. Many are wondering whether the government will soon make changes, despite David Cameron’s repeated statements that he has no plans to review the abortion laws.

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