Women: justice denied

The systemic discrimination women face is clearly exposed in the justice system, with record levels of women prisoners, reactionary, sexist judges, and victim blaming – the subject of a recent book, reviewed by SARAH SACHS-ELDRIDGE.

Eve Was Shamed: how British justice is failing women

By Helena Kennedy

Published by Chatto & Windus, 2018, £20

For women the justice system is the justice denied system. That is what Helena Kennedy’s book, Eve Was Shamed, clearly shows. Facts, figures and case studies illustrate the inability of the law to protect women from violence and abuse – but also of the sexist prejudice and discrimination against women within the justice system.

Kennedy writes about women’s widespread experience of violence. The police receive 100 phone calls an hour relating to domestic abuse. Women are, on average, abused 35 times before seeking police support but levels of suffering have no link to levels of justice. Kennedy reports that, in 2014, Her Majesty’s Inspectorate of Constabulary reviewed police responses to domestic violence and found that only 46% of the 600 case files reviewed had pictures of the victim’s injuries taken at the time of the incident; 999 calls were only listened to in 16% of the cases. She shows how negligence and prejudice by police and judges have denied women justice and condemned them to further abuse. 

The Office for National Statistics estimates there are eleven rapes an hour. But rape has the lowest conviction rate of all serious crime despite increased reporting, with only 7% of complaints leading to conviction. Of those that do proceed to trial there is a conviction rate of 37% compared to 73% for crime overall. Kennedy reports that, in 2013, officers in the specialist sexual offences unit in Southwark, south London, had been encouraging women to retract their allegations of rape so that no crime was recorded. Consequently, the proportion of recorded crimes proceeding to prosecution was artificially inflated.

Eve Was Shamed also records the unfairness in the prison system. Between 1994 and 2017 the female prison population rose from 1,811 to 4,007. The most common offence women are jailed for is shop-lifting and 84% of the inmates in women’s prisons are there for non-violent offences. There has been a big increase in the jailing of women for non-payment of the TV licence.

The cruel cost to women and their families is enormous. In 2015, 76% of women in jail had sentences of less than a year. “These are sentences which serve no earthly purpose other than redistributive punishment”, Kennedy says. Sixty percent of women in prison have children, with an estimated 17,200 children separated from jailed mothers every year. Only 5% of those children stay in their family home after their mother goes to jail. In 2016, the Ministry of Justice reported that the self-harm rate of women in prison was more than two incidents per inmate. National Audit Office statistics show that women prisoners are 24 times more likely to take their own lives than women in the community.

Entrenched sexism

Helena Kennedy shows how this bias against women – complainants and defendants – contributes to evidence not being sought or collected by police, and witnesses not being summoned. Support is not being given to defendants to help them explain themselves in an intimidating environment, with victim-blaming, judges and lawyers not being challenged over sexist commentary that can influence juries – for example, in rape cases – heavy sentencing and so on.

The suffering and abuse Helena Kennedy describes makes this a hard book to read at times. Why has she been compelled to write this book 25 years after her first book on the subject, Eve Was Framed? “All the legal reforms have produced only marginal advances”, she writes. So what, then, is necessary to secure justice for women? While she does not answer this, she provides useful information.

Kennedy correctly writes about male dominance in the legal system. Men make up 71% of partners of large law firms, 85% of silks and 72% of the judiciary. Only 21% of High Court judges are women. Many who work in the system are also victims of the sexist attitudes that impact on complainants and defendants. A recent survey found that 64% of women in law firms had experienced sexual harassment at work.

Kennedy also recognises that the law mirrors society – in which a small elite holds the vast majority of the power and wealth. She points out that an estimated three-quarters of barristers and judges are privately educated and attended Oxbridge, compared to 7% of the general population who are privately educated. This indicates the domination of the top of the justice system by the capitalist ruling class.

Kennedy terms what lies behind the prejudice and bias against women as “patriarchy”. Without doubt women are treated as second-class citizens by the justice system – the same as in wider society. She writes: “Our culture continues to harbour misogyny. Men are still being conditioned from an early age to feel a sense of superiority over women and to objectify them”. She does not have an explanation, however, of where these power relations spring from. Or why, as she correctly points out, working-class and black and Asian men also suffer discrimination and unfairness in the law. Fundamentally, women’s experience of injustice is an expression of the sexism and discrimination inherent in class society. It is from class exploitation and the oppression of the majority by the minority that the inequality in capitalist society ultimately flows.

Women and society

The capitalist justice system is not responsible for sexist violence – but neither can it fully provide protection or justice. Violence against women flows from the idea that women are the property of men, that loyalty and obedience to partners are their duty, and that men have the right to enforce this, including with violence. Women of all classes experience the resulting violence and abuse which have their origins in the development of societies based on private property and divided into classes, a process which began to take place around 10,000 years ago. But the justice system is not separate from the ideas that sustain the rule of the dominant economic class, because it is also a product of class society. On the contrary, it plays a critical role in preserving the privileges of the ruling class and keeping the exploited class in exploitation.

Kennedy writes about how “conventional gender norms” mean women are both “under-represented in the highest echelons of the law and business”. How they are undervalued and marginalised and, therefore, “exposed to disproportionate levels of poverty and exploitation that make them vulnerable to violence”. These gender norms are products of class society because today’s economic system, capitalism, inherited gender ideology from previous class societies. This developed with the emergence of the family specifically as an economic and social institution which perpetuates the oppression of women and the need to shore it up ideologically.

Under capitalism the family’s role has changed from what it was in previous class societies, no longer central to production as under feudal conditions. Ultimately, however, it still serves the needs of the economically dominant capitalist class. While these are not the terms in which most people think of their own family, the family plays a role as a social institution for capitalism. It is based on the economic dependence of children, the elderly and the sick, on those who work within the family unit, the unpaid work of mainly women in the home, and the disciplining of the next generation to accept its place in class society.

Understanding what lies behind the denial of justice for women is linked to the fight for women’s liberation from oppression. That means recognising that, at root, the struggle for justice can only be fulfilled as part of the class struggle that removes the basis of these ideas – class society – and the institutions which perpetuate it, including the current justice system. This requires a complete overturning of the existing order, including the courts, police, etc, as well as the economy, restrictive family and personal relations, and so on.

This is not a task for women alone and definitely not one of women against men. To fulfil this enormous task requires the recognition that the struggles by women against their own specific oppression and discrimination are not separate from the general tasks of the working class in bringing to an end all the exploitation and oppression of the capitalist system. Only on that basis is the reconstruction of a society free from prejudice possible. An understanding of the role of the state in class society is vital for that.

Kennedy says that “the men on the bench often find it hard to even imagine the lives of the really disadvantaged”, of what drives mothers to ‘crimes’ of poverty, with case study evidence in abundance. But it is not only that class discrimination permeates the justice system, or that the leading figures have absorbed these prejudices only because they originate in the ruling class or because their personal interests lie with those of the wider capitalist class. The characteristics of those at the top of the justice system are products of its fundamental role as a pillar that upholds capitalism. Lenin wrote: “It is impossible to compel the greater part of society to work systematically for the other part of society without a permanent apparatus of coercion”. In the last analysis – as Karl Marx, Friedrich Engels and Lenin pointed out – the state consists of armed bodies of men and their material appendages, ie prisons, courts, etc.

On the one hand, Kennedy presents the idea that justice for women is just around the corner, that “gender equality is within our grasp and law is one of the mechanisms that can be used to secure it”. Yet this idea that equality or women’s rights are bestowed by Lady Justice is contradicted by the facts and figures in her own book. And by reality. The legal rights women have achieved have been won through struggle. The Ford Dagenham strike in 1968, for instance, paved the way for the then Labour government to legislate on the right to equal pay. However, given that 50 years on women still experience a gender pay gap shows the inability of capitalism to meet the demands for women’s rights.

Class interests

So it is the job of socialists to both explain the need to dismantle the state and point to the role of the working class in replacing it with a workers’ state. But, while anger grows at its unfairness and its failings, for most workers and young people this understanding of the state is not their starting point. That largely depends on their experience. A socialist programme for the state needs to expose the inability of the capitalists to satisfy the needs of the overwhelming majority with regards to meaningful justice and rights – which Kennedy’s book helps with. To explain why that is impossible, to point in the direction of workers’ independent organisation and control of the justice system, and to steps that can weaken the power of the capitalist class linked to the fight for socialism.

Such a programme also needs to include the defence of the rights that currently exist. While Kennedy wrongly identifies ‘patriarchy’ rather than capitalism as the origin of inequality, at times, she also recognises that men are not to blame: “To turn men into the enemy is futile… most men also face inequality but of different kinds”. She shows how the bias in the justice system against women can have advantages for perpetrators of violence against women (sometimes including women) but also recognises the class basis in the system that disadvantage working-class, gay and black and Asian men too.

Challenging sexist ideas within the justice system must be part of this programme. Ultimately, that is linked to the need to replace capitalism with democratic socialism but campaigning now can be effective. Trade unions, the basic organisations of the working class in which its interests are counterposed to those of the capitalists, have a key role to play. Campaigns against sexual harassment and sexist bullying in the workplace would show that it is the bosses who really gain from sexism by dividing the workforce and weakening the potential for collective action on pay, conditions, etc.

Banning zero-hours contracts would make women less vulnerable to harassment by managers who have the power to deny hours to workers. But we also need a programme to point towards workers’ control of the legal system – justice in workers’ interests, not a system that ultimately serves the owners of the wealth. The restoration of legal aid is an immediate demand but the removal of all financial barriers through free access to legal advice and support is necessary to remove the privileges of the rich in court.

A campaign programme

Helena Kennedy celebrates the #MeToo phenomenon as an act of civil disobedience taking on the injustice women face outside of the courts which have proved so lacking. But in contradistinction to some #MeToo spokespeople, she draws the line at measures such as the denial of trials for men accused of violence or harassment of women. She says: “Justice for women is not secured by reducing justice for men”. So, “high standards of proof, and the obligation that the state carries the burden of proof, are non-negotiable if we are to preserve liberty – the liberty of men and women… punishment without trial is dangerous”. She also points out that, as women already suffer a lack of justice, any reductions in access to justice generally will impact badly on them rather than benefit them.

A programme for the democratic control of the police is necessary, including calling for the police to be accountable to local committees, made up of democratically elected representatives of trade unions, local community organisations, campaign groups and local authorities; for an investigation into sexism within the police led by the trade unions; and for the right of the police to an independent, democratic trade union organisation with the right to strike, within which campaigns against sexism could be conducted.

This does not mean that it is possible to gradually democratise the state so it ceases to perform its ultimate function in the defence of the interests of the dominant capitalist class. For that it is necessary for the working class to come to power to begin to reshape society. Campaigning for workers’ and women’s justice, however, can show the need to challenge the capitalists’ control of the state and can point towards how society could be organised differently on the basis of fundamental socialist change.

An urgent investigation into prisons carried out by the labour movement, including unions in prisons, probation and justice, prisoner organisations and victim representatives, is needed. This could look into reducing sentences and the sanction of imprisonment itself. Jails should be brought immediately into democratic public ownership, and their role in society debated and determined by the working class. Kennedy writes about the benefits of women’s centres but they have been attacked by the Tories and many of the therapeutic services within prisons have been cancelled. Investment into drug treatment and mental health services must be fought for by the trade unions.

Kennedy provides a brutal picture of victim blaming in the courts. This includes the concrete impact of rape myths, with the Criminal Injuries Compensation Authority – which provides compensation for blameless victims of violent crimes – reducing compensation for women who were drunk when they were raped. Despite campaigns, research and even changes in the law, Kennedy describes the continuing difficulty in getting the fact that rape is about the absence of consent and not always about force understood and accepted by judges, as well as by police.

She addresses the controversial question of cross-examining a rape complainant about their sexual history saying that, while she is not in favour of a total ban, its misuse is widespread given the prejudices that exist in the court system. She says that “if the only object of such cross examination is to show that this is the kind of woman who consents, it is not supposed to be allowed”. She gives examples, however, of judges allowing evidence or questions about sexual history that create doubt about the validity of a case. This is on top of the questioning of complainants about their clothing, alcohol consumption, why they were out alone, etc, which “all set the scene for an acquittal”. She concludes that there “clearly needs to be stricter guidance to judges on how to handle rape cases and better training”.

This raises the question of what guidance, and training by who? ‘Training’ by defenders of the social, economic and political relations of capitalism would not address the underlying class basis of the justice system that produces the bias and perpetuates the backward ideas. More deep-going measures to remove sexist judges and to make the justice system more accountable to the working class majority in society are needed. 

Working-class justice

Today, judges in most US states face elections. However, elections by themselves are no guarantee of a voice for working-class people. It is also necessary to build a mass independent political voice of the working class that could democratically discuss its programme for the state, including the justice system, and put forward candidates who would then be accountable to the working class, subject to recall, and paid only a worker’s wage.

Implicit within Eve Was Shamed is how the domination of the functioning of the legal system by the ruling class is a contributing factor in the maintenance of backward ideas and their consequences in the law. So part of our transitional approach to the legal system should be measures which transfer the administration of justice to the working class. Why should the representatives of the bosses have the right to pass judgement on workers? Why should the working class not people the justice system? Laws that have been written down over centuries reflect the class interests of the capitalists and landlords. Why should these laws continue to determine our rights?

We cannot set out now what workers’ justice would be – that will be for the workers building a new socialist society to democratically decide. We only raise here some proposals for a programme for justice for women and the working class for discussion, and all measures to make the state more accountable to the labour movement must be fought for. What is clear is that this must be linked to fighting for the socialist transformation of society. As Peter Taaffe wrote (The Role of the State, 1983), “the limits of such measures must also be understood by the labour movement. The capitalists will never permit their state to be ‘gradually’ taken away from them. Experience has shown that only a decisive change in society can eliminate the danger of reaction and allow the ‘democratisation of the state machine’ to be carried through to a conclusion with the establishment of a new state controlled and managed by working people”.