Law and legal practice

'In every field of law and legal practice, the law itself is gendered. That is to say, that the law-whether developed through the courts, under common law, or enacted in legislative provisions, reflects the gender of those who have created it: men. ' Introduction Does this represent a fair assessment of today's position? I believe that it does. I shall explore this observation by breaking down the key components of feminist jurisprudence and highlighting my assertion with a broader examination of the patriarchal nature of the criminal law.

Among other abundant areas of law, criminal law has evolved from a male perspective and continues to uphold this hegemony. 1 I shall present documented theories of why domestic abuse occurs from the perspective that each doctrine presupposes a weakness in the character of the victim. The central focus in this essay takes the form of a critique of the criminal defences available to battered women2 who kill their abusive partners. I contend that it is also necessary to approach the area of reform. Is it possible in our contemporary judicial system? Furthermore, the question which automatically follows from this: if we can't reform, what are our alternatives?

Feminist Legal Theory The focus of feminist jurisprudence is the legal position of women in society; . regulated by a system begotten of men, neither class nor gender-neutral. 3 The scope of feminist jurisprudence is as varied as it is indefinable. It appears that the nucleus from which feminist legal theory has evolved can be described as the opposition to the construction and encouragement of masculine superiority by the operation of law. 4 Historically the status of women has been categorised as a 'second-sex', almost following on from the existence of men.

In an attempt to dislodge this assumed inferior position, feminist scholars seek to unravel the inequities attached to the feminine: "Women? Very simple, say the fanciers of simple formulas: she is a womb, an ovary; she is a female – this word is sufficient to describe her. " 6 Simone de Beauvoir7 contends that there exists a tension within men caused by the notion of 'woman'. The masculine observation of 'woman' reveals the disparity between the terms 'male' and 'female' with overtones of inferiority reducing women to their biological procreative purpose.

Justification for this antagonism correlates to the animal nature of the masculine psychology: "The word female brings up in his mind a saraband of imagery – a vast, round ovum engulfs and castrates the agile spermatozoon… the most superb wild beasts – the tigress, the lioness… bed down slavishly under the imperial embrace of the male"8 The legal construction of gender is a central forum for feminist legal theory.

The law governing transsexuals reveals a judicial desire to participate in the definition of gender. Corbett v Corbett9 provides that the law will defy the surgical intervention of a person's physical attributes regardless of their correlating psychological gender. Such legal mediation permits the observation that the law defines gender. Corbett also reveals a more sinister side to the operation of law. Legal science contends that .classical categories of 'persons' permits the law to operate in black-and-white: that 'woman', 'man', 'child' form the building blocks of our society. Clearly the trans- gender being confuses this essentialist perspective and undermines the gendered operation of contemporary law. It is this construction and operation of law that Hilaire

Barnett10 seeks to contest by demonstrating that multifarious streams of law and legal practice including the crim. inal law display the "maleness of law". 11 Women remain on the periphery of a significantly masculine law; their experiences excluded and sensibilities ignored from a male perspective. Post-modern theorists give as example, the law governing rape. Here, the law will question the victims consent, not the alleged perpetrators conduct. Furthermore, pornography is not controlled for its salacious exploitation of women but for its unwholesome contradiction of the public interest.

Theoretical explanations for domestic abuse. "Being battered is a female experience, which can involve not only assaults… and attempted murder, but also psychologically debilitating practices, in a milieu of social and legal unresponsiveness"13 Similar to the law against rape and pornography, such conclusions are merited regarding domestic violence. There are several theoretical constructs purporting to explain why domestic abuse occurs. Psychoanalytical theories question whether a woman allows herself to be beaten by evaluating her personality.

Observations are made as to whether some women merely submit to physical abuse; a theory compounded by Self-Defeating Personality Disorder (SDPD). This disorder includes persistently choosing people and situations likely to disappoint. 14 SDPD has been criticised by Caplan15 as: "an unwarranted pathologising of traditional, socialised feminine behaviour. " The requisite feminine helplessness is continued in the social learning theory construct.

This contends that women who grow up in violent households are socialised to tolerate such treatment, unable to predict the outcome of their behaviour or to control their partner's violence, often expecting it as normal. 16 The social psychological theory offers a continuation of the Stockholm syndrome. The strong connection forged between two people in an abusive relationship is used to explain why battered women 'endure' the physical and emotional maltreatment. Painter and Dutton refer to this as 'traumatic bonding': the power imbalance found in violent relationships causes the abused person to feel dominated by the intermittent cyclical nature of the abuse-love rotation.

Family systems theory believes that violence occurs in a relationship due to the characteristics of both partners: "… the way in which 'over-adequate women' and 'under-adequate' men relate, with violence used by the husband to re-establish the equilibrium in the relationship"18 What emerges from this is clear: a masculine struggle for power within a relationship, a desire to be in control achieved through violence and domination. This forms the basis of the feminist understanding of domestic violence.

Feminist writers such as Bograd, Gondolf and Campbell believe that in a contemporary society where traditional categorisations of 'sex' and 'gender' have become confused, men are more likely to use violence as a means of re-asserting their control. 20 This masculine interpretation pre-suposes the emotional weakness and helplessness of female victims of domestic abuse. What of the 'helpless' victim w. ho retaliates? The above explanations for domestic abuse fail to account for the growing . number of cases of battered women who kill their abusive partner. Murder is the most serious of crimes attracting a most serious of penalties. 21 There are three possible defences available to battered women who kill: provocation, diminished responsibility or self-defence.

I contend that a central focus on provocation best serves this discussion owing mainly to the attention levelled at this defence following R v Thornton22 and R v Ahluwalia. 23 Furthermore, many characteristics of this defence could also apply to the other defences. The successful operation of provocation and diminished responsibility will mitigate the mandatory life sentence attached to a conviction of murder, allowing a verdict of manslaughter with the related discretionary sentence. 24 Self defence is a more complete defence, negating the unlawful element of the killing.

However as the reading will show, there are many problems attached to the operation of self-defence in the case of victims of domestic abuse who kill. Can the law serve the battered women who kills without pathologising her as a victim? The criminal law defences available expose the historically masculine construction of law, developed in accordance with male sensibilities reducing and confusing the experiences and motivations of women. 

Where a battered women kills her abusive partner, commonly the verdict returned is either a conviction for his murder or manslaughter on grounds of diminished responsibility. 26 This pattern reveals the operation of a masculine system which discharges full blame to the women or presumes a mental defect, vitiating responsibility: each construction ignorant of her personal situation. 27 Domestic violence against women is for some an everyday occurence: one in every four women live with it compared to one in every six men. 28 In 1991 41% of all female victims of homicide were killed by their partners. 29 This picture underlines the importance of criminal law defences.