'This Is a New Frontier': The Global Movement Working to Make Courts Feminist
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'This Is a New Frontier': The Global Movement Working to Make Courts Feminist

An international project is re-writing key judicial decisions through a feminist lens, with a view to transforming the justice system for women.

When a sentence of six months' probation was handed down in the case of Brock Turner, the 20-year college Stanford University swimming star who assaulted an unconscious woman behind a dumpster, women around the world called bullshit.

Judge Aaron Persky, who presided over the case, determined that a term of imprisonment would be unjustifiably harsh in light of various factors, including "the adverse collateral consequences" on Turner's life.


For many people, this case went to very heart of how the justice system fails women—especially when it comes to rape, sexual assault and domestic violence. Turner, they believe, was able to secure an outcome vastly different from that of a person with less talent, connections and financial resources.

While we have a proliferation of male judges of a certain age on our court benches, we can expect a certain outlook.

Decisions like that of Judge Persky have led many to reflect on how the justice system, largely created and presided over by men of a certain age and race, speaks to the experience of women. It raises the crucial question of what a more feminist system would look like, and how differently cases like that of Brock Turner might unfold.

In recent years, a global movement with a view to examining these very questions has started to take root. Called The Feminist Judgments Project, it first started in Canada but has since spread to the US, the UK, Australia and New Zealand. While the projects differ across each legal system, their collective purpose is to bring together academics, students, lawyers—and in some cases judges—to reimagine and rewrite judicial decisions through a feminist lens.

"There's a frustration about the gap between getting the law on the books right, and the implementation of that law by judges and barristers using that law in the courts," says Professor Heather Douglas, one of the drivers behind Australia's Feminist Judgments Project.


"This is a new frontier for reform: to get judges to be effectively applying the law in a way that is just and promotes equality."

Read more: How to Take Your Attempted Rapist to Court and Win

The women behind these projects choose a range of historical and present-day judgments, based on how they demonstrate issues of gender in the the legal system. Each judgement is "rewritten" through the application of feminist theory and practice, while staying true to the facts and the law at the time of the original judgment.

In doing this, the Projects show that judges do not need to wait for legislative or procedural change to promote gender equality—they can adopt a more feminist approach today, within the existing system.

"We're not suggesting that all judges go out and there and be rampaging activists; quite the opposite in fact," Douglas explains. "We're just suggesting that judges think carefully about the language they use, about who their audience is—and think about equality in every aspect of their judgment writing."

One of the driving forces behind New Zealand's Feminist Judgments Project, Associate Professor Elisabeth McDonald, describes the budding New Zealand project—due for completion in 2017—in a similar way.

"We frame this as 'feminism in action'," she says. "You don't necessarily have to wait for feminist judges to be on the court; you can still write feminist judgments, even within the status quo."


New Zealand's Feminist Judgments Project (also known as 'Ti Rino', Māori for 'The two-stranded rope') is still in its infancy, but the aim is to publish 25 reimagined and reworked decisions across various areas of law, jurisdiction, and time periods.

Some of the judges we spoke to had this idea that to be a feminist judge would be replacing one bias with another.

Wanting to borrow from international models but also wanting to take account of New Zealand's biculturalism, the New Zealand project has two strands, with one looking specifically at capturing the voices of Māori women, and their interactions with both feminism and the law.

The Australian Feminist Judgements Project also looks at the experience of indigenous women, including a rewriting of the 1934 High Court of Australia judgment of Tuckiar v R, whereby, in the course of the trial, the defendant was alleged to have had sex with an Aboriginal woman—what was then deemed to be a serious attack on his reputation.

The case highlights the pervasiveness of stereotypes about Aboriginal and Torres Strait Islander women across all levels of the Australian law—reflecting that, like in New Zealand, Aboriginal women have often been uniquely failed by both feminism and the law.

Both McDonald and Douglas see law students as a primary audience for the Feminist Judgment Projects; reflecting the difficulty of shifting the long-held views of current judicial members. "Every judge was once a law student," Heather points out. "But when you get to the bench, you've probably been practicing for 15 years or more, so you've probably got fairly entrenched attitudes."


Figures from 2015 put the percentage of female judges across Australia at around 33.4 per cent, and 29.9 per cent in New Zealand.

"While we have a proliferation of male judges of a certain age on our court benches, we can expect a certain outlook," Douglas says.

Nonetheless, Douglas considers Australia lucky compared to similar countries and jurisdictions, having in recent decades had a number of progressive female judges join benches around the country, including at the higher court levels. This week, Susan Kiefel was appointed Australia's first female High Court chief justice.

"These women have been quite influential in changing the culture in those court rooms," she says. "These judges can have a real influence—not only in how they write their own judgments but also as an influence on their colleagues on the bench."

A number of both Australia and New Zealand's female judges may identify as feminists, however many are wary about identifying as "feminist judges".

"Some of the judges we spoke to had this idea that to be a feminist judge would be replacing one bias with another, which is not something they want to do," Douglas explains. "Others said 'I am a feminist, therefore I have to be a feminist judge. It comes with being a feminist—everything about you is feminist.'"

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McDonald sees a similar reticence among judges to publicly "out" themselves as feminists. "Just like being a feminist in the academy or in the workplace, once you claim that title it comes with a perception," she says.

"Judges are so cautious on the whole about being seen or perceived as objective, fair and unbiased—even though we know that's not really possible. Once a judge would start to say, 'I am a feminist,' you could imagine the potential backlash."

Nonetheless, McDonald and Douglas' work—and that of other Feminist Judgment Projects—demonstrates that there is meaningful change taking place across judicial benches around the world, even if it's not immediately apparent from the outside.

Even decisions like that in the case of Brock Turner highlight that a judge's discretion is not unfettered. Rather, judges are often limited in their decision-making to the arguments put before them by the lawyers before them. In many cases, they are obliged to take into account certain factors prescribed under the law—even if, hypothetically, those factors offend their feminist sensibilities.

After all, no matter how feminist the judge, she (or he) remains constrained by laws that in many cases uphold traditional and patriarchal norms. The legal system is, in many ways, simply a reflection of the attitudes of the society in which it exists.