Let Down by Law

Literary Review, November 2018

Eve Was Shamed: How British Justice is Failing Women, Helena Kennedy (Chatto £20)

It is a quarter of a century since Helena Kennedy’s book Eve Was Framed: Women and British Justice was published. A great deal has changed in that time, a circumstance reflected in the unequivocal title of this updated version. Eve Was Shamed: How British Justice is Failing Women leaves us in little doubt that Kennedy believes things have got worse since she first wrote about the way women are treated by the police, courts and judges.

There is a paradox here, because the numbers of women reporting rape keeps going up. The figure has been rising for years, suggesting that some women at least have more confidence in the police and hope they will be able to see their attackers convicted. But savage cuts to police and government budgets mean that it’s now taking up to two years for rape cases to get to court, dragging out the ordeal for both sides. Meanwhile strict new rules on disclosure are forcing complainants – but not, crucially, defendants – to provide access to mobile phones, computers, medical, college and school records. The degree of infusion is literally intolerable for some complainants, who fear hostile questioning in court about irrelevant matters such as abortions or a history of anorexia.

It’s one of several ways in which the situation has deteriorated since Kennedy, a human rights lawyer and Labour peer, first wrote about the criminal justice system. It bears out her proposition that women are being shamed and she is right to highlight the role of the tabloid press in creating the false impression that whole swathes of the male population are at risk of being wrongly accused of rape. The real scandal is that the vast majority of rapists are never prosecuted, let alone convicted.

Kennedy is good on the way on the way in which absolute equality doesn’t produce equal outcomes. ‘We argued for equality but treating as equal those who are unequal does not produce equality,’ she points out, citing the way in which the notorious bedroom tax unfairly penalised people with a disability or who needed overnight carers. (The Supreme Court agreed.) Real equality means recognising a daunting catalogue of sex-based disadvantage including the pay gap, unequal opportunities at work and and the fact that so many women live in fear of abuse and violence.

Eve Was Shamed opens with an autobiographical section about Kennedy’s experiences as a young barrister which, while deeply felt, holds up a narrative that goes on to deal with horrific modern phenomena such as sex trafficking and ‘honour’-based crimes. It is symptomatic of a lack of focus elsewhere in the book, where Kennedy writes at length about exhaustively-documented events such as the judge’s remarks about Mary Archer when her husband, Jeffrey, sued for Iibel back in 1987. Yes, Mr Justice Caulfield’s observations were ridiculous but it was a long time ago and adds to the impression of a book that could have benefited from editing.

Kennedy would have been better advised to concentrate on what has changed since she wrote the earlier book. Sex trafficking didn’t exist on its current industrial scale in the 1990s and it’s since become a significant way of controlling and exploiting vulnerable women. But Kennedy’s take on prostitution and sex trafficking is confused, at one point conflating the two as ‘trafficked sex workers’ when it is obvious that a trafficked woman is a victim of coerced labour or sex slavery.

She acknowledges that women are driven into prostitution by childhood abuse, homelessness, substance abuse and poverty, but she’s dubious about criminalising the men who take advantage of their vulnerability. The fact that the same men use prostituted and trafficked women isn’t acknowledged and Kennedy isn’t keen on feminists who argue for the sex-buyer law adopted in Sweden – where, by the way, a senior police officer told me that the legislation has almost eliminated sex trafficking into the country. Instead, in a telling aside, Kennedy says that sex workers (her phrase, not mine) ‘want middle-class feminists off their backs’.

It’s a cheap shot against women, including survivors of the commercial sex industry who’ve experienced violence and abuse firsthand, who regard selling women’s bodies as a denial of basic human rights. And it’s equally disappointing to find Kennedy arguing in a later chapter that the prison system ‘too often locks up transgender prisoners according to their genitalia rather than their chosen gender identity and often with tragic consequences’. I assume that the book was finished before Karen White, a transgender prisoner awaiting trial for rape, insisted on being moved to a women’s prison and immediately assaulted female inmates – something that feminist organisations had warned was likely to happen.

Twenty-five years ago, I liked Kennedy’s original version of this book. The new one feels like a rehash of Second Wave feminism with an uncritical adoption of some 21st century orthodoxies that are actively hostile towards it. And I can’t help feeling troubled by a book which is so casually dismissive of the legitimate concerns of contemporary feminists.

 

 

 

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