“It should surprise none of us that the law continues to fail women.” This robust assessment was delivered by veteran human rights lawyer Baroness Helena Kennedy QC, who delivered the keynote address on gender equality at the International Association of Women Judges’ (IAWJ) recent biennial conference in Auckland. The IAWJ is a non-profit, non-governmental organisation representing all levels of the judiciary worldwide who share a commitment to equal justice for women and the rule of law. Held in early May, the conference was attended both online and in person by lawyers and law makers from around the world. The session was moderated by Tiana Epati, President of New Zealand Law Society | Te Kāhui Ture o Aotearoa.

Baroness Kennedy recalled that when she was admitted to the bar in the 1970s, only 6% of the profession in the UK were female. There were very few women on the bench at that time, she says, and some chambers had a no-women policy. “They actually said ‘I just don’t think that women are suited to the sort of work that we do’.” In those days she says, “domestic violence was dismissed as not real crime, and rape was filled with myths and stereotypes about women telling lies, and falsely accusing men in droves and of asking for it by the way they appeared… or because they were the worst sort of women and had drunk too much and it was their own fault.”

Raised in the tenements of Glasgow, Baroness Kennedy is now a leading barrister and expert in human rights law, civil liberties and constitutional issues. Currently a member of the House of Lords, she became a member of the Bar Council in order to champion women in the profession and promote equal opportunities for women at the Bar. She has written and spoken about the discrimination experienced by women in the law, both victims and defendants alike. Her 2011 book Eve Was Framed focussed on the treatment of women in the courts, where they were at the mercy of the prejudices of judges, the misconceptions of jurors, the arcane labyrinth of court procedure and the influence of the media.

Rocking the boat

She has said in the past that she was “often seen as a pain in the neck” and said that she sought to argue for more women in senior places, only to be accused of rocking the boat by the handful of other senior women. The problem was, “that many women had had to learn how to operate in the male way, to apply the thinking they’d learned at law school that would make them acceptable in courts.“ She says that when she spoke about the sexual harassment that women experienced, or bullying from senior members in their law offices and chambers, the response at the time was that if you haven’t got what it takes to deal with predatory men, you shouldn’t be at the bar. Disbelief is evident in her tone: “That’s what we had to tell young women! I don’t believe that. Because we know it’s about abusing power.”

She says supportive men are vitally important in the lives of women, especially those who are good mentors and provide opportunities. She encourages men to talk more about masculinity: “about what good masculinity looks like. And they have to start calling this stuff out.”

Baroness Kennedy says that the notion of neutrality of the law which is taught in law school – was the whole problem as “the central actor in law was always a man.” She sees her role as being to introduce the experience of women into the law.

Justice not delivering for women

Challenging the judiciary to shift its own internal culture, Baroness Kennedy urged her audience to play a role in developing justice that delivers for women and provides protection. She spoke of her work with the International Bar Association which has been involved with introducing specialist courts in Pakistan that will have specialist training for prosecutors and a cadre of judges who will deal with gender-based violence. Describing the previous practice of dealing with the stigma of rape by marrying off the victim to her rapist, she says “The collusion of the justice system in those failures to provide justice to the women, but also the failure to deal with domestic violence. And while those things have moved up the agenda in most of the developed world, they have by no means been sorted.” In Britain, she says, this issue presents itself in low conviction rates for rape cases, despite one call a minute to police about domestic violence and two women a week being killed by their partners. To ensure that the law does not continue to fail women, she urged her fellow jurists to educate their colleagues in law about how they could deliver a different kind of society.

One recent positive sign that she has observed is the recognition that domestic violence can take other forms, including mental cruelty and coercive and controlling behaviour. “Keeping people constrained from fulfilling their abilities and their aspirations – those crushing limitations put on a woman’s life. That’s misogyny. People seem to think about the classical, old-fashioned interpretation of the word, that it’s really about hatred of women, but it’s really about something much more subtle and nuanced. It’s about keeping a woman in her place and about the sense of entitlement that they might have over the social arrangements and conditions.”

Vital role of the law

Baroness Kennedy says that one of the big challenges now to the world of law is how we deal with digital media. She talks of the harms that can be caused, particularly to young people, women and people from ethnic minorities: “the suffering and the racism that is online and the harms that you see that are dished out to people who are gender non-conforming or trans people are really horrible, horrible vicious stuff.” Those resisting legislative processes to deal with online harm are likely to describe it as freedom of expression, but it’s “freedom of exploitation” she says. The solution lies in the developed world getting together and saying “this is not good enough”. “The strong voices have to come together to stop what is happening.”

Baroness Kennedy has observed that the challenges of dealing with Covid have arisen at the same time as a threat to democracy and the rule of law through the rise of populist authoritarian governments. She highlights the constraints on freedoms that have been put in place via a social contract with our governments, on the basis that the limits on rights are necessary for greater ends. “The test is always that the changes should be proportionate, and it should be temporary, and that they should be ended as soon as possible and not allowed to turn into permanent features of our legal systems.

However, she is concerned by the tendency for authoritarian governments to use the Covid pandemic as cover for chipping away at the rule of law. She cautions judges and law makers to protect their independence in the face of encroachment. “The challenge of authoritarians is that – sometimes wrapping themselves in notions of democracy – but insisting that they take no criticism from the media, accusing the media of fake news when they challenge some of the things that have been done by over-weening all powerful government. Going after the rule of law, going after an independent judiciary, pretending that it’s all about modernising or reforming, but in fact getting rid of independent-minded judges. We know that one of the first things that authoritarians try to do is that they try to deal with the free media.”

The way forward, she emphasised, was to imbue law with values which recognise the dignity and humanity of every human creature. “It’s the vital duty of the state to protect human rights, and of the judiciary to act as arbiters.”