Caroline Criado Perez 

Eve Was Shamed: How British Justice Is Failing Women by Helena Kennedy review – a fiercely critical eye

In this disturbing follow-up to her groundbreaking Eve Was Framed, the emiment QC identifies the flaws in an inadequate legal system that continues to wrong women
  
  

Helena Kennedy QC.
‘An excellent and forensic takedown’: Helena Kennedy QC. Photograph: Alicia Canter/The Guardian

I read Helena Kennedy QC’s new book, Eve Was Shamed: How British Justice Is Failing Women, while Dr Christine Blasey Ford was giving evidence before the US Senate judiciary committee. Shortly afterwards, the president of the US led thousands in laughing at Ford as he stood on a stage and mocked her testimony. As I write, Judge Brett Kavanaugh is about to be confirmed to the US supreme court. And all over the world, women are angry.

It’s been almost exactly a year since the spark that ignited what Baroness Kennedy calls the “tsunami” of the #MeToo movement: the Weinstein allegations that rocked Hollywood and led to the downfall of a stream of powerful and abusive men. This movement, writes Kennedy, is “a form of civil disobedience”. It is a “response to law’s failure”. And if women “had confidence in the justice system and men really feared the shame and consequence of misconduct”, she says, “we would not be seeing a resort to anonymous accusations”.

But women don’t have confidence in the justice system. And going by the litany of horrors that Kennedy details in this relentless, often disturbing book, no wonder.

Twenty-five years have passed since Kennedy published Eve Was Framed, the groundbreaking precursor to her latest work. And while there has been some change – much of it initiated by Kennedy herself – progress has been halting and deep-seated reform is still urgently needed. “The smell of the gentlemen’s club permeates every crevice of the Inns of Court,” writes Kennedy. And it stinks.

Rape complainants are let down by a largely pale, male, stale judiciary that has struggled to keep up with changing sexual mores – don’t expect a conviction if you’re raped on a Tinder date, warns the QC. Kennedy points out that the opinion of a court (that saying “fuck me harder” while having sex on all fours constituted “unusual sexual behaviour”) “said a lot about [the judges’] own sexual experience and their lack of familiarity with contemporary pornography in which this behaviour is standard”. She also makes the fascinating and chilling observation that porn has radically changed “the repertoire in rape cases” since she first started in practice. “It is increasingly rare for women not to be penetrated anally as well as vaginally and orally.”

Women – whether criminals or victims – are still subject to the most antiquated of double standards. “It is hard to get across the idea that a woman is entitled to have sex with the whole of the football team, but draw the line at the goalie,” writes Kennedy, with characteristic bite. Rape victims have their compensation reduced if they were drunk. Meanwhile, girls are being institutionalised (unlike adult courts, youth courts can sanction behaviour that is not technically criminal but may harm a child’s development) for behaviours that in their male contemporaries would be dismissed as “boys will be boys” but in girls are seen as evidence of dangerous moral turpitude.

It’s a similar story in the adult courts, where there has been a “shocking escalation in the numbers of women being sent to prison” despite the already low proportion of women committing serious offences falling over the same period. The trouble is, says Kennedy, there are “no separate sentencing guidelines for women offenders, and the existing guidelines make next to no mention of gender-specific issues”. This leaves even the more enlightened judges with “a limited range of possibilities” – a problem that has been drastically exacerbated by sustained budget cuts”. Women’s centres have been closed. Curfews for women given community sentences save costs on probation officers “but can leave women vulnerable to domestic violence for the 12 hours per day that they are confined to the house”.

But it’s not just about cuts. It’s also about failing to design the justice system around women’s unpaid work. Little attention is given, writes Kennedy, to things like scheduling probation appointments during school hours, and research has revealed that “women’s childcare responsibilities are impacting on their ability to comply with their community sentences”. And women who fail to comply often end up in prison – “even where the original offence would never have merited a custodial sentence”.

Sticking with prisons, the one oddly flabby note in the book comes in a few pages where Kennedy discusses trans prisoners. On the whole, Kennedy is not afraid to challenge feminist orthodoxies. While she is sympathetic to #MeToo as “a response to law’s failure”, she strikes a note of caution about a lack of due process. She is rightly implacable in the face of feminist calls for a blanket ban on including past sexual behaviour in rape cases.

But when it comes to the nuances and complexities of housing trans women in female prisons, her usually fiercely critical eye is strangely absent. Our prison system, she writes, “too often locks up transgender prisoners according to their genitals rather than their chosen gender identity, and often with tragic consequences”, as if these choices are clear-cut. It is perhaps not fair to pull Kennedy up by citing the case of multiple rapist and paedophile Karen White who was housed in a female prison and subsequently sexually assaulted two female inmates, since it was made public after Eve Was Shamed went to print, but this situation was surely foreseeable. In 2014, convicted rapist Jessica Hambrook was jailed for sexually assaulting two women in Canadian refuges, having gained access by claiming to be a trans woman. Both Hambrook and White were housed according to their gender identity rather than their genitals – can Kennedy really claim that this was inarguably the right choice and that there are no competing rights at stake here?

But these are only a few pages in an otherwise excellent and forensic takedown of a legal system in which “women are still facing iniquitous judgments and injustice”. Women are being raped and murdered, and men are getting away with it. Meanwhile, battered women who finally snap and kill their tormentors are being prosecuted for murder, and mothers who miss a probation appointment because it was scheduled during the school run are being imprisoned.

It’s not good enough. Women are being let down wholesale by a justice system designed with men in mind. And almost the worst thing is, it doesn’t have to be this way. Kennedy provides plenty of solutions and examples of best practice from around the world that we could easily incorporate, should we wish to change the justice system. The question is: do we?

Caroline Criado Perez is a writer and feminist activist. Her new book, Invisible Women: Exposing Data Bias in a World Designed for Men, will be published by Chatto & Windus in March.

• Eve Was Shamed: How British Justice Is Failing Women by Helena Kennedy is published by Chatto & Windus (£20). To order a copy for £17.20 go to guardianbookshop.com or call 0330 333 6846. Free UK p&p over £10, online orders only. Phone orders min p&p of £1.99

 

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