Australian law is built on its allowance of discretion. Often, this discretion is seen as a darling of the left – critiqued by the right as unfairly promoting instances of ‘judicial activism’ (as seen in Wik V Queensland, for example, where judicial discretion affirmed the existence of native title). I would argue, however, that discretion works both ways: yes, it can be used to agitate for leftist/liberal/progressive values, but more often it simply (and ironically) works to affirm mainstream thought, i.e. “whose discretion do we apply in legal thought”? Who is the “reasonable person” we so often refer to as a core standard, in contentious legal rulings? If we look at various sectors of the law, we can see that discretion in fact often returns to the same subjectivity: that of a cis, white, hetero man.
A: In sexual harassment
Our current sexual harassment laws, for example, will pursue legal charges;
‘In circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated’.
(Australian Sexual Discrimination Act 1984, S28).
Considering that law has been both historically created and applied by men, it is perhaps not surprising that this standard of a ‘reasonable person’ is a stereotypically masculine one. That is, that the ‘reasonable person’ will carry purportedly ‘masculine traits’ such as rationality, power, status, dominance, and so on. In this context, it can be difficult for a judge/jury to conceptualise why exactly a woman (not that all victims of sexual assault are women) would be ‘offended, humiliated or intimidated’ by behaviour that a man (men being the generalised standard) would not be.
Attempts to feminize the standard, presumably with good intentions, have been equally (if not more) problematic. In the case of Sheiban, for example, the judge ‘appeared to lack an understanding of the women’s perspectives in the case before him’, believing that ‘if women were hurt that must be their problem, they were over sensitive’. I.e. in employing a specifically ‘feminine’ standard, the reasonable person standard doesn’t become more inclusive, but just imports a very ‘unitary’ view of what it means to be a woman (weak, sensitive, over-emotional, etc).
B: In domestic violence
The ‘battered woman’ self-defence plea in Australia is designed to exculpate those who have killed their partners to protect their own lives, in reaction to prolonged/extreme periods of domestic violence. It is very rarely successfully claimed. Under the self-defence doctrine, it requires that there was a) a reasonable perception of danger, as provoking b) a reasonable amount of force.
Again, reasonableness is defined in reference to the masculine. In fact, ‘success (of the claims) was directly correlated with the conformity of the events preceding the killing with the traditional interpretation of immediacy’. Some critics have claimed that this is because ‘it turns out that when courts asked themselves under what circumstances a reasonable man would resort to the use of deadly force, they concluded that only an imminent threat would be sufficient to provoke such a response.’ When women kill their abusive partners, however, they typically do not do so in response to one violent incident (as a man might in a bar-room brawl, for example), but numerous instances of ‘prolonged abuse’. Moreover, women ‘tended not to kill during violent physical confrontations but instead were more likely to do so when their abusive partners were vulnerable, often asleep or drunk’. Such differences didn’t fit neatly into a masculine conception of self-defence, and hence have historically been rejected by courts.
More commonly, women in such situations are able to get their charges downgraded from murder to manslaughter, by invoking the defence of ‘provocation’ (rather than a complete acquittal, under self-defence). Courts have been more amenable to such an approach, as it ‘it equates women as emotional and losing control instead of exonerating their action’. Again, however, Australian law requires that there be an ‘imminent’ threat, rather than a sustained one. That abused women are so often unable to access this defence, even to simply downgrade a charge to manslaughter, becomes even more disturbing when you consider the types of violence that have historically qualified as ‘provoked’ – for example those under the ‘gay panic’ defence.
C: ‘Gay Panic’
The ‘gay panic’ defence, as it is colloquially known, is not a separate defence to murder in itself, but is subsumed into the general claim of provocation. Successful claims of provocation require three elements:
- Provocation by the victim
- Loss of self-control by the defendant due to provocation, and
- That “an ordinary person who was provoked with the same gravity as the accused would have lost self-control and formed an intent to kill or to cause grievous bodily harm”.
In invoking the gay panic defence then, the law must find that an ‘ordinary person’ would have responded to homosexual advances (‘the provocation’) with murder/assault. In this, it ‘draws on a culture of homophobic masculinity in order to place the blame squarely on the victim’. Again, the ‘ordinary person’, far from allowing an equitable range of subjectivity to be imported into the law, actually just twists to recognise the worst tropes of masculinity: that men must be heterosexual, or that it is justified for men to protect their ‘honour’ with violence (this defence doesn’t apply for women killing men who make advances, or women killing women). The defence, though now mostly over-ruled in most contemporary Australian jurisdictions, is actually still functional in South Australia, and was in fact recently invoked in the murder trial of Michael Joseph Lindsay, who stabbed a man who made sexual advances toward him in 2011. Though the claim was ultimately unsuccessful, Lindsay was able to appeal his conviction multiple times through invoking the defence of provocation. Despite this, SA has still opted to allow the ‘gay panic’ defence to remain operational. It was only abolished in NSW in 2014, and Queensland in 2017.
That such a law could remain so broadly operational, while women still fight to claim self-defence in cases of truly violent and traumatic domestic abuse is disturbing. But what it indicates more broadly is perhaps not so shocking at all: that the law, like most other political and administrative institutions in Australia, prioritises a certain viewpoint: that of a white, straight man. This continues to happen regardless of the seemingly positive potential of discretion within the system, which as mentioned, has led to some positive judicial activism. Though this analysis is pretty depressing, what it indicates at its core is the degree to which our system (and legal systems broadly) are deeply structurally flawed. These are systems which are not built to serve (at least) fifty percent of the population, and find their roots in oppression. Without recognition of this, any seemingly ‘progressive’ discretionary policies cannot really affect much change/justice, as they are still embedded in the often homophobic/misogynistic/sexist logics which have allowed for their existence.
Image: Ben Rosett
Jemimah Tarasov has written for Overland, SMH, Stir, Bossy & others. She is a current editor of Overpass (https://overpassmag.com/) and a previous editor of Demos Journal. She is especially interested in queer issues, pop-culture and (of course) feminism. She wishes she could write like Chris Kraus, Helen Garner and Christos Tsiolkas.