Dear Readers,
My apologies for not posting sooner. I thought I should keep you updated with my current articles that are in the pipeline as I prepare for to start my Bar Professional Training Course. Given Mr Hunts recent comments on the competence and work ethic of doctors in the NHS I thought I would publish a couple of clinical negligence and medical law based articles. In the pipeline at the moment I have a couple of articles, one on the costs and procedure in clinical negligence cases and how the NHS could reduce these to save money and the second on the recent Facebook scandal relating to selling organs online and whether or not a commercial market for transplant organs would be legal or desirable. Thank you for your patience I hope you enjoy reading my new set of articles soon. Also thanks again for your containing endorsements and support. I love to hear from you on twitter and Facebook and it humbles me to know that so many of you are inspired to research, write and take an interest in law because of Legal Luminance.
Every kind wish,
KT
Sunday, 26 July 2015
Monday, 13 July 2015
'Chinese Dream': a corrupt sham?
Lawyers on the wrong side of the bars?
This week in China dozens of human rights lawyers have been detained as the government suspects that they have swayed court decisions, faked protested and disrupted public order. The lawyers targeted were mostly human rights lawyers who have worked on freedom of speech cases and judicial review. The Ministry of Public Security accused a group led by the Beijing-based Fengrui Law Firm, of illegally hiring protesters and swaying court decisions in the name of "defending justice and public interests". It also accused the lawyers of presenting a legitimate police shooting at a railway station as a murder conspiracy. These detentions are being seen as a consequence of China's national security law which critics say disproportionately protects the government's power.President Xi Jinping has been using his power to detain hundreds of thousands of officials in recent times and there has been a media push to discredit human rights lawyers by using their personal information to defame them.
The Chinese Dream Sham
All of this has happened in the midst of a 'Chinese Dream' to combat legal and official corruption and a campaign to uphold the image that China respects the rule of law. However as many of you will know the rule of law centres around the transparency of law and the ability of courts to review decisions with the help of barristers in order to ensure that public authorities are not abusing their power. What is happening in China however appears to be the exact opposite. This is made even more worrying by the fact that as Maya Wang, a researcher with Human Rights Watch, said the detention of activists and lawyers was not in response to “any kind of perceivable threat.”
The role of public opinion
William Nee, from Amnesty International, said Fengrui’s effectiveness in highlighting cases of injustice worried the government. “We’ve seen cases where public opinion seems to have been mobilised and I think they are worried because they don’t want to lose their grip on public opinion.” Protests outside courts by activists had unnerved the government, he added. This further suggests that these detentions are not lawful and are in fact a political move to prevent the public opinion from swaying towards the opinion of human rights lawyers in China that public authority corruption is rife and powers are being abused.
For more information see:
http://www.bbc.co.uk/news/world-asia-china-33502955
http://www.ft.com/cms/s/0/e39a987c-27d6-11e5-8db8-c033edba8a6e.html
http://www.theguardian.com/world/2015/jul/13/china-targets-lawyers-in-new-human-rights-crackdown
Sunday, 28 June 2015
Should healthy people have access to euthansia?
Abstract
This week has been an interesting week in medical law. It has been reported that courts in Belgium have allowed a healthy woman to access euthanasia because she has had ' suicidal thoughts since childhood' meanwhile in the Netherlands there has been a push to allow children under the age of 12 with terminal illnesses or illnesses that make life unbearable to access euthanasia. Back in the UK Lord Falconer's Bill is on its way through parliament and if it is passed into law it would allow people who have capacity, a terminal illness and less than 6 months to live to access euthanasia legally as long as they are domicile in the UK. These stories prompted me to look at whether or not euthanasia should ever be an option for a healthy person. For the sake of space I will assume that we are only considering adults over the age of 18 in situations where there is a genuine desire to die and no malice on the part of the physician. In this essay I am going to explore, firstly, the reasons why euthanasia has been legalised in some European countries and the main arguments for its legalisation. Secondly, why healthy people may choose euthanasia over suicide and whether this should be a lawful choice and finally whether it is consistent with the aims of medical law for the euthanasization of healthy people to be lawful.
Reasons why euthanaisa should be legal in some cases
Autonomy- one of the main reasons behind the push to legalise euthanasia in Europe has been the desire to respect people's right to die and not continue a life that they consider not worth living. In the case of healthy people this argument still holds strong. If what makes the England a modern and civil state is our desire to allow citizens to make their own choices for their own reasons then we should allow healthy people to have access to euthanasia simply because this is what they want. This would of course be subject to the conditions that the Doctor would not gain for the euthanasia and that the patient had a certain, capacitated and long held desire to die.
Non-discrimination- another argument that frequently features in the euthanasia debate is the need for people who physically cannot commit suicide due to paralysis or disability to have the same right to suicide as able bodied people. This is where we run into problems if we allow healthy people to have access to euthanasia,Suicide was made legal by the Suicide Act 1967 but assisted suicide and euthanasia remain illegal. If a healthy person wants to die then suicide is still an option for them, assuming that paralysis and disability take you out of the category of 'healthy persons'. Therefore it seems to go to far to say that not only should healthy people be allowed to kill themselves but they should also be allowed to ask a medical professional to help them. There is no discrimination in the case of a healthy adult who wants to die, they can commit suicide and the law cannot step in.
Prevention of harm- finally in most right to die cases the issue arises that the person wants to die and is currently in pain or mental distress to such an extent that doctors should help them die in order to prevent their suffering continuing. In the case of a healthy person seeking euthanasia this may be an issue because there may be no harm being prevented. It is of course arguable that the woman in Belgium, known only as 'Laura' was in such mental distress by her suicidal thoughts that allowing her to die prevented this suffering. However it is also clear that in many cases counselling, mental health treatments and other medical treatments may help to relieve this mental distress and so letting someone die would actually take away the chance of recovery rather than cure them.
Why would a healthy adult choose euthanasia?
I accept that I have limited space and knowledge in this area to really explain and analyse all the reasons why someone may want to be euthanized despite being physically able to commit suicide themselves. For now I shall look at 2 reasons. First, a fear that another suicide attempt may fail and second an inability to go through the process of suicide alone.
If a healthy adult wishes to die and wants a physician to help because they have attempted suicide before and failed then euthanasia may seem like the best option. The healthy person may believe that a doctor will be able to ensure that they are given drugs that will be sure to work and that death will be as peaceful and painless as possible. Whilst this seems rational and logical it misses out the fact that another person, the physician will be complicit in the euthanasia and so would have to consent to effectively killing a healthy person. In law consent is no defence to harm and so if the euthanasia of healthy people was legalised this really would be an extraordinary anomaly in English Law. It is possible that doctors would be given a right to conscientious objection which is fair and reasonable however my question would be what kind of doctor would agree to kill a healthy patient and go against all they have learnt at medical school about how the doctor's duty is to protect and care for their patients?
Secondly, if a healthy person wishes to access euthanasia because they feel they have not got the ability to go through the process alone then it should be asked whether they really do want to die. Part of the reason suicide is lawful is because the person themselves is ending their own life and right up until the last moment they can choose to remain alive. If doctors could assist a healthy person's suicide then the doctor will be taking the final steps of actually killing the patient and so the patient's autonomy in those last few seconds of life is surrendered to the Doctor. Therefore giving healthy people access to euthanasia is not protecting their autonomy as the law should.
Conclusion: would allowing healthy people to be euthanized be consistent with English medical law?
In short, no. Euthansia would not protect the healthy person's autonomy in the same way suicide does. The healthy person could not withdraw his consent once the lethal dose has been administered but he could choose not to jump from a bridge. This is why suicide is legal and euthanasia is not. English medical law has foundations in patient autonomy. Allowing healthy people to be euthanized also goes against the foundations of the medical profession as it effectively allows a doctor to end a patient's life and it offends the principle of the prevention of harm. Therefore overall I feel that the legalization of euthanasia for healthy people is unacceptable on medical and ethical grounds and although it is unlikely a judgement like the one in Belgium will ever happen in England judges should be slow to follow the Belgian model
This week has been an interesting week in medical law. It has been reported that courts in Belgium have allowed a healthy woman to access euthanasia because she has had ' suicidal thoughts since childhood' meanwhile in the Netherlands there has been a push to allow children under the age of 12 with terminal illnesses or illnesses that make life unbearable to access euthanasia. Back in the UK Lord Falconer's Bill is on its way through parliament and if it is passed into law it would allow people who have capacity, a terminal illness and less than 6 months to live to access euthanasia legally as long as they are domicile in the UK. These stories prompted me to look at whether or not euthanasia should ever be an option for a healthy person. For the sake of space I will assume that we are only considering adults over the age of 18 in situations where there is a genuine desire to die and no malice on the part of the physician. In this essay I am going to explore, firstly, the reasons why euthanasia has been legalised in some European countries and the main arguments for its legalisation. Secondly, why healthy people may choose euthanasia over suicide and whether this should be a lawful choice and finally whether it is consistent with the aims of medical law for the euthanasization of healthy people to be lawful.
Reasons why euthanaisa should be legal in some cases
Autonomy- one of the main reasons behind the push to legalise euthanasia in Europe has been the desire to respect people's right to die and not continue a life that they consider not worth living. In the case of healthy people this argument still holds strong. If what makes the England a modern and civil state is our desire to allow citizens to make their own choices for their own reasons then we should allow healthy people to have access to euthanasia simply because this is what they want. This would of course be subject to the conditions that the Doctor would not gain for the euthanasia and that the patient had a certain, capacitated and long held desire to die.
Non-discrimination- another argument that frequently features in the euthanasia debate is the need for people who physically cannot commit suicide due to paralysis or disability to have the same right to suicide as able bodied people. This is where we run into problems if we allow healthy people to have access to euthanasia,Suicide was made legal by the Suicide Act 1967 but assisted suicide and euthanasia remain illegal. If a healthy person wants to die then suicide is still an option for them, assuming that paralysis and disability take you out of the category of 'healthy persons'. Therefore it seems to go to far to say that not only should healthy people be allowed to kill themselves but they should also be allowed to ask a medical professional to help them. There is no discrimination in the case of a healthy adult who wants to die, they can commit suicide and the law cannot step in.
Prevention of harm- finally in most right to die cases the issue arises that the person wants to die and is currently in pain or mental distress to such an extent that doctors should help them die in order to prevent their suffering continuing. In the case of a healthy person seeking euthanasia this may be an issue because there may be no harm being prevented. It is of course arguable that the woman in Belgium, known only as 'Laura' was in such mental distress by her suicidal thoughts that allowing her to die prevented this suffering. However it is also clear that in many cases counselling, mental health treatments and other medical treatments may help to relieve this mental distress and so letting someone die would actually take away the chance of recovery rather than cure them.
Why would a healthy adult choose euthanasia?
I accept that I have limited space and knowledge in this area to really explain and analyse all the reasons why someone may want to be euthanized despite being physically able to commit suicide themselves. For now I shall look at 2 reasons. First, a fear that another suicide attempt may fail and second an inability to go through the process of suicide alone.
If a healthy adult wishes to die and wants a physician to help because they have attempted suicide before and failed then euthanasia may seem like the best option. The healthy person may believe that a doctor will be able to ensure that they are given drugs that will be sure to work and that death will be as peaceful and painless as possible. Whilst this seems rational and logical it misses out the fact that another person, the physician will be complicit in the euthanasia and so would have to consent to effectively killing a healthy person. In law consent is no defence to harm and so if the euthanasia of healthy people was legalised this really would be an extraordinary anomaly in English Law. It is possible that doctors would be given a right to conscientious objection which is fair and reasonable however my question would be what kind of doctor would agree to kill a healthy patient and go against all they have learnt at medical school about how the doctor's duty is to protect and care for their patients?
Secondly, if a healthy person wishes to access euthanasia because they feel they have not got the ability to go through the process alone then it should be asked whether they really do want to die. Part of the reason suicide is lawful is because the person themselves is ending their own life and right up until the last moment they can choose to remain alive. If doctors could assist a healthy person's suicide then the doctor will be taking the final steps of actually killing the patient and so the patient's autonomy in those last few seconds of life is surrendered to the Doctor. Therefore giving healthy people access to euthanasia is not protecting their autonomy as the law should.
Conclusion: would allowing healthy people to be euthanized be consistent with English medical law?
In short, no. Euthansia would not protect the healthy person's autonomy in the same way suicide does. The healthy person could not withdraw his consent once the lethal dose has been administered but he could choose not to jump from a bridge. This is why suicide is legal and euthanasia is not. English medical law has foundations in patient autonomy. Allowing healthy people to be euthanized also goes against the foundations of the medical profession as it effectively allows a doctor to end a patient's life and it offends the principle of the prevention of harm. Therefore overall I feel that the legalization of euthanasia for healthy people is unacceptable on medical and ethical grounds and although it is unlikely a judgement like the one in Belgium will ever happen in England judges should be slow to follow the Belgian model
Results Day
Dear Readers,
Thank you so much for to all of you who wished me luck on the 23rd. I am delighted to announce that I will be graduating from Queen Mary University of London with a first class honours for my Law LLB. Once again I was humbled by your support and honest critique of my work. Thank you to everyone at The Lawyer for helping me boost the publications section of my CV. The clerks at OTC, 1 GC and Staple Inn for their guidance and help with getting experience of the best cases. Finally thank you to all the students who read this blog and told me how much it has helped them. I really appreciate your loyalty and patience and I cannot wait to continue writing at Bar School and Pupillage.
Every kind wish,
KT
Thank you so much for to all of you who wished me luck on the 23rd. I am delighted to announce that I will be graduating from Queen Mary University of London with a first class honours for my Law LLB. Once again I was humbled by your support and honest critique of my work. Thank you to everyone at The Lawyer for helping me boost the publications section of my CV. The clerks at OTC, 1 GC and Staple Inn for their guidance and help with getting experience of the best cases. Finally thank you to all the students who read this blog and told me how much it has helped them. I really appreciate your loyalty and patience and I cannot wait to continue writing at Bar School and Pupillage.
Every kind wish,
KT
Monday, 1 June 2015
Lincoln's Inn BPTC major scholarship award interviews
Dear Readers,
As promised I am here to offer a concise run down and top 5 tips for the dreaded Lincoln's Inn interview.
A brief outline of the process post offer of interview
Firstly, huge congratulations on getting this far. If you have been offered a scholarship interview at any Inn but especially Lincoln's you are already part of an elite set of prospective barristers who a star studded set of benchers have deemed worthy of investigation. This may seem very wishy washy but maintaining this perspective will give you the boost and reassurance you need to get through what is an enjoyable but daunting interview. In short, the interview will involve a panel of 3 members (usually a bencher who will be a QC or judge, and 2 barristers) in my case I was confronted with 2 judges and a QC who whilst intimidating where absolutely awe-inspiring. Next they will proceed to ask you questions about the area of law you wish to specialize in, tear apart your application form and press you for your financial capability to fund or not fund BPTC.
Key aspects of the interview
Firstly, your specialism. I would recommend knowing which area you said you were looking to go into on your application form and not being afraid to say if this opinion has changed or been narrowed since. They want to see that you have drive and knowledge of where your career is heading not that you never change your mind. For me, this involved explaining that whilst my application form was tailored towards the Family Bar what I actually wanted to work in specifically was child protection law, court of protection cases involving children and child public law. I had spent an excessive amount of time researching and working in these areas however I think what matters is that you know your area well and are willing to research not that you can answer a quiz on the area of your choice. Also do not be afraid to mention more than one area for example I mentioned my first class results in Public and administrative law and my desire to mix this with work with the incapacitated and children. However, if your plans are not quite so easy to explain then do not worry just ensure that you know what your area involves and that you can justify what it is that inspires you about your area of the Bar.
Secondly, you must know your specialist area in some depth. For example know the big recent cases, supreme court decisions and any new bills in this area that are currently in parliament. Also know why you will excel in this area and what you can bring to advocacy in your area of the Bar. For example if you are interested in Commercial Law a keen eye for analysis and stats will help, be good with numbers and be able to tackle legal and economic jargon with ease. Push your ability to make complex legal arguments and deal with rich, demanding and often troublesome clients. However if you want to work in Family Law realize that you need to be far more empathetic, down to earth and able to simplify the law and legal arguments for what are sometimes very volatile and vulnerable clients.
Thirdly, know your application form inside out. Work out which words you used just to fill space or sound sophisticated and work out how you are going to justify yourself. For example, if you said a lecture on X by Y was very inspiring be ready to explain X in detail and why Y was particularly talented. What did X inspire you to do and why did Y help you realize this aspiration?
Finally, although you do not have to know how you will fund the BPTC to the £ make sure you accurately portray how much you, yourself have at your disposal to invest in your dreams. Do not be afraid to say that you will need to borrow or beg or that you will work for a year (or a decade) to fund your BPTC course. What matters is that you show willingness to study and succeed even if you do not get any extra funding.
5 Top Tips
I would like to end this post with a disclaimer... these tips are not idiot proof and will not guarantee you a scholarship. They will however help you to present your best points in the best way you can. The rest however is for fate to decide (and a room full of judges, QCs and admin staff)
1. Do not act like you are on the Apprentice- This is not a competition, it is a pitch. Do not worry about that guy in the corner with 20 years experience running his own business and his £2000 suit. Worry about you and ensuring that you shine. You do not have to be the most experienced, the smartest or the oldest you just have to hold yourself well and believe in your ambitions
2. Laugh- no, not like a maniac. Just do not be afraid to relax. Remember that the panel sat in front of you have been your side of the desk. They know that there are people with a first class Law LLB from Oxford in the waiting room but they also know that you have something unique to bring to the Bar. They are human and they are compassionate, if you make them feel like that they will make sure you know that BPTC is closer than you think.
3. Stay calm- remain focused and show off those well refined reasoning skills and the award winning personality that got you this far.
4. Maintain your perspective- realize that it is incredibly hard to get this scholarship and that many award winning QCs and judges did not make the cut when they applied. This is not the be all and end all this is one step on your journey to creating arguably the best career there is. If you fail get back up and keep moving forward (see Rocky for further details)
5. Invest- look smart but also act smart. It is okay to spend your student loan on the perfect suit but that will not pay £18,500 for your BPTC year. What might is investing emotionally in what you do in the interview room. Do not think about what someone else would do. Articulate what this means to you and why you are worthy of a scholarship.
Thank you for taking the time to read this post. I hope this was helpful for all of you who asked me to assist with your interview and BPTC preparation. Please remain aware that you will achieve your ambitions with hard work and if it does not happen at this interview it will at one in future. Most importantly, good luck and see you all at the Bar.
Every kind wish,
KT
As promised I am here to offer a concise run down and top 5 tips for the dreaded Lincoln's Inn interview.
A brief outline of the process post offer of interview
Firstly, huge congratulations on getting this far. If you have been offered a scholarship interview at any Inn but especially Lincoln's you are already part of an elite set of prospective barristers who a star studded set of benchers have deemed worthy of investigation. This may seem very wishy washy but maintaining this perspective will give you the boost and reassurance you need to get through what is an enjoyable but daunting interview. In short, the interview will involve a panel of 3 members (usually a bencher who will be a QC or judge, and 2 barristers) in my case I was confronted with 2 judges and a QC who whilst intimidating where absolutely awe-inspiring. Next they will proceed to ask you questions about the area of law you wish to specialize in, tear apart your application form and press you for your financial capability to fund or not fund BPTC.
Key aspects of the interview
Firstly, your specialism. I would recommend knowing which area you said you were looking to go into on your application form and not being afraid to say if this opinion has changed or been narrowed since. They want to see that you have drive and knowledge of where your career is heading not that you never change your mind. For me, this involved explaining that whilst my application form was tailored towards the Family Bar what I actually wanted to work in specifically was child protection law, court of protection cases involving children and child public law. I had spent an excessive amount of time researching and working in these areas however I think what matters is that you know your area well and are willing to research not that you can answer a quiz on the area of your choice. Also do not be afraid to mention more than one area for example I mentioned my first class results in Public and administrative law and my desire to mix this with work with the incapacitated and children. However, if your plans are not quite so easy to explain then do not worry just ensure that you know what your area involves and that you can justify what it is that inspires you about your area of the Bar.
Secondly, you must know your specialist area in some depth. For example know the big recent cases, supreme court decisions and any new bills in this area that are currently in parliament. Also know why you will excel in this area and what you can bring to advocacy in your area of the Bar. For example if you are interested in Commercial Law a keen eye for analysis and stats will help, be good with numbers and be able to tackle legal and economic jargon with ease. Push your ability to make complex legal arguments and deal with rich, demanding and often troublesome clients. However if you want to work in Family Law realize that you need to be far more empathetic, down to earth and able to simplify the law and legal arguments for what are sometimes very volatile and vulnerable clients.
Thirdly, know your application form inside out. Work out which words you used just to fill space or sound sophisticated and work out how you are going to justify yourself. For example, if you said a lecture on X by Y was very inspiring be ready to explain X in detail and why Y was particularly talented. What did X inspire you to do and why did Y help you realize this aspiration?
Finally, although you do not have to know how you will fund the BPTC to the £ make sure you accurately portray how much you, yourself have at your disposal to invest in your dreams. Do not be afraid to say that you will need to borrow or beg or that you will work for a year (or a decade) to fund your BPTC course. What matters is that you show willingness to study and succeed even if you do not get any extra funding.
5 Top Tips
I would like to end this post with a disclaimer... these tips are not idiot proof and will not guarantee you a scholarship. They will however help you to present your best points in the best way you can. The rest however is for fate to decide (and a room full of judges, QCs and admin staff)
1. Do not act like you are on the Apprentice- This is not a competition, it is a pitch. Do not worry about that guy in the corner with 20 years experience running his own business and his £2000 suit. Worry about you and ensuring that you shine. You do not have to be the most experienced, the smartest or the oldest you just have to hold yourself well and believe in your ambitions
2. Laugh- no, not like a maniac. Just do not be afraid to relax. Remember that the panel sat in front of you have been your side of the desk. They know that there are people with a first class Law LLB from Oxford in the waiting room but they also know that you have something unique to bring to the Bar. They are human and they are compassionate, if you make them feel like that they will make sure you know that BPTC is closer than you think.
3. Stay calm- remain focused and show off those well refined reasoning skills and the award winning personality that got you this far.
4. Maintain your perspective- realize that it is incredibly hard to get this scholarship and that many award winning QCs and judges did not make the cut when they applied. This is not the be all and end all this is one step on your journey to creating arguably the best career there is. If you fail get back up and keep moving forward (see Rocky for further details)
5. Invest- look smart but also act smart. It is okay to spend your student loan on the perfect suit but that will not pay £18,500 for your BPTC year. What might is investing emotionally in what you do in the interview room. Do not think about what someone else would do. Articulate what this means to you and why you are worthy of a scholarship.
Thank you for taking the time to read this post. I hope this was helpful for all of you who asked me to assist with your interview and BPTC preparation. Please remain aware that you will achieve your ambitions with hard work and if it does not happen at this interview it will at one in future. Most importantly, good luck and see you all at the Bar.
Every kind wish,
KT
Law LLB is over
Dear All,
Thank you for all your kind wishes these past few months. As most of you know I finished my Law LLB at QMUL last week which is why I haven't posted since March! I thought after some much needed sleep now was a good time to update you with my progress and plans for Legal Luminance. As some of you already know back in April I was lucky enough to receive a Lord Denning scholarship from Lincoln's Inn which means my BPTC year is being funded for me. Of course this is amazing news not just for me but it also means you lucky people on here will get a first hand insight into life at BPP Bar school and with any luck life at the Bar of England and Wales. I want to take this opportunity to thank each and every one of you who helped me prepare for my interview, offered me publication deals and opportunities and generally just sent kind words of encouragement. I will be posting a realistic and hopefully winning formula for tackling the Lincoln's Inn scholarship interviews in due course which I know many of you requested. I will also be posting shortly about my route to BPTC and general tips for gaining a place at one of London's immensely competitive but fabulous Bar schools. Finally at some point in the near future I will be aiming to publish my paper on Human Rights reform and why Mr Cameron has scrapped it from this year's Queen's speech to parliament and hopefully I may even have time to throw some light on my Bar ambitions and the areas I have worked and wish to work in next year.
Thank you so much for your time and patience.
Every kind wish,
KT
Thank you for all your kind wishes these past few months. As most of you know I finished my Law LLB at QMUL last week which is why I haven't posted since March! I thought after some much needed sleep now was a good time to update you with my progress and plans for Legal Luminance. As some of you already know back in April I was lucky enough to receive a Lord Denning scholarship from Lincoln's Inn which means my BPTC year is being funded for me. Of course this is amazing news not just for me but it also means you lucky people on here will get a first hand insight into life at BPP Bar school and with any luck life at the Bar of England and Wales. I want to take this opportunity to thank each and every one of you who helped me prepare for my interview, offered me publication deals and opportunities and generally just sent kind words of encouragement. I will be posting a realistic and hopefully winning formula for tackling the Lincoln's Inn scholarship interviews in due course which I know many of you requested. I will also be posting shortly about my route to BPTC and general tips for gaining a place at one of London's immensely competitive but fabulous Bar schools. Finally at some point in the near future I will be aiming to publish my paper on Human Rights reform and why Mr Cameron has scrapped it from this year's Queen's speech to parliament and hopefully I may even have time to throw some light on my Bar ambitions and the areas I have worked and wish to work in next year.
Thank you so much for your time and patience.
Every kind wish,
KT
Thursday, 19 March 2015
A celebration of Catherine MacKinnon- does the law really see and treat women and men see and treat women?
Dear Readers,
My apologies for such a long delay since my last post I have been snowed under with Inn scholarship application forms, interviews, BPTC applications and offers and of course revision for my finals! I have been working on a short article inspired by Catherine MacKinnon a personal heroine of mine and an incredible feminist legal scholar. My apologies that it was not ready for publication in time for International Women's Day but I would like to thank Dr Ksenia Bakina (jurisprudence tutor), Richard Simmons (editor at The Lawyer) and Alex Thirlwell (my long suffering partner and dear friend). I stress any mistakes are completely my own.
A celebration of Catherine MacKinnon- does the law really see and treat women and men see and treat women?
MacKinnon[1] argues
that the liberal state created a legal system that reinforces a social order in
favour of the male interest, in this way law sees and treats women the way men
see and treat women. MacKinnon’s aim is to use radical feminism to ‘uncover and
claim as valid the experience of women, the majority content of which is the
devalidation of women’s experience’.
MacKinnon believes that legal objectivity is actually male objectivity therefore
women’s experiences are not accurately portrayed in law and that gender
hierarchy in liberal states oppress women and devalue their experiences. I will
focus on rape, domestic violence and foetal protection laws in light of
MacKinnon’s statement and analyse them to see what they say about how men see
and treat women and if there is any correlation between how the law sees and
treats women. I will conclude that the law sees and treats women as objects
that need protection from their own irrational actions in much the same way as
some men see and treat women as their property or weak beings that need protect
from the harsh realities of the rational, male, public sphere.
Rape: the objectification of women
Mackinnon argues that rape is
an example of men using the gender hierarchy to abuse women[2].
The law defines rape as the intentional penetration of the vagina, anus or
mouth of another person with a penis[3].
This focus on penetration, MacKinnon argues, shows how the law protects the
interests of the male offender because men see sex as a primarily physical act
whereas for women sex is more of emotional and intimate act. MacKinnon believes
that rape, in law, is defined by the loss of access by the woman’s partner to
the female victim, not based on how the victim feels about the violation of her
sexuality. MacKinnon argues that rape is treated as a crime against female
monogamy and not against female sexuality. Using penetration as the benchmark
for rape leaves many female victims who have been sexually violated without
justice and also shows the juxtaposition between the way women see rape and the
way the law, and men, see rape. Women see the rape in sexual intercourse; the
law sees the sexual intercourse in rape. This goes to show how the law sees
women as objects that can be used by men and the fact that rapes happen show
that some men see their access to women’s bodies as a right.
MacKinnon[4]
argues that basing consent on the male
defendant’s ‘ reasonable belief’ shows how law sees and treats women as men see
and treat women. The law sees force just above normal male sexual behaviour as
acceptable. It is not about the victim’s experience it is about punishing
rapists where their actions look like rape and not sex. This leaves many women
who have been emotionally or financially forced into sex without justice because
the force is not physical so the man can maintain reasonable belief in consent
and so escape punishment.
Munro[5]
argues that MacKinnon sees female victims as weak and this just serves to
reinforce the gender hierarchy. I disagree;
MacKinnon is trying to demonstrate that the female perspective of rape is not
acknowledged at law. This explains why rape report rates are so low.[6] Victims
doubt that they will be believed and so they do not report that they have been
raped. Women are taught from society that they should submit to men and that
men are there to protect them, unfortunately some men abuse this power and
therefore women are doomed to remain the sex objects of men as result.
Domestic Violence: Women as irrational and weak
Munro[7] argues
that because domestic violence cases can be bought to court without the female
victim’s consent the law on domestic violence does not protect women. I agree,
by prosecuting a female victim’s male partner without the victim’s consent the
law is treating women as if they cannot make a rational choice about whether or
not to bring a claim. Whilst it is true that many women do not bring their
partners to court because they have been emotionally manipulated to believe
that the attacks are their fault; it is also true that many male perpetrators
of domestic violence reoffend after they are released from prison.[8] The
law’s view that male domestic violence offenders can be prosecuted without the
victim’s consent is not only patronizing to women but also puts them in danger.
Naffine[9] says that domestic violence is an example of
when the law chooses to infringe on the private lives of citizens. The term
‘domestic’ has traditionally been associated with the safe haven of women where
they can raise children. ‘Domestic’ added to ‘violence’ is an odd juxtaposition
that shows that women are no longer safe in the home; in fact they are in
danger even at the hands of their own partners. For me, this is why the link
between domestic violence and the treatment of women as irrational is so tragic.
The nature of domestic violence ruins the safety of the home and the stability
of the family. The fact that domestic violence is a relatively new crime proves
that the law does not see women as rational claimants who bring serious claims
and deserve equal protection to men who are victims of violent crimes in
public.
Munro[10]
argues that the victim focused agenda has led to a broadening of the powers of regulatory
quasi-state therapeutic institutions which are claiming to protect women yet
still do not consider their views as to whether their partner should be tried
for domestic violence. Whilst this increase in power is beneficial because
domestic violence is being treated more seriously, it does not stop the law
from seeing women as weak, irrational beings who cannot judge for themselves
whether or not to bring a claim. For me, this view of women could lead some men to
believe that they can get away with domestic violence in and it is in this
sense that the law sees and treats women as men see and treat women.
Laws on foetal protection: Women as fragile carers
Sheldon[11]
argues that law sees and treats women as if they are ‘leaky, volatile and
penetrable’ whereas men are seen as ‘strong, impenetrable and stable’. This divide
means that women are seen as a greater risk to foetuses than men. Men ejaculate
and then are physically separate from the foetus whereas women are physically
connected to the foetus and so are deemed to me more of a risk to it that it’s
father.
This is especially evident in
employer’s foetal protection policies which stop pregnant women, or women of reproductive
age, working with dangerous chemicals that could damage the foetus. Women are
treated as weak and in need of protection. Whilst it is right that foetus’
should be protected from chemical toxins, Sheldon argues that the law ignores
the fact that men are at risk from these toxins too and they may go home and
see their pregnant wives, girlfriends and sisters and the toxins on their work
clothes may infect the pregnant women and harm the foetuses anyway. Sheldon
calls for more equality in protective employment policies to ensure that women
are not seen as the only source of danger to the foetus. In Page v Freight Hire[12],
a 23 year old woman was dismissed from her job as a tanker transporting the
harmful toxin DMF because she was of reproductive age and so it was deemed that
exposure to DMF could harm her reproductive abilities. This is an example of
how the law sees and treats women as men see and treat women, fragile beings in
need of protection. Ms Page was not pregnant and had said that she did not want
any more children however she was still dismissed because the company had no
alternative work for her and the court thought that she may change her mind and
decide she wanted more children in future. The court labelled Ms Page fragile
and penetrable because she could be infected by the toxins but also immature as
she was not trusted to make her own reproductive choices. In short, employer’s
policies on foetal protection treat women as fragile and in need of protection whereas
they treat men as stable, strong and somehow less vulnerable to toxins.
Sheldon then goes on to
consider the Congenital disabilities (civil liability) Act 1976[13]
whereby a child cannot sue their mother for negligence during pregnancy unless
they were negligently driving. For Sheldon, this shows how women are seen as
the fragile carers because not being allowed to sue your mother maintains the
child/mother bond and in the law’s eyes the mother is the primary carer of the
child. Conversely, men can be sued but usually have to pay damages which shows
how they are seen as the breadwinners and the child’s economic but not
emotional support. This situation feeds into MacKinnon’s [14]theory
on patriarchy and the subordination of women because men see women as mothers
and wives who need to be protected from the ‘real world’ and men are seen as
strong breadwinners who protect their families.
I agree with Sheldon, however I would add that part of the reason men
are not seen as being an equal risk to foetuses is because scientific evidence
of the effect of drugs, alcohol and toxins on sperm and the male reproductive
system is only just starting to be produced and so the law needs time to codify
these scientific findings. However, as Daniels[15]
says, it is true that women are seen as irrational and likely to take drugs or
put their foetus at risk and so are protected and persecuted by the law whereas
men are seen as invulnerable and capable of withstanding the damage that
toxins, drugs and alcohol can do to the body.
Conclusion
To conclude, I agree with
MacKinnon’s statement that the law sees and treats women as men see and treat
women for three reasons. Firstly, rape law treats women as the sex objects of
men to whom men can have access as long as the rape looks like sexual
intercourse. This is why female rape victims doubt that they will be believed
and subsequently why rape conviction rates are so low and unfortunately one of
the reasons why rapes happen, because men feel like the law will let them go
unpunished. Secondly, law on domestic violence treats women as weak, irrational
beings who cannot judge for themselves whether or not to bring a claim. This
reinforces their abusers perception they are able to be abused and is unlikely
to be brave enough to call the police. Thirdly,
foetal protection laws, support MacKinnon’s theory on patriarchy and the
subordination of women because both the law and men see women as mothers and
wives who need to be protected from the ‘real world’ and men are seen as strong
breadwinners who protect their families.
[1] Catharine
A. MacKinnon [1983], ‘Feminism, Marxism, Method and the State: Towards Feminism
in Culture’ 8 signs Journal of women in culture and society 644-45
[2] Catharine
A. MacKinnon, ‘Sex and Violence: A Perspective’, in Feminism Unmodified:
Discourses on Life and Law (Harvard University Press, 1987), 85-92
[3] Sexual Offences Act 2003 s1
[4] Catharine
A. MacKinnon, ‘Sex and Violence: A Perspective’, in Feminism Unmodified:
Discourses on Life and Law (Harvard University Press, 1987), 85-92
[5] Vanessa
E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in
Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to
Feminist Legal Theory (Ashgate, 2013), 233-248
[6] Ministry
of Justice, Home Office & the Office
for National Statistics ‘An Overview of Sexual Offending in
England and Wales’ [2013] p 16
[7] Vanessa
E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in
Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to
Feminist Legal Theory (Ashgate, 2013), 243-244
[9]
Naffine [2002] ‘ In praise of legal feminism’ 22 Legal studies 73-76
[10] Vanessa
E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in
Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to
Feminist Legal Theory (Ashgate, 2013), 243-244
[11] Sally
Sheldon, ‘ReConceiving Masculinity: Imagining Men’s Reproductive Bodies in Law’
(1999) 26 Journal of Law and Society 129-149
[12] Page
v Freight Hire (Tank Haulage) Ltd [1981] IRLR 13 EAT
[13]
Congenital Disabilities (Civil Liability) Act 1976
[14] Catharine
A. MacKinnon [1983], ‘Feminism, Marxism, Method and the State: Towards Feminism
in Culture’ 8 signs Journal of women in culture and society 644-45
[15] Cynthia
Daniels, ‘Between Fathers and Fetuses: The Social Construction of Male
Reproduction and the Politics of Fetal Harm’ in (1997) 22 Signs 579–616
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