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Editors --- "'Sit down Girlie': Legal issues from a feminist perspective" [2000] AltLawJl 49; (2000) 25(3) Alternative Law Journal 138

Legal issues from a feminist perspective

Not that close, soldier!

People take exception to the most peculiar things. Since the proposal of an anti-genocide bill by Democrats Senator Brian Greig, the submissions have been flowing in to the Senate inquiry. The bill proposes, amongst other things, to extend the definition of genocide to include attacks based on gender, sexuality, disability and political affiliation.

Always good for a chortle, the RSL has taken exception to this, and lodged a very special submission of its own. The submission objects to the contention that gay men and lesbians would suffer more discrimination or more violence than other groups in society, saying that there was no 'objective proof' to support this theory. The objective proof that the RSL submission produced to support their position stated that '90 per cent of male homosexuals find contact with human faeces pleasurable' and that 25 per cent of gay men have had 1000 or more sexual partners. Girlie is not entirely sure what this has to do with anything much, apart from being shortlisted for the 'Who's Got a Nasty Big Right Wing Lie Then' com­ petition, but the RSL reckons it's a sure­ fire winner to prove that gay men and lesbians don't need the law's protection.

All this despite figures released by the Victorian EOC which illustrate that discrimination, or at least the reporting of it, against gay men and lesbians is on the rise. EOC CEO (confusing, huh?) Dr Di Sisely has revealed that com­ plaints to the Commission regarding 'lawful sexual activity' are up 30% this financial year and that research indicates that these complaints are only the tip of the discrimination iceberg, as most Girlies would know. Nevertheless, the RSL claims that the anti-genocide bill is a 'thinly veiled at­ tempt to promote the cause of militant homosexuality'.

Must be all those metal plates!

Which Part of No......?

Girlie just doesn't get it. She had al­ ways reckoned that, if a woman does not want to have sex at a particular point in time and somebody else makes her, then that woman has been raped. Girlie had also thought that what that woman had said or done on a previous occasion or even leading up to the assault was not really relevant to what she may or may not want at the time of the assault.

Not so, said the High Court in the 5-0 decision of Bull v The Queen; King v The Queen; Marotta v The

Queen [2000) HCA 24, holding that evidence of previous conversations between the complainant and one of the defendants was unlawfully ruled inadmissible and that the convictions should be quashed and new trials ordered.

A Western Australian Court of Criminal Appeal had excluded this evidence pursuant to the Evidence Act 1906 (WA), which prohibits evidence as to the complainant's 'disposition in sexual matters' (s.36BA) (oh what a minefield this phrase is), the complainant's sexual reputation (s.36B) and the sexual experiences of the complainant (s.36BC), although the latter provision is qualified by an exception if the evidence goes to the res gestae. The brass tacks of the High Court decision was that the conversation should have been admitted, not as evidence as to the complainant's sexual disposition or experience, but as evidence of the complainant's state of mind (per McHugh, Gummow and Hayne JJ). Gleeson CJ considered that the tendency of the evidence to reveal the complainant's disposition was

'merely incidental' and that it should not be excluded as 'its substantive probative significance [is] related to some other matter'.

One of the accused alleged that the woman had expressed a liking for various slightly sado-masochistic sexual practices, and indicated that she fantasised about, amongst other things, having sex with more than one man at a time. The same accused alleged that, on the night of the assault, he had invited the complainant to his house and that he suggested they might 'act out one of her fantasies'. Although the complainant stated that she went to the accused's house to smoke dope, drink vodka and play cards, McHugh, Gummow and Hayne JJ considered that, if accepted, the conversation directly prior to her visit 'placed an entirely different complexion on the events of the evening. It might be thought to show that the complainant went to Bull's house for the express purpose of having sexual intercourse with him'.

Obviously, the complexities of the evidential considerations before the Court were extremely involved. However, Girlie is at a loss to understand why this conversation should give any indication that the complainant had consented to, as she alleged, being handcuffed and penetrated in various orifices by three men, as well as a toothpaste tube and tomato sauce bottle. Of course, in the complex legal reasoning of the court, the details of the assault were omitted and Girlie had to go to the Court of Appeal decision to find out what had actually happened to this woman.

While this detachment is customary in an appellate jurisdiction, the omis­sion of these details belies the unreality of, and hides the assumptions behind, drawing inferences from the complain­ ant's 'state of mind' from conversations such as the one alleged. Further, dare Girlie suggest the bleeding obvious that, even if the complainant had said 'I intend to come to your house so that you and two friends can handcuff me and penetrate me with various household items' it did not mean that she consented to it at the time.

Until this rather fundamental dis­ tinction is understood, Girlie fears that courts will continue to evade the very clear legislative intent behind provi­ sions such as those in the WA Act. This decision indicates that, try as it might, the law still fails to recognise fully the complicated concept that a woman's behaviour and prior sexual experience do not override her denial of consent. Girlie wonders how many times we will have to explain the apparently tricky concept that 'no', at the time, means 'no'...

Contrite magistrates

A brief pause for applause for the magistrates of Melbourne Magistrates' Court who, on 7 June held a special ceremony to apologise to the indigenous people of Victoria, to voice their sup­ port for reconciliation, and to acknowledge that on occasions the Court may have discriminated against them. The ceremony was well attended by both the legal profession and the media. Maybe if other judicial institutions follow suit, Johnny will feel left out and suddenly become overwhelmed with contrition, but then Girlie has been told that faux optimism is the first sign of madness...

News from Overseas

• Well, you can't say that Cherie didn't put up a good fight. Just a week before she gave birth to Britain's new coverboy, Leo, she was arguing before a British court on be­ half of the Trades Union Congress that the Blair Government's refusal to make its legislation on parental leave retrospective was unlawful. While Tony said that he wasn't going to take the full parental leave available to him, since Leo's birth he has in fact gone into 'holiday mode' and is hanging out at home a bit. He hasn't conceded the point of course...just forgot to go to work...

• Beware whom you choose as a god­ mother to your child, lest they be the devil or, even worse, a feminist. Catholic priests on the outskirts of Mexico City have declined to baptise the child of a 14 year old rape victim because a feminist abortion advocate was chosen as the child's godmother.

• The Israeli Parliament has passed a law allowing Jewish women to pray at the Wailing Wall for the first time. Consequently groups of dedicated women have prayed at the wall, only to be abused by men from the side­ lines. Some of these men shouted 'Lesbian!', that universal and terribly useful term that is hurled at women when men are caught on the run. Of course, if these women are also FEMINISTS, then we'd better all start praying...

Girlie rather fervently hopes that Australian current affairs is not heading the way of a popular pro­ gram in Russia, in which reporters conduct interviews and present stories in a progressive state of undress. Naked Truth started life as a one-off joke and has instead become a cult hit, with Russian politicians lining up to be interviewed by the blonde and rather exposed newsreader, Svetlana Pesotskaya. Pesotskaya insists that the program is a serious news show and that the goal is to stand out. Girlie is aware that looks mean everything in today's image conscious media, but is not so sure that this is a positive step towards women being taken seriously in the industry. Girlie reckons our female journalists don't need to get-em-off to get our attention, as attractive as Jana and Jennifer Byrne are, and she is certain that Mike Munro in the buff does not good television make.

Char Syatitsjana

Char is a Feminist Lawyer

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