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Book Review: 'Eve Was Shamed' by Helen Kennedy QC

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About The Author

Malvika Jaganmohan (Regular Writer)

Malvika is a pupil at Coram Chambers with a particular interest in family law and access to justice. Outside the law, Malvika can usually be found with her nose in a book (with a soft spot for romantic novels and detective fiction) or trying her hand at various creative hobbies with little success. 

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Helena Kennedy QC’s Eve Was Shamed: How British Justice is Failing Women, a follow up to her 1992 work Eve Was Framed: Women and British Justice, is an ambitious, sprawling and frighteningly current analysis of just how little things have changed for women within the criminal justice system in the last 25 odd years. 

Eve Was Shamed addresses a plethora of issues which weren’t anywhere near the legal imagination back in 1992: the impact of Brexit on protections afforded to victims of sex trafficking; the rise of the internet and the spread of revenge porn; and the lack of workplace protections for women within the gig economy.

Perhaps what’s most uncomfortable about the book is that much of the content is at the forefront of the public’s consciousness. Kennedy’s analysis of the infallibility of Donald Trump in the face of innumerable sexual harassment and assault allegations, and her commentary on the #metoo movement strike a chord. At the time the book was written, the allegations against Brett Kavanaugh had not yet surfaced. In a troubling passage foreshadowing Dr Christine Blasey Ford’s testimony before the Senate Judiciary Committee, Kennedy references the Clarence Thomas and Anita Hill scandal and asks: 

Why would a young black woman lawyer make such a claim against another African American and be able to describe in such detail the indignities to which he subjected her?

Kennedy doesn’t just write about horrific - but ultimately distant - tales of women subjected to violence in one-off episodes of horror. She writes about the building blocks of a patriarchal system which subjects all women to this violence every day to differing degrees. Kennedy comments that: 

[w]e can monsterise individual men like Savile, Weinstein and Worboys, but the hard work is the more difficult task of changing attitudes and cultures and of building an equitable system for men and women both.

Kennedy asks the reader to take a step back: to consider the underlying social conditioning which expects women to behave in a certain way, and then punishes them severely when they stray from those norms. Take Sally Clark, the successful solicitor accused of murdering her two children. Women accused of murdering children are seen as particularly deviant because the crime flies in the face of normative ideas of women as nurturers, carers, mothers. Clark’s conviction was overturned on appeal. Four years later, having never recovered from being accused of killing her sons, Clark was found dead in her home. The coroner ruled that she died accidentally from acute alcohol intoxication.

This is why Kennedy’s writing is so powerful. She looks at the bigger picture. She looks at the underlying causes of the appalling outcomes for women within the criminal justice system. There is no quick fix, no expedient law reform that can be pushed through to deal with problems that are deep-rooted and endemic.

As a senior member of the Bar, Kennedy doesn’t shield her own profession from scrutiny, commenting frostily that:

[the] smell of the gentleman’s club permeates every crevice of the Inns of Court.

The Bar is often seen as quaint, anachronistic and about 50 years behind other professions when it comes to structural discrimination and the imbalance of power between men and women. Kennedy’s language is forceful and unapologetic. She gives a voice to those within the profession for whom institutional power is a barrier to coming forward. As much as lawyers would like to say that things have moved on, in many respects, they are depressingly the same. The difference is that explicit sexism and other institutional prejudice is now concealed. It’s couched in language that is much harder to identify as problematic and therefore much harder to tackle.

There is no doubt that Kennedy champions intersectionality in her analysis of the law. Her chapter, The ‘Other’ Woman, is one of the most powerful in the book. She looks at the treatment of women who are on the margins by virtue of race, sexuality, disability, class, or some other characteristic. Her thoughts in this respect are not revolutionary. However, it is still a relief to have the acknowledgment that the treatment of all women within the criminal justice system (or anywhere) is simply not the same, especially in a context where society is heralded as “post-racial” or “post-prejudice”. The legal profession certainly isn’t exempt from this delusion. Kennedy notes that:

The issue of race is highly contentious in legal circles. Incredibly, most judges still do not accept that the colour of a person’s skin in any way affects their judgments, even if it is suggested that attitudes and biases may be unconscious or that discrimination can be indirect.

Kennedy also details her struggle to reconcile the practice of the law with the knowledge that the law is a deeply problematic institution. She comments that:

Sadly, there are still too many in the law who believe that the law is an objective set of rules, that law is neutral. The point of Eve Was Framed was to show that this claim of neutrality was bogus. Law was male because it was made by men, or with a male template, and only when law-making was reconsidered could law become just… There has to be a serious acknowledgment that legal cultures are premised on notions within society which are themselves excluding rather than including. There has to be a demolition job on the structural engineering of society.

There is something deeply uncomfortable about women advocates working within a system that reflects and reinforces societal prejudices and power structures. Nowhere is this more troubling than in the handling of rape cases. Fans of the BBC drama series, Silk, will recall the formidable Martha Costello lamenting the low conviction rate in rape cases before acting for a defendant accused of rape to boost her application for silk. Women advocates are in a difficult position: the criminal justice system can only work if defendants are afforded the best defence possible so that the evidence against them can be rigorously tested. However, how can they turn a blind eye to the deep-seated prejudices surrounding women’s sexual behaviour, consent and the power dynamics of sexual relationships? Kennedy admits: “I have felt ashamed as women I am cross-examining flash angry eyes at me for betraying them”, going on to note that if “the criminal justice system was more even-handed in the way that rape is investigated and tried, women lawyers would feel less compromised by the role they are expected to play.”

The book is ambitious. And perhaps that is both its strength and its weakness. The last chapter – Girls Girls Girls – addresses the Rotherham child exploitation scandal; the treatment of girls by the youth courts; the impact of mental health on young girls; body image, cyber-bullying, FGM, sex education and human trafficking… all within 20 pages. Once the reader has been drawn in to care about one aspect of the treatment of women and girls by the justice system, there’s a jarring change of subject. Any of the topics in that final chapter could occupy a book of their own. Kennedy seeks to gather a number of examples to support her argument that “[n]one of it points to a world that is a woman’s oyster”. But in doing so, she sacrifices depth for breadth, which diminishes some of the impact of her otherwise powerful, painful and viscerally uncomfortable work.

To many in the justice system – particularly women – the tragedy is that this book will not be a shock at all, but sadly familiar. Eve Was Shamed is a renewed call to arms. It demands more from the reader. It demands a radical shift in thinking about justice and about the way in which society perceives women. This means recognising the pervasive reach of patriarchy, calling out injustice, acknowledging who holds power and being willing to redistribute that power. It’s not going to be easy.

Helena Kennedy QC’s Eve Was Shamed: How British Justice is Failing Women is available to purchase.

An edited extract of the book entitled The myth of the she-devil: why we judge female criminals more harshly can be accessed here as a Guardian Long Read.

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Tagged: Discrimination, Equality, Justice, Review

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