Legal education

Feminist judgments projects have contributed to the reinvigoration of interest and engagement with feminism in legal education. In Canada, Jennifer Koshan and colleagues have reported on the value of teaching using some of the Women’s Court of Canada decisions, particularly as a way of introducing feminist analysis into law school classes (1). In the United Kingdom, an issue of the journal The Law Teacher is devoted to articles which reflect on the critical contribution of feminist judgments as teaching resources to be used in law school classrooms (2). Academics have found a role for feminist judgments in core LLB subjects (3) and legal theory modules (4). Feminist judgments can introduce students to new ideas, help students to read cases and help them to learn legal rules and problem-solving techniques.

(1)		See Jennifer Koshan et al, ‘Rewriting Equality: The Pedagogical Use of Women’s Court of Canada Judgments’ (2010) 4 Canadian Legal Education Annual Review 121.
(2)		The Law Teacher (2012) 46(3).
(3)		For example Property Law Rosemary Auchmuty, ‘Using Feminist Judgments in the Property Law Classroom’ (2012) 46 The Law Teacher 227
(4)		Caroline Hunter and Ben Fitzpatrick, ‘Feminist Judging and Legal Theory’ (2012) 46 The Law Teacher 255

In Australia some Law lecturers have already begun to experiment:

Gender and the Law

Gender and the Law: Tamara Tulich, Law School, University of Western Australia

I have used the Feminist Judgments Project when teaching into Gender and the Law in the undergraduate Law and Society major at the University of Western Australia. I introduced the Feminist Judgments Project in a lecture on gender and judging. This lecture examined gender diversity in the Australian judiciary, the gendered nature of legal decision-making and whether women judges and/or feminist judges have/can make a difference. The lecture was accompanied by readings on women in the Australian judiciary and feminist judging.

Taikato v The Queen formed the basis of a subsequent seminar in which we compared the feminist legal judgment written by Penny Crofts and Isabella Alexander with the majority High Court judgment. Students were asked to prepare for the seminar by identifying differences between the judgments (e.g. in the interpretation of facts and inclusion of outsider perspectives), and evaluating the strengths and weaknesses of each judgment (e.g. in terms of style, reasoning and compatibility with notions of fairness and impartiality). The purpose of the exercise was to highlight the contestable nature of the law and the potential for different perspectives to be included in legal decision-making. A further purpose was to facilitate discussion of the significance and limitations of feminist judging.

Feminist jurisprudence

Feminist Jurisprudence: Heather Douglas and Francesca Bartlett (Law School, UQ)

We presented a seminar in the undergraduate LLB Feminist Jurisprudence course at the University of Queensland. Our seminar interrogated a number of questions including whether it is possible to formulate a feminist judicial practice, if so what are the boundaries of the enterprise and what kinds of judicial practice ‘count’ as feminist? We focussed on the feminist judgment written by Mary Heath and Wendy Larcombe: PGA v R [2012] HCA 21. In this case the High Court was asked to determine whether rape in marriage was an offence under the common law of Australia in 1963. The feminist judgment authors dissented from the majority finding that rules of the period did authorise married women’s subjection by their husbands. They found that to deny the immunity of husbands was to deny the wrongs done to women. Larcombe and Heath apologise for the common law wrongs done to women. Their judgment provided a good opportunity to discuss this approach – was it a feminist approach? We also used the seminar to consider questions of judicial diversity and whether and if so why diversity on the bench is important.

Evidence

Evidence: Melanie O’Brien (Law School, UQ)

I delivered a guest lecture on Sexual Offences in the Evidence Law course at the TC Beirne School of Law at the University of Queensland. After discussing the law in Queensland relating to sexual offence evidence, I focused the lecture on the policy and theoretical elements of this area of law, discussing gender bias in the law and its application. I wanted to motivate the students to think about the social impact of law and it application, rather than simply learning what the law is. As part of this, I had assigned the Feminist Judgment and commentary on Phillips v R as reading for the students. This linked in with the first half of the lecture, in which I had reviewed evidentiary regulation of proving consent in sexual offence cases, and a previous lecture in which the students had covered similar fact evidence (including Phillips v R). By using the Feminist Judgment version of Phillips v R and its commentary, I could draw out the issues that arise with regards to judicial perception of consent, particularly where consent is focused only on the complainant’s conduct and not on the whole context and circumstances creating a coercive environment. I was also able to weave this into an overall discussion about the experience of women sexual assault victims in the criminal justice system, in particular, the downplaying of women’s experiences as unimportant and the perception of their evidence as unreliable, simply because they are women.

Student feedback

“The lecture was great… I'm so glad we got to cover some women's issues in greater depth - you don't get that in most courses, even when it is needed”.