Australian Feminist Law

It is an oscillating state of disappearance and appearance, of waxing and waning, which signifies one particular point where we are now at in addressing and questioning the body. Certainly, the preoccupation with extremes of bodily presence and absence can readily be seen in the popular media. Somewhere after the news channels (reporting with increasing concern on the growing problems of obesity and starvation) but before the shopping channels (selling clothes for the extra-large and featuring models that are extra-thin), unhappily sandwiched between 'Dog Borstal' (overweight and mutinous canines) and 48 more music channels, one can find programme after programme on the body. While Dog Borstal is in the ad-break (which features slimming aids and exercise items) 'Half Ton Hospital' is over on the next channel, which shows near-spherical people as they struggle to gain control of their riotous flesh, alarmingly amplified by the effects of widescreen. The widescreen effect spreads over onto other channels, where the viewer can observe a display of fat babies (which I thought were supposed to be fat, but in this case, are clinically overweight), share in High Definition 3 the extreme cosmetic surgeries of minor celebrities as they sculpt and reform, inject and subtract according to fashion (it seems that interior designers are out, designer interiors are in … ), then watch it all disappear in yet more documentaries following the heaving endeavours of those now trying to *Contact: Centre for Law and Society, Lancaster University Law School, Lancaster University Lancaster UK LA1 4YN b.chatterjee@lancaster.ac.uk. Dr Chatterjee is a Lecturer in Law who, when not watching TV, interrogates legal issues from an interdisciplinary perspective, focusing particularly on gender, sexuality, sexual expression and cyberspace. She thanks the anonymous reviewer for their constructive comments and suggestions, and the editors of this special edition, Elena Loizidou and Sara Ramshaw, also Judith Grbich, for their patience, suggestions and support. Thanks to

The issue of prostitution has engendered much division amongst feminists, frequently resulting in polemical stances in a polarised debate. A similar pattern has more latterly emerged with respect to sex trafficking. An added difficulty is that statistical evidence regarding these issues is scarce and unreliable. Through a new discursive lens of policy analysis developed by Carol Bacchi (the WPR approach) this paper considers and examines the ‘demand side’ of prostitution, with particular reference to its relationship with sex trafficking. Two policy and legislative approaches are compared, the Swedish model where the client is criminalized and the Victorian model where the sex industry is legalised and regulated.

Milk, a globally traded commodity, is ubiquitous throughout our food systems. In light of its ever-increasing production and consumption, this article seeks to contextualise the fluid within a history of its regulation, tracing the role of state intervention in shifting milk feeding from the domestic to the public and to the international sphere; from the sacred and precious to the surplus and profane; and from corporeal matter to industrial material. There is a range of scholarly publications on milk, a couple of them looking specifically at legal aspects of milk production, and some taking feminist or animal welfare approaches to its commodification. The majority deal with either breastmilk and breastfeeding practices, or cow’s milk production. This article extends the literature by analysing the co-evolution of regulation that, on the one hand, restricted direct human/ animal contact in milk feeding while, on the other, enabled the creation of national and global cows’ milk production systems and distribution networks. The argument advanced is that there is no coincidence here: milk, with its symbolic and physiological powers of nurture and purification, plays a central role in securing the political economy of the late modern state and making lawful the bodies of its cities and its citizens. Furthermore, control over female human and animal lives through the process of milk production is an expression of political liberalism that cannot be ignored in any jurisprudence which takes that project seriously.

Through a close reading of a rape trial, this article discusses the seemingly intractable problem of the disconnect between rape law reform and the resilience of outdated common law practices being used in the courtroom. It is argued that certain requirements (the location of the event; a focus on resistance and the presence of injuries; recent complaint; and the underlying assumption of the untrustworthiness of the complainant) form a 'rape schema' which operate to distinguish the 'true' from the 'false' complaint of rape. Finally, this article turns to the insights of critical theory to think about how concepts of 'readability', intentionality and the performance of embodied knowledge by legal subjects might enable us to intervene differently in order to achieve justice for rape victims.

This article is concerned with a newly emergent ‘pro-life’ political strategy in which legislation addressing violence against pregnant women comes to advance the anti-abortionist cause, through the conferral of enhanced legal status upon foetuses. I identify and analyse the workings of this strategy in the Unborn Victims of Violence Act 2004 (US), which codifies violence against pregnant women that results in loss of or damage to pregnancy as victimization of an unborn individual. I argue that this codification not only is politically partisan but conceptually untenable because it uses the ‘separate entities’ model of the maternal-foetal relation to narrate violence of this kind. I then compare the Unborn Victims of Violence Act with the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW), which codifies violence resulting in loss of pregnancy as harm to the pregnant woman. I argue that this latter codification is preferable in two key respects. Its use of the ‘not-one-but-not-two’ model of the maternal-foetal relation more accurately reflects the nature of the harm caused in violence against pregnant women; and from a feminist perspective this approach effectively balances the imperatives of pro-choice and anti-violence politics, blocking the ‘pro-life’ strategy evident in the US legislation.

The scenes of torture in Abu Ghraib both shocked and excited the western world. While several of the perpetrators in the photos were charged and imprisoned for the acts, it was Lynndie Englandthe woman holding the leash with a naked man attachedwho attracted the most vitriol and condemnation from the public. England received a harsher sentence than most and has, since here release, received death threats and hate mail from around the world. This article considers the scene of torture, as a psychoanalytic scene in which there are the three figures: that of the torturer (as sovereign representative), the tortured and the one looking on. These three figures are discussed as similar to those in the imagination of a 'child being beaten' Freud's patients. But England represents not only a fourth but an ambiguously gendered fourth in the scene. Her role, I explain, is enigmatic, and in a Lacanian idiom, not quite that of Woman.

Colonial policies on leprosy were predicated on the enactment of laws and the administration of systems that targeted ‘vagrancy’ as disease control, subsuming classist, casteist, gendered and racial narratives within state response to the disease. Colonial state power, juxtaposed with the social capital of the Indian elite and ‘employed’ middle classes, created exclusive spaces for containment of (hyper visible, and therefore most vulnerable) leprosy sufferers belonging to ‘lower-caste,’ poor communities. Colonial regimes of disease control built on underlying notions of ‘morality’ and ‘hygiene’ subsist, in one form or another, in the post-colonial state, furthered by neoliberal institutions that repurpose these notions through their development policies. Leprosy regulation narratives are still predicated on rationales relating to hygiene and economic development, which focus on caste, gender and hygiene markers for regulation. Resistance, in the background of colonial conceptions, ...

For French poet, playwright, author and theorist, Hélène Cixous, the question of origin is always a question of the origin of the very drive to write; it is always a question of the ‘wild heart’: for one must have a ‘touch of something savage, uncultured, in order to let it happen.’ This ‘wild heart’, this drive to write, is, in the Cixousian lexicon, closer to the ‘feminine’; and the texts it produces constitute what she calls ‘feminine writing’ or écriture féminine. Endeavoured in this article is a discussion of law and legal authority, which disrupts or transcends (classic) phallic discourse. Relying heavily upon the poetic writings of Cixous, it will be demonstrated that ‘feminine writing’, as a narrative (non)structure, which does not conform to predictability and linearity, resists a return to the origin. Such writing ‘frees the writer to express and communicate complex ideas, values and attitudes, ones which may have been previously repressed’ (Comte 2001: 8). In so doing, ‘feminine writing’ encourages a discussion of law that has been otherwise neglected or unexpressed and offers a unique challenge and resistance to the authority upon which law’s foundational claims rest.

In nonwestern (sic) cultures there may be a much greater fear and hatred of the feminine, especially when it is not strictly confined to the domestic sphere, than is apparent or expressed in Western society. ... Despite differences in history and culture, feminists from all worlds share a ...

6 Drone warfare, for instance, has been shown to cause PTSD in both operators and those living in areas where drones are used to target 'combatants' due to both the sudden aerial method of attack, and the large numbers of 'collateral' civilian casualties involved: see for example the documentary Living Beneath the Drones (2015) (

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This article examines advocacy of Catholic restorative justice for clerical child sexual abuse from the standpoint of feminist criminological critiques of the use of restorative mediation in sexual offence cases. In particular, it questions the Catholic invocation of grace and forgiveness of survivors of abuse in light of critical feminist concerns about the exploitation of emotions in restorative practices, especially in regard to sexual and other gender-based offences. In the context of sexual abuse, the Catholic appeal to grace has the potential for turning into an extraordinary demand made of victims not only to rehabilitate offenders and the church in the eyes of the community, but also to work towards the spiritual absolution of the abuser. This unique feature of Catholic-oriented restorative justice raises important concerns in terms of feminist critiques of the risk of abuses of power within mediation, and is also incompatible with orthodox restorative justice theory, which, although it advocates a 'spiritual' response to crime, is concerned foremost with the rights, needs and experiences of victims. on 'grace', which may at first appear consistent with generalist restorative justice scholarship and processes emphasising the healing potential of forgiveness for the victims, or survivors, of abuse. 1 'Grace', however, has a unique meaning in Catholic thought and is arguably distinct from secular understandings of the concept. In this article we provide a theoretical discussion of the Catholic doctrine of grace to explain what it would mean to apply this doctrine in the context of restorative justice in cases of historical clerical child sexual abuse. We do so in light of critical feminist criminological concerns about the exploitation of emotions such as forgiveness in restorative practices, especially in regard to sexual and other gender-based offences. 'Grace' in the Catholic context is not simply an invocation of goodwill; the forgiveness that Catholic 'grace' suggests is not simply an appeal to victims to reconcile relationships with perpetrators. Rather, an analysis of the doctrine of grace in regard to crime suggests that grace is concerned with the church's performance of good offices on behalf of the perpetrator to rehabilitate him in the eyes of God and to induce, in support of this goal, the forgiveness of those whose bodily and psychosexual boundaries he has transgressed. As we will show, the grace of God is, first and foremost, what the perpetrator of the abuse has lost in committing abuse. Grace is also, however, what can be wished upon him, as it were, by the victim. In Catholic thought, the victim of a crime has the power to invoke 'actual graces' (Godly gifts) that will help the perpetrator of that crime recover the full grace of God, which will in turn cleanse him of sin and save his soul.

In December 1922, London was enthralled by a sensational murder trial at the Old Bailey. The 28-year-old woman at the centre of the scandal, Edith Thompson, came to notoriety when her lover, 20-year-old Freddy Bywaters, a merchant seaman, murdered her husband, Percy Thompson, when the couple was returning home from the theatre late one evening. When 62 of her letters were found on his ship, he confessed, but insisted that she had no part in the crime. In her letters, she claimed that she put 'something into Percy's tea' and put 'big pieces' of light bulb in his porridge, and there were ambiguous passages about 'taking risks' and their future together. Thompson's letters were entered into the trial as evidence of incitement and conspiracy. Their melodramatic structure and rhetoric made it difficult to extract stable meaning. It was, however, precisely the melodramatic attributes and intimate details of her letterswith their expressions of psychic pain, longing, desire, frustration, boredom, and the material details of private livesthat made them irresistible to the public and the media. In the first part of this paper, I examine the discourses that were used to interpret the letters in the trial, and render their author culturally intelligible. In the second part, I analyse the affective mediation of the caseincluding the trial, the verdict, the executions, and the controversy about the death penaltyin the media, and the role of the media in producing public feelings. I argue that the concept of melodrama, understood not as a genre but as a mode which names heightened emotion, acted like a contagion, spreading affect from the letters to the courtroom and the media. What conclusions can we drawabout law and affect, evidence and intimacy, public archives and private livesfrom this case that are relevant for feminist critical legal scholarship today?

Feminist analyses of the politics of that which is ostensibly private can assist in a critical analysis of the framework of international trade law which posits itself as neutral and apolitical. Trade law is, of course, not free from ideology, because it very much embraces liberal economic theory, but the assertion of neutrality comes from an idea within that defining ideology which is that 'the defining condition of the market economy is a separation of the economic and the political'. From a pragmatic perspective, it is the crisis within international trade over the combination of the subsidies debate and regulatory competition which may provoke actors in international trade to acknowledge that politics is not elsewhere. Any step towards an acknowledgment from within trade theory that it creates its own conditions and does not simply obey the invisible guiding hand of the market may increase the political space open to human rights activists and lawyers on which to contest those conditions and propose creative ways in which the rights of those most vulnerable may be protected.

The authors have also participated in several fora investigating the relationship between feminist legal theory, performance and embodiment over the duration of this project that have contributed to our understanding of the issues that this paper provokes. These include: 'Why and How? Theoretical and Methodological Directions in Law, Feminism, Gender and Sexuality' U.

The provocation defence, law's pre-eminent concession to'passion', periodically incites review. Almost always the inciting incident is a homicide, or a spate of homicides, in which a man becomes enraged at a'wayward'(read: departing, adulterous or imagined adulterous) ...

In 2012, Durbar Mahila Samanwaya Committee (DMSC), India’s largest sex workers’ collective, organised a major Hindu religious festival of Bengal called the Durga Puja. It was a part of their rights activism for the de-criminalisation of sex work. In this article, I provide an account of this event as an act of re-ordering public life by sex workers and contend that the worldview which informs DMSC’s practice of the festival has points of convergence with Gayatri Chakravorty Spivak’s articulation of the idea of affirmative sabotage. I argue that we are able to see this convergence between DMSC’s celebration of the festival and post-colonial feminist thought by attending to the particular location and the relations that DMSC’s practice of the Durga Puja inhabits. I situate this account of sex workers’ rights activism alongside a rival narrative of the festival put forth by Dalit and adivasi groups. I include this rival account to perform the limitation of my own reading of the political potential of DMSC’s practice of the festival. This rival assertion demands a recognition of the situatedness and limitedness of feminist practices.

It is hard to imagine rewriting a 20 year old text. So much of it was predicated on the events of the time, as well as our respective theoretical perspectives at that time. In Subversive Sites, we argued that law was a complex and contradictory site of social change for women. We brought a specifically feminist lens to the role of law in women's oppression and to both its limitations and possibilities in challenging that oppression. We focused on the legal regulation of women in and through the family, and the role of familial ideology in particular. We argued that feminist engagement with law, through litigation and law reform, were best envisioned as forms of discursive struggle, where women's rights activists have sought to challenge previously dominant norms, practices and roles of women, and reconstruct them as more full and equal citizens. Law could be a subversive site, but it was not always so. This question of law as a site of social change has remained a central question in both our scholarship in the intervening 20 years, but our theoretical influences and genealogies have evolved. It would be impossible now to imagine writing a text like Subversive Sites 1 without explicit attention to postcolonial theory, queer theory and neo-liberal critiques. Our work at the time was framed by a number of feminist influences-socialist feminism, intersectional feminism, poststructuralist feminism-and we sought to deploy these feminisms to construct a more complicated understanding of engagement with law. In the intervening years, our individual scholarship has continued to push forward a more nuanced and sophisticated understanding of law and social change, both centering and decentering the role of law. We have broadened the focus on our inquiries to sexuality, postcolonialism, neoliberalism, governmentality and popular culture. We have each sought to deploy diverse theoretical paradigms to better understand the role and limitations of law in social change. We address one basic question: What would we do differently, with the benefit of 20 years of hindsight? This basic question raises many more specific ones: What did we miss at the time? What issues might we highlight now, with what theoretical * We are indebted to Oishik Sircar for kick-starting this rethinking project, who interviewed us on the legacy of Subversive Sites. Oishik Sircar interviews Ratna Kapur and Brenda Cossman, 'The Fraught Terrain of Law and Feminism: 20 Years of Subversive Sites' (2016) 12(1) Socio-Legal Review 133. The ideas that we pursue in this essay were first developed in that conversation.

It is hard to imagine rewriting a 20 year old text. So much of it was predicated on the events of the time, as well as our respective theoretical perspectives at that time. In Subversive Sites, we argued that law was a complex and contradictory site of social change for women. We brought a specifically feminist lens to the role of law in women's oppression and to both its limitations and possibilities in challenging that oppression. We focused on the legal regulation of women in and through the family, and the role of familial ideology in particular. We argued that feminist engagement with law, through litigation and law reform, were best envisioned as forms of discursive struggle, where women's rights activists have sought to challenge previously dominant norms, practices and roles of women, and reconstruct them as more full and equal citizens. Law could be a subversive site, but it was not always so. This question of law as a site of social change has remained a central question in both our scholarship in the intervening 20 years, but our theoretical influences and genealogies have evolved. It would be impossible now to imagine writing a text like Subversive Sites 1 without explicit attention to postcolonial theory, queer theory and neo-liberal critiques. Our work at the time was framed by a number of feminist influences-socialist feminism, intersectional feminism, poststructuralist feminism-and we sought to deploy these feminisms to construct a more complicated understanding of engagement with law. In the intervening years, our individual scholarship has continued to push forward a more nuanced and sophisticated understanding of law and social change, both centering and decentering the role of law. We have broadened the focus on our inquiries to sexuality, postcolonialism, neoliberalism, governmentality and popular culture. We have each sought to deploy diverse theoretical paradigms to better understand the role and limitations of law in social change. We address one basic question: What would we do differently, with the benefit of 20 years of hindsight? This basic question raises many more specific ones: What did we miss at the time? What issues might we highlight now, with what theoretical * We are indebted to Oishik Sircar for kick-starting this rethinking project, who interviewed us on the legacy of Subversive Sites. Oishik Sircar interviews Ratna Kapur and Brenda Cossman, 'The Fraught Terrain of Law and Feminism: 20 Years of Subversive Sites' (2016) 12(1) Socio-Legal Review 133. The ideas that we pursue in this essay were first developed in that conversation.

Much has now been written about, and mostly against, the 2007 Northern Territory Emergency Intervention.2 It has been widely condemned as a land grab, as a breach of the Racial Discrimination Act 1975 (Cth), as a cynical bid for votes on the part of a beleaguered federal ...

This special issue emerges out of a symposium of the same name, held at the School of Oriental and African Studies, University of London in September 2013. The impetus behind the meeting was to think collectively about the ways in which law has shaped human–animal relationships over time and across continents, within the context of British colonialism. A range of thoughtful and provocative papers were given by scholars from a number of disciplines including theology, childhood studies, critical animal studies, history and law.

Within the Australian legal archive, in native title jurisprudence and beyond, the Indigenous subject is paradoxically positioned as, simultaneously, the subject of European imperial conquest and classification, and as a unique and transgressive alterity. This paper is concerned with the ways in which this subject is mutually constituted by these two dimensions, which may be conceived as the determinate and indeterminate dimensions of the law. The common law narrative, reflected in the authoritative archive of precedent, is revealing of the instantiation of a determinate, constrained Indigenous subject. This constraint is made manifest in the required performance of ‘authenticity’ on the part of the Indigenous person before the law, in the context of a native title claim. That is, the requisite demonstration of the elements of a legally prescribed ‘traditional’ indigeneity, which requires the performance of an unachievable embodiment of indigeneity. This prescriptive rendering, however, is haunted by the spectral visitation of an originary Indigene within the legal archive — a truth, which always ‘slips away’. Indigeneity persists within the archive as its threatening origin, an evocation of that which Derrida describes as the disruptive indeterminacy or alterity of justice — as, perhaps, ‘the law of the law’. While the Indigene is perpetually determined by the law in continuous acts of violent (mis)recognition, the alterity of indigeneity is constitutive of the law itself, as a persistent and spectral ambivalence within it. That is, the indeterminacy of indigeneity conceived as with-in the law — subject to its determinacy, yet simultaneously constitutive of it, as the origin it seeks to forget.

... THE STATE Yoriko Otomo* 1.0 INTRODUCTION ... among many others - such as Grotius; 3 Hobbes; 4 Pufendorf;5 Rousseau; 6 Vattel;7 Schmitt;8 Kelsen,9 and more recently, Agamben.'0 TheseYoriko Otomo is a PhD candidate at the School of Law, University of Melbourne. ...

... Kerry Carrington is Senior Lecturer in the School of Humanities, University of Western Sydney, Hawkesbury. ... 5 November, 1989 Sgt Trelease says: About 8.30 pm on Friday, 3rd November, 1989, I went to the North Stockton Surf Club in company with Senior Constable Nichols. ...