Language,Norms and the Legal Profession

Branson Justice , ‘Equal Opportunity – The Next 20 Years’ (Mitchell Oration, Adelaide, 6 October 1995).

This article will deal exclusively with Victorian law as it is written in response to an article in a Victorian publication.

Fenech Maryjane , Norway killer appears in closed court… Andrew Lovett not guilty of rape (26 July 2011) <http://blogs.abc.net.au/victoria/2011/07/norway-appeard-in-closed-court-andrew-lovett-not-guilty-of-rape.html>.

Bishop Liz , ‘According to Merit: Triply Punished’ (2011) 85(11) Law Institute Journal, 82.

Victoria Law Reform Commission, Sexual Offences Report (2004).

MacKinnon Catharine A , ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence’ (1983) 8(4) Signs 635.

Easteal Patricia , ‘Setting the Stage: The Iceberg Jigsaw Puzzle’ in Easteal Patricia (ed), Women and the Law in Australia (LexisNexis, 2010) 11; Smith Michael D , ‘Language, Law and Social Power: Seaboyer; Gayme v R and a Critical Theory of Ideology’ (1983) 51 University of Toronto Faculty LR 118.

Honourable Justice Michael Kirby, AC CMG, ‘Women Lawyers – Making a Difference’ (Address to Women Lawyers Association of NSW, Sydney, 18 June 1997).

Sherwin Susan , ‘Feminist Approaches to Health Care’ in Ashcroft Richard E (eds), Principles of Health Care Ethics (John Wiley, 2nd ed, 2007) 80; Thornton Margaret , Dissonance and Distrust: Women in the Legal Profession (OUP, 1996), 45.

Menkel-Meadow Carrie , ‘Portia in a Different Voice’ in Naffine Ngaire , (ed), Gender and Justice (Dartmouth, 2002), 41.

Minow Martha , Making all the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, 1991) 20.

Ibid.

Thornton , above n 9, 35.

Field Rachael , ‘A Feminist Model of Mediation that Centralises the Role of Lawyers as Advocates for Participants Who Are Victims of Domestic Violence’ (2004) 20 Australian Feminist Law Journal 65, 67; Porter Nicole Buonocore , ‘Redefining Superwoman: An essay on Overcoming the “Maternal Wall” in the Legal Workplace’ (2006) 13 Duke Journal of Gender Law & Policy 55, 57 discussing Williams Joan and Segal Nancy , ‘Beyond the Maternal Wall’ (2003) 26 Harvard Women's Law Journal 77, 90–91.

Thornton , above n 9.

Braidotti Rosi , Patterns of Dissonance: A Study of Women in Contemporary Philosophy (Polity Press, 1991) 213.

Rosanove Joan , as quoted in Editorial, The Age (Melbourne), 27 November, 2003.

Williams Joan , Unbending Gender: Why Work and Family Conflict and What To Do About It (OUP, 1999), 2.

Victorian Women Lawyers, A 360° Review: Confronting Myths and Realities in the Legal Profession (Victorian Women Lawyers, 2005); Thornton Margaret and Bagust Joanne , ‘A Gender Trap: Flexible Work in the Corporate Legal Sector’ (2007) 45 Osgoode Hall Law Journal 773; Gaze Beth , ‘Working Part Time: Reflections on “Practicing” the Work-Family Juggling Act’ (2001) 1 (2) QUT Law and Justice Journal 199, 206; Williams Joan C and Westfall Elizabeth S , ‘Deconstructing the Maternal Wall: Strategies for Vindicating the Civil Rights of “Carers” in the Workplace’ (2006) 13 Duke Journal of Gender Law & Policy 31, 31.

bell hooks, Feminist Theory: From Margin to Center (Pluto Press, 2nd ed, 2000) 49.

Naylor Bronwyn , ‘Effective Justice for Victims of Sexual Assault: Taking Up the Debate on Alternative Pathways’ (2010) 33 University of NSW Law Journal 662.

Bender Leslie , ‘From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law’, (1990) 15 Vermont Law Review 1, 27.

Field , above n 14.

The arguments behind this approach include that men are more inclined towards and adversarial system which is the basis for the way in which our legal system has developed; whereas women are more inclined towards an ‘ethic of care’ and a conciliatory approach to legal reasoning. This is based on the research of Carol Gilligan, In a Different Voice (Harvard University Press, 1982) who found that men and women have a different reasoning and decision making processes.

Reg v L (1991) 174 CLR 379.

Crimes (Sexual Offences) Act 1991 (Vic).

MacKinnon Catharine , Towards a Feminist Theory of the State (Harvard University Press, 1989), 65.

Amendments in the Crimes Amendment (Rape) Act 2007 (Vic) require the jury be directed to consider whether the defendant was aware the claimant was or was not consenting, whether the defendant took steps to ascertain whether the claimant was consenting and whether the defendant gave any thought as to whether the claimant might or might not be consenting.

Gans Jeremy , ‘Rape Trial Studies: Handle with Care’ (1997) ANZ Journal of Criminology 30.

Victorian law Reform Commission Sexual Offences: Law and Procedure Final Report (2004).

Zecevic v DPP (Vic) (1987) 162 CLR 645.

Sheehy Elizabeth Stubbs Julie & Tolmie Julia , ‘Defending Battered Women on Trial: The Battered Woman Syndrome and Its Limitations’ (1992) 16 Criminal Law Journal 369, 372–4.

McSherry Bernadette and Naylor Bronwyn , Australian Criminal Law: Critical Perspectives (Oxford University Press, 2004), 469–79.

Ibid 479–82.

The Health Costs of Violence: Measuring the Burden of Disease Caused by Intimate Partner Violence (VicHealth, 2004).

Fitz-Gibbon Kate and Pickering Sharon , ‘Homicide Law Reform in Victoria, Australia: From Provocation to Defensive Homicide and Beyond’ (2012) 52(1) British Journal of Criminology 159.

Hudson Barbara , ‘Beyond White Man's Justice: Race, Gender and Justice in Late Modernity’ (2006) 10 Theoretical Criminology 29.

R v Sandra Jane Collis and Tracey Michelle Collis (Unreported, Victoria Court of Criminal Appeal, Nos 75/1989 and 76/1989, 14 September 1989).

Pearce Jan , ‘How They Sprung the Collis Sisters’, The Age, undated clipping retained by Loff Bebe , Director, Michael Kirby Centre for Public Health and Human Rights, Faculty of Medicine, Monash University.