Opinion: I know the law doesn’t protect women and girls – five areas need to change

Every single year, like a broken record, I call for an end to gender inequality under the law. As a barrister, I see first-hand how patriarchal norms are reflected in law and the problems that women have in achieving justice.

This year, I am marking the 16 Days of Activism by launching a new, radical organisation – Right to Equality – that will campaign to change the law for all women and girls. In partnership with the Good Law Project, we believe that the law can create a better, fairer and more equal society.

The law has a powerful symbolic effect in changing behaviours and attitudes towards gender-based violence. But first, we need action. We need a call to arms. We need deeds, not words.

Changes to the law have moved at a painfully slow pace, and I’m tired of it. Rape was only legally defined for the first time in 1956; only in 1992 did marital rape become a crime; and up until 1982, it was legal for a man to refuse to serve women in British pubs. The law has moved on, and so has society.

But in 2022, we cannot sit back and allow women in Britain to be criminalised for having abortions, or the most egregious crime against women – rape – to become decriminalised.

As our adviser at Right to Equality, radical feminist scholar Professor Catharine MacKinnon, opines, power in parliament and the legal system is concentrated in the hands of largely privileged, white men, whose experiences are reflected in the law – leaving women and girls suffering invisibly on our statute books. There are three white men called David sitting in the Supreme Court – but there is only one woman, and there has never been a person of colour.

People (often lawyers) say to me: “You can’t be a barrister and a campaigner.” Why not? And more importantly, says who? I went into law to fight discrimination against women, but I soon became disillusioned with the legal system when I saw the harsh, oppressive treatment of victims who desperately need the law to protect them.

Over the past 10 years, I have worked alongside charities and lawyers to successfully bring about legal change. We criminalised forced marriage, introduced female genital mutilation protection orders to prevent FGM, criminalised virginity testing, hymenoplasty and child marriage, and increased the age of marriage from 16 to 18 in England and Wales. These are monumental changes that have protected women and girls under the law.

But I haven’t only secured legal change through parliament. Like the Good Law Project with its landmark cases against government decisions, I have successfully challenged injustice on behalf of victims through the courts. I represented Kate Griffiths MP in a landmark case that allowed her to speak publicly about being raped and abused by her ex-husband. She also won an important case that introduced a strong presumption against a rape victim having to subsidise the financial costs of her rapist’s contact with his child.

I have won six appeals where complainants of domestic abuse were failed by the family courts after they gave evidence without special measures, such as screens. In one case, the victim was cross-examined by her abuser in court – in my view, this is post-separation abuse taking place in court. I also had the honour of representing a courageous woman in one of the first cases that defined “gaslighting” as domestic abuse.

Along with Jess Phillips MP and London’s victims’ commissioner, Claire Waxman OBE, we tried to change the rules to prevent confidential refuge addresses becoming known. Whilst unsuccessful in parliament, I am representing women’s refuges in bringing a ground-breaking case in the High Court.

So, what is Right to Equality going to do? We are working to change the law in five key areas. We will lobby the government, gather research and key statistics, share survivors’ stories and support strategic litigation through our courts. We also host a podcast, with a range of guest speakers and experts in cutting-edge feminist politics.

1. Decriminalise abortion. There can be no “equal treatment” under the law when laws criminalise marginalised women. Women and girls who attempt to procure their own abortions in Britain could be sentenced to life imprisonment under legislation that dates back to the Victorian era of 1861.

When the law was made, women did not have the right to vote and the lightbulb had not even been invented – yet in 2022, you and I still have to abide by this archaic, patriarchal law. There is a 25-year-old mother of one on trial in Oxford for this very crime today. Abortion on demand is only partially decriminalised, and subject to strict exceptions such as the need to have a termination because of permanent injury to the mental health of the woman.

A woman cannot freely choose to have an abortion, she must first pathologise herself. It is the mission of Right to Equality to decriminalise abortion so that everyone has access to vital reproductive healthcare, which would be regulated like any other medical procedure.

2. Criminalise public sexual harassment. Have you noticed how gender-based violence in society is not reflected in our laws? Sixty-eight per cent of adult women have suffered sexual harassment since the age of 15, yet public sexual harassment is not a specific crime and many girls who report to the police are told to go away. Our laws allow the sexual harassment of women and girls by men with impunity. In partnership with Plan UK and OurStreets Now, we have been campaigning to criminalise public sexual harassment and we won’t stop until it’s a crime.

3. End period poverty. One in four young women are struggling to afford period products in the UK. It’s time to follow the lead of Scotland and make period products freely available. You can bet that if men bled each month, there would be period products everywhere and anywhere. Why should we have to pay to bleed with dignity? Join us and Blood Good Period to change the law once and for all.

4. Redefine rape.Over 600,000 women are raped or sexually assaulted each year and fewer than 2,000 rapists are convicted of rape. Working with the Women’s Equality Party, we are researching other definitions of consent and rape in law. Sweden introduced “affirmative consent”, which resulted in 75 per cent increase in rape convictions. Affirmative consent means that there has to be explicit, informed and voluntary agreement to participate in sex.

5. Family courts. In the family courts, we strongly support a presumption of no child contact between an abusive parent and a child. We believe that contact with abusive parents can cause adult and child survivors serious harm.

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I have highlighted just a few legal campaigns but frankly, we would need a Women’s Bills of Rights to bring about a fundamental overhaul of our social, political and legal rights. Here are few issues that make my blood boil: the Garrick Club (among other gentlemen’s clubs) exclude female members, complainants of rape are paying their rapists financial divorce settlements (Kate Griffiths MP paid her ex-husband £11,000 to be free of him) and abusive husbands who drive their wives to suicide can still inherit their estate.

Mothers who abduct their children abroad to get away from abusive partners are ordered by courts to return to their home countries often in fear of their lives, family courts can refuse to allow a child whom discloses sex abuse to have therapy until the facts are determined, family courts can order a victim’s medical records to be disclosed to their perpetrator, there is no definition of rape or consent in family law, sexual exploitation in exchange for “rent” is not a specific crime, misogyny is not a hate crime, rapists can still have parental responsibility for the child, child marriage at the age of 16 is still legal in Scotland – I could go on.

I recognise the tension in changing the law and handing the police force – an arguably misogynistic and racist institution – more powers over the lives of women and girls. Anti-carceral feminists are right to be cautious. But short of a revolution, we have little choice but to reform our broken system and train our professionals. Join us in challenging and changing the law for all women and girls.

Dr Charlotte Proudman is an award-winning barrister