Clare McGlynn

RAPE, TORTURE AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS

This article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Courts achievements in recognizing rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognized in a wider range of situations and circumstances than is currently the case.

The Business of Equality in the Solicitors' Profession

In Gender, Choice and Commitment, Hilary Sommerlad and Peter Sanderson argue that ‘gender remains a principal determinant in the career trajectories of women solicitors’ (p 4). Whilst to many this would appear to be obvious, the tragedy is that this is little recognised within the profession itself. Indeed, there would appear to be a silent conspiracy not to mention gender, let alone feminism, in any debates within the profession concerning women, paradoxical though this may seem. The result is a deeply unsatisfactory situation in which the gendered obstacles in the way of women’s full and equal participation in the profession remain ‘remarkably durable’ (p 13), but the strategies being adopted by campaigners seeking to improve women’s status overlook the significance of gender, focusing instead on what has been termed the ‘business case’ for sex equality. The ‘business case’ attempts to convince employers that the adoption of equal opportunity measures will bring economic and efficiency gains to their businesses, thereby encouraging them to adopt such practices. As argued by Opportunity 2000, an organisation established in the UK to promote the ‘business’ case for equality, this is not a strategy ‘rooted in a moral or social imperative’, but in ‘hard commercial facts’. In the light of Sommerlad and Sanderson’s study, I argue that the ‘business case’ strategy, as a means by which to improve the status of women solicitors, is wholly misconceived. It is based on erroneous assumptions about the reasons for women’s marginalised status and therefore can have only limited effect in eliminating discrimination. Furthermore, by privileging economic considerations, the business case may open the way for the removal of existing hard won gains. In order to develop this argument, the first part of this article will examine Sommerlad and Sanderson’s analysis of the status of women solicitors. The second and third parts go on to outline and examine the ‘business case’ strategy and assess whether, in the light of the arguments made by Sommerlad and Sanderson, it has the potential to bring about a situation in which women are equal participants in the solicitors’ profession. The final section will conclude by suggesting that those seeking change within the solicitors’ profession must re-focus their attention on gender and its role in the marginalisation of women solicitors.

Rape Trials and Sexual History Evidence: Reforming the Law on Third-Party Evidence

Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials. It focuses particularly on evidence relating to persons other than the accused (third-party evidence), following the recent controversial judgment of the Court of Appeal in R v Ched Evans where such evidence was introduced. The justifications for restricting sexual history evidence are considered, as well as research data on how often it is being used. Following an analysis of the current law, the article concludes that urgent reform is needed and a number of law reform options are examined.

Pregnancy dismissals and theWebb litigation

ConclusionIt is generally accepted that women have the right to participate in the workplace, although only if replicating the traditional male mode of working. To this extent, the right to formal equality with men is generally agreed to be a legitimate goal for legislation. However, where the limitations of such assimilation to a male norm come into sharp focus, as they do in the context of pregnancy, the restrictions placed on improving the position of women are evident. The courts seek to accept the arguments of employers that some limitation on the rights of women to participate fully in the workplace is necessary, with the unarticulated assumption that pregnancy constitutes a real difference between the sexes, incompatible with their notion of (formal) equality. Thus, it is argued, that the advances so far gained in the relation to pregnancy dismissals do not represent a cultural shift in attitudes towards accommodating pregnant women and women with children into the workplace. They have been adopted only reluctantly by the UK courts and legislature, with limitations still being placed on their effect particularly in respect of dismissals on account of pregnancy-related illness. The rights of women not to be discriminated against solely on the basis of their biological ability to give birth must continue to be advocated and given attention; complacency will likely see those rights progressively restricted.

Kaleidoscopic Justice: Sexual Violence and Victim-Survivors’ Perceptions of Justice

This article proposes a more multifaceted way of thinking about victim-survivors’ perceptions of justice; what we have termed ‘kaleidoscopic justice’. Developed from an empirical investigation with 20 victim-survivors of sexual violence, kaleidoscopic justice understands justice as a constantly shifting pattern; justice constantly refracted through new experiences or understandings; justice as an ever-evolving, nuanced and lived experience. Within this framework, a number of justice themes emerged, namely justice as consequences, recognition, dignity, voice, prevention and connectedness. This approach develops current understandings, in particular by emphasizing the fluidity of justice, as well as the centrality of prevention and connectedness in sexual violence survivors’ understandings of justice. We suggest that it is only by better understanding victim-survivor perspectives on justice, and embedding the concept of kaleidoscopic justice, that we can begin to address the sexual violence ‘justice gap’.

Women, Law and John Stuart Mill

John Stuart Mills intellectual reputation is unarguable; his liberal credentials seemingly impeccable. Moreover there seems to be a Mill for everyone; liberal, radical, feminist. The precise nature of the feminist Mill has however remained a matter of considerable debate. The purpose of this article is less to engage this speculation, but rather to invite closer consideration of what Mill actually said and wrote about women and the law in nineteenth-century England. For Mill, the law was both an instrument of womens subjection and a prospective means of liberation.

Family Reunion and the Free Movement of Persons in European Union Law

it is clear to me that when european Union legislators adopted the new Free Movement of Persons and Family reunification directives, they did not act in accordance with John rawls’ concept of the ‘veil of ignorance’. in A Theory of Justice, rawls suggested that we should legislate from behind the ‘veil of ignorance’, imagining ourselves devoid of political preconceptions, on a desert island. in such a context, we would be legislating not knowing whether we were an eU or third country national; whether we were heterosexual, homosexual or transgendered; whether we were in a relationship regulated and granted the approval of law, such as marriage, or whether we were prevented from acquiring such a legitimate status through our sexual orientation or choice; whether we had children, biologically our own or adopted, or step-children; whether we were divorced, separated, widowed or indeed single; and whether we were male or female, rich or poor, able-bodied or not, and in paid work or not. My argument in this article is that had the european legislators acted from behind a veil of ignorance, they would not have adopted the Free Movement and Family reunification directives in the forms that they did. in particular, no person on rawls’ desert island would have employed the concept of family that is utilised in these measures, as it is riven with distinctions on the grounds referred to above. no-one would have wanted to take the risk that it was they who were subject to rules preventing reunion with their family. There must surely be little worse than being separated from one’s family by reason of laws focused more on the preservation of national sovereignty, identity and economic position, than on the most basic and understandable desire, call it the human right to respect for private and family life, to be with one’s family.

EC Legislation Prohibiting Age Discrimination: “Towards a Europe for All Ages”?

In 2000 the European Community adopted the General Framework Directive aimed at combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. This important measure followed closely on the heels of the Race Discrimination Directive adopted earlier in the year. The adoption of these measures was made possible after the Treaty of Amsterdam inserted a new Article 13 into the EC Treaty which empowered the Community to adopt measures to combat discrimination on the above grounds, as well as in the fields of sex, race and ethnicity. While Article 13 was greeted with much acclaim, doubts were expressed as to whether or not binding measures would be forthcoming. As it has turned out, such pessimism was unwarranted and the Community has now adopted measures aimed at eliminating discrimination on all the grounds specified in Article 13. The adoption of these directives is, therefore, a highly significant expansion of the Community’s competence and ensures the continued development of the Community beyond its original purely economic focus.