Sarah Beresford

Get Over Your (Legal) 'Self': A Brief History of Lesbians, Motherhood and the Law.

Law and legal judgments tell a story. However, this article is not about the story of the litigants. It is, rather, an exploration of how legal judgments are an act of discourse and thus are about an identity creation of the legal ‘self’. Legal discourse continues to create categories of legal relevance that are used to arrive at essentialist identities which construct the body of the subject. This article argues that this continues to be the case, notwithstanding certain aspects of law reform, recent case law, and resistance to assimilative discourse (Butler 2004). In some small way, the aim of this article is ‘to disrupt what has become settled knowledge and knowable reality’ and to do something ‘other than a simple assimilation into prevailing norms’ (Butler 2004, pp. 27). It asks law to give an account of its ‘self’. I will do this within the context of family law, by examining some of ‘old’ case law from the early 1970s and comparing those judgments with more recent case law. I want to ask: what has changed in the intervening years?

We're All Same (Sex) Now?: Lesbian (Same) Sex; Consummation; Adultery and Marriage

ABSTRACT This article argues that the Marriage (Same Sex Couples) Act 2013 applicable in England and Wales should have included nonconsummation as grounds for annulment and adultery as a fact of divorce. The absence of these two concepts is representative of a failure by law to fully accept the importance of equality. As such, the legislation will continue to perpetuate formal and substantive inequality, resulting in the continued repression of women who marry women. This will have important ramifications for the citizenship of intimacy for such women to which rights, duties, and obligations will attach. The legal ability of women who marry women to join the “marriage club,” as it is currently defined, will not queer or radically challenge marriage. While it might have been “easier” to abandon the concepts of consummation and adultery altogether, including and widening the concepts of consummation and adultery to encompass same-sex couples would offer the potential to undertake a queering of marriage. To exclude these concepts risks perpetuating the idea that gay men and lesbians are not sexual beings. Given the heteropatriarchal nature of the concepts of adultery and consummation, this article specifically focuses on how same-sex marriage will affect women who marry women as opposed to what is commonly termed the GLBTQ community.

Obscene performative pornography: R v Peacock (2012) and the legal construction of same-sex and gendered identities in the United Kingdom

How are the concepts of obscenity and extreme pornography ‘produced’ and by whom? The failed prosecution in R v Peacock (2012) revealed English law to be based on attempts to protect public and individual morality – ensuring that people do not become ‘depraved and corrupted’ by the pornography they see and hear. The Obscene Publications Acts 1959 and 1964, and the Criminal Justice and Immigration Act 2008, figure criminality upon normalized notions of ‘appropriate’ pornography and ‘appropriate’ sexual expression. A Foucaultian analysis would suggest that in regulating pornography and obscenity through the lens of morality, it is the law itself that produces and creates these concepts and hence the perpetuation of ideas of ‘acceptable’ identity expression. Using Michel Foucaults ideas on ‘truth’ and ‘knowledge’ and Judith Butlers theories of performativity, this article suggests that the decision to prosecute Peacock was, in and of itself, an act of production, creation and ‘performativity’ that contribu...

Judging a Book by Its Cover: The Deployment (and) Unsettling of Familial Images on Family Law Textbook Covers

An individual’s legal identity can be constituted by a multitude of often-complex notions, and is not necessarily of their own construction. Legal discourse has a significant role to play in the construction of an individual’s legal identity and can apply to gender identity as much as any other. This construction can occur not just through what is written or said, but also by and through the image(s) of law. The image presented to the viewer is prescriptive in both its nature and operation. This paper deliberately chooses a medium which is often omitted from analysis — the front cover of an undergraduate textbook — and offers a ‘reading’ of some of the images that are selected to adorn certain family law textbooks. It argues that the cover can be read as visual rhetoric as powerful and as constitutive of legal identity as the written words within the book. If left unchallenged, law’s cultural prejudices are often shielded from critical examination, leaving the operation of ‘power’ and ‘truth’ within discourse to continue uncritiqued and unquestioned.