A Legal ‘Double-Bind’
The phrase ‘double-bind’ is used, particularly within feminist literature, to describe the situations in which women have very few options, and all of them have negative effects. In this book, it takes the form of women who have faced gender-based violence experiencing negative outcomes in both criminal and civil areas of law. Women who choose to pursue sexual assault and rape cases through the law often face adverse outcomes. In Australia, only 1.5% of reported sexual assault cases result in a conviction and this statistic does not account for the majority of cases that are not reported. Even for those who reach a conviction, the criminal process can be difficult, long and re-traumatising. Having failed to receive a satisfying outcome from the criminal justice system, where can these women turn to? In the wake of the MeToo movement, an increasing number of women are choosing to share their story publicly. In some cases, such as for Eryn Jean Norvill, these stories are shared by journalists without explicit permission. Either way, this publication exposes women to the second half of the double-bind: defamation claims.
Defamation: Her Truth vs. His Reputation
Throughout the book Robinson and Yoshida frame defamation claims in terms of the competing rights involved. Is the law effectively balancing a women’s right to speak with a man’s right to reputation? According to Robinson and Yoshida, the answer is overwhelmingly no. However, even before there are any defamation proceedings, defamation law still presents as an obstacle to women’s speech. Defamation laws across the world often deter journalists from publishing women’s stories of assault or rape in fear that they will then be exposed to the costs of defamation proceedings. Alternatively, women posting on social media about assault or rape may be totally unaware that these actions may be defamatory. A litany of new issues arises when defamation claims are actually made. The nature of defamation means that individual women may not even be a party to the defamation proceedings in which her story is put through a legal standard of proof. Depending on the nature of the publication, a media outlet or other third parties such as friends, families and activists may be sued instead of, or as well as, the women who actually experienced gender-based violence. Robinson and Yoshida are able to weave together stories and experiences from across jurisdictions to deeply analyse these issues. The resulting picture is one that portrays a world-wide trend of the struggles women face within defamation law while attempting to tell their truth about gender-based violence.
Contract and NDA’s: ‘Rich Man’s Justice’
In Chapter 5, Robinson and Yoshida question why it took decades for the allegations against Harvey Weinstein, Jeffrey Epstein, and Bill Cosby to become public. In doing so they expose the systemic use of non-disclosure agreements (NDAs) as a tool to protect powerful men and silence the experiences of women. One of the most alarming things to read was that a lot of NDAs include clauses that purport to limit the ability to report criminal offences to police. These clauses are unenforceable before the courts, but that does not prevent women without access to adequate legal advice from being scared about reporting their assault or rape. A similar issue is circumstances in which women are improperly pressured into signing NDAs, often without understanding the legal implications of what they’re signing. Robinson and Yoshida navigate this topic through the story of Zelda, who was the first person to publicly break her NDA with Weinstein to talk publicly about her story. Robinson and Yoshida also explore other topics within NDAs, such as the reform responses to these issues and the question of whether the courts interest in upholding contract outweighs the public interest in women speaking out.
An International Trend
A key advantage of this book is it analyses law beyond Australia, UK and US, to form a truly international picture of these developing trends. Robinson and Yoshida draw upon individual experiences and cases from various states including Russia, Mexico, New Zealand, Canada, Columbia, Sri Lanka, India, South Korea, Japan, and more. In doing so Robinson and Yoshida also expose cultural bias and the intersectional nature of these issues. They question why the Australian public is more familiar with the names Grace Tame, Saxon Mullins, or Brittany Higgins, but not Dhanya Mani? Dhyana Mani worked in the NSW Supreme Court, where she reportedly faced sexual harassment from former High Court judge Dyson Heydon. A later internal court inquiry found that Heydon had sexually harassed at least six young women in his staff. Dhyana went on to found the campaign ‘Kate’s List’, formerly called ‘Changing Our Headline’, for survivors of sexual assault. This is just one example of how Robinson and Yoshida highlight diverse perspectives within the law that we may otherwise be unaware of.
The Relevance of Their Story
Sometimes studying law can feel detached from lived experience. Our main education exists within the bubble of the Walter Harrison Law Library. If we critically engage with the topics in How Many More Women? then our legal education can reach beyond this bubble. As we skim through High Court judgments, what onus is on us as students to engage with the wider social context and implication? For many women the law is not a neutral academic undertaking. Instead, as this book shows, it is a tool wielded by powerful men to silence them. The redacted sections throughout the book serve as a disturbing reminder of how cautious women have to be of the legal consequences of talking about gender-based violence. In fact, we need not look further than the slew of defamation litigation surrounding Brittany Higgins for a recent example of these trends within Australia.
How Many More Women? was an excellent reminder that our legal education should extend beyond knowing and applying the law. Robinson and Yoshida balance a critical analysis of the law with sharing the stories of women who have been directly affected by these laws. While the criminal law system is infamous for being substandard in regard to gender-based violence, how many of us considered these issues within defamation? The question that it all really comes down to is this: how many more women have to suffer this silence before legal systems across the world are able and willing to change? How Many More Women? critically examines these questions, and thus constitutes an excellent read for anyone wanting to critically engage with these international legal trends in reaction to the MeToo movement.
References
Damien Cave and Isabella Kwai, ‘A Sexual Harasser Spent Years on Australia’s Top Court, an Inquiry Finds’, The New York Times (online at 13 October 2023 <https://www.nytimes.com/2020/06/23/world/australia/dyson-heydon-high-court-metoo.html>).
Jennifer Robinson and Keina Yoshida, How Many More Women: Exposing How the Law Silences Women (Allen & Unwin, 2022).
Marilyn Frye, The Politics of Reality: Essays in Feminist Theory, (Crossing Press, 1982).
Wendy Tuohy, ‘Nearly 3 million Australians have survived sexual violence’, The Syndey Morning Herald (online at 13 October 2023 < https://www.smh.com.au/national/nearly-three-million-australians-have-survived-sexual-violence-20210823-p58l3e.html>).
Further campaigns and informational websites:
https://www.cantbuymysilence.com/
https://southallblacksisters.org.uk
www.teachusconsent.com
https://www.youtube.com/watch?v=jm7a4vAnGGg
