By Angela Matheson
In March the Australian Law Reform Commission completed a landmark interim paper into women's access to the law; the study is to be completed this month*. In up to 600 written and oral submissions from across the country, women documented their desperate stories of rape, assault and the murder of their children, and told of a legal system which humiliates them, dismisses their suffering and fails to deliver them justice.
In a government department well known for its diplomacy, ALRC deputy president Sue Tongue went public. "The evidence is overwhelming that when women seek access to justice they are often seeking protection from violence", she said. "In submission after submission, the commission heard that the legal system is failing women. Women are asking: Whose legal system is it anyway?"
Three blocks away, in the heart of Sydney's downtown legal district, the final chapter of another legal scandal centred on women, pornography, the abuse of power and the justice system was drawing to a close behind the mahogany doors of the NSW Bar Association.
The trouble started last year when barrister Louise Steer decided it was high time a six foot square painting of a naked masturbating woman was hauled off the wall of the Bar Association's dining room. Her insistence led to a nine-month battle, the like of which had never been seen before at the Bar and which included a cast of enraged barristers, judges and journalists — including the team from Real Life.
"It polarised the Bar", says Steer, who sees the painting as a form of intimidation, "and to me it is a symbol of barristers' and judges' attitudes toward women".
The painting was hand-picked and purchased as a gift for the Bar in 1975 by eminent legal figures including Justice McHugh of the High Court, Justice Meagher of the NSW Court of Appeal, Justice Lockhart of the Federal Court, Justice Cripps of the NSW Court of Appeal and Justice O'Keefe of the NSW Supreme Court.
"It's reminiscent of a Penthouse centrefold", says Steer, "and was most inappropriate in a professional meeting place where 10% of the 1400-strong NSW Bar are women".
The painting was eventually taken down while a specially appointed three-person committee searched for its new home. In March it was rehung in the office of the Bar's chief executive officer, Babette Smith. "I offered it a home, as it seemed the only way to settle the issue", says Smith. "And my painting and I now have a nice working relationship. It's like a harbour view — after a while you forget that it's there."
Margaret's and Sarah's stories are two of thousands of case studies sent to the ALRC by women's groups across the country. Their experiences were recorded in the rural NSW Illawarra Legal Centre's submission to the ALRC as ordinary examples of what happens to women who seek justice and protection from the courts.
When Margaret first tried to leave her husband nine years ago, he tried to choke her to death. When she eventually left, the court issued an AVO [apprehended violence order] against him. In breach of the order, he broke into Margaret's house and stabbed her 14 times in the back, chest and arms with a pair of scissors.
In court, the defence argued that the scissors belonged to Margaret and that her husband's crime had not been premeditated. "In court they believed the scissors were mine because I was a woman", she says, "but I've never owned a pair of dressmaking scissors in my life and I can't sew."
The jury found the husband guilty of malicious wounding. The judge sentenced him to a good behaviour bond and a $1000 fine.
Margaret continues to be harassed by her ex-husband. "If the system had taken the offence seriously, then maybe my husband would have too. As it was, he just laughed at it."
Sarah was eight years old when she was sexually assaulted by a 55-year-old trusted family friend who had invited her family to his home for a dinner party. She told her mother what had happened and was determined to go to court.
By the time she took the stand, she was 10 years old but still too small to be seen over the witness box. She was told to stand up by the judge and the prosecution, and was not allowed to sit down for the next three hours. During this time she was in full view of her attacker. The defence objected to her mother supporting her while she was on the stand, and this was sustained by the judge.
Sarah was left alone facing a full court and jury.
"The barrister was asking me terrible questions", says Sarah. "He asked me if I talked about sex with my friends at school. He kept asking me about what I meant by my bottom hole and my vagina." When asked how she got through the day she said, "I had my teddy and I kept pinching myself to stop myself from crying".
Sarah's mother recalls the trial as the worst experience of her life. "The judge said Sarah's attacker was a mild-mannered, pleasant man who had obviously been of good character", she says, "and that this was a diversion which he had engaged in only the once. He said she had obviously suffered no ill effects from the episode."
The jury returned a verdict of guilty and the judge handed down a good behaviour bond and a $1000 fine.
"The prosecutor was appalled but said there was no point appealing the sentence", says Sarah's mother, "and I was such a mess that I couldn't do anything but agree with him".
An expert in corporate and finance law, a partner in a leading law firm and member of several corporate boards, Jenny Mattila is one of the few women working in the legal profession who is able to speak out about the treatment women receive from the legal system without serious consequences.
She decided to "go feral" four years ago when the then president of the Law Society of NSW summoned her to his office and announced he was going to abolish the Women Lawyer's Association — of which Jenny was president.
"His attitude was 'sit down girlies and shut up'", she says, slowly tapping her index finger on the polished wood of her firm's boardroom table. She speaks in quiet, measured tones which tell of many years' practice at reigning in anger. "He didn't even know that we were an autonomous body which he couldn't touch anyway — he just assumed we were the tea and bickies club. That's when he copped the facts around the ears."
The facts, according to Mattila, are that the legal profession is a closed shop run by an old boys' network which closes ranks against troublesome women. Women lawyers, she says, are patronised, passed over in promotion, sexually harassed and punished if they object.
The 1993 NSW report into equal employment opportunity in the legal profession, Getting Through the Door is Not Enough, showed that while 44% of solicitors in NSW private practices were women, only 9% were partners. And figures released by the NSW Law Society show the percentage of women partners has fallen steadily over the last three years. "Women lawyers are incredibly powerless", says Mattila, "and if they complain they get sacked because the men who run the legal profession think they are beyond the law".
Mattila points to cases of endemic harassment. "I know of a leading law firm that is still asking women lawyers in job interviews what contraceptives they use", she says, "and I know of a recent case where a lawyer came back from maternity leave and was sacked on the spot. These things are not unusual."
She tells of a cocktail party she was obliged to attend where a senior partner cruised the room asking the women whether they preferred sex with circumcised or uncircumcised men. "In general you'd have to say male lawyers are unhealthily obsessed with sex and have their tongues out drooling like adolescent boys", she says.
Mattila's view is backed up by outspoken magistrate Pat O'Shane. Referring to the rape in marriage case last year in which South Australian Judge Derek Bollen said it was lawful for a man to use "rougher than usual handling" to persuade his wife to have sex, O'Shane said comments like these should not be seen as aberrations.
She tells of a recent talk she gave at the Women Lawyer's Association in Canberra about gender bias and the judiciary. "I hammered home the point that judges are a small, powerful, elitist group who are biased against women", she says, "and afterwards they kept their distance, but their wives came over to tell me what a terrible talk it was.
"I can say generally of judges and barristers that they're cowards — they're not prepared to debate the issues when confronted. Bollen's comments are the sort that are made all the time and have been made for centuries. Without a shadow of a doubt, the domination of women by males continues."
"The point is", says Mattila, "If female lawyers can't protect themselves, imagine what it's like for women in the wider community".
The Illawarra Legal Centre reported to the ALRC that the situation for women seeking justice in the wider community — particularly ethnic and Aboriginal women — is so bad, it would be impossible to imagine.
The centre documented many Aboriginal women's experiences with the law.
"It never helped me", said Lyn, one of 70 women who responded to the centre's phone-in this year. She says she was raped by two police officers in the cells in Sydney. "I'm not the only Koori woman that's been raped by the police." She didn't take action, she said, "because there's no point. They'd only get you for something else when they see you next time."
The centre also documented the case of Filipina Sorosita Haynes, who came to Australia 10 years ago as a bride. Her two young daughters were murdered last year by her estranged husband during an access visit set down by the Family Court.
Sorosita was interviewed by journalist and researcher Judy Stubbs, who says the case is typical of the way violence against women is discounted by the police, the legal profession and the courts. "The only thing different about this particular case is that the man took things one step further and actually killed the kids", she says.
After seven years of assault and emotional abuse at the hands of her violent husband, Sorosita tried to stop the violence by applying for a series of restraining orders, going into hiding, seeking help from solicitors and living in refuges. But her husband continued to harass her with threatening letters and phone calls, and in breach of the AVOs, regularly stalked her, assaulted her and parked his car outside her house. Although the children were terrified of him, the Family Court granted him access, and Sorosita's solicitor advised her he was entitled to it.
On the day of the murders her husband assaulted her when she dropped off the children. She drove to the police twice that day in a frantic state, telling them she feared for her daughters.
"The police officer said, 'Just be patient,'" Sorosita recalled, "and so I started to cry. The police officer said, 'I don't think he's bad enough to harm your children'." Sorosita waited all afternoon and went to collect her daughters in the early evening. When they failed to appear at the appointed time, she drove back to the police for the third time. A different policeman overheard her crying and asked her to follow him to the house.
"The constable knocked on the door and pushed open the door", said Sorosita. "He stayed in there for a long time. When he came out, I asked him, 'Where's my children?' and he didn't answer. He was sitting on the seat of the car. Then I asked him, 'Where's my children?' and he wouldn't answer. So I asked him again and he cuddled me and said, 'I think they're dead love'. He was crying with me.
"I said, 'They didn't listen to me', and he said, 'Yes, they didn't listen to you. And now it's too late for them to listen to you.'"
Sorosita's daughters had been dead since lunchtime. They had been suffocated with a pillow. Her husband was found guilty of manslaughter on the grounds of diminished responsibility and sentenced to 12 years' imprisonment with the possibility of release after six years.
When questioned about Sorosita's case, the assistant commissioner of the NSW Police Department and region commander of the southern region, which includes Illawarra, said, " Look — you can't expect carpenters to hit the nail right every time. Police officers are really dedicated to the needs of victims, but you have to understand that when people come into a police station crying and upset they often don't make much sense. And the police officers have to take time and make sure they're not jumping the gun and taking action against an innocent person."
"It's your classic case of women and the justice system", says Stubbs. "The immigration laws failed to protect her as a Filipina from a violent partner, the Family Court failed to take her husband's violence seriously and granted him access, the apprehended violence orders were trampled over, and the police discounted her well-founded fears about what he might do to the children."
While the ALRC is hopeful that the government will act on its recommendations and improve women's access to justice, women's entrenched one-down economic position means the chances of achieving equality are grim.
Sydney-based lawyer, activist and political journalist Karen Fletcher believes the ALRC is faced with "an impossible task trying to reform the system from the top".
"The fundamental issue ignored about violence in society is the context in which it occurs", she says. She points to the Industrial Relations Commission's recent statement that it has abandoned the idea of women receiving equal pay for comparable work with men, and Australian Bureau of Statistics figures which show that enterprise bargaining has increased the gap between men's and women's wages by 1.8% over the last year.
"Violence and abuse of power against women by men and the justice system happen because fundamental inequalities continue to exist", she says. "And no matter how much you patch up the justice system, at the end of the day that can't stop the violence."
Speaking about women's entrenched inequality, attorney general Michael Lavarch says, "It's undeniable that women have unequal economic power and that is going to continue. Women receive less income than men and, unlike men, cluster in the lower social rungs and in poverty."
But he went on the record saying there is little he can do to end systemic inequality: "I'm only one man, and while we have to recognise the realities of violence and give women more options by changing the attitudes of the police and courts, we must realise bringing about change will be gradual and incremental".
Of the ALRC's recommendations, he says, "Justice for women is a high priority, but it will compete against other budget programs like employment, education and money for the disabled". He adds, "It depends on how much money we can afford."
Responding to Lavarch's remarks, Pat O'Shane says, "How appalling. What a pathetic statement from a government minister. If this government is fair dinkum, it will come up with the money by giving up some of their own huge perks and enormous government wastage. It's all a question of priorities."
She points to figures from the ALRC and the Legal Aid Commission which show that government has been cutting back on legal aid, child-care in court and chamber magistrates (who advise women in court) over the past 10 years. "They don't even provide safe space for women in court", she says.
"As far as I'm concerned the government is saying they're not giving priority to women's needs.
"Women have to demand the government meets their needs, or it will ride roughshod over them. Women must stand up and hold government to account and demand they do something."
She believes a new wave of women's activism is coming. "I think it will be centred on violence and injustice", she says. "If the government will not meet women's needs, then women need to campaign for other options." [This article was first published in New Woman.]
* The Australian Law Reform Commission Report on Equality Before the Law: Women's Access to the Legal System.
ALRC recommendations
The Australian Law Reform Commission has recommended that:
- the Family Law Act be amended so that violence against mothers is regarded as a form of child abuse which revokes the non-custodial parent's right to access;
- mediation or counselling should not take place in the Family Court if violence has occurred, unless the woman chooses;
- separate women's legal centres be set up in each state and territory;
- legal services tailored for Aboriginal and Torres Strait Islander women be established;
- court support schemes be expanded;
- courts provide child-care facilities;
- safe places and waiting rooms be provided for women in court
- interpreters be provided in court for domestic violence cases as a statutory right for women from non-English speaking backgrounds;
- a friend or family member be allowed in court to support children and traumatised women;
- the Department of Immigration and Ethnic Affairs make available the history of restraining orders, injunctions for personal protection, and previous sponsorships of sponsors of overseas brides.