Professor Ngaire Naffine (Adelaide) delivered this LRST/IFLS lecture as a Genest Visitor to Osgoode Hall Law School on September 24th, 2012. Find out more about Professor Naffine via IFLS posts – here.
In a talk co-sponsored by the IFLS and the Osgoode Colloquium on Law, Religion & Social Thought, Professor Ngaire Naffine of the University of Adelaide Faculty of Law explored the ways in which, through the regulation of intimate and married life, “the criminal law, the Church, and the family conspired” to deny liberal legal personhood to women. She quoted J.S. Mill’s the Subjection of Women (1869):
… however brutal a tyrant she may unfortunately be chained to — though she may know that he hates her, though it may be his daily pleasure to torture her, and though she may feel it impossible not to loathe him — he can claim from her and enforce the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclinations. While she is held in this worst description of slavery as to her own person, what is her position in regard to the children in whom she and her master have a joint interest? They are by law his children. He alone has any legal rights over them.
in her historically and philosophically rich talk that took as its launching-off point a recent High Court decision that denied that the law of Australia ever recognized marital immunity for the crime of rape, Naffine pushed the audience of over 60 guests to think about the way in which the sexual revolution of the 1960s invited a new way of thinking about legal personhood. You can find the case, PGA v. The Queen  HCA 21, here:
Thus, at all times relevant to this appeal, and contrary to Hale’s proposition, at common law a husband could be guilty of a rape committed by him upon his lawful wife. Lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape. [para 64, majority judgement]
This new — more relational — way of thinking about the legal person, Naffine argued, is one in which rape and marital violence is not only a defect in regard for the personhood of women, but threatens to “unperson” criminal law’s reasonable man. Here, Naffine referred to the work of Jennifer Nedelsky on relational theory, including the recent “Law’s Relations”. For Naffine, the spousal immunity for rape cannot be viewed as an aberration or exception within the criminal law; rather it is central to understanding how law constructs the legal person and its effects on gender equality. Her closing warned that the elimination of the marital exemption has existed for the “blink of an eye” in historical perspective – and she sees backsliding on progress made in gender justice, pointing as one example to the current controversy in Australia over the decision of the Sydney Anglican Diocese to create new (old? apparently a reversion to 1662) marriage vows that have women agreeing to “submit” to their husbands. She also cited the work of Osgoode PhD Ruthy Lazar, “Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada.” Canadian Journal of Women and the Law 22.2 (2010): 329-364 (sorry, not open source) (Lazar points out how the removal of the exemption is undercut by attitudes widely held by defense attorneys and crown attorney’s. Her method involved interviews with key criminal justice actors – worth a read).
Naffine’s talk was fully of intellectual honesty, humour, (pop)cultural references (Germaine Greer, the Beatles), and revelation (she worked as a police officer after finishing law school). We’ll post the tape when we get it. Meanwhile, professor Naffine will speak again, on a different topic, Monday October 1.
Other Upcoming Events
On October 25 at 12.30 p.m., the IFLS presents Professor Joanna Erdman,, the new MacBain Chair in Health Law and Policy, Schulich School of Law, Dalhousie University. Please visit http://ifls.osgoode.yorku.ca for more details and information about the IFLS. The next speaker in the Osgoode Colloquium on Law, Religion & Social Thought will be Professor Richard Moon (Windsor), who will deliver a talk on November 26 at 12.30 p.m. in Room 2027. For more information about the Colloquium, or to be added to the e-mail list for alerts about upcoming events and speakers, please e-mail firstname.lastname@example.org.
thanks to @blberger for drafting the lion’s share of this post. I did the little hyena bit.