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Access to justice is intrinsically linked to the guarantee of equality between individuals. Although equal access to justice is essential, it is often flouted to the detriment of certain groups of people - including women. Indeed, long standing entrenched gender stereotypes contribute to their differential treatment. Today, judicial institutions tend to minimise or ignore certain types of abuse suffered by women, including, but not limited to, domestic abuse. The under-representation of women in the courts, creating a lack of diversity, is a significant reason for women's unequal access to justice. The aim of this policy brief is to demonstrate that the under-representation of women in the judiciary contributes to the perpetuation of domestic violence. This implies that the government, and more specifically the Ministry of Justice, should follow our recommendations, which are of two types. A coordinated, time-bound policy must be developed. On the one hand, given the urgency of the situation, quota measures must be taken to ensure fair representation of women in all courts in the short term. On the other hand, with a view to the medium and long term, 'positive actions' must make it natural for women to be fairly represented in the judiciary.
Current Status of the Issue
Section 1 of the Domestic Abuse Act states that domestic abuse involves 'abusive behavior by one person on another, over the age of 16, where a personal connection can be identified. Abusive behaviour includes physical or sexual violence, violent or threatening behaviour, but also economic, psychological and emotional abuse'. However, the application of the law does not live up to this unequivocal statutory condemnation of domestic violence. The recent JH v MF case is a perfect example. The victim had been subjected to domestic abuse, both physical and sexual assault. At the appeal, the judge critiqued how although the claimant stated that she explicitly refused to engage in intercourse, Judge Tolson considered that since the victim 'took no physical steps' to 'encourage the father to desist' the defendant was not guilty of rape.
This discrepancy between the law and its application is fueling the intensification of such violence, which has become increasingly widespread. According to the Office for National Statistics, the police recorded almost 760,000 domestic violence crimes in 2021, a 9% increase on the previous year. The charge rate was 73% for the same year, a decrease from 2020. The graph below confirms this trend. The study also showed that almost one in three women aged between 16 and 59 will experience domestic abuse in her lifetime. Even more tragically, two women are killed by their partners or ex-partners and Wales on average every week.
The under-representation of women in the courts is the main reason that contributes to the unfair treatment of women in the justice system. Today, women represent more than 50% of the entrants to the labor market in the legal sector. However, according to the latest government figures, and as the graph below shows , in 2021 in and Wales, 34% of court judges and half of tribunal judges were women. Also, in senior court appointments (for High court and above), they represent only 29%.
The reluctance of domestic abuse victims to take legal action, stems from a lack of confidence in the Judicial system and its inability to adequately protect them. Thus, a better representation of women would increase women's confidence in the judicial institutions, as Vanessa Ruiz, the president of the International Association of Women Judges points out . There is suggestion in literature that an increase in women judges will bring women's livid experience and insight into the courtroom: Wilson refers to Dianne Martin who argues that having a female judge enables you to have 'certain shared experiences that removes the need to translate your submissions into 'man talk' or a context that a male judge will understand'. Similarly, Hunter depicts that an increased representation of female judges will bring an understanding of 'women's life experiences' in particular, their experiences of sexism and discrimination'. Hence, underrepresentation in the judiciary impedes a lack of true livid understanding of gendered issues such as domestic abuse.
The practicality of measures that improve women's representation in the judiciary is often debated. Some criticise the methods, arguing that positive discrimination would undermine meritocracy. This is exemplified by Lord Neuberger's response to Lady Hale's recommendation that women be automatically allocated places in courts. He declared that it was only necessary to 'encourage women'. Others criticise the results, considering that fair representation of women in the courts would not change the situation. Female judges are often constrained by the need to stay in line to ensure that their legal competence is not challenged Hence, there may be reticence on their part when it comes to incorporating their own experiences and perspectives into the process of applying the law.
However, none of this calls into question the relevance of increasing the number of women in the judiciary. The Australian Feminist Judgement Project, which involved rewriting existing judgements using a feminist perspective demonstrated that through using this approach, 'legally plausible' results could be achieved. Hence, it is clear that the most suitable approach to improving the outcomes in cases concerning domestic violence is to increase judicial diversity through an increased number of female judges.
- The development of Quota Policies
The government must give priority to the development of positive discrimination measures. Thomson Reuters defined it as 'Treating one person more favourably than another because they have a protected characteristic'. Chapter 1 of the Equality Act of 2010, which provide a list of these protected characteristics, refers in particular to the discrimination on the grounds of gender and sex. In view of the statutory prohibition of positive discrimination measures in recruitment phases, the provision to this effect, namely Section 159 (4) (a) of the Equality Act 2010, should be modified or repealed.
An advantage of positive discrimination lies in the immediacy of their results. The deconstruction of gender stereotypes is a long process that does not benefit the short and medium term. In 2012, Lord Sumption estimated that a solution involving selection based solely on merit could take 50 years to achieve a truly diverse judiciary, where as positive discrimination could be a faster method of increasing diversity.
Quotas should therefore be established to achieve gender parity at all levels of instance in the judiciary. The higher the level of court, the less women are represented. For example, today in the Supreme Court, the highest court women make up only 8% of the judges. In practice, these positive discrimination measures must be applied at the recruitment stage. Several countries have adopted such measures, such as Montenegro, where courts of all levels are required by law to have gender parity in the appointment process. This implies a review of the way legal practitioners are selected and the adoption of special provisions that allow appointment commissions to consider gender balance. Such affirmative action has also proved effective at the national level. This is the case of the All-women shortlists (AWS), which by granting an exclusive right to women to be shortlisted as candidates in certain constituencies have helped to transform the gender balance in parliament.
However, positive discrimination is not a desirable solution in the long term, as these inequality-correcting measures aim to fill in the gaps in the system rather than to solve them in depth. Therefore, in addition to this policy of positive discrimination, which responds to the urgency of the situation, the government must also pursue 'positive' actions.
- The development of 'positive actions'
Positive action can be broadly defined as the act of taking steps to minimize the disadvantages faced by groups in areas such as education and access to information concerning job opportunities. Positive action can include activities such as outreach efforts to invite suitable candidates who share certain characteristics to apply for jobs as well as providing the necessary resources for lacking candidates to meet the requirements. Positive action, unlike positive discrimination, is legal by virtue of Equality Act 2010. It guarantees that employers can help address disadvantages faced by groups who share 'protected characteristics' to encourage their participation in an activity. The protected characteristics recognised include characteristics such as age, disability, and sex.
To increase the proportion of women in the judiciary, positive action should be implemented in the form of reaching out to qualified women to apply for judicial office as well as providing others with the resources to meet the requirements. Lord Sumption points out the fact that the pool of candidates for judicial office is often taken from the highest tier of the legal profession, which is currently dominated by white males due to historic practices. Hence, this approach would first involve making a more concentrated effort to inform women of available positions. The second prong would be to implement wider reforms in the legal profession, namely providing more women with training opportunities so that they can acquire the attributes of a competitive candidate. This would make a significant difference as many women are subjected to working environments where they are frequently denied opportunities for advancement and excluded from participating in activities.
The overarching aim of this method would be to increase the proportion of qualified women in the pool of candidates for judicial office to eventually increase the proportion of judges that are women. A key benefit of this method is that it increases the diversity of applicants for judicial office while ensuring that the merit requirement is satisfied. For instance, only women with satisfactory levels of experience and qualifications will be the target audience of outreach efforts. Such an approach to judicial appointments simply diversifies the recruitment stage of appointing judges. It does not entail denying qualified men from succeeding, thereby maintaining the standard of appointing the most suitable candidate for the role.
The success of this approach can be observed in Canada, particularly in Ontario, where the committee responsible for judicial appointments known as the JAAC, requested for letters to be sent to every single qualified female candidate in the area to personally encourage them to submit their applications. This approach was credited for the significant increase in the number of successful female candidates, with around 40 percent of the judicial appointments over the next two years being women.
Removing the obstacles to the low representation of women in the courts requires coordinated policy intervention, both immediate and delayed. Positive action takes place earlier in the process to increase the diversity of candidates while positive discrimination diversifies the actual selection of candidates for the judicial appointment. Hence, these two types of measures must be implemented in tandem. In this way, cases of domestic violence will no longer be dealt mostly by men, whose stereotypical assessment bias is an obstacle to the effective criminalisation of such violence and ultimately a danger to women. But the search for better representation of women in the courts goes far beyond the issues of better justice and is part of a deep commitment to the fight for equality between men and women. The courts have a moral and political function, as their decisions reflect a certain view of things and inevitably influence our society. Therefore, enabling women to dispense justice, it's to engage in an effective process of deconstruction of gender stereotypes. It should be noted that all these inclusive policies could also be directed at minorities that suffer systemic discrimination. Broadening these measures would thus ensure a transition to an active human equality policy.
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