Gender Analysis and the Women's Access to Justice Project
Stuart Birks
Issues Paper No. 2, Published by the Centre for Public Policy Evaluation, College of Business, Massey University, Palmerston North, New Zealand
March 1998, ISSN. 1174-412X
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Acknowledgements
Thanks are due to many people, both men and women, who have played a constructive part in the development of the ideas and analysis in this paper. Much of this has come through valuable face-to-face and email list discussions, as well as sharing of personal experiences. Perhaps unknown to them, many colleagues and graduate students have also made a contribution. Most welcome have been the specific assistance and comments on drafts of the paper from, in alphabetical order, Gary Buurman, Paul Callister, Mark Rowley, and Rob Thomson.
Contents
3 What is the Women's Access to Justice Project?
4 Why is the legal establishment vulnerable?
5 Problems with background information from the WAJP and elsewhere
Appendix I Women's Access to Justice Project: Terms of Reference
Appendix II Letter to the Women's Access to Justice Project
Appendix III Reply from the Law Commission
Appendix IV Separation and the 1996 Census
Appendix V The Statistics New Zealand/Ministry of Women's Affairs Time Use Survey
Appendix VI Separation and Wellbeing
Appendix VII The Duluth Wheel: Power and Control Version
"Over the last three decades ideological doctrines have infiltrated the curricula of many of the larger universities. Spurious academic subjects such as 'black studies' and more recently 'women's studies', putatively designed to 'raise consciousness' and strengthen commitment to credos of 'emancipation', manifestly fail to meet the stringent requirements of scholarship: certainly the doctrines of these ideologically inspired 'studies' are not regarded by their proponents as provisional and refutable hypotheses. Clearly arrangements being made for their systematic propagation in these circumstances do not comport well with the idea of a university as a forum for open-minded enquiry and impartial scholarship."
Mishan E.J. (1993) page 202.
The Law Commission's Women's Access to Justice project is an application of "gender analysis". Gender analysis is not intended to be open-minded, objective research. It is ideologically inspired and has an in-built political goal. As such, its methodology is suspect.
As will be shown, the New Zealand legal establishment possesses institutional characteristics which can make it particularly vulnerable to capture by well-positioned parties promoting a particular interest. This is illustrated by the current situation.
The aim of this paper is to assess the methodologies, the assumptions and the information being presented to make the case that women are disadvantaged. I shall consider how the legal sector might be vulnerable to this lobbying, and I shall attempt to briefly outline what might be men's perspectives on these issues. I shall focus primarily on Family Law because that appears to be the main area of relevance for the Women's Access to Justice project.
Section 2 below looks at gender analysis; section 3 considers the general direction of the Women's Access to Justice project; section 4 provides some context for assessing the possible impact of the project and related work; section 5 considers specific types of information presented in the project literature and elsewhere; and section 6 speculates on the perspectives that men might present if they were given an equal opportunity to comment on these matters.
In 1996 the Ministry of Women's Affairs issued a publication called, The Full Picture: Guidelines for Gender Analysis.
To quote:
"What is gender analysis?
Gender analysis:
It looks for and attempts to overcome inequities for women, but not for men. The identification of inequities involves the selection of indicators, obtaining the data, and applying value judgements to say whether a higher number is better or worse. There is scope for debate at each of these stages. A balanced approach would accept that the perspectives of all participants must be considered. Gender analysis aims to improve the position of women where they are considered to be disadvantaged, but to do nothing where they are considered to be advantaged. By focusing on disadvantage and overlooking areas of advantage, a distorted picture is presented. This is likely to result in inappropriate recommendations.
The outcome of the Women's Access to Justice project leads to perspectives such as the following: If women's material standard of living falls on separation, that should be corrected, but if men's material standard of living falls on marriage, that is irrelevant. If women have difficulty obtaining child support, that should be corrected, but if men are obstructed from seeing their children, that is irrelevant. If women are found to have more difficulty than men in getting paid employment, that should be corrected, but if men have difficulty getting custody, that is irrelevant.
The publication on gender analysis does not define equity, except to say that equality is not equity, because men's and women's lives are different (pages 7 and 8). With selective choice of criteria and a focus solely on women, there is great scope for fundamentally inequitable outcomes.
Under "Guidelines for Action" (page 24), there is a sub-heading, "Consultation". There are 5 points - four refer to consultation with women:
"Consultation
The fifth is not: "begin consulting with men at the outset"; nor is it "consider whether groups or individual men should be consulted, the time of day......."; or "consult with different groups of men"; or "allow men time to consult amongst themselves". It is, "Seek the advice and assistance of the Ministry of Women's Affairs on key gender-specific issues concerning social and political policy development."
Not only are the issues selected with a pro-women focus (or perhaps more accurately a feminist focus), but the whole approach to gathering information appears to exclude input from men.
On page 8 there is the claim that, "Gender analysis provides a basis for robust analysis of the differences between women's and men's lives, and this removes the possibility of analysis being based on incorrect assumptions and stereotypes."
It is difficult to see how this can be the case when there is no provision for equal consultation with men. Also an approach based on gendered groupings will inevitably result in explanations reliant on stereotypes. It is hard to see how such a one-sided and loosely defined approach can possibly meet the claim, in the title of the document, that it gives "the full picture".
The Law Commission's Women's Access to Justice Project follows a gender analysis methodology. The approach should be contrasted with that used in the "Fathers Who Care: Partners in Parenting" project, being undertaken by the Office of the Commissioner for Children. According to a letter sent to parties interested in the latter project in late May 1997, a far wider range of opinions is being sought: "We plan to ascertain the views of children, men and women in relation to their perceptions of fathering and co-parenting."
3 What is the Women's Access to Justice Project?
The terms of reference of the Women's Access to Justice Project are reproduced in appendix I. In brief, they state that the Law Commission will examine the response of the legal system to the experiences of women in New Zealand with emphasis on family and domestic relationships, violence against women, and the economic position of women.
There is an emphasis on consultation with women, and an assumption that women are disadvantaged. The language and approach show that this project fits under the umbrella of gender analysis. We can therefore already anticipate many of the weaknesses inherent in the project. I voiced my concerns in a blunt submission to the project (see appendix II), pointing out in particular that it is looking at the issues from one side only. This would seem to run counter to a fundamental requirement of law and justice. I have the benefit of a direct response from Joanne Morris, Law Commissioner, explaining the Law Commission's choice of approach (see appendix III). The main points that I would identify in her response are that:
These are addressed in turn in 3.1 to 3.3.
3.1 The focus of the project
To quote two extracts from the terms of reference of the project:
i) "Priority will be placed on examining the impact of laws........"
ii) "The Law Commission ... will report to the Minister of Justice concerning: ... specific law reforms ... "
There are also references to principles followed by policy makers and lawmakers, as well as educational strategies. The Law Commissioner's comments appear to be in direct contradiction of the terms of reference.
In the project's 1995 publication, Overview of Law Commission's project and issues arising in the consultation sessions to date, the following specific issues are identified: matrimonial property; de facto property; maintenance - child support; custody - guardianship; adoption; ACC - medical misadventure, lump sum compensation, unpaid work in the home; DSW benefits - income support; superannuation; tax; employment law - sexual harassment, pay equity, child care, parental leave; property division upon death; domestic violence; rape law; other crimes of violence against women; defences to murder; legal aid; sexual abuse of children; prostitution; criminalisation/institutionalisation of women.
The project is clearly intended to have an impact on policy making, to suggest changes to the law, and to influence the background information provided. In addition, changing the process can affect outcomes, and a big impact on judicial decisions and the interpretation of the law can be had without resorting to law changes.
3.2 The effects of gender
That the project uncritically builds on a foundation of feminist thinking is evidenced by the explanation given in a paper by Law Commissioner Joanne Morris, "Justice is not blind to the effects of gender". For example:
" … it is manifest that men do experience difficulties in dealing with the legal system. But those difficulties are not attributable to men's gender - the socially constructed roles of men and the value placed upon them. Poor men and men from ethnic minorities head most people's list of men who have difficulties accessing justice. Yet poverty is not as prevalent amongst men as amongst women. And the poverty of men is unlikely to be directly related to their socially constructed maleness whereas women's poverty is very likely to be the outcome of the social construction of women's roles and their value. Also, while men and women from ethnic minorities experience particular, and often fundamental, obstacles in their dealings with the legal system, the compounding effects of gender do seem to distinguish the quality of men's and women's dealings." (pp. 7-8)
Unfortunately, as suggested by Mishan in the quote at the beginning of this paper, we are expected to accept these claims on faith as a justification for modifying our legal system. The points really need to be spelled out and evidence presented.
That hypotheses are neither provisional nor refutable is suggested in the project's Miscellaneous Paper 11: The Education and Training of Law Students and Lawyers, where, for example, the terms "gender issues" and "feminist approaches" appear to be synonymous (see paragraphs 120, 121, 127-130).
Miscellaneous Paper 10, para.40, quotes an explanation of the importance of gender from the Australian Law Reform Commission document, Equality Before the Law, (DP54, 1993):
"Gender describes more than biological differences between men and women. It includes the ways in which those differences, whether real or perceived, have been valued, and relied upon to classify women and men and to assign roles and expectations to them.
The significance of this is that the lives and experiences of women and men, including their experiences of the legal system, occur within complex sets of differing social and cultural expectations."
This explanation is more tangible than that presented by Morris. Gender might be an important influence on perceptions and expectations. This does not mean that women are necessarily the ones who would be disadvantaged, however. For example, a father seeking custody might be required to prove to a skeptical court that he is a fit parent and also that the mother is unfit. In the context of women's violence, Pearson (1997) writes: "Because we won't concede aggression and anger in women, the language we use to describe what they do is much more limited, and much more exonerative." (p.42)
3.2.a Poverty or Low Income
It is claimed that women have more marked difficulties because of poverty or low income. Presumably this statement is based on national data on incomes of men and women. It should be based on information on the availability of funds to those requiring legal services. These are not the same. For example, it is insufficient to say simply that women are disadvantaged because they earn less than men. There are intra-family reallocations of income, so a woman is more likely to have access to funds from the income of a higher-earning partner. There should also be consideration of the demographics of users of the legal services. Male users are not necessarily representative of men in general. This relates also to point 2(b), women are "more likely to find its manner and style alien and offputting".
3.2.b Alien and offputting
Who are the "users"? Men comprise the majority of offenders, but a minority of men offend, and they are generally young. It is hard to see how their experience can be expected to give them an advantage over women in subsequent court appearances (when contesting custody, for example). Conversely, women's contact with the court is more likely to be a positive experience and some areas, such as court ordered counselling, are arguably far more in tune with women's needs and experiences than they are with men's.
Table 2.13 of Conviction and Sentencing of Offenders in New Zealand: 1985 to 1994 (1994, Ministry of Justice) gives figures on number of cases resulting in a conviction excluding traffic offences. They are 51,554 for males and 11,212 for females. According to Department of Statistics figures, the 15+ population of New Zealand in 1994/5 was 1,346,400 males and 1,415,700 females. Male cases therefore equalled approximately 1 in 27 of the male population. Of the male figures, 18,741 were Maori and 23,258 were European. Department of Statistics data suggest about 10% of the population is Maori, the others are mainly European, so we have a convictions:population ratio of about 1:7 for Maori and about 1:50 for European (2%). Going by age (table 2.14 of the Ministry of Justice publication), of the 48,050 male cases where age is known, 9,644 are 14-19 and 14,009 are 20-24. I.e. nearly half are under 25.
So in a year, perhaps 2% of the male European population has a case resulting in a conviction (ignoring the possibility of one person having several cases). Perhaps half of these are men under 25. Their experience is supposed to result in all European men, including those with convictions, not finding the legal system "alien and off-putting". I would have thought that it would do the opposite for those convicted, and nothing for other men. We should also add that contact with the legal system does not necessarily mean conviction. There are those who were wronged and seek redress, many of whom are women, there are witnesses, many of whom are women, and so on. Their contact may be a far more positive and beneficial experience.
It is also hard to understand how a conviction for a drug offence or for shoplifting, for example, could be considered useful familiarisation for anyone making a custody application. Surely it is more likely to have the opposite effect.
Much of the contact that women have with the legal sector occurs in the Family Court ("Predominantly … women described family law as the one area in which they came into contact with the civil justice system." Miscellaneous Paper 10, para.44). This contact would commonly arise in the context of disputes with men. The failure of the project to seek a substantial input from men therefore means not only that many of the users of the sector are overlooked, but also that the concerns of one side only are considered. To take the issue of custody, for example, the Family Court addresses conflicts between custodial mothers and non-custodial fathers. The experiences of these two groups are quite different, so submissions by these mothers are unlikely to reflect the experiences of the fathers. Changes to the treatment of mothers would inevitably impact on the fathers, however.
The Family Court's work involves input from people with various skills besides the law. In particular, it pays and/or works closely with psychologists, counsellors and social workers. It could be argued that men are more likely to find these people and the way they work "alien and offputting".
A large proportion of these workers are women. The following data from the Massey University annual publication Graduate Destinations for the relevant years refer to Massey Batchelor of Social Work graduates for 1992-1994.
1992 - M=3, F=28
1993 - M=6, F=32
1994 - M=3, F=35
1993 figures also show that the mean age for the men was 35, and for the women was 26, but the mean salaries of those who were employed at the time of the survey was $26,580 for the men and $28,379 for the women. Women are also more likely to be clients.
Also, on page 87 of Maxwell G M and Robertson J P (1993), we find that "All but three of the 33 counselling co-ordinators during the first half of 1989 were women".
Counselling co-ordinators have an important part to play in allocating the people who conduct Family Court counselling and those who make psychological assessments under section 29A of the Guardianship Act.
"It has been held in the High Court that a s 29 A does not limit persons qualified to make psychological reports to persons registered under the Psychologists Act 1981 (re existing psychotherapists). Section 29A does not provide any restriction upon the selection of report writers, it leaves the determination of "suitability" to the Court's discretion."
(Butterworths, 1995, page 476)
In other words, unqualified people may be selecting the experts to advise the Court, and these experts may not be vetted by the relevant professional body. Even appropriately recognised experts may not be impartial, however, as is discussed in part 4.6.
It may therefore be the case that that women have far more contact and familiarity with important aspects of the system. Those working in these areas may also be more familiar with and sympathetic to women's perspectives.
3.3 Men represented by men in the legal profession
The Law Society has made a submission to the Women's Access to Justice project. It is summarised at: http://www.nz-lawsoc.org.nz/lawtalk/access.htm. They point out that the work of the project to the date of submission:
" …fails adequately to acknowledge that the experiences and needs of the self-identified group informing the project are not representative of the experiences of all women accessing the justice system.
The paper records comments by women self-identified because of their negative experiences. From these comments are drawn generalisations about women's experience in the legal system, resulting in an almost wholly negative commentary on what lawyers generally can and do provide for their clients."
The defence of lawyers against criticisms raised by the project is that women who are satisfied would not make submissions. They fail to mention that men may also have a viewpoint and that men's perspectives may be different from women's. Given this oversight on the Law Society's part, it is hardly likely that they would adequately represent men as claimed by Joanne Morris. To the Law Society, in the context of the Women's Access to Justice project, male clients appear to be invisible.
Interestingly, the following is from Women's Health Action Trust, Discussion Paper 1 June 1997 Guidelines for the involvement of consumers in guideline development (http://www.womens-health.org.nz/html/guidelines.html)
"It is not appropriate:
that those holding medical power, or operating as health professionals and health service providers take on the role of consumer representatives.
to use professional social work services to act on behalf of the community. Such people do not necessarily have a mandate to represent community views and aspirations."
If representation by professionals is inappropriate for women in the health sector, would it not be equally inappropriate for men in the legal sector?