Are women fully protected by law?

By Cara Fielder. Published 4 May 2021. Last updated 15 June 2022.

Introduction to Women’s Rights and the Law

Many in society would argue that women have reached the “goal of equality”. For example, within England and Wales we often see women in the highest roles in our society; women can vote, own property and have the same jobs as men. However, when you look more deeply into society and the law, you’ll there is much further to go. A snapshot of this analysis is set out below.

Women’s legal personhood

Women struggled at the start of the twentieth century to obtain the same legal status as men within society. Women were denied legal personal hood and therefore denied legal rights. For example, the Equal Franchise Act 1928 allowed women over 21 the same right to votes as men and the Sex Disqualification Removal Act 1919 removed the exclusion of women from exercising public functions or holding a public office on the grounds of sex.

Public and Private Realms

The definition of the public and private realm is where many feminists argue that the law has failed women. The privacy of family means that women are subject to domestic violence and husbands could (until 1992) legally rape their wives. The law was for the public domain - which was the concern of men, and women’s lives were for the private realm - the domesticated realm. The ‘nature’ of women was an argument for restricting their role to the private realm - women are delicate, women need to be protected and should not be exposed to the masculine concerns of public life.

The private realm - and therefore women’s lives - has slowly shifted into the public realm and law has been enacted to reflect this. Changes include the introduction of the Abortion Act 1967 and the Domestic Violence and Matrimonial Proceedings Act 1976. However, these changes have arguably not gone far enough. Issues that are unique to women are still often, in the eyes of the law, in the private realm.

Rights and Equality

Generally, we talk about equality when we talk about women’s rights - women want equality with men. However, it can be argued that the structure of rights - and equality - is from a baseline of a wealthy white male – which means that there is automatically an unlevelled playing field. Obtaining equality and the same rights as men in law fails to consider the differences between men and women, not to mention the absence of consideration for other social, economic and political identifications such as race, class, disability and sexual orientation – for example.

Barrister Helena Kennedy, Baroness Kennedy of The Shaws, has pointed out in “Eve was Shamed” that “the idea that gender equality requires everybody to be treated in exactly the same way is a misconception…particular needs and vulnerabilities of women offenders often go unconsidered in the sentencing process.”

Even while there has been a considerable way forward, women are still underrepresented in the legal profession – which in turn means that less women are becoming the people who can really influence the law. For example, on 1 April 2020, 32% of court judges and 47% of tribunal judges were women. The proportion of women has increased in recent years but remains lower in senior court appointments. (26% for High Court and above) Black, Asian and minority ethnic descended individuals represented 9% of Queen’s Counsel barristers and 15% of partner solicitors.

Women’s bodies and the law

The farming and brothel models were coined by writer and feminist activist Andrea Dworkin and can be helpful when thinking about the law and its treatment of women’s bodies. Dworkin’s farming and brothel models are used to illustrate how women are socially controlled and sexually used in society. The brothel model relates to prostitution and the women that are used for non-reproductive sexual functions. The farming model relates to motherhood and women who are used to bear and rear men’s children.

Surrogacy and Prostitution

The law governing surrogacy and prostitution are similar as they seek not to criminalise the acts themselves. For example, prostitution itself is not illegal, but surrounding activities are. This is not about protecting the women as they are not ‘good’ women - it makes women’s loitering and soliciting for the purposes illegal and the behaviour of curb crawling for men.

Reviewing the Surrogacy Arrangements Act 1985 and the 1997 Brazier Report, the issues raised while discussing surrogacy re-enforced the underlying views of women in society that Dworkin's analysis had established. Like prostitution, surrogacy is not illegal, but it must be on an altruistic basis only. Paternalistic views of female protection and the mistrust of women to make their own choices to become a surrogate if there were economic factors involved highlighted the views prevalent in Dworkin's discussions.

Abortion

The Abortion Act 1967 was a response to backstreet abortions and created a defence to the offence of abortion. Your access to abortion services is dependent on your locations and two medical professionals agreeing that a woman should be allowed due to set criteria in the Act. Therefore a woman does not have the right to an abortion and her “choice” is restricted by the constraints imposed in statute.

Violence and harassment

The year ending March 2020 estimated that 1.6 million adults aged 16 to 74 years had experienced sexual assault by rape or penetration (including attempts) since the age of 16 years.

Of victims who experienced sexual assault by rape or penetration (including attempts) since the age of 16 years:

• fewer than one in six (16%) reported the assault to the police and of those that told someone but not the police, 40% stated embarrassment as a reason, 38% did not think the police could help, and 34% thought it would be humiliating
• more than four in ten (44%) were victimised by their partner or ex-partner

Rape and Sexual Assault

Within the Sexual Offences Act 2003, the legal definition of rape requires rape by a man. The Law needs to evolve to include other types of penetration. Arguably, this makes men the baseline, even for rape.

Rape is a complex and multifaceted crime and the law must show this. One issue is consent and when it has or has not been given. To gain a conviction for rape or sexual assault, the Prosecution must prove beyond reasonable doubt that the complainant did not consent and the Defendant did not have a reasonable belief that consent was given.

Issues increasingly shown in the media (See for example - Michaela Coel’s TV series I May Destroy You) include the offence of ‘stealthing’ and how people are treated in the criminal system when reporting rape. ‘Stealthing’ forms one of the behaviours that have been identified by the Crown Prosecution Service as an example of a conditional consent case. A conditional consent case involves ostensible (appearing to be true, but not necessarily so) consent to sexual intercourse being invalid when the conditions of the consent have been broken or withdrawn. In this case, lying about the use of a condom.

Sexual Harassment

Among women aged 18-24, 86% said they had been sexually harassed in public spaces, while just 3% did not recall ever having experienced sexually harassing behaviour. The remaining 11% chose not to answer.

Although the issue is arguably very prominent in the media at present, sexual harassment is not a criminal offence.  Sexual harassment is a form of unlawful discrimination under the Equality Act 2010. The law says it’s sexual harassment if the behaviour is either meant to, or has the effect of:

• violating a person’s dignity, or
• creating an intimidating, hostile, degrading, humiliating or offensive environment

However, this is not only a civil matter. The 2019 LRD report for UNISON on 'Reducing the likelihood of sexual harassment at work' found that there is evidence to suggest that Black women "experience higher levels of overall harassment than others, though they may experience it differently." Also that LGBT+ people "both male and female – experience higher levels of sexual harassment than others."

Mad, bad or sad

The terms "mad, bad or sad" have been used to identify how women's mental state is treated when they commit crimes. This can be argued to be seen, for example, where women kill their abusive partners and the case of "battered women's syndrome".

Helena Kennedy notes that the law on self-defence has been constructed by men considering being attacked by another man. The law fails to sufficiently consider the disadvantages that women feel in the face of male strength and that most women suffer long term abuse - which doesn't allow for the defence of provocation.

However, diminished responsibility is now a defence for women who kill their husbands following abuse - but it still requires women to show that they have an abnormality of mental functioning. Additionally, Section 76 of the Serious Crime Act 2015 created a new offence of controlling or coercive behaviour in an intimate or family relationship. Behaviour must be engaged in 'repeatedly' or 'continuously'. Another, separate, element of the offence is that it must have a 'serious effect' on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them

In the year ending March 2019, an estimated 2.4 million adults aged 16 to 74 years experienced domestic abuse in the last year (1.6 million women and 786,000 men). The current Domestic Abuse Bill created a statutory definition of domestic abuse, emphasising that domestic abuse is not just physical violence but can also be emotional, coercive or controlling, and economic.

Women’s Aid’s responded to the Bill by saying “The definition of domestic abuse must be inclusive of all survivors, regardless of immigration status, culture or religion. It is therefore concerning that the proposed definition completely excludes the forms of violence and abuse disproportionately experienced by Black and Minority Ethnic (BME) women - forced marriage, female genital mutilation (FGM) and so-called ‘honour-based violence’, that are often perpetrated by family members, often with multiple perpetrators, as well as less recognised forms such as dowry abuse and transnational marriage abandonment.”

In conclusion

While the law has adapted and developed to provide women with many rights and protections, there is still a long way to go. True equality will only exist where women are treated by the law as autonomous human beings who are able to make their own informed decisions. They need to be listened to and believed within the criminal justice system, not confined to the perception of what makes a “good” woman. They must be afforded real protection when speaking out about discriminative, sexual or violent behaviour without being worried about the consequences. It is also integral to truly address the need to protect women in terms of all social and political categorisations including race, class, gender identity, sexual identify and disability and how these interplay with women’s treatment in society.

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