The Image of a Woman Judge

On the issue of whether we should want more women judges I agree with Baroness Hale’s opinion, presented in her paper: ‘Equality and the Judiciary: Why Should We Want More Women Judges?’ that we should want more women judges. I will argue this viewpoint by analysing how women judges can bring about positive changes in the working of the judiciary – in terms of how judges think; the implementation of the law – in terms of the fairness and equality when applying the law; and in the composition and democratic legitimacy of the judiciary.

The Image Of A Woman Judge:

Hale describes ideal image of a judge as “intrinsically male”, with the attire of a wig and a gown adding to the masculinity. By wearing this attire she says it humanises them into men, and by joining the profession they have to pretend to be men. Having more women judges would address this issue by getting rid of the male majority, hence allowing women judges to act as women would and not having to mould themselves into males. It would also combat the image of an ‘old boys’ network’ often touted by the media, and therefore could improve public perception of the judiciary as a more open and understanding body.

According to Hale women judges are expected to be “agreeable, charming… supportive… attractive” unlike their male counterparts who are be “aggressive” and “sarcastic”. This is supported by Erika Rackley who writes that the experience of a woman judge is one of “isolation, mistrust and antagonism”. All this suggests that women judges are rarely given the opportunity to challenge their male colleagues on ideas of law and the workings of the justice system; and that in order to become a judge they should give up what they believe in and stand-for. More women judges would allow women to voice their own opinions thus allowing them to challenge the mostly homogenous opinions of the male judges. Furthermore, being able to put across their viewpoints will allow a more thorough debate on legal issues to take place, with views from different perspectives coming together to find an ideal which is fair and just on all of society.

Will Women Judges Favour Women?

Some may argue that having more women judges could bring about an unfair bias towards women, as these judges would work solely from a feminine standpoint. However Hale argues that judges’ strive towards the ideal of doing right by all according to the laws of the country, as they still have to take the judicial oath, and they are expected to put their personal feelings aside so they therefore cannot judge with emotion. On the contrary to the original argument, women judges in the judiciary will rather bring positive benefits as described by Bertha Wilson who believes that they can view the world from a different perspective than men, and therefore can play a major role in introducing impartiality and neutrality into the judicial system. Furthermore when looking at sentencing, Elaine Martin found that male judges tended to give lesser sentences to female defendants in comparison to female judges. Consequently, having more women judges can increase the fairness not only by which women are treated by judges, but the rest of society as well.

The Treatment Of Women In Courts:

Hale again quotes Bertha Wilson to describe how “gender-based myths, biases and stereotypes” of women are not only embedded in the attitudes of male judges, but in the law as well. Hale believes that little has been done to counter these stereotypical outlooks compared to the efforts on countering stereotypes concerning race and colour. As she tells us, similar research to what was done in the 1970s in the US to deal with race and colour stereotypes could be done for gender stereotypes too. Having more women judges would help to get rid of these gender stereotypes concerning women, and encourage more research to take place on how the justice system could discourage these stereotypes to occur in the future, thus making the law and the attitude of the judiciary fairer towards females.

As indicated by Hale, sexism is the underlying premise of many judgments in areas such as tort, criminal and family law. She is not surprised this is the case due to the society in which the judges socialise in. This society is described in a book by Sommerlad and Sanderson from the perspective of a black woman who works for the Crown Prosecution Service – she reports that sexist behaviour and language is rife, and that sexual jokes with reference to women are a commonplace. More women judges would assist in getting rid of this sexist environment in which judges’ work and socialise, and this would mean that minimise the sexist attitude of the male judges, which would in turn mean that sexism against women plays a weaker role in determining court judgments.

Masculinity Of The Law:

In Hale’s opinion, some principles and underlying premises have no feminine perspective, and as a result some of these principles are unsound and should be revisited; examples she provides are contract, real property and company law. In a later interview Hale further backs this up when describes some areas of the law in relation to women as “very tough”. The writers Barker, Kirk and Sah are shown to agree with this when they write about criminal law – here they illustrate how the media sees violence by males as normative and part of masculinity, whereas violence by women is put down to psychological disturbance. A similar line of thought echoes in the criminal justice system whereby reports regarding women are more likely to stress psychological disturbance than reports about men. This shows that the ideas of the male dominated media have been transferred to the male dominated judiciary, suggesting that a judge would not see violence by a woman as normative. Having more women judges would allow these principles to be edited, when they are brought up, so as to have a more feminine perspective, which would then assist the judges in making more informed decisions in cases involving women. There has already been some success without women judges in the case of R v. R which concerned marital rape and reached the House of Lords. Prior to this decision, the work of William Hale was held to be the authority on this matter. In his book he states that the rape of a woman by a man, both of whom are married to each other, is an exclusion to the law on rape, as there is mutual consent and the wife has given herself up to her husband by the act of marriage. The all male bench decided that this thought was outdated, and that this principle was no longer sound, hence they interpreted the Sexual Offences (Amendment) Act 1976 to be in favour of the wife thus outlawing marital rape. An increase in women judges could build on the success of such cases, one of which is discussed above. The decision in R v. R was reached without women judges on the bench; so having women judges could deal with issues such as this earlier, thus helping to overcome injustices against women that are entrenched in the law, and allowing for new principles in the law to be built on with female perspectives.

Can Women Judges Be More Understanding?

Hale then goes on to discuss how she believes that a “wider experience of the world” can come in useful to a judge, especially the experience of child-bearing which can affect how a judge will approach a case about child care and upbringing. It is more likely that a woman has had this experience (sometimes multiple times), hence having more women judges would allow them to bring the unique expertise that they have gained from child-bearing to positively impact court judgments from the perspective of being able to understand the situation the parties are in, because they will have had some experience in this field.

Furthermore in Hale’s view, having a diverse bench with people from different backgrounds who have different perspectives can increase empathy and understanding for the diverse range of cases that are brought before the courts. Hale in a later interview states that she agrees that women judges do and can make a difference in some areas, as she herself has done in areas such as child-bearing and sexuality. Other women judges have made it difficult for men to be sexist and voice other non-female friendly opinions, and they have also brought a new perception when looking at the facts of cases. Having more women judges would especially help understand the woman victim’s stand point in rape cases. Writers Temkin and Krahé point out that men are more likely to blame the victim in rape cases compared to women, so having more women judges on rape cases could lead to some variation in judgments due to women judges being able to emphasise the negative repercussions of rape more than their male counterparts. Thus, having more women judges can lead to judges being more understanding towards not only women, but children, families and other minorities such as homosexuals. Being a woman allows a judge to empathise with a woman’s case and point of view better, and if there is mutual understanding between the judge and the party, the courts’ decisions are more likely to be accepted by the parties and society.

A More Reflective Judiciary:

Hale writes how having an increase in women judges would make the judiciary more reflective of the public. As this would be a visible change in the composition of the judiciary, she says that it may change the common perception of judges, and could increase public confidence. Hale says that currently much of the public would describe the judiciary as “pompous old weirdos” and “just old men” who are out of touch with the public. More women judges would be the first step in beginning to change this perception, and it would address concerns that the judiciary is out of touch with the general public, because now judges would seem more approachable and part of the people. A 1997 report by the Women’s Communication Centre expressed how women wanted more equality of representation within the system, and changes in the way the law treats and regards women. Having more women judges would satisfy this request for more representation on behalf of women, and so would increase public confidence in the judiciary.

The Democratic Legitimacy Of The Judiciary:

As well as increasing public confidence, having a more reflective judiciary would increase its democratic legitimacy. The definition of democracy is “a form of government in which the people have a voice in the exercise of power” – this cannot be held true if the judiciary is made up of one type of homogenous persons, as this does not give all the people a voice to exercise the power of the courts. As Hale puts it, it is wrong for the courts to be “wielded by such a very unrepresentative group”; having women judges and making the judiciary more reflective of the general population would be the first step in giving it some democratic legitimacy by providing a voice for women in society. As of 2009, in the judiciary of England and Wales, only 3 of the 38 (7.89%) are Lord Justices of Appeal with the figure rising to 15 out of 109 (13.76%) who are High Court Judges. The percentages rise in the lower courts with 104 out of 444 (23.42%) District Judges being women, however these percentages are significantly lower than the actual population of women in England and Wales, which in 2001 was more than 50%., More women judges would help to correct this imbalance between the number of women judges and the population of women, and thus increase the democratic legitimacy of the justice system.

Hale’s Final Thoughts:

In her conclusion, Hale says that she believes that system of justice will be bettered by having a more diverse judiciary made up of many backgrounds and experiences compared to if its members “are cast in the same mould”. In her opinion, having more women judges would not only give rise to better judgments, but it would change the justice system as women contribute and influence differently than men.

Conclusion:

I would agree with Baroness Hale in that we should want more women judges. This is so the judiciary can be made better for women in terms of the decisions it makes and how it makes them. More women judges would help get rid of the entrenched sexist behaviour and negative stereotypes of women, thus allowing judges to focus more on how females and males are of equal status in the eyes of the law yet still intrinsically different. Furthermore, an increase in women judges would help to change the face of the judiciary, from the old, white, upper-class, male dominated institution that it is now, to a more reflective and democratic judiciary which is more in touch with public and current opinion, and can understand the requirements and expectations of all the different people. I also believe that more women judges would increase the range of backgrounds and experiences that the judiciary is made up of, as it would be the first step of many to create a more diverse judiciary in having people of different races, age, religion and sexuality among other things. This new image of the more reflective judiciary would not only increase public confidence, but would also increase the trust in the judiciary in carrying out their jobs. Over time this would result in a more open and mouldable judiciary, which would adapt to change and be viewed as an institution for the people. I strongly believe that having more women judges would only be the first step in the long term ideal in making the judiciary better not only for women, but for everyone.

Bibliography:

Books:

Gender, Choice and Commitment, Hillary Sommerlad & Peter Sanderson, Ashgate/Dartmouth Publishing, 1998

Gender Perceptions and the Law, Dr. Christine R. Barker & Elizabeth A. Kirk & Monica Sah, Ashgate/Dartmouth Publishing, 1998

The History of the Pleas of the Crown (Historia Placitorum Coronæ), Matthew Hale, 1736

Sexual Assault and the Justice Gap: A Question of Attitude, Barbara Krahé & Jennifer Temkin, Hart Publishing, 2008

What Women Want on Politics, Charlotte Adcock & Sue Tibballs, Women’s Communication Centre, 1997

Journals:

Equality and the judiciary: why should we want more women judges? Brenda Hale, Public Law, 2001

Judicial Diversity, the woman judge and fairytale endings, Erika Rackley, Legal Studies, Vol. 27, No.1, 2007

Women and Men Policymakers: Does the Judge’s Gender Affect the Sentencing of Criminal Defendants? Darrell Steffensmeier and Chris Herbert, Social Forces, Vol. 77, No. 3, 1999

Will women judges really make a difference? Bertha Wilson, Osgoode Hall Law Journal, Vol. 28, No. 3, 1990

A Conversation with Baroness Hale, Rosemary Hunter, Feminine Legal Studies, Vol. 16, 2008

Men and women on the bench: vive la difference? Elaine Martin, Judicature, Vol. 73, No. 4, 1990

Cases:

R v. R [1992] 1 A.C. 599

Acts:

Sexual Offences (Amendment) Act 1976

Websites:

Compact Oxford English Dictionary (via AskOxford.com), http://www.askoxford.com/concise_oed/democracy?view=uk

Statistics – Women Judges in Post, Judiciary of England and Wales, Apr 2009, http://www.judiciary.gov.uk/keyfacts/statistics/women.htm

Census 2001, Office for National Statistics, http://www.statistics.gov.uk/census2001/demographic_uk.asp