One of the things that “The Public Life of Private Law” seminar series has provoked is a reflection of the varied feminist critiques of the public/private dichotomy. As Nikolas Rose provides, the public/private binary is one that finds its roots as far back as Aristotle and his distinction between the polis (the city-state) and oikos (the household); in the 18th and 19th centuries, this distinction was further reinforced in liberal political philosophy, particularly due to the work of J.S. Mill and his opposition of a realm of legitimate public regulation (the market), and a realm that remains free from interference, and in which personal autonomy and freedom of choice therefore predominate (the home) . As is well-known, this divide has been further gendered and sexed, with the market being designated as a male empire (and thus masculine), and the home as female (and thus feminine).This binary, or the doctrine of separate spheres, works to impose and perpetuate patriarchal domination, and since the emergence of capitalism in the 19th century, has imposed and maintained the domination of a capitalist, patriarchal ruling class.
Susan Gal has further provided an interesting analysis of the semiotics of the public/private distinction, and drawing upon Peircean semiotics specifically, as developed within linguistic anthropology, dissects the manner in which the binary persists ideologically, in spite of persuasive feminist arguments that demonstrate the largely illusory and highly contingent nature of the public/private divide. Gal therefore sheds light upon the way the public and the private function communicatively, and thus, considers them as contingent “indexical signs” and as a discursive occurrence rather than as particular spheres, places, or modes of interaction, let alone institutions or practices. Further, not only are they indexical signs that are dependent on their interactional context for meaning, they are also “co-constitutive cultural categories” (and here one can add the standard Derridean refrain that they constitute a binary in which one is category is privileged over the other that one must thus seek to deconstruct and thus subvert; in this case, the public over the private, and thus, the male over the female). These indexical signs, which fundamentally construct and delineate social reality, are therefore appropriated by political meta-discourses and consequently shape embodied subjectivities (and “the personal is the political” feminist slogan finds its full and even literal expression here). Moreover, Gal further characterizes the dichotomy as a fractal distinction, i.e. as one that can be reproduced in different, and/or smaller or larger contexts. Such a conceptualization of the public/private dichotomy allows for the full freedom to view the binary not in a homogenous way, but from a multi-layered, multi-varied perspective that is sensitive to the nuances and innovations of re-categorizations.
There is much room for contestation in the public/private dichotomy, as well as the possibility of reification through legal regulation, institutionalization or processes of normalization. As Gal argues:
“[The] public and private will have different specific definitions in different historical periods and social formations. But once a dichotomy is established, the semiotic logic forms a scaffolding for possibilities of embedding and thus for change, creativity, and argument. In these nested dichotomies, there is always some skewing or redefinition at every iteration. Furthermore, redefinitions that create a public inside a private or a private inside a public (be it in identity, space, money, relation) can be momentary and ephemeral, dependent on the perspectives of participants. Or they can be made lasting and coercive, fixing and forcing such distinctions, binding social actors through arrangements such as legal regulation and other forms of ritualization and institutionalization.”
Moving on to the public/private distinction as articulated in the legal realm, the first argument of importance is that the notion that judicial decisions are somehow neutral and value-free, and completely dissociated from their political, social, historical and cultural context, is entirely misguided This is even the case for the supposedly “formally neutral redistributive regime” that characterizes tort law. Instead, the law is both reflective and productive of social norms at large, and it impacts and contributes towards shaping subjects and subjectivity. Joanne Conaghan in particular has highlighted that feminist approaches have argued that gender is not only implicated in judicial decision-making, but also in the form and content of law. Other approaches regard the law as reflective of broader social and cultural values. Foucauldian perspectives would further argue that law, as a discursive regime, has a disciplinary effect that not only constructs, but maintains, inter alia, gender hierarchies. With regards to harm specifically, Conaghan provides a powerful argument as to the gendered nature of harm (both in terms of its characterization and its recognition):
“[…] there is little that is ‘natural’ about our understanding of harm. It is a deeply social concept, and taking gender as a feature of the social, it is also highly gendered: gender shapes the distribution of particular harms and gender hierarchies produce an ordering in which some harms are privileged over others.”
It is within this context that one can place Nikki Godden’s paper, “Tort Law, Human Rights and Rape: Beyond the Enforcement of Criminal Justice”. Godden discussed the potential legal avenues that rape survivors could take against failures by the state (and specifically, the police). Godden began with some shocking statistics: approximately two-thirds of rape complaints do not make it to trial, there is only a 6% conviction rate out of reported cases (the “justice gap” ) and in between 75% to 95% of rape survivors do not report the rape to the police, partly due to the way in which survivors are treated by the police and the criminal justice system generally. This is arguably partly due to the “rape myths” that inundate the social sphere and inform the manner in which rape survivors experience the criminal justice system, as well as the civil law system . Some rape myths reinforce stereotypical gendered conceptions of the public and the private, and of men being the potentates of the public whilst women are relegated to the domestic, and thus private sphere. For example, one myth is that most rapes are committed by strangers (and thus women should not go out unaccompanied at night), whereas in fact, most are committed by men women already know (in around 90% of cases).
Elsewhere, Godden had already expressed her (justified) disillusionment with the criminal justice system and its disproportionate failure to provide the necessary justice due to rape survivors, and thus argued for a move towards other legal avenues, specifically by arguing for redress through tort law (which may be utilized in addition or as an alternative to the criminal justice route), this time against another individual or his/her estate, rather than the state . As she argues: “While it is imperative that efforts continue to be made to improve the criminal justice system, at the same time there seems little chance of immediate improvement whatever measure of evaluation is adopted.” Thus, Godden does not argue for tort law or human rights law to supplant criminal law, but rather, that in circumstances that are disproportionately hostile to rape survivors, one has to make do with what one has.
With regards to the gendered nature of rape, and echoing Conaghan’s arguments, Godden argues: “First, the term ‘rape’ is loaded with gender-based assumptions and myths; and secondly, it is a gendered act, defined as the penile penetration of another’s vagina, anus or mouth, and so can only be perpetrated by men.” Indeed, Godden argues that it is specifically the gendered nature of the harm of rape that renders it worthy of attention. Addressing rape is thus not only about addressing the individual injustice that has occurred, but about addressing gender inequalities in society as a whole, that are further perpetuated and maintained by sexual violence and by the failure of the criminal justice system to adequately address it.
In Tort Law, Human Rights and Rape, Godden therefore highlights the failures of the criminal justice system with regards to rape survivors, and examines the manner in which tort law and/or human rights legislation could consequently provide some impetus towards better criminal justice standards. Godden further argues that the problem is not with the substantive law per se, and specifically, the Sexual Offences Act 2003 and the definition of rape contained therein, but rather, the manner in which the law is implemented. Firstly, as she argues, the police or other public bodies such as the Crown Prosecution Service may have breached their obligations under the European Convention on Human Rights (ECHR) with regards to a rape survivor. The relevant Articles of the ECHR would be Art. 2 (the right to life) Art. 3(freedom from torture) and Art. 8 (the right to a private and family life). One of the most interesting moments in Godden’s paper was when she argued for the standards of obligations under tort law (within the context of sexual violence cases, at the very least) to be brought into equivalence with the obligations under human rights law, or alternatively, on the basis of appropriately balancing policy arguments versus imposing a duty of care, for a duty of care to be more strongly applied on the police. In relation to balancing policy arguments with regards to imposing a duty of care, it is here that the public/private distinction most prominently reveals itself to be constructed and contingent.
However, as Godden explains, using tort law and human rights law in this way will only hold the criminal justice system to standards set within the dominant conceptualisation of criminal justice. This conceptualisation supports the division of “public” (typically the symbolic) harms of rape which are addressed by the criminal law, and the “private” (typically the material) harms of rape which are responded to by tort law, and in practice borne most commonly by the individual. Thus, in the final part of her paper, Godden considered how reparation, a remedy associated with human rights violations, could be used in the criminal justice context to better respond to the harms of rape, and which would trouble the public/private divide.
To conclude, Godden’s paper forcefully highlighted the manner in which the public, through the criminal justice system, has overwhelmingly failed women, and the consequent way in which the private, through tort law, may provide an alternative/additional avenue of redress through a civil action in negligence (albeit with slim chances of success, as per Hill v Chief Constable of West Yorkshire , in spite of the highly persuasive arguments that Godden highlighted as to a standard of care being applied more rigorously on the police, at the very least within the context of domestic and sexual violence cases and those involving vulnerable victims ). Such actions may be supplemented or supplanted by recourse to human rights legislation. Ultimately, satisfactory reforms in the way that the relevant legislation with regards to the crime of rape is implemented are still urgently necessary.