CRIMINAL LAW AND THE MAN PROBLEM Men have always dominated the most basic precepts of the criminal legal world – its norms, its priorities and its character Men have been the regulators and the regulated: the main subjects and objects of criminal law and by far the more dangerous sex And yet men, as men, are still hardly talked about as the determining force within criminal law or in its exegesis This book brings men into sharp focus, as the pervasively powerful interest group, whose wants and preoccupations have shaped the discipline This constitutes the ‘man problem’ of criminal law This new analysis probes the unacknowledged thinking of generations of influential legal men, which includes the psychological and legal techniques that have obscured the operation of bias, even to the legal experts themselves It explains how men’s interests have influenced the most cherished legal norms, especially the rules of human contact, which were designed to protect men from other men, while specifically securing lawful sexual access to at least one woman The aim is to test the discipline’s broadest commitments to civility, and its trajectory towards the final resolution, when men and women were declared to be equal and equivalent legal persons In the process it exposes the morally and intellectually limiting consequences of male power ii Criminal Law and the Man Problem Ngaire Naffine HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © Ngaire Naffine, 2019 Ngaire Naffine has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work All rights reserved No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers All UK Government legislation and other public sector information used in the work is Crown Copyright © All House of Lords and House of Commons information used in the work is Parliamentary Copyright © This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019 A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication data Names: Naffine, Ngaire, author Title: Criminal law and the man problem / Ngaire Naffine, Bonython Professor of Law, The University of Adelaide Description: Chawley Park, Cumnor Hill, Oxford : Bloomsbury Publishing Plc, 2019. | Includes bibliographical references and index Identifiers: LCCN 2018043568 (print) | LCCN 2018044156 (ebook) | ISBN 9781509918027 (Epub) | ISBN 9781509918010 (hardback : alk paper) Subjects: LCSH: Feminist jurisprudence. | Sex discrimination in criminal justice administration Classification: LCC K349 (ebook) | LCC K349 N34 2019 (print) | DDC 345/.001—dc23 LC record available at https://lccn.loc.gov/2018043568 ISBN: HB: 978-1-50991-801-0 ePDF: 978-1-50991-803-4 ePub: 978-1-50991-802-7 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters for Margaret Davies and Eric Richards vi But man, proud man, Dressed in a little brief authority, Most ignorant of what he’s most assured, His glassy essence, like an angry ape Plays such fantastic tricks before high heaven As makes the angels weep… William Shakespeare, Measure for Measure, Act 2, scene 2, l viii ACKNOWLEDGEMENTS I have been helped by a number of people in the development and writing of this book For their thoughtful discussions, suggestions, influence and advice along the way, I thank Frances Butterfield, Cathy Caust, Tricia Dearborn, Michael Ekin Smyth, Laura Grenfell, Paul Leadbeter, Kos Lesses, Callum and Penny McCarthy, Wilfrid Prest, Marian Richards, Allyson Robichaud, Wendy Rogers, James Stewart and Kellie Toole For the opportunity to deliver my ideas in a number of forums, I thank Ben Berger and the Law Faculty of Osgoode Hall Law School, Ruth Nichols and the Women’s Committee of the Wellington Branch of the New Zealand Law Society, Rick Sarre as past president of the Australian and New Zealand Society of Criminology and convenor of the Society’s annual conference, Lindsay Farmer as convenor of the Criminal Law Seminar Series at the University of Glasgow, Arlie Loughnan as convenor of a Criminal Law Workshop at the University of Sydney, Jeremy Gans and Patrick Keyzer as convenors of the Melbourne/Monash Criminal Law Workshop, and Manolis Melissaris and Federico Picinalias as convenors of the criminal law and justice seminar series at LSE I thank Gabrielle Appleby for her detailed suggestions when the book was taking shape For their comments on Chapter I thank my Honours Research and Writing Class of 2018, and especially Kyriaco Nikias and Gerald Manning For his research assistance and suggestions early in the project I thank Richard Sletvold and for his excellent work in helping to get the final manuscript into shape and style, I thank Luke Hannath For their supreme generosity in reading and commenting on developing versions of the entire manuscript, I thank five fine scholars: Ian Leader-Elliott for his rich and remarkable understanding of criminal law; Lindsay Farmer for his deep knowledge of the history of criminal law; Niki Lacey for her inspiration as a feminist and legal scholar over many years, and her many thoughtful suggestions for improving the entire argument; Margaret Davies for making sure I got the job done, nobly shepherding the whole thing through, from proposal to final manuscript; and Eric Richards for his perpetual encouragement and for taking the final product and reading it, with a light touch 192 Bibliography Hale, Sir Matthew, The History of the Pleas of the Crown, vol (1736) —— Historia Placitorum Coronae, vol (London, Professional Books, 1971) Harding, Sandra, Whose Science? 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and, 158, 159 sexual, 98, 99 attention and inattention, 141 Australia (Aus): forced marital sex, wives’ remedies for, 112–13 immunity from marital rape, 123–4 neutrality in rape law, 162 reform of law on rape in marriage, 112–16 wife, status of, 123 (case law) wife rape in, 121–5 women as rapists, 135 autonomous units: individuals and persons as, 172 autonomy, 177–8 Bell, Clive on inferiority of women, 103–4 Blackstone, Sir William (1723–80), 42–3, 46–53 biographical details, 46–7 coverture, on, 46, 48, 49 marriage, on, 48 wives, on, 53 women, on, 42–3 bodily contact: men and, 25 private, 25 public, 24 public persons and, 24 ‘bodily integrity’, 24 personhood and, 33 respect for, 34 bond-servant, wife as, 61 bounded individual, 40, 76–7, 78, 90, 165 changes to and development of, 175–7 women as, 172 ‘bounded self ’, Nedelsky on, 40–1 capacity responsibility, 152, 159–60 Carey, John on disdain for women, 103–4 childbirth, risks of and abortion, 80 Christian, Edward: husband’s status, on, 54–5 woman’s personal property, on, 55 civilisation, concept of, 35 coercion: decency and, 67 marital, 50–1, 83 cognitive dissonance, 87–8 legal past and, 136–8 Commentaries on the Laws of England (first edition 1765), 47 consent: rape and, 72–3 sex, for, 15 ‘controlling and coercive behaviour’ offence, 51–2 coverture, Blackstone on, 46, 48, 49 criminal agency and criminal responsibility, 153 criminal conspiracy and husband and wife, 83 criminal decision-making: Duff on, 155 legal moment of, 154–6 criminal law: choice and, 152 experts, 128–47 modern, legal individual of, 148–65 rape is test of, 22–3 reasonable person’s view of, 134 regulation of marriage by, 108–9 Criminal Law Revision Committee (England and Wales 1984), 114–16 husband’s viewpoint, from, 114 premise of, 115 200 Index criminal law theory: Duff on, 132–3 Olympian stance of, 132–4 criminal law thinkers and thinking, 138–40 Olympian stance and, 136 women excluded, 138–9 criminal legal scholars: male control, changing views on, 106–10 rape, on, 107 criminal legal thought: public and private spheres of, 25–6 self and, 151–2 criminal responsibility, 151 criminal agency and, 153 mental state and requirements for, 17–19 criminality, female pronoun used for, 154 criminals, public opinion of, 67–8 cultural cognition, 142 decency: coercion and, 67 male control and, 67 defendant, role of, 153–4 Digest of the Criminal Law (Stephen, 1877), 67 divorce and rape complaints, 116 domestic monarch, Soames as, 88 domestic sexual life (mid-twentieth century), legal scholars on, 93–4 don’t-touch person, 35–7 don’t-touch rule: changes in, 32–3 independence and, 33–4 offences against the person, in, 32–5 DPP v Morgan (1975): case details, 8–9 ‘defence’ removed (2003), 168 subjectivism and, 18 Duff, RA, 28 criminal decision-making, on, 155 criminal law theory, on, 132–3 rape, on, 28 English Law Commission recommends criminalisation of wife rape, 116–17 experts, development of, 131–2 families: literature on (mid-twentieth century), 105–6 regulatory nature of, 105 sexual relations in (1918–63), 105–6 Farmer, Lindsay, 29–31 men in criminal law, on, 29–31 Feinberg, Joel: reasonable person and shared legal agreement, on, 133 Feminist High Court judgment (2014) and wife rape, 125 feminists: knowledge and, 130 law ambivalent on male violence, 39 force: domestic and male accountability and responsibility, 61–2 husband’s use of against wife, 12–13, 51, 57–8 sex, compatibility with, 88 use of (eighteenth century), 30 forced marital sex, 85 wives’ remedies for, 112–13 (Aus) Forsyte, Soames: character study of, 87–8 sexual man, as, 88 gender and sex of legal person, importance of, 164 ‘gentle violence’ in marital rape, 113 grievous bodily harm: assault and, 70–2 marital immunity and, 70–1 unlawful infliction of, 71–2 guilty state of mind and rape, 9–10 Hailsham, Lord on DPP v Morgan, 7–11 Hale, Sir Matthew (1609–76), 43–6 assessment of, 44 support for, 45 witchcraft, on, 44–5, 46 Hart, HLA on crime and violence, 27 Hawkins, J, R v Clarence judgment, 74 Heilbron Committee (England 1975), 114 History of the Criminal Law of England, A (Stephen, 1883), 67–9 homosexuality and criminal law, 145–6 Honoré, Tony (1921–), 99–100 mutual duty of marital sex, on, 99–100 rape, on, 14 Howard, Colin (1928–2011), 98–99 compatibility of rape and marriage, on, 13 regulation of sexual relationships and rape, on, 98–9 human: agency, 152–3 choice, 153 needs, regulation of, 28–9 Index 201 human body: criminal law’s treatment of, 29 law and, 27–8 husband: powers reduced (nineteenth century), 57–8 little monarch, as, 81–5 murder of, 54 personality of diminished, 90 rights of, Christian on (1803), 54–5 sex, desire for achieved, 15 sexual access to wife, 84–5 sexual rights of, 14–15, 43–4 textbook writers’ support of, use of force against wife, 12–13, 51 wife, and, 44, 49, 50 wife, colonisation of, 81–2 wife rape, intention for, 5–23 (case law) husband and wife: criminal conspiracy and, 83 relations in criminal law between, 84 unity of (1947), Williams on, 96–7 husbands’ immunity: marital rape, for, 114–15 (UK), 123–4 (Aus) marital sex and, 73 Morgan case, 11 rape, from, 44, 109 textbook writers on, 12–160 inattention: attention and, 141 power and, 140–2 ignorance and self-interest, 141–2 independence and don’t touch rule, 33–4 individual of modern individualism, women included in, 162 individuals: autonomous units, as, 172 relations and, 178 Intellectuals and the Masses: Pride and Prejudice Among the Literary Intelligentsia, 1880–1939, The, (Carey), 103–4 intention and committing rape, 157–9 intimacy and marriage, Stephen on, 65–6 James, Henry, Senior on women, 65 judgement and power, 140–2 judges: legal influence of, status of women, responsibility for, 121 knowledge: creative process of, 130 feminists’ view of, 130 interpretation of, 129–31 limitation of and political advantage, 131 Lacey, Nicola, 39, 94, 145, 151–2, 153, 160, 171 legal individuals: abstracted, 148–50 features of, 149–50 female, 162–3 gender-neutral, 150 modern criminal law, of, 148–65 physical being, as, 159–62 legal influence: judges of, men of, 6–7 textbook writers, of, 6–7 legal men’s characteristics, 174 legal past: approach to, 136–7, 144–7 cognitive dissonance and, 136–8 former men of law and, 145 legal person’s mind and body, 160–1 legal scholars: criminal see criminal legal scholars domestic sexual life, on (mid-twentieth century), 93–4 political philosophers, as, 19–22 legal thought, paradigm shift absent, 184–5 Liberty, Equality and Fraternity (Stephen), 63–7 little monarch, 77, 78 changes to and development of, 175–7 husband as, 81–5 male: accountability and responsibility and domestic force, 61–2 authority and rape, 81 body politic and masterful man, 77–9 domestic authority, Williams on, 95–6 entitlement, reassertion of, 167 identity in criminal legal thought (mid-twentieth century), 94 power and interest and rape law, 121–5 (case law) superiority, 63–4 supremacism, 48 unity principle, 83 male control: criminal legal scholars’ changing views on, 106–10 decency and, 67 202 Index male or human template, 39 male power and interest and rape law, 121–5 (case law) male violence: acceptability of, 38–9 approved, 37–8 class connotations, 38 condemnation of, 110 male or human template and, 39 Victorian view of, 39 man: ‘default man’, 183–4 masterful and male body politic, 77–9 self-owning and bordered, 37–40 man problem: Blackstone on, 49–50 movements against, 166–7 specific offences of criminal law and, 168–70 man problem and general principles of criminal law, 170–2 abstraction and, 171–2 marital: coercion, 50–1, 83 compulsion, 50–1 correction, 51, 83 immunity and grievous bodily harm, 70–1 marital rape: case law, 5–23 exemption, Perkins on, 97–8 ‘gentle violence’ acceptable, 113 husband’s immunity for (UK), 114–15 immunity (Aus) for, 123–4 law, Williams on, 95 marital sex: forced see forced marital sex immunity and, 73 mutual duty, as, Honoré on, 99–100 marital status, 22–3 rape offender and victim, of, 134 marriage, 89–90 assault in, 98 Blackstone on, 48 failure to consummate, 91–2 (case law) intimacy and, Stephen on, 65–6 men, effect of on, 81 rape and, Howard on, 113 regulation of, Williams on, 108–9 sex roles in, 108 social and legal relation, as (eighteenth century), 52–3 Stephen on, 65 married life, abuses of, Mill on, 61–2 married women: rights of (late nineteenth century), 57 status of (nineteenth century), 56–8 masculinity, 30, 183 men: attitude to women (nineteenth century), 58–9 criminal law and, 82, 110 criminal legal story of, absence of, 180–1 criminal legal theory and, 26 exclusiveness and public power, 140 heterosexual, expected lifestyle, 82–3 historical perception of, 86–7 ideal, Nietzsche on, 85–6 legal status of, 126 marriage, effect of on, 81 modern, 175 modernisation of, 117–20 monopoly of legal power, 138 murder, responsibility for, 127 old models of, revising, 174 responsibility of, 82, 111–27 violent see violent men women’s identity absorbed into, 164 women’s sexual rejection of, 89 men and women: relations between and power, 142 state control of relations between, 80–1 static perception of, 179–80 men in criminal law, Farmer on, 29–31 men of law: cultural homogeneity, 140 former and legal past of, 145 moral coherence and, 182 power’s effect on, 141 mental state: criminal responsibility and, requirements for, 17–19 serious crime, for, 17–19 mentality defined, 59 Mill, John Stuart, 60–2 Stephen’s dissent from, 62–9 Mitchell Committee (Aus, 1976), 112–14 modern criminal law of legal individual, 148–65 modern legal individual, 173–4 female pronoun used for, 173–4 modern legal person, unsexing of, 164–5 moral coherence of men of law, 181–2 Morris, Norval (1923–2004), 97 husband’s use of force on wife, on, 12–13 murder: criminal legal principles for, 146 Index 203 men’s responsibility for, 127 rape and, 126–7 sexual infidelity as defence for, 169–70 mutual duty, Honoré on marital sex as, 99–100 Nedelsky on conception of self, 40–1 neutrality in rape law (Aus), 162 New Zealand rape law, 161 Nietzsche, Friedrich on man and woman, 85–6 offences against the person, don’t touch rule in, 32–5 Olympian stance: criminal law theory, of, 132–4 criminal legal thinking and, 136 problems of, 134–6 On Liberty (Mill), 61–2 perception and power, 140–2 Perkins, Rollin M (1889–1993), 97–8 personal border control, 24–41 personal property, treatment of women’s, 55 personhood and bodily integrity, 33 persons: autonomous units, as, 172 criminal law, in, 153 law is not responsible for, 27–9 legal, characteristics of, 178–9 liberal, 35–6 public and bodily contact, 24 relations, as, 177–9 self-proprietor, as, 35 philosopher-lawyers, 139–40 political philosophers as legal scholars, 19–22 Pollock, J, R v Clarence judgment, 73–4 power: correction, of, 51 inattention and, 140–2 judgement and, 140–2 men and women, relations between, and, 142 men of law, effect on, 141 perception and, 140–2 powerlessness of women, 140–1 public and male exclusiveness, 140 pre-legal wrongs, 28 rape as, 68 private space, 31 property, legal definition, 36 property-in-self, 36 prostitution: control of, 80 criminal law and, 145 public space, 30–1 R v Clarence (1888), 69–75 case details, 70 Hawkins J’s judgment in, 74 Pollock J’s judgment in, 74–5 Stephen J’s judgment in, 71–5 rape, 20–1, 135–6, 161 assault and, 158, 159 consent and, 72–3 crime of and social change, 137–8 criminal, legal scholars on, 107 criminal law, test of for, 22–3 criminality of, 21 decision to commit, 156–7 (case law), 157–9 Duff on, 28 English report on (1975), 114 failure to consummate marriage and, 92 guilty state of mind and, 9–10 Hale on, 43 Honoré on, 14 husband’s immunity for, 109 intention to commit, 157–9 legal scholars on, male authority and, 81 marital immunity and, 70–1 marital rape see marital rape marital status of offender and victim, 134 marriage, compatibility of and, Howard on, 13 marriage, in, committee reform of, 112–17 mental element of, 8–10 Morgan ‘defence’ removed (2003), 168 murder and, 126–7 pre-legal wrong, as, 68 prosecution, husband’s immunity from, 44 regulation of sexual relationships and, Howard on, 98–9 South Australian law of, 158–9 (case law) spousal immunity and, 10–11 Stephen on, 68–9 wife see wife rape Williams on, 13–14 witchcraft and, 45 woman’s role in, 101–2 wrongfulness of, 21–2 rape complaints: divorce and, 116 wives, by, 115–16 204 Index rape law: committees on, 112–17 male power and interest and, 121–5 neutrality in (Aus), 162 New Zealand, in, 161 rapists: Stephen on, 68–9 women as (Aus), 135 rational adult and criminal law, 154 reasonable person: criminal law, view of, 134 shared legal agreement, and, Feinberg on, 133 women considered as, 162 relational theory, 177 relations and individuals, 178 responsibility: capacity theory of, 152 criminal and criminal agency, 153 right not to be touched, 19–20 scholars: doctrinal and conceptual and rape by husband, 6–7 legal as philosophers on rape, self: criminal legal thought and, 151–2 liberal conception of bounded, Nedelsky on, 40–1 self-analysis and self-criticism, 182–4 self-interest and ignorance, 141–2 self-proprietor, person as, 35, 36–7 serious crime, mental state for, 17–19 sex: abstention from, 91–2 (case law) buying or soliciting, 169 consent for, 15 force, compatibility with, 88 husband’s desire for, achievement of, 15 husband’s right to, 14–15 offences, 32 refusal of, 92–3 (case law) roles in marriage, 108 sex and gender, importance of, 164 sexual: access to women (nineteenth century), 57 entitlement (male), loss of, 167–8 force, use of, 15 infidelity as defence for murder, 169–70 intercourse, mutual acceptance of, 97 sexual man, Soames as, 88 sexual master, 77, 78–9, 85–8 changes to and development of, 175–7 concept of, 85 Williams on, 102 sexual relations in families (1918–63), 105–6 sexual relationships, regulation of and rape, Howard on, 98–9 sexual rights of husband, 43–4 sexual services of a prostitute, paying for, 168–9 shared legal agreement and ‘reasonable person’, Feinberg on, 133 social and legal relation, marriage as (eighteenth century), 52–3 social change and crime of rape, 137–8 sport, violent men in, 37 spousal immunity and rape, 11 Stephen, James Fitzjames (1829–94), 59–60, 139 assessment of, 131 career details, 59–60 marriage, on, 65 Mill, dissent from, 62–9 publications, 62 R v Clarence judgement, 71–5 rape and rapists, on, 68–9 women, on, 59–60 Subjection of Women, The, (Mill), 60–1 subjectivism and Morgan, 18 Textbook of Criminal Law (Williams), 101–3 textbook writers: legal influence of, 6–7 husbands, support for, husband’s immunity, on, 12–16 Turner, A L on husband’s use of force on wife, 12–13 United Kingdom (UK), husband’s immunity from marital rape, 114–15 unity principle, 52–3, 89–90 unsexing of modern legal person, 164–5 violence: crime and, Hart on, 27 interpersonal, 30 legitimate and illegitimate, 30 sport, in, 33 tolerance of (eighteenth century), 29–30 Index 205 violent men: criminal law and, 25 sporting activities, in, 37 wife rape: Australia, in (case law), 121–5 criminalisation of recommended (1990), 116–17 endorsement of (Heilbron Committee), 114 Feminist High Court judgment, (2014), 125 husband’s intentions in, 16–17 1990’s, in, 111 Williams, Glanville (1911–97), 94–7 career overview, 94–5 rape, on, 13–14 regulation of marriage, on, 108–9 sexual master, on, 102 witchcraft: Hale on, 44–5, 46 rape and, 45 wives: Blackstone on, 53 bond-servant, as, 61 colonisation of by husband, 81–2 forced marital sex, remedies for, 112–13 husband’s property, as, 44 husband’s control of, 49 husband’s power over lessened, 57–8 husband’s rape of, 5–23 (case law) husband’s responsibilities for, 50 husband’s sexual access to, 84–5 husband’s use of force on, 12–13, 51 legal status of, 53 murder of, 54 personhood of, 50 rape complaints by, 115–16 woman problem, 79–81 women: abolition of rape immunity and, 118–20 Blackstone on, 42–3 control of, 79–80 criminal law thinking, excluded from, 138–9 disdain for, Carey on, 103–4 historical perception of, 86–7 identity of absorbed into men, 164 incapacity of, 120 (case law) incompleteness of, 89 individual of modern individualism, included in, 162 inferiority of, Bell on, 103–4 James on, 65 legal commentators, exclusion of as, 143–4 legal disabilities of, 64–5 men’s attitude to (nineteenth century), 58–9 men’s contact with, 79 Nietzsche on, 85–6 personal property of, treatment of, Christian on, 55 powerlessness of, 140–1 public life, in, 104 rape, role in, 101–2 rapists, can be, (Aus), 135 ‘responsible person’, as, 162 sexual access to (nineteenth century), 57 sexual rejection of men, 89 status of, judges’ responsibility for, 121 status of (Australia), 123 (case law) Stephen on, 59–60 women and men: changes in perception of, 179–80 relations between and power, 142 state control of relations between, 80–1 wrestling as approved violence, 37–8 206 ... the world of law and become the subject of regulation Law then deals with them, and the criminal lawyers and scholars can get on with their various tasks of devising and analysing law The implicit... justifiers, and also its subjects My man problem is therefore, at least, a double problem There is the problem that men, as men, populate and inhabit the criminal law in virtually every capacity, and therefore... 205 13 Ibid The View from the Bench and the Man of Law as Judge 11 And this was why Morgan was charged with and convicted of only the offences of aiding and abetting the rapes of the other three