Helena Kennedy, author of "Eve Was Shamed." Photo: via Prospect

In her defence: how lawyer Helena Kennedy fights for women's rights

Helena Kennedy has spent decades fighting for women’s rights— and she’s not giving up
November 12, 2018

A recent Twitter thread asked followers to name the books they considered compulsory reading for law students. Over and over again a book first published over 20 years ago kept appearing: Helena Kennedy’s Eve was Framed.

Now a Queen’s Counsel and Labour peer, Kennedy has a reputation as a legal firebrand. With her interest in human rights, she has appeared in a string of high-profile cases including the Brighton Bombing trial and Guildford Four appeal, the bombing of the Israeli Embassy in 1994 and the abduction of baby Abbie Humphries. She is a member of Doughty Street—the chambers which she co-founded in 1990—and over the last few decades she has chaired dozens of prominent committees. She has her own foundation, providing bursaries to disadvantaged students, an echo to Kennedy’s own upbringing in a working-class area of Glasgow. But it was back in 1992 that Kennedy’s book consolidated her status as a feminist icon. It shot a laser beam through the legal system and society, exposing patterns of ingrained misogyny. Someone on the Twitter thread put it simply. Kennedy’s book, she wrote, “made me feel part of a sisterhood.”

Now, a quarter of a century on, Kennedy has revised, updated and re-titled her book. Her timing could not be better. In the last year, powerful people in the worlds of entertainment, business and politics have been shaken by the force of the #MeToo and #TimesUp revelations of sexual abuse and harassment. Eve was Shamed is part of this movement. It is a call to arms, but it is also a whistle-stop tour of the wide-ranging societal and legal changes which have taken place over the last 40 years.

The breadth of her book is enormous. We move from infanticide, incarceration of women, domestic violence and rape, on to refugees, sexual harassment, human trafficking, face veils, up-skirting, transgender imprisonment, female genital mutilation, terrorism and modern-day slavery, and much more besides. The text is peppered with contemporary references, including a brief examination of the coercive control storyline in Radio 4’s The Archers, when a character faced trial for stabbing her husband after enduring years of bullying. There are mentions of Susie Orbach’s work on the body image of young girls, Charles Saatchi’s throat grab of his then wife Nigella Lawson, the (quashed) release of serial rapist John Worboys, the exposure of Harvey Weinstein and, of course, Donald Trump.

In order to explain where we are, Kennedy looks back to where we have come from. She does this most powerfully through her own experiences of entering the law as a barrister in the 1970s, when sexual discrimination legislation did not exist and barristers’ chambers were a male preserve. Few women were ever taken on as tenants. Kennedy—at the age of 24—responded by setting up with five others a new chambers, now called Garden Court. She tells us of judges who thought that women who dressed in revealing clothes were “contributorily negligent” in their rape, or “just had to keep their legs shut.” We learn of one judge who told a jury in 1976: “it is well known that women in particular and small boys are liable to be untruthful and invent stories.”

“A lot has changed since then” acknowledges Kennedy. This is true but not nearly enough. One of the most disturbing parts of the book is when she pulls together the data on the child exploitation rings prosecuted in the last few years. Their scope was huge—Rotherham, Rochdale, Oxfordshire, Derby, Telford, Peterborough, Newcastle—and involved hundreds of vulnerable teenage girls being collected from care homes by taxi drivers and sexually abused.

The recent trial of a grooming gang from Huddersfield ended with lengthy prison sentences for each of the 20 defendants. That case, like the others, involved men of Pakistani, Iraqi, Kurdish, Czech and Slovak Roma heritage. This fact is key to understanding why these girls were so badly let-down by police and social services, in spite of widespread knowledge of the offending. At least one Labour-led council failed to intervene because “to its eternal shame” it didn’t want “to make waves among the town’s ethnic community leaders because it relied too heavily on their votes.”

Kennedy also asks the pointed question often missed in the outraged coverage: “would the police have stepped back from investigating organised robberies by men from ethnic minority backgrounds…? Their sexist attitudes about the girls, the kind of girls who went with minority men, outweighed issues of racism.” The wilful blindness of those involved was one step away from conspiracy.

When there is equal treatment by the law, Kennedy argues, it does not necessarily lead to fairer outcomes. Kennedy warns that the well-meaning push towards gender equality has resulted in “a ham-fisted literal interpretation,” of treating the sexes the same, an approach that takes no account of the specific needs of women.

Take custodial sentencing. Judges, in an effort to appear neutral, often fail to take a woman’s childcare responsibilities into account and are not urged by any specific sentencing guidelines to do so. Sixty per cent of imprisoned women have dependent children, and fewer than one in 10 children are cared for by their father while their mothers are serving time. Only five per cent of children stay in their own home after their mother is imprisoned. The ripple effect of locking up our mothers is wide reaching and long lasting.

Some issues get only a passing mention. During her condemnation of cuts to legal aid in the family courts she notes the increase in self-representation—but doesn’t detail that as many as one in three cases have no lawyer at all. She spells out the horror faced by those who have to suffer personal cross-examination by an ex-partner accused of domestic abuse; but I would have been interested to know what she makes of the current protocol, which asks judges in such cases to put themselves in the extraordinary position of taking over the cross-examination before ruling on the case.

Kennedy does, however, spend time analysing the conviction rate for rape and rape trials. Both subjects have quite a history. The 2005 Home Office report gave a 6 per cent conviction rate for rapes reported to the police. The figure is still in widespread circulation: it appears on the Rape Crisis website and in recent newspaper articles. But this figure is misleading. An independent 2010 report by Baroness Stern, a cross-bench peer, pointed out that no other crimes were presented in this way: as reported, rather than prosecuted. If they were, their conviction rates would be comparably low. She called it “extremely unhelpful” in terms of encouraging rape victims to come forward.

A 2013 Mumsnet survey seemed to bear this out, reporting that 68 per cent of women who responded would not report a rape because of a low conviction rate. Kennedy puts the reported rape conviction rate at 7 per cent, and later confirms the conviction rate for prosecuted rapes is 58 per cent, which is largely in line with other offences.

However, the Stern report also concluded that nine out of 10 rapes are not reported in the first place. There are still considerably more men getting away with rape than there are men being falsely accused, despite the attention given by some of the media to the latter.

Kennedy is also highly critical of rape trials, citing lawyers who “say scantily dressed women or ones who are drunk or ones who hook up with guys on Tinder have been authors of their own misfortune.” As a criminal defence barrister it was with genuine horror that I read the quotations attributed to cross examination of rape complainants and her assertion that barristers show adolescent complainants video footage of their sexual activity to demean them. While this is far from my own experience, and from the experience of those colleagues I asked, the Bar is most certainly not dinosaur-free.

Mandatory training for barristers and judges, however, and the use of independent intermediaries to help vulnerable witnesses has profoundly changed the trial experience for everyone. A complainant’s evidence is now pre-recorded so she need not stand in court and say it all over again. If the witness is vulnerable, cross examination will be agreed in writing with the prosecution and approved by the judge —word by word—in advance. Prosecution procedure demands that no complainant should ever be unaware that an application to bring up her sexual history has been allowed. The fact that Kennedy describes breaches of such laws and procedures as happening “often” means that it is not the law itself which is failing women; rather, it is lawyers and judges.

“#MeToo is a response to the law’s failure. If due process fails, women will find another way”

Despite the long list of government initiatives and legislative changes since her first book, Kennedy argues that further cultural change is needed She writes: “there have been incredible changes to women’s lives—social, political and economic—but these have not been accompanied by great change in underlying attitudes.” And this, in essence, is why the Eve of her title is no longer “framed” but “shamed.” Efforts towards equality over the last 40 years have given an equal platform to women: framing Eve is no longer an option. The alternative, then, is to shame her.

Such shaming is endemic in the tabloids and social media. Kennedy notes that, in the year after it was made a criminal offence to distribute private sexual images of someone without their consent—so-called revenge porn—over one thousand incidents were reported to the police. The #MeToo campaign, says Kennedy, is “very much a response to law’s failure” and “an alarm call.” If due process fails to give women justice, then they will find another way. The internet allows women a way of “blowing the whistle, naming and shaming on social media.” For someone who has spent her career involved in miscarriages of justice, it may not be a surprise that Kennedy tempers this with caution. “The internet,” she warns “should not be an anonymous place where people can post abuse without any consequence.” Trial by social media “cannot be the way forward.” Punishment without due process is not the way forward: the stigma of a false accusation carries real consequences. A fair trial—as she has argued for so long—is a human right.

How, then, are we able “to find better ways through this morass”? I longed, at times, for Kennedy to tackle this in more detail. Could there be a way of testing allegations without a criminal trial: some specially designed civil court where a complainant—and those they accuse—can be heard and judgments pronounced, without either fearing lifelong vilification?

But instead the various solutions Kennedy offers throughout her book are based around better education and better training. Solutions that are, she concedes, unlikely to be realised at a time when the Treasury’s purse strings remain tight. It doesn’t help that the legal system is not given—by the media or government—sufficient respect. The Ministry of Justice has seen seven secretaries of state in the last 10 years. When new government ministers decide to hack away at programmes and funding—forgoing the opportunity for both social change and long-term financial savings—it is not just those within the legal system that bear the cost. We all do.

Kennedy believes “the only way to create real change [is] to engage with the institutions where power lies.” She is, above all else, a lawyer. That means due process and dialogue. It also means co-operation with men—something some of her fellow feminists may baulk at.

What we can be sure of is that with Kennedy fighting the case from the benches of parliament, on the airwaves and in a forceful book like this, that at any given moment—in a Whitehall department or in a courtroom—someone’s feet will be over the fire. And for that we should all be thankful.

Sarah Langford will be appearing at the Prospect Book Club on 21st January