Twenty-five years have passed since Kennedy published Eve Was Framed, the groundbreaking precursor to her latest work. And while there has been some change – much of it initiated by Kennedy herself – progress has been halting and deep-seated reform is still urgently needed. “The smell of the gentlemen’s club permeates every crevice of the Inns of Court,” writes Kennedy. And it stinks.
Rape complainants are let down by a largely pale, male, stale judiciary that has struggled to keep up with changing sexual mores – don’t expect a conviction if you’re raped on a Tinder date, warns the QC. Kennedy points out that the opinion of a court (that saying “fuck me harder” while having sex on all fours constituted “unusual sexual behaviour”) “said a lot about [the judges’] own sexual experience and their lack of familiarity with contemporary pornography in which this behaviour is standard”. She also makes the fascinating and chilling observation that porn has radically changed “the repertoire in rape cases” since she first started in practice. “It is increasingly rare for women not to be penetrated anally as well as vaginally and orally.”
Women – whether criminals or victims – are still subject to the most antiquated of double standards. “It is hard to get across the idea that a woman is entitled to have sex with the whole of the football team, but draw the line at the goalie,” writes Kennedy, with characteristic bite. Rape victims have their compensation reduced if they were drunk. Meanwhile, girls are being institutionalised (unlike adult courts, youth courts can sanction behaviour that is not technically criminal but may harm a child’s development) for behaviours that in their male contemporaries would be dismissed as “boys will be boys” but in girls are seen as evidence of dangerous moral turpitude.
It’s a similar story in the adult courts, where there has been a “shocking escalation in the numbers of women being sent to prison” despite the already low proportion of women committing serious offences falling over the same period. The trouble is, says Kennedy, there are “no separate sentencing guidelines for women offenders, and the existing guidelines make next to no mention of gender-specific issues”. This leaves even the more enlightened judges with “a limited range of possibilities” – a problem that has been drastically exacerbated by sustained budget cuts”. Women’s centres have been closed. Curfews for women given community sentences save costs on probation officers “but can leave women vulnerable to domestic violence for the 12 hours per day that they are confined to the house”.
But it’s not just about cuts. It’s also about failing to design the justice system around women’s unpaid work. Little attention is given, writes Kennedy, to things like scheduling probation appointments during school hours, and research has revealed that “women’s childcare responsibilities are impacting on their ability to comply with their community sentences”. And women who fail to comply often end up in prison – “even where the original offence would never have merited a custodial sentence”.