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Law, harm and redress: a feminist perspective

  • Joanne Conaghan (a1)
Abstract

This paper explores understandings of harm in law through the application of a feminist perspective. Drawing on the idea of harm as a social construct, the paper considers the role of law in shaping perceptions of when a harm has occurred and whether it should be redressed. These themes are illustrated by means of a close legal and contextual analysis of the House of Lords decision in Waters v Metropolitan Police Commissioner, in which a woman was allegedly bullied at work for reporting she had been raped by a fellow officer. The paper raises questions about why this particular claimant had difficulty establishing that she had suffered harm, despite alleging 89 separate hostile acts by fellow officers, and even though the courts who heard her claim assumed for the purposes of legal argument that the facts alleged were true. It is argued that the narrowness of the approach adopted by most of the judges who heard Ms Waters' claim precluded recognition of the seriousness of the allegations and the social, political, and legal need to provide redress.

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1. [1995] ICR 510, EAT; [1997] ICR 1073, CA; [2000] 1 WLR 1607, HL.

2. PSchlag The Enchantment of Reason (Durham, NC: Duke University Press, 1998) p 140.

3. The narrowing effects of traditional legal education upon intellectual growth and individual creative capacity are a recurring theme in critical legal scholarship. See in particular the work of Duncan Kennedy (eg ‘Legal Education as Training for Hierarchy’ in Kairys, D (ed) The Politics of Law: A Progressive Critique (New York: Pantheon, 1982)). Feminist perspectives on legal education reflect similar concerns. See eg Thornton, M Dissonance and Distrust (Oxford: Oxford University Press, 1996) ch 4.

4. Thomson, A Introduction to Law Lectures (University of Kent, circa 1984).

5. West, R Caring for Justice (New York: New York University Press, 1997) ch 2 ‘The Concept of Harm’, esp pp 94–100. As West observes, the concept of harm has been extensively theorised in the context of economic analysis of law, where the definition and identification of harm generally turns upon cost-benefit calculations. It has also been closely scrutinised by feminists, most notably by West herself in the volume cited here, but also by C MacKinnon, see eg ‘Sexual Harassment: its First Decade in Court’ in Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvad University preSs, 1987) pp 103–116; Howe, AThe Problem of Privatized Injuries; Feminist Strategies for litigation’ in Fineman, M and Thomadsen, N (eds) At the Boundaries of Law: Feminism and Legal Theory (New York Routledge, 1991) pp 148–167 ; and Graycar, R and Morgan, J The Hidden Gender of Law (Annandale: Federation Press, 2nd edn, 2002) esp Pt 4; all of whom have deployed some notion of ‘gendered harm’ to probe the exclusion of injuries to women from the traditional armoury of legal wrongs. See also my own work, particularly ‘Gendered Harm and the Law of Tort’ (1996) 16 OJLS 407 and ‘Tort Litigation in the Context of Intra-Family Abuse’ (1998) 61 MLR 132. Outside these fields there has been little systematic consideration of the concept of harm, although there have been many studies of particular harms in particular contexts.

6. Consideration of the concept of harm may give rise to any number of problematic questions. These include the key issues of how harm arises: what is the social process by which particular conduct and consequences (eg the arbitrary exercise of power by employers) is transformed from ‘hard luck’ to ‘legal harm’? Can harm arise independent of its social and/or legal recognition: eg was sexual harasment ‘harm’ before it was socially recognised as such? Are ‘harm’ and ‘injury’ synonymous? If not, what is the distinction? If contingently synonymous, what are the contingencies? Finally, does harm necessarily imply agency of some kind? Eg is cancer harm, and is its characterisation as such dependent on how it is caused? Some of these questions are considered further below.

7. Where smacking was so experienced, it had usually reached the point where it had violated the social and/or legal norm of ‘moderation’. This border-crossing phenomenon also links to more complex issues surrounding circumstances in which a particular kind of harm is socially recognised but its Occurrence routinely denied. Very often, this simultaneous recognition and denial of harm manifests social doubt about the scope or extent of the harm in question. Date rape is a case in point.

8. See eg the recent widely reported case of Marjorie Evans, the head teacher convicted but eventually cleared of physically assaulting a pupil (‘Teacher Cleared of Assault: Appeal Judge Quashes Conviction for Slapping Pupil’Guardian, 2 September 2000, p 2).

9. See here A v UK (1998) ECHRR VI, 2692.

10. The legality of smacking has been the subject of recent parliamentary and public debate: see ‘Parents told: you are free to smack’ Guardian, 8 November 2001; and ‘Comment: Leading Article: Ban smacking: Hitting children is always wrong’ Observer, 11 November 2001.

11. The most dramatic example of the legal conferral of ‘harm’ status on particular conduct is sexual harassment in the workplace, which until the late 1970s was widely regarded as playful, harmless behaviour (witness the Carry-on films and other humorous depictions of sexually harassing behaviour). As Catharine MacKinnon famously observed, ‘Sexual Harassment, the event, is not new to women. It is the law of injuries it is new to’: n 5 above, p 85.

12. Until the introduction of redundancy payments in 1965 (Redundancy Payments Act 1965) and unfair dismissal in 1971 (Industrial Relations Act 1971), employer liability to employees was confined to claims arising from the contract of employment, in which context precedent had established very limited scope for recovery (Addis v Gramophone Co Ltd [1909] AC 488).

13. See eg Dorset County Council v Christmas [1995] 2 AC 634 (one of a number of ‘education’ cases heard alongside the abuse case, X (Minors) v Bedfordshire County Council [1995] 2 AC 644 and, more recently, Phelps v Hillingdon London Borough Council [2001] 2 AC 619. On the rising tide of litigation against schools, see ‘Schools Face an Explosion of Litigation’The Times, 14 May 2002, supplement, pp 6–7.

14. The success of efforts to limit the scope of recovery in this context in McFarlane v Tayside Health Board [1999] 4 All ER 96, HL, remains to be seen. See in particular the decision of the Court of Appeal in Rees v Darlington Memorial Trust [2002] 2 WLR 1483. It is interesting in any case to note that their Lordships in McFarlane were in agreement in characterising an unwanted pregnancy as a personal or physical injury. See further I Kennedy and A Grubb Medical Law (London: Butterworths, 3rd edn, 2000) p 1578 for another example of the legal conferral of harm status.

15. [1995] ICR 510, EAT; [1997] ICR 1073, CA; [2000] 1 WLR 1607, HL.

16. The industrial tribunal (IT) and Employment Appeal Tribunal (EAT) did not so much proceed on the basis that the facts alleged were true as conclude, on the basis of certain agreed facts - specifically that an alleged rape had taken place while both parties where off duty - that no claim (under s 4(1) of the Sex Discrimination Act 1975) could arise. See further below.

17. This does not include ‘lay’ members of the IT and EAT. Although ‘Industrial Tribunals’ were renamed ‘Employment Tribunals’ in 1998 (Employment Rights (Disputes Resolution) Act 1998, s I), I will use the former term throughout for purposes of authenticity.

18. The account that follows is drawn mainly from the judgment of Evans LJ in the CA ([1997] ICR 1073 at 1081–1084).

19. Ms Water also alleged that she, rather than the alleged perpetrator, was treated as the subject of investigation ([1997] ICR 1073 at 1082, CA). As an account of a rape investigation, her claims have more than a ring of familiarity to them. See generally Lees, S Carnal Knowledge: Rape on Trial (London: Hamish Hamilton, 1996).

20. Specifically, her removal in July 1991 from the list of officers allowed to carry out POLS A duties (special searches). This was the event that triggered her application to the IT. (See the judgment of the EAT ([1995] ICR 510).

21. S 4(1) states: ‘A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act, if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to contravention of this Act’ (emphasis added).

22. In fact, police officers are not ‘employees’ and the Commissioner, therefore, was not technically Ms Waters' employer. However, for purposes of SDA 1975, he is effectively deemed to be so (SDA 1975, s 17(1)). The question of the Commissioner's status as ‘employer’ is also pertinent to the tort claim (see n 37 below).

23. There are limited additional contexts in which SDA 1975 operates. For a comprehensive account of the Act's scope, see Townshend-Smith, R Discrimination Law: Text, Cases and Materials (London: Cavendish, 1998) chs 10 and 11.

24. [1995] ICR 510 at 517.

25. Council Directive 76/207/EEC, art 7 of which provides that: ‘Member States shall take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.’

26. [1997] ICR 1073 at 1091.

27. [1997] ICR 1073 at 1097. Waite LJ also rejected the argument that in the wake of the decision in Jones v Tower Boot Co Ltd [1997] ICR 254, CA (holding that the phrase ‘course of employment’ in SDA 1975, s 41(1) was wider than its common law construction), the question of whether or not the alleged rape took place in the course of employment should be reopened. As both parties, Waite LJ argued, were clearly off-duty at the time, it was ‘inconceivable’, even on the expanded conception in Jones, that the rape occurred in the course of employment (at 1095–1096). In fact, the point is at least arguable, particularly as Ms Waters was required to live in the section house as part of the terms of her probationary engagement (at 1094).

28. One cannot help but catch the echo here of that older legal platitude: ‘Rape is a claim that is easy to assert but hard to disprove …’ which, under the guise of the corroboration rule, operated in rape trials with equally pernicious effects. My thanks to Peter Goodrich for making this connection.

29. Breach of statutory duty may also have been argued at some point.

30. It is not clear how specific the original statement of claim was as to the range of torts/civil wrongs alleged. It looks like eg intimidation emerged after the original statement of claim was struck out and that, at the Court of Appeal, Ms Waters' counsel declined to plead conspiracy to injure. However, all of them featured at some point in legal argument.

31. Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368, HL.

32. Initially by Master Prebble, later affirmed by Wright J in the High Court.

33. In fact, this point was conceded by Ms Waters' counsel, presumably because it would have been too difficult to adduce sufficiently convincing evidence to the contrary ([1997] ICR 1073 at 1086, CA).

34. [1997] ICR 1073 at 1086.

35. [1997] ICR 1073 at 1086. On the contractual claim, see below.

36. See also the short judgment of Swinton-Thomas LJ, who drew on these circumstances to argue that in the absence of combination, ie concerted planning to drive Ms Waters from the force, none of the officers involved could reasonably have foreseen that their action or actions would cause her psychiatric injury. This is fairly extraordinary reasoning, suggesting that unless the officers had expressly agreed to harass Ms Waters, they could not individually have anticipated harm to her, even though they may have been fully aware of the extent to which she was being victimised. This is a judgment which drips with disdain for the claims alleged. A potential additional difficulty in the context of vicarious liability is the deliberate/intentional nature of the original act (ie the rape). Interestingly, the path to vicarious liability here has recently been eased by the House of Lords in Lister v Hesley Hall Ltd [2000] 2 WLR 1311. See commentary by P Giliker ‘Rough Justice in an Unjust World’ (2002) 65 MLR 269.

37. Technically, the police are officers of the Crown, not employees, so Ms Waters' argument was dependent on establishing that the two parties were in a relationship analogous to employer and employee. Fortunately, the weight of evidence, drawn from statute and from prior case law, fell heavily in favour of applying the analogy in this context. See Evans LJ [1997] ICR 1073 at 1088.

38. See in particular Walker v Northumberland County Council [1995] ICR 702, cited in legal argument but not in the judgments, and Johnstone v Bloomesbury Area Health Authority [1992] QB 332 (not cited at all).

39. [1989] AC 53, HL.

40. [1989] AC 1228, HL.

41. Caparo Industries plc v Dickman [1990] 2 AC 605, HL.

42. [1995] 2 AC 63.

43. (1998) ECHR VIII, 1.

44. See esp Barrett v Enfield Borough Council [1999] 3 WLR 79.

45. Application 29392/95, 10 May 2001. The whole sorry saga, with particular emphasis on the human rights dimension, is reported and analysed by Conor Gearty in ‘ Unravelling Osman’ (2001) 64 MLR 159 and Oman Unravels' (2002) 65 MLR 87.

46. It has been pointed out, both judicially and by academic commentators, that, in fact, the invocation of policy to deny a duty of care under the third limb of Caparo effects not an immunity from liability but a denial that liability arises in the first place, and that on this point the European Court of Human Rights in Oman were misled - see Gearty (2001), n 45 above, at 184.

47. [1997] ICR 1073 at 1088.

48. [1997] ICR 1073 at 1088.

49. Walker v Northumberland County Council [1995] ICR 702.

50. Johnstone v Bloomesbury Area Health Authority [1992] QB 332.

51. Caparo Industries plc v Dickman [1990] 2 AC 605, HL.

52. [1999] 2 AC 455.

53. [1999] 2 AC 455. See per Lord Goff at 483; per Lord Steyn at 497; and per Lord Hoffman at 505.

54. [2000] 1 WLR 1607 at 1614, HL per Lord Slynn.

55. [2000] 1 WLR 1607, HL. Like the courts before them, their Lordships acknowledged that the Commissioner was not technically an employer, but had little difficulty in holding that his position was sufficiently analogous to warrant him being treated as such (Lord Slynn at 1610; Lord Hutton at 1616). Moreover, Lord Hutton was explicit that the scope of any implied contractual duty on an employer to prevent foreseeable mental injury to employees was also subject to the rules in tort (at 1616, citing White v Chief Constable of South Yorkshire [1999] 2 AC 455).

56. [2000] 1 WLR 1607, HL. Interestingly, both Lord Slynn (at 1611) and Lord Hutton (at 1616) characterise Ms Waters' claim as one of ‘bullying’, a term which, by 2000, had entered and taken solid roots in legal vocabulary.

57. Like the Cowt of Appeal, their Lordships were not enthusiastic about the vicarious liability claim. They did, however, show more flexibility in recognising that the plaintiff could make a claim based on the cumulative effect of individual acts rather than having to rely on establishing a connection between each individual act and the harm she allegedly sustained.

58. Lord Slynn emphasised that Ms Waters' claims went far further than Hill and Calveley and, therefore, could not be contained by them.

59. [2000] 1 WLR 1607 at 1618.

60. Above, n 43.

61. The relevant part of art 6(1) of the European Convention on Human Rights reads: ‘Inthe determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ For a critical account of the European Court jurisprudence in relation to art 6(1), see Gearty, n 45 above.

62. See eg the comments of Lord Slynn [2000] 1 WLR 1607 at 1613–1614: ‘It is very important to bear in mind what was said in X (Minors) v Bedfordshire County Council [1995] 2 AC 644; in Barrett v Enfield London Borough Council [1999] 3 WLR 79 and in Wv Essex County Council [2000] 2 WLR 601 as to the need for caution in striking out on the basis of assumed fact in an area where the law is developing as it is in negligence in relation to public authorities if not specifically in relation to the police.’

63. [2000] 1 WLR 1607 at 1615.

64. [2000] 1 WLR 1607 at 1619.

65. For a full development of my position here, see Conaghan, JReassessing the Feminist Theoretical Project in Law’ (2000) 27 JLS at 351–385 .

66. The difficulties that anti-essentialism poses for women-centred approaches are fully discussed by Conaghan, n 65 above, at 363–374.

67. This draws on the notion of gendered harm. See further West, R Caring for Justice (New York: New York University Press, 1997) ch 2.

68. See, in particular, Porcelli v Strathclyde Regional Council [1986] ICR 564, the first appellate decision to recognise sexual harassment as a violation of SDA 1975. The European Commission Recommendation on the protection of the dignity of men and women at work was not adopted until 1992 (OJ 1992 L 49/1).

69. [2000] 1 WLR 1607 at 1615.

70. [2000] 1 WLR 1607 at 1615.

71. [2000] 1 WLR 1607 at 1615.

72. [2000] 1 WLR 1607 at 1619.

73. [1997] ICR 1073 at 1079.

74. [2000] 1 WLR 1607 at 1614.

75. Ie that an employer's duty of care in relation to employees encompasses harm of a non-physical origin.

76. [2000] 1 WLR 1607 at 1614.

77. Actually, it is what Pierre Schlag calls ‘an equivalency complex’. For a shrewd critique of this and other kinds of judicial legitimation techniques, see Schlag, P Laying Down the Law: Mysticism, Fetishism and the American Legal Mind (New York: New York University Press, 1996) pp 152–159.

78. McColgan, A Discrimination Law: Text, Cases and Marerials (Oxford: Hart, 2000) p 134.

79. See The Stephen Lawrence Inquiry. Report of an Inquiry by Sir William MacPherson of Cluny (Cm 4262–1, February 1999) holding that the Metropolitan Police Service was ‘institutionally racist’ (para 6.39). See also Recommendations 64–66 on the recruitment and retention of minority police officers.

80. The only judge to see this as an issue was, of course, Lord Hutton. See his comments at [2000] 1 WLR 1607 at 1619–1620.

81. See, in particular, Brown, J and Campbell, E Stress and Policing: Sources and Strategies (Chichester: John Wiley, 1994).

82. Both within the police force and from the public at large; see Brown and Campbell, n 81 above, p 168.

83. Brown, J and Heidensohn, F Gender and Policing (Basingstoke: Macmillan, 2000).

84. HMCPSI, A Report on the Joint Inspection into the Investigation and Prosecution of Cases involving Allegations of Rape (April 2002).

85. HMCPSI, n 84 above. There is evidence too of particular problems in this regard in the Metropolitan Police. See ‘Is the Met Failing Women over Rape and Domestic Violence?’The Times, 13 November 2001, followed by a byline two weeks later that ‘The Met is Making Rape Cases a Priority’The Times, 27 November 2001.

86. [1997] ICR 1073 at 1091.

87. [1997] ICR 1073 at 1097.

* Inaugural lecture delivered at the University of Kent on 10 May 2002 to a mixed audience of lawyers, legal and non-legal academics, and members of the general public. The text has been minimally adapted to take account of the legal composition of the Legal Studies readership. I would like to thank my many colleagues at Kent Law School for their support and inspiration over the years.

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