Pub Date : 2020-07-02DOI: 10.1080/13200968.2021.1885201
Kate Seear, S. Fraser, A. Madden
Abstract In recent years, drug-related deaths have soared around the world. Some of these are overdose deaths, some are due to state violence as part of the ‘war on drugs’. Images of these deaths are often widely circulated in mainstream and social media. They are mobilised by anti-drug campaigners, anti-prohibitionists, family members seeking to memorialise their loved ones, and researchers. In all of these instances, of course, there is no question about whether the dead can consent to the sharing of such images, for they are no longer alive to do so. Where consent is not possible, how should the sharing of such images be approached? This article explores this issue. We focus on two concepts often mobilised when assessing the validity of post-mortem rights claims: shame, and what we call dignity-as-reputation. Through an analysis of two case studies of drug-related death, we explain why these concepts are an inadequate framework for assessing what is at stake within the specific and unique context of drug-related deaths. We argue that posthumanist legal theory and feminist scholarship on emotions provide an alternative foundation for legal approaches to images of death, and argue that post-mortem rights should be reworked.
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Pub Date : 2020-07-02DOI: 10.1080/13200968.2021.1930432
E. McDonald
In a study of 40 adult rape jury trials, aimed at identifying how and why the questioning process in rape trials results in re-traumatisation, researchers noticed how often adult women complainants gave evidence of clearly expressed lack of consent – through words or conduct or a combination of both. In 26 cases the complainant also gave evidence of multiple attempts to negotiate the desired limits of sexual intimacy. Her evidence was challenged in cross-examination and during closing arguments by emphasis on aspects of her conduct argued to be indicative of consent. Clearly articulated absence of consent was not a predictor of convictions, even in the Aotearoa New Zealand Sexual Violence Court Pilot. Only 13 of these 26 cases resulted in a guilty verdict. In this article, I will examine how the narratives about consent in recent adult rape trials illustrate the ongoing significance of feminist critiques of the concept, particularly its efficacy regarding gendered sexual violence, as well as counselling caution about expectations of a reformed definition of consent.
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Pub Date : 2020-07-02DOI: 10.1080/13200968.2020.2059915
Nan Seuffert
It would be hard to overestimate the importance of the roles of consent and contract in modern conceptions of legitimate social, economic, and political relations. The ‘free agreement’ of ‘the individual’ in modernity is expressed through contracting with others in ways that he judges will further his own interests. [M]odern practices of consent through negotiation occur within and reproduce the colonization of indigenous people rather than initiating processes of decolonization. By entering into negotiations under these conditions, indigenous peoples thus appear to consent tacitly to their acquiescence in the imposed institutions... contrary to the generations of resistance. This is the problem of the subordination of one partner and the hegemony of the other.... It is a major reason why so many First Nations refuse to enter into treaty negotiations and so many indigenous people refuse to ratify agreements negotiated by their leaders. [Colonial] attitudes towards Aboriginal women deny any agency with which to consent to sexual relations since it is perpetually assumed. This writes out the violence, coercion and duress of white men and the constraints on the agency of Aboriginal women in the colonial context. If sexuality is relational, specifically if it is a power relation of gender, consent is a communication under conditions of inequality.
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Pub Date : 2020-07-02DOI: 10.1080/13200968.2021.1885200
Tanya Serisier
Abstract This article traces a cultural shift in ‘consent humour’ by contrasting a Saturday Night Live skit that aired in 1993 mocking affirmative consent with the 2015 ‘Tea and Consent’ video produced by the Thames Valley police, in 2015, which insists that ‘consent is everything’. By reflecting on the cultural contexts and the ‘humour ideologies’ that underlie these examples, the article rejects a simple teleological interpretation of cultural change. It asks who and what is subject to ridicule in these jokes, contrasting the figure of the disruptive ‘victim feminist’ in the 1993 sketch with the ignorant subject who is ‘still struggling’ with consent in the 2015 clip. The article argues that both rely on a class-based politics of cultural capital to defend ideological constructions of ‘appropriate knowledge’ about consent. Where the SNL skit insists that consent is marked by its complexity, the ‘Tea and Consent’ video insists on its simplicity. The humour in both, however, rests on a sexually sophisticated middle-class subject laughing at those who do not possess the appropriate cultural capital in relation to sex and consent. In both cases, the ‘problem’ of consent is deflected away from normative heterosexuality and towards the ignorant other.
本文通过对比1993年播出的《周六夜现场》(Saturday Night Live)嘲笑肯定同意的短剧与2015年由泰晤士河谷警方制作的“茶与同意”视频，追溯了“同意幽默”的文化转变，该视频坚持认为“同意就是一切”。通过反思这些例子背后的文化背景和“幽默意识形态”，本文拒绝了对文化变化的简单目的论解释。它询问了在这些笑话中谁和什么是被嘲笑的对象，并将1993年小品中破坏性的“受害者女权主义者”的形象与2015年片段中“仍在挣扎”的无知主体进行了对比。这篇文章认为，两者都依赖于文化资本的阶级政治来捍卫关于同意的“适当知识”的意识形态建构。《周六夜现场》的短剧坚持认为，“同意”的特点是它的复杂性，而“茶与同意”视频则坚持它的简单性。然而，两者的幽默都建立在一个性经验丰富的中产阶级主体上，嘲笑那些在性和同意方面没有适当文化资本的人。在这两种情况下，同意的“问题”都从规范的异性恋转向了无知的他者。
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Pub Date : 2020-07-02DOI: 10.1080/13200968.2021.1930434
Julia Quilter
For the purposes of rape/sexual assault, the preferred approach for pursuing modernisation in Australia has been to legislate a positive definition of consent as ‘free and voluntary agreement’. The absence of consent in this form has become the primary touchstone for the crime. And yet, despite multiple waves of progressive legislative reform, too few victims of sexual violence find justice in the criminal courts. This article questions whether prevailing statutory models of consent definition may be more problem than solution. Drawing on the work of Pateman and Gatens in particular, I argue that while the repetition of the words ‘free and voluntary agreement’ make it a familiar and reassuring formula, its meaning is neither self-evident nor self-executing. It is possible that the definition opens a ‘gap’ between what is intended by the phrase and how it is filled in practice by the ‘common knowledges’ (Mariana Valverde, Law's Dream of a Common Knowledge (Princeton University Press, 2003)) of rape myths. Myth as ‘misunderstanding’ may be capable of legislative correction, but legislative correction of myth, understood as an excess of signification (Roland Barthes, Mythologies trans A Lavers (Jonathan Cape, 1972)), is elusive. The article also suggests that the practice of legislative correction may be flawed to the extent that it relies on naming and marking the limit of what consent is not – via categories of (exceptional) circumstance and vulnerability.
就强奸/性侵犯而言，澳大利亚追求现代化的首选方法是通过立法将同意积极定义为“自由和自愿的协议”。这种形式的未经同意已成为犯罪的主要试金石。然而，尽管进行了多次进步的立法改革，但在刑事法庭上寻求正义的性暴力受害者太少了。本文质疑是否现行的法定模式的同意定义可能是更多的问题而不是解决方案。我特别借鉴了Pateman和Gatens的著作，认为虽然“自由和自愿的协议”这个词的重复使它成为一个熟悉和令人安心的公式，但它的含义既不自明也不自动执行。很有可能，这个定义在这个短语的本意和强奸神话的“常识”(Mariana Valverde, Law’s Dream of a common Knowledge，普林斯顿大学出版社，2003)的实践中填补了它之间的“鸿沟”。作为“误解”的神话或许能够得到立法的纠正，但如果把神话的立法纠正理解为意义的过剩(罗兰·巴特，《跨拉弗斯的神话》(乔纳森·凯普，1972))，则难以捉摸。文章还指出，立法纠正的做法可能存在缺陷，因为它依赖于通过(例外)情况和脆弱性类别来命名和标记同意的限制。
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Pub Date : 2020-07-02DOI: 10.1080/13200968.2021.1960621
P. Edmonds
In 1881 Nie (also known as Nai), a Pacific Islander woman, walked off ‘Virginia’ plantation, south of Maryborough, in the colony of Queensland. Crossing through cane fields, she travelled in the thick tropical heat to nearby ‘Gootchie’ plantation to take up work as a domestic servant. Walking off Virginia plantation was a courageous act – and indeed a sovereign act of refusal – for within two weeks Nie was violently retrieved from Gootchie by her former employer and British lawyer, Theodore Wood, who believed she had broken a verbal contract with him. Wood arrived at Gootchie with another man, Harry, where they found Nie working in the kitchen of the main house alongside Irish servant Annie O’Leary. When Nie refused to go with the men, they took hold of her by force. Nie clung to the leg of the kitchen table, but the men overpowered her. As Annie looked on in dismay, the men dragged Nie across the floor, tied her hands up, put her into a cart and took her back to Virginia plantation. The Polynesian Inspector (or Protector), H.M. Hall, was alerted to the incident at Gootchie and the matter soon went to court, where Wood was charged with assault. The criminal case which ensued garnered intense public interest with the Bundaberg Star reporting on the incident with the sensational headline, ‘A Female Slave in Queensland’, invoking both Nie’s ‘rights’ and a much broader and sensitive political context around matters of labour, unfreedom and slavery in Queensland at this time. Significantly, Nie gave testimony of her assault and abduction by Wood in the Tiaro Court of Petty Sessions (Magistrates’ Court), an opportunity rarely given to a Pacific Islander woman at this time in Queensland. The Nie case, where a perpetrator was put on trial and a Pacific Islander woman could speak in her own right under oath in a colonial court may appear, at first glance, to be a triumph of the law over the persistence of slavery, the violation of human liberty, and the erasure of consent through physical violence, as was suggested by
1881年，太平洋岛民聂(又名奈)从昆士兰殖民地马里伯勒以南的“弗吉尼亚”种植园走了出来。穿过甘蔗田，她冒着热带的炎热来到附近的“Gootchie”种植园，做了一份佣人的工作。走出弗吉尼亚种植园是一种勇敢的行为，也是一种主权的拒绝行为，因为不到两周，聂就被她的前雇主、英国律师西奥多·伍德从Gootchie手中粗暴地抓了回来，他认为聂违反了与他的口头合同。伍德和另一个男人哈利一起来到古奇，他们发现聂在主屋的厨房里和爱尔兰仆人安妮·奥利里(Annie O’leary)一起工作。当聂拒绝和这些人一起去时，他们强行抓住了她。聂抓着餐桌腿不放，但那两个人把她制服了。就在安妮惊慌失措地看着的时候，那些人把她拖过地板，把她的双手绑起来，放到一辆手推车上，把她带回了弗吉尼亚的种植园。波利尼西亚督察(或保护者)H.M.霍尔(H.M. Hall)注意到了古奇的事件，这件事很快就闹上了法庭，伍德被控伤人罪。随后的刑事案件引起了公众的强烈兴趣，《班达伯格之星》以耸人听闻的标题报道了这一事件，“昆士兰州的一名女奴”，援引了聂的“权利”，以及当时昆士兰州有关劳工、不自由和奴隶制问题的更广泛和敏感的政治背景。值得注意的是，聂在蒂亚罗地方法院(Tiaro Court of Petty Sessions)作证，证明她被伍德袭击和绑架，这在当时的昆士兰州很少有机会给太平洋岛民妇女。聂案中，一名罪犯受到审判，一名太平洋岛民妇女可以在殖民地法庭宣誓后以自己的权利发言，乍一看，这似乎是法律对奴隶制的持续存在，对人类自由的侵犯，以及通过身体暴力消除同意的胜利
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Pub Date : 2020-01-02DOI: 10.1080/13200968.2020.1821459
Daryl W. J. Yang
Abstract This article furthers the scholarship on homo-developmentalism by analysing a recent discursive shift in the homo-developmentalist discourse from conditionality to a new narrative of convergence. Appearing in several recent research reports published by various development agencies, this narrative describes the relationship between LGBT rights and economic development as one that is mutually constitutive. This article interrogates how the narrative of convergence was constructed by attending to the indicators utilised in the various research reports and considers the implications of this discursive shift in terms of how it sustains the development project and Western civilisational exceptionalism through the construction of a new binary of LGBT-inclusive/LGBT-phobic. It concludes with a brief discussion on negotiating the complex entanglements of Western imperialism in pursuing the advancement of human flourishing.
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Pub Date : 2020-01-02DOI: 10.1080/13200968.2020.1822609
L. Steele, B. Goldblatt
Menstruation is a hot topic. Period. End of Sentence., a film about production of menstrual pads in India, won an Oscar for best short documentary at the 2019 Academy Awards. 1 The period emoji (a ...
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Pub Date : 2020-01-02DOI: 10.1080/13200968.2019.1810894
Dan Newman
Abstract This paper develops a typology of murder ballads to inform and assist legal scholars in engaging with this form of literature. Murder ballads are songs about death and killing, originating in seventeenth-century Europe thereon forming the bedrock of American folk, blues and country music from around the late nineteenth century onwards. This is a sub-genre of music explicitly focused on murder and, as such, presents a form of popular culture of great relevance to legal scholars, especially those with an interest in crime and justice. To date, legal scholarship has not given proper attention to murder ballads despite the vibrancy of the law and literature movement. This paper offers a call to rectify this dearth, following the law in literature approach of gaining insight into the human condition that can thereon be used to improve understanding of how law and society interact. The paper draws out a central theme of these murder ballads that speaks to a strong gender role in the narrative; violence against women. The ramifications of the normalisation of killing women that occurs in these traditional songs should be further developed to help understand the foundational role such cultural messages may have exerted on wider society.
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