<i>Feminist Judgments: Rewritten Criminal Law Opinions</i>Edited by BennettCapers, SarahDeer, and CoreyRayburn Yung, Cambridge: Cambridge University Press, 2023, 306 pp., £39.99

Feminist Judgments: Rewritten Criminal Law Opinions is the latest in a series of books that rewrite seminal legal judgments from feminist perspectives. Originating in Canada, the feminist judgment project has been taken up in many other jurisdictions including the United States (US), which is the scene for the current book. The first in the series involved a rewriting of US Supreme Court opinions,1 and it was considered that ‘[a] book of reimagined feminist court opinions related to criminal law seemed the obvious next step’ (p. 1). The feminist judgment project is now a well-established field of scholarship, influencing teaching and research methodologies, and has been utilized in other strands of law, such children's rights.2 However, the aim is for the project to have a wider impact. As Rosemary Hunter has commented, the feminist judges ‘want their judgments to be taken seriously. They want activists, lawyers and judges to be influenced by their reasoning and so, indirectly, to change the law or at least to contribute to its development.’3 This is a vital endeavour, the importance of which is only increasing over time, as the hard-fought rights of women – along with those of other marginalized groups – seem to be under attack, in the US and elsewhere. The methodology adopted in the feminist judgment project is now quite well known, and the book adopts a similar format to other edited collections.4 This involves a rewritten opinion, bound by the same conventions and precedents as the original judgment, accompanied by a commentary that engages with the wider legal and social context, the original judgment, and the rewritten feminist opinion. This book comprises 14 opinions, and the editors note in their introduction that these are not limited to what might be considered to be the primary focus of feminist criminal law interventions, such as sexual and gender-based violence, but encompass cases that do not have ‘a self-evident relationship to gender’, along with examining ‘foundational criminal law principles’ and engaging with broader critiques of punishment and the criminal justice system (p. 2). Accordingly, the 14 rewritten opinions span an array of criminal law topics, including rape/sexual violence, domestic violence, and domestic homicide but also parenting, sex work, and broader legal issues including the death penalty and jurisdictional challenges with respects to tribal law. Adopting a more expansive approach leads the editors to divide the book into two sections: ‘Gendered Justice’, comprising cases in which a feminist perspective may be influential but where gender is not necessarily an aspect of the case, and ‘Gender on Trial’, where the gender of the participants (the offender and/or the complainant) is a fundamental factor. The extent to which this divide holds can be queried, however, with gender being a prime factor in most of the opinions. Only one case could be said to have no explicit gender dimension, that of Oliphant v. Suquamish Indian Tribe5 (Chapter 4), which is considered further below. As set out in the introduction, the project falls within the normative strand of feminist jurisprudence, showing ‘the difference [feminism] can make’ (p. 1). This involves the vital task of showing that the law could – and should – be otherwise, and it is worth reflecting further on this before examining some of the rewritten judgments. Significantly, the potential for an alternative perspective emanates from the structure of law itself. As Hunter has noted, ‘these feminist academics dressed up as judges powerfully denaturalize existing judicial and doctrinal norms, exposing them as contingent, and as themselves (the product of) performances’.6 Hence, the feminist judgement project, in addition to producing rewritten opinions, also tells us something important about the nature of law itself, and dismantles the illusion of objectivity on which legal judgment is supposedly premised. While judicial pronouncements do the work of drawing on and stabilizing certain scripts pertaining to gender and sexuality (in the context of the feminist judgment project), such stabilizations are necessarily conditional. They are not settled and fixed, but dependent and necessarily open, and as such ‘the invitation to think again and to see the world differently always remains’.7 As Drucilla Cornell reminds us, the ‘might have been’ is always present within the law, and ‘when we reinterpret or reconstruct a line of precedent, we are recovering “what might have been” if we had understood the embodied principles or norms differently’.8 Significantly, this brings an ethical dimension into judging, one that is embodied in the feminist judgment project. Cornell notes that judicial interpretation is a form of memory and imagination, and the judge ‘is responsible for her memory and the future which she promotes in the act of remembrance itself’.9 Cornell points to the importance of genealogy and remembering the harms suffered by women – harms that were frequently condoned, if not promoted, by the legal system. Genealogy, Cornell explains, ‘is crucial to the integrity of justice that demands that we also examine the existing limits of actualized concepts of justice, particularly as these exist in, and perpetuate, the patriarchal order of society’.10 Thus, judges, along with other lawmakers, have a responsibility to remember the suffering of the Other – of women – and how such suffering has been perpetuated by patriarchal instantiations of the law, when they engage in legal (re)interpretation. This is particularly the case with criminal law, with, for example, marital rape exceptions common across the globe historically, and the continued pervasive impact of various myths and misconceptions relating to gender-based violence. In this book, this broader historical, social, and legal context is well articulated in both the commentaries and the rewritten opinions, with the contributors making use of an array of data and materials that do the significant work of elucidating the material impact of law on women's lives. This includes, for example, evidence relating to the impact of domestic abuse and battered woman syndrome and of prostitution offences on those who engage in sex work. The brief introduction further situates the project in the current cultural moment of feminism, specifically the #MeToo and #SayHerName movements in the US, and concerns regarding police brutality and harassment, particularly in relation to race. The feminist rewritings span an array of approaches, including liberal, radical, anti-carceral, intersectional, and postcolonial perspectives. The latter two are particularly prominent, given the inclusion of judgments dealing with the intersections of race, ethnicity, and gender, but also those that concern Federal Indian law, tribal law, and Native American cases. Indeed, as noted in the introduction, this is the first feminist judgment book to tackle tribal and Native American issues. While the editors comment that the volume may come across as ‘tribal-heavy’, they explain that this is because ‘the treatment of Indigenous people has for too long been ignored by the legal canon and by feminist legal writing’ (p. 3), a wrong that the book endeavours to correct. Given the novelty of the inclusion of tribal and Native American cases, and the impossibility of exploring all of the judgments covered, this review focuses on the former, of which there are three cases. Two fall within the ‘Gendered Justice’ section. The first – Oliphant v. Suquamish Indian Tribe (Chapter 4) – is a case that Adam Crepelle describes in the commentary as ‘infamous among those who work in federal Indian law but virtually unknown outside the field’ (p. 69). In this case, the Supreme Court held that Indian tribal law was not applicable to non-Indians who commit crimes in their territory. The case involved a drunken altercation between a male defendant, Oliphant, and a tribal police officer, and a subsequent high-speed tribal police pursuit of a further defendant, Belgarde (with Oliphant as a passenger in the car). Both the original and the rewritten judgments cover a complex array of legal issues, such as the applicability of habeas corpus, the sovereignty of tribal governments, and tribal self-determination. However, it is the ramifications of the judgment for Indian women that are particularly significant, and it is this aspect that necessitated a feminist rewriting of the judgment. As noted in the commentary, Indian women suffer exceptionally high rates of domestic and sexual violence – double the rates experienced by US citizens. Moreover, 97 per cent ‘report being victimized by a non-Indian’, with many pinpointing the Oliphant decision ‘as a significant reason for this disparity’ (p. 73). In her dissenting judgment, Justice Melissa Tatum notes that the Supreme Court created ‘a potentially dangerous environment in Indian country’ (p. 74) and sets out an alternative assessment, noting that in no other jurisdiction would the actions of the offenders fall outside criminal law. The second tribal case, again falling within the ‘Gendered Justice’ section, is Winnebago Tribe of Nebraska v. Bigfire11 (Chapter 7). This case concerns a consideration of the statutory rape offence in three cases involving young male defendants. In two cases, the convictions were upheld by the Supreme Court (Bigfire and CL); in the third, the case was dismissed, but based on the double jeopardy bar. In the commentary, Ann E. Tweedy notes that the defendants argued ‘that they had been denied equal protection based on sex in violation of the Winnebago constitution’ (p. 132) on the basis that the women with whom they had engaged in sexual activity had not also been charged. While the Supreme Court upheld and restated the convictions in Bigfire and CL, and the feminist judgment concurs with the overall outcome, it is the court's consideration and application of tribal custom and tradition that is scrutinized by the feminist judgment. While rejecting claims of sex discrimination, the Supreme Court considered whether the tribe had ‘demonstrated a compelling tribal interest in making gender-based decisions in deciding who to prosecute for rape’ (p. 135). To this end, the Supreme Court received evidence expert testimony – known as the Moral Laws – that established that ‘Ho-Chunk tradition recognizes and respects different roles for males and females’ (p. 136, emphasis in original), especially in relation to sexual misconduct. While recognizing the importance of the court engaging with this evidence, the feminist judgment sets out a methodology for the incorporation of such material. Noting that the Moral Laws ‘include descriptions of antiquated actions that have no place in contemporary laws of tribal nations today’ (p. 150), Judge Sarah Deer extrapolates key principles that could have application in contemporary times. In addition, the feminist judgment further elaborates that sexual crimes should be treated as sui generis crimes, based on the history of abuse of Native American children, the use of sexual violence as a tool of colonialism, and the ongoing lack of prosecutions in Indian country cases (p. 153). Not only are the substantive issues of feminist concern but also, as Tweedy notes in the commentary, ‘safeguarding tribes’ uniqueness and ever-evolving cultures is a feminist project’ (p. 145). The third case is State v. Williams12 (Chapter 9), this time falling in the ‘Gender on Trial’ section of the book. In this case, a mother and stepfather were convicted of manslaughter for the death of their 17-month-old child, who died of gangrene. It was held that they had not satisfied the ‘ordinary caution’ standard of care, due to their failure to obtain medical assistance when the child was suffering with toothache and a fever. Kim Hai Pearson's commentary sets the context by outlining the shocking extent to which Native American children were removed from their parents, first into boarding schools (and with this the appalling discoveries of children's graves), and then by social services for adoption by non-Indian families. The commentary notes that ‘the ongoing removal, injury, and death of Native children for generations, is nothing less than extermination efforts over long time without cessation’ (p. 193). This provides a pivotal socio-historical context for understanding the reticence of the parents to obtain medical care, a context that had personal resonance given that a relative had recently had a child removed. As deftly elaborated in the commentary and feminist judgment, this context is vital to explaining why the parents’ failure to summon medical care should be considered reasonable in the circumstances. In addition, the feminist judgment counters the negative stereotypes deployed in the original judgment, which constructed the parents as ‘ignorant’ and drew inferences with regards to ‘incompetent parenting, nonhygenic homes, malnourishment, financially insecure adults, and skepticism that odor [from the tooth] was undetected’ (p. 197). The rewritten judgment also challenges the perception that Indian parents fail to satisfy the prudent parent standard simply by virtue of being Indian. As Pearson notes in the commentary, the court could have decided differently: ‘the rich, varied, and dynamic civil rights, anti-colonialism, and feminist movements of the 1960s and 1970s could have provided the Court with a moral, compassionate, and legally justifiable basis to give credence to the parents’ reality’ (p. 196). By engaging with the broader context, the feminist judge, Addie C. Rolnick, sets out an important genealogy that elucidates the atrocious state-sanctioned harms inflicted on Indian families, the lasting impact that these have had on parents’ willingness to trust and engage with medical and other professionals, and the importance of contextualizing the decisions made by parents. These three rewritten judgments and the associated commentaries provide the reader with a wealth of information about various socio-historical, cultural, and legal issues. The feminist judgments are sensitive and nuanced, and deal with a plethora of complex legal issues deftly and eloquently. The book provides a real engagement with and focus on intersectional and postcolonial feminism and is noteworthy in this regard. Overall, it offers enlightening insights into a broad range of criminal law issues. Some level of analysis and comparison between some of the cases could, however, have been provided. For example, People v. Berry13 (Chapter 2, in the ‘Gendered Justice’ section) and State v. Norman14 (Chapter 11, in the ‘Gender on Trial’ section) both deal with the issue of domestic homicide in the context of domestic abuse, with the former involving a male (abusive) defendant and the latter a female (abused) defendant. Two further cases – State v. Walden15 (Chapter 10) and United States v. Nwoye16 (Chapter 13) – deal with the (problematic) battered woman syndrome and the importance of understanding the impact of abuse on women. Some of the tensions and resonances between these cases could perhaps have been explored in the introduction, which is relatively brief (in comparison to other feminist judgment books). Some further reflection on feminist abolitionism and the anti-carceral feminist movement, which are relevant specifically in the cases of Coker v. Georgia17 (Chapter 3, dealing with the death penalty for rape) and Erotic Services Provider Legal Education and Research Project v. Gascon18 (Chapter 14, concerning prostitution offences), could also have been provided. The difficulties of using the coercive institutions of the state to respond to gender-based injustices have long been acknowledged by feminist legal scholars.19 At the same time, they have emphasized that ongoing engagement with the law is essential, as to do otherwise is to ‘cede ground to antifeminist institutions and practices’.20 Hence, there is an ongoing ethical responsibility to respond to those within the present, to try to find ways within the existing system to bring about some level of justice, however difficult that may be, and this book provides an important contribution in that regard. It is important to remember the difference that difference can make, and how the potential for a more ethical and inclusive criminal justice response remains. As noted in the introduction, ‘feminist reasoning could have changed the development of criminal law writ large’ (p. 1) – and still could.

Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.