It’s just before 8pm on a Monday night and I’m sat in The Clyde, waiting for my dinner and listening to a group of undergraduates (five men, one woman) discuss sex education. One of the students wears a navy hoodie with the word “Science” emblazoned across its back. I’m guessing they’re not humanities students. Mostly because one of them said “re-entry” and the rest of them giggled. I’ve just come from a talk at the nearby Church of All Nations, hosted by the Victorian Women’s Trust and Readings bookstores. The conversation was between noted local feminist columnist and slayer of trolls, Clementine Ford, and Bri Lee, the young author of a memoir entitled Eggshell Skull.
I had seen the talk advertised on my Facebook feed this afternoon, and (as I have no lectures to write and final assignments don’t arrive until next week) I thought I would rock on along. The algorithm was on the money. Lee and Ford discussed a series of issues relating to women, sexualised violence, and the inadequacy of the justice system. These intertwined issues destabilised my own life narrative during my undergraduate years, and I gradually drifted deeper and deeper into the theoretical framing of these issues throughout my graduate studies. They still do.
Lee opened the talk by reading an excerpt from the end of her book’s first chapter. Her memoir recounts her experience as a Judge’s Associate at the Queensland District Court, and juxtaposes this with her own experiences as a plaintiff before the system she has sworn to uphold. As she described the elegant building in which she worked and Brisbane’s judicial system was housed I was initially put in mind of a katabisis, a literary genre that follows the protagonist’s descent into and return from the underworld. I think this genre will be a useful scaffold to hold while I’m reading the book over the next few days. Her description of privilege and its necessary, if regrettable, alter also invoked Ursula LeGuin’s exploration of utilitarianism in “The Ones Who Walked Away from Omelas”. I couldn’t help but think that system as it exists will always result in marginalised bodies. Lee explained the fragility of these bodies, encapsulated in the legal maxim of the eggshell skull, the well established doctrine that the defendant must “take their victim as they find them”. The idea is that if the defendant hits their victim, but the assault would not normally be of the intensity required to kill someone, and their victim dies as a result of the assault (because their skull is more delicate than a normal skull) the defendant is still liable for the injury that arises. Lee discussed how she was immediately confronted with the question of how victims are chosen, and more specifically how offenders make choices.
She addressed the question of the legal system’s inability to understand victims, something that is often discussed in terms of Jean-François Lyotard’s differend. I explain this to my students as the way in which the harms suffered by the victim cannot be heard by the legal system because the system is focussed on questions of guilt and not-guilt (innocence is not truly a part of the system, although it has a huge symbolic impact) while the victim is talking in terms of harm and responsibility. Throughout Lee’s talk I kept returning to both scholarship and stories that echoed through her words: Alison Young’s exploration of rape imagery in T.S. Eliot’s The Waste Land, Sharon Marcus examination of linguistic patterns, genre and script in rape trials in “Fighting Bodies, Fighting Words”, Catharine MacKinnon’s extensive scholarship on the relationship between patriarchy and legal systems, but also the stories of women who were unhearable — Philomele, Penelope, Cassandra.
However, the talk was not devoid of hope. Lee’s reference to a (male) barrister who expressed anxiety regarding “the feminisation of the legal system” reminded us that the legal system is not stagnant; like every dragon, it needs to shed its skin. The question of what this feminisation looks like, or even the steps we have to take to get there, are still unclear. Ideologically, the ways in which the masculinised body is imagined as invulnerable, impermeable, and independent is hugely influential in terms of crafting the ideal legal subject. The potential for this subject is then, as Lee notes, read against the past of the feminised body; the experiences and stories already written on feminised bodies determine their value, while the worth of a masculinised body is determined by its possibilities and as yet indeterminate trajectories. This positions readers to ask: what is the potential of the feminised body’s experience? Perhaps this can be an early step in walking towards a feminist jurisprudence.
Ultimately the conversation between Lee and Ford has positioned me to read Lee’s book in relation to scholarship I have already discussed (both at the LSAANZ and LAWLITHUM conferences late last year): What happens when we read judgement writing as a form of biographical writing? Might it enable those people whose harms cannot be heard or understood by the institution as it exists to reclaim their own narratives, and to challenge the courts’ discursive authority? Might it force the courts to reconsider the ways in which experience and power are narrated? Might it force a Vergangenheitsbewältigung for gender? A recognition that the dragon of the law is only imagined, and that we can remake it to suit our needs? Even beginning with the assertion that, to quote Lee, “women are reliable narrators” is enough to challenge the ways in which the genres of speech that narrate sexualised violence operate. I think, perhaps, Lee’s final statement for the evening can be expanded to apply to this question of legal reform. She said:
“Think about your worst case scenario, whatever that is… If you think you can survive that, then don’t wait another day.” The legal system can survive feminisation, and incorporating that worldview into a system that has marginalised and excluded women’s bodies (especially women of colour), is something that can only make it stronger and more just. We can start that process today.