Criminal Law

By Carley Hitchins


Can you be a feminist criminal defence lawyer?

I remember sitting in a tutorial at university after having disclosed to one of my peers that I worked in criminal defence. My peer shrieked and asked the question every criminal defence lawyer has been asked at least once, “How could you defend a rapist?!” She appeared offended as if my job had made me a disgrace to the sisterhood.

In recent years, allegations of sexual assault and harassment at the hands of powerful men, who appeared immune from consequences, were thrust into the limelight, and so was born the #MeToo movement. The naming and shaming of alleged perpetrators and the subsequent effects of that was encouraging and empowering, but a line was drawn very quickly, either stand by your sisters or defend the bad guys.

The conversation I had with my peer made me question – is it possible to be a feminist and a criminal defence lawyer? Well, I am. The answer is both simple and complex.

The first step in reconciling these apparently contrasting identities is to recognise that neither are absolute.  It can’t be right that the definition of being a feminist means believing all women.  Similarly, being a criminal defence lawyer does not mean believing that all complainants are liars.

The notion that we should believe accusers no matter the circumstances is dangerous, particularly in a criminal context. It appears, now that women’s accusations of sexual discrimination and harassment are being taken seriously after years of dismissal, it is now anti-feminist, or un-sisterly to subject accusers to any amount of scrutiny.

Also, the #MeToo movement has the propensity to conflate several very distinct categories of behaviour under one type. I see comments, most notably in the online forum, to the tune that every purported instance of sexual abuse is equally heinous and equally worthy of the harshest criminal punishment. To suggest all matters of sexual misconduct are as serious as the other insults those who have experienced serious sexual violence and makes a mockery of the struggle to end it.

I have observed that according to the view embraced by many feminists, neither due process nor the principle of proportionality applies to sex cases. It should (but it doesn’t) go without saying that having concerns about due process, proportionality, and the individual nature of sex offending does not equate to being an apologist for men who commit sex crimes or other crimes against women.

The inherent culture of outright misogyny when it comes to rape and sexual assault is not lost on me. Complainants of sexual assault (the vast majority of whom are women) are faced with humiliating and traumatic trial processes, if it ever gets to that point.

Just because I am defending the accused, does not mean I have nothing to say about this awful reality and does not stop me from being outspoken about these issues.

I can and do cheer on the progressive social change arising out of the #MeToo movement, which I hope will bring about a broader awareness of the impact of sexual assault and harassment and the need for accountability. Perhaps this is more appropriately placed in my personal time, rather than in my work capacity, but feminist criminal defenders can raise objection to the failings in our system without abandoning their commitments to their clients.

Despite my personal views, I am able to defend my clients to the best of my ability. As a defender, it is not for me to judge my client or the crime charged. Whilst this can be difficult at times, I respect the professional obligations I have to my client and have learnt to navigate the trying times from some incredible mentors.

My feminism informs the way I approach my work and I embrace it, even when defending a client accused of actions that appear incompatible with feminism.

Contrary to the idea that feminism and criminal defence somehow can’t co-exist, together, they make perfect sense. Of course, you can be a feminist and a criminal defence lawyer.