Carol Smart Research Articles

‘Somewhere. Some time. Somehow. Something has to change’: Prima Facie and the cruel optimism of feminist legal advocacy

In her play Prima Facie, playwright and lawyer Suzie Miller uses theatre to critique legal responses to sexual violence. This article thus offers an analysis of the play as both feminist theatre and feminist advocacy. We examine the rhetorical and performative strategies it deploys, arguing that they are effective because they mobilise long-standing feminist tropes which use a representative figure of the traumatised victim and the repetition of statistics to position the audience as potential victims of violence. Such strategies, however, fail to account for the complexity of sexual violence, intersectional understandings of it, or its relationship to other structural forms of harm that flow from turning to the state, as articulated by Black feminist scholars. These limitations also function in the play’s loop between an indictment of law’s failings and recuperating the law as a privileged site for responding to sexual violence. We read this tension as exemplifying the play’s enactment of a cruelly optimistic relationship to law, which is, we argue, a recurring feature in feminist cultural advocacy around sexual violence. However, we also suggest that reading the play through the words of its protagonist can open visions of justice beyond what Carol Smart has described as the ‘siren call of law’.

Seeking Justice Elsewhere: Informal and formal justice in the true crime podcasts Trace and The Teacher’s Pet

Following Carol Smart’s argument that feminists have reason to mistrust legal institutions and to seek justice elsewhere, this article suggests that contemporary Australian true crime podcasts offer women and their families alternatives to seek justice beyond formal systems. This article will examine the representation of women in two recent and popular Australian true crime podcasts that followed inconclusive investigations of murder cases. Trace (2017–2018) is a seven-episode true crime podcast by Rachael Brown for the ABC about the 1980 murder of Maria James in her Melbourne bookshop, where she lived with her two sons. The Teacher’s Pet by Hedley Thomas for The Australian is about the disappearance of Lynette Dawson from the northern beaches of Sydney in 1982, leaving behind her two daughters. Thomas explicitly accuses Dawson’s husband, former professional rugby player, Chris Dawson, of murdering her and disposing of her body. Both true crime podcasts represent women in ways that—while not always feminist—use the affordances of mass media to draw support from the public, effectively inviting the audience to perform as an alternate jury. In both cases, this jurified audience has then engendered changes in formal processes.

Family relationships of children in kinship foster care

ABSTRACT This article explores the family relationships of foster children in kinship care and the elements that define these relationships through the concept of personal life as defined by Carol Smart. The concept of personal life designates a special area of life that is meaningful to a person. It includes one’s life as a whole and it is subject to transformations. It is based on memory and history and it is lived in myriad places, spaces, and spheres. The data consist of interviews, social network maps, and the diaries of 16 Finnish foster children aged 7 to 12 and living in kinship care. The study has a special emphasis on ethical questions. The children of the study considered their relationships in their family of origin and in their foster family significant, although ambiguous, but there were also various other dimensions involved in them. In spite of the importance of the foster family relationships, the children did not regard them as primary. The study raises questions related to family reunion, missing fathers, separated siblings, and children’s own expertise and participation. It also shows that foster children need to be heard and supported in social work practices by in addressing the worries, hopes, and confusion stemming from their important family relationships. Social work research needs to gather more information about children in kinship foster care, particularly from the perspective of the children themselves.

‘Endlessly Valuable’ Discursive Work—Intimate Partner Femicide, an English Case Study

Against the trend of roll-backs of pro-feminist initiatives by right-wing governments, feminist-led reforms to the law of murder deserve accolades as hard-fought feminist victories. For three decades, feminist analysts have critiqued the operation of provocation defences in intimate partner femicide cases. Their work has been rewarded with the implementation of reforms in several anglophone jurisdictions that have abolished or curtailed that defence. This article focuses on the revolutionary impact of the reform implemented in England and Wales. It argues for the continuing purchase for feminist legal scholars of a methodology championed by Carol Smart in her seminal 1989 text, Feminism and the Power of Law. She counselled feminist law scholars to read law as a site for contesting law’s truth about gendered relationships. This methodology has not only been critical in exposing the misogyny and injustice embedded in traditional provocation by infidelity defences; it also enables researchers to chart shifts in law’s discursive constitution of truth in the post-reform era.

The Failure of Feminism? Rape Law Reform in the Republic of Ireland, 1980–2017

Based on Carol Smart's observation that rape law reform as lobbied for by the feminist movement during the 1970s and 1980s failed to achieve any meaningful change, this article seeks to examine the nature and implications of rape law reform in the Republic of Ireland from the 1980s to the present day. During the 1980s the conceptualization of rape changed from a proprietorial crime to a violation of individual bodily integrity due to feminist lobbying efforts and the emergence of a victim-centered approach in the criminal justice system. Though this changing conceptualisation has led to significant attitudinal change, particularly surrounding the issues of acquaintance and marital rape, procedural change has failed to secure higher conviction rates. In particular, this article demonstrates that the legal reforms achieved in the 1980s potentially resulted in a 2% decrease in rape conviction rates by 2007. When compared to England/Wales, conviction rates as distinctive from prosecution rates in Ireland remain chronically low. This indicates that any legal reforms must take account of the institutional bias ingrained the Irish criminal justice system against female rape complainants, which has continuing relevance for Irish legislation pertaining to sexual violence such as the Criminal Law (Sexual Offences) Act, 2017. Overall this article suggests that rape is an exceptional crime and needs to be reassessed as such.

Indigenous Criminology C. Cunneen and J. Tauri. Bristol: Policy Press (2016) 176pp. £48.00hb ISBN 978–1447321750

Indigenous Criminology C. Cunneen and J. Tauri. Bristol: Policy Press (2016) 176pp. £48.00hb ISBN 978–1447321750

Book review: Rosemary Barberet, Women, Crime and Criminal Justice: A Global Enquiry and Carol Smart, Women, Crime and Criminology: A Feminist Critique

Book review: Rosemary Barberet, Women, Crime and Criminal Justice: A Global Enquiry and Carol Smart, Women, Crime and Criminology: A Feminist Critique

Book Review: Fertile Ground: Exploring Reproduction in Canada by Stephanie Paterson, Francesca Scala, and Marlene K. Sokolon and Relative Strangers: Family Life, Genes and Donor Conception by Petra Nordqvist and Carol Smart

Book Review: <i>Fertile Ground: Exploring Reproduction in Canada</i> by Stephanie Paterson, Francesca Scala, and Marlene K. Sokolon and <i>Relative Strangers: Family Life, Genes and Donor Conception</i> by Petra Nordqvist and Carol Smart

O poder do direito e o poder do feminismo: revisão crítica da proposta teórica de Carol Smart

The power of Law and the power of feminism: a critical revision of Carol Smart’s theoretical proposal This article develops a critical dialogue with Carol Smart’s theses, questioning the positions of this feminist author on the relationship between women, feminism and Law. More specifically, it discusses two of the theses developed in Carol Smart’s books Feminism and the Power of Law and Law, Crime and Sexuality: (1) the thesis about the power of Law to disqualify women's experience and feminist knowledge and to define women as gendered subjects; and (2) the author's proposal for a reorientation of the feminist strategy, in order to decentralize and deconstruct Law.

Foreword

The article draws on students’ evaluations and reflections to describe a new legal clinic, the Criminal Law Matters Legal Clinic, at the University of Queensland. This article outlines an approach informed by the work of Carol Smart to encourage students to critique the power of law. Through an analysis of student learning, the article examines how the clinic prompted students to engage in a deeper critical understanding of power in the context of their clients’ circumstances and their role as ‘lawyers’. The article concludes by emphasising the value of the work of Smart when engaging students in reflective practice about the power of law.

Mastering Emotions or Still Losing Control? Seeking Public Engagement with ‘Sexual Infidelity’ Homicide

This article explores the prospects and pitfalls faced by a feminist legal scholar wanting to set up a ‘sexual infidelity’ homicide public engagement project. Following Carol Smart’s suggestion that law is an important site of engagement, counter-discourse and critical feminist interventions, it argues that provocation by infidelity femicide cases are ideal sites for continuing the project of encouraging discursive struggle. The cases cry out for conversion into a critical, pedagogical means of mobilising consciousness about emotional excuses for violence against women.

Personal lives: narrative accounts of Irish women in the diaspora

The burst of writing about Irish women in the diaspora after the 1980s, led by Mary Lennon, Marie McAdam and Joanne O'Brien's Across the Water: Irish Women's Lives in Britain, coincided with the ‘narrative turn’ in the social sciences and literary representation. This paper uses Carol Smart's concepts of Personal Life (2007) – memory, biography, embeddedness, relationality and the imaginary – to examine a range of ways in which personal narratives have become central to our understandings of Irish women and their descendants in both written and visual representations. It interweaves disciplines, bringing together a wide range of sources including academic and public accounts in which Irish women appear both as main characters and in walk-on parts. It explores constructions of these ‘fictions’ and their connections with the biographies of authors.

Pride and Prejudice in Contemporary Marriages: On the Hidden Constraints to Individualisation at the Crossroad of Tradition and Modernity

Pride and Prejudice in Contemporary Marriages: On the Hidden Constraints to Individualisation at the Crossroad of Tradition and Modernity

Special Issue: Carol Smart’s Feminism and the Power of Law

This special issue derives from a workshop held in April 2010 in Marrakech by the Working Group on Gender and Law of the Research Committee on Sociology and Law. The workshop took as its theme ‘Law and the power of feminism’, a title derived from Carol Smart’s book Feminism and the Power of Law (1989) which had just celebrated the twentieth anniversary of its publication. Contributors to the workshop (who came from Australia, Canada, South Africa, the United Kingdom and the United States) were invited to present papers on their own research interests that engaged with the arguments of Feminism and the Power of Law. Although the book was our starting-point, the papers were not intended to offer a direct critique of the book or Smart’s work generally. Rather, the workshop presented an opportunity to demonstrate (rather than to assess) the continuing significance and relevance of Smart’s ideas across a range of subject areas and jurisdictions—to show, indeed, what an inspiration she has been to us all. Carol Smart is a sociologist, whose early work (Women, Crime and Criminology, 1976, and Women, Sexuality and Social Control, 1978, with Barry Smart) made a huge impact on the male-dominated disciplines of criminology and socio-legal studies and helped to establish a legal presence in the developing field of women’s studies. In The Ties That Bind (1984) she contributed a powerful legal perspective to the second-wave feminist critique of marriage while simultaneously applying insights from the women’s movement to legal scholarship. This exploration of the relationship between

Law and the Power of Feminism: How Marriage Lost its Power to Oppress Women

In Feminism and the Power of Law Carol Smart argued that feminists should use non-legal strategies rather than looking to law to bring about women’s liberation. This article seeks to demonstrate that, as far as marriage is concerned, she was right. Statistics and contemporary commentary show how marriage, once the ultimate and only acceptable status for women, has declined in social significance to such an extent that today it is a mere lifestyle choice. This is due to many factors, including the ‘sexual revolution’ of the 1960s, improved education and job opportunities for women, and divorce law reform, but the catalyst for change was the feminist critique that called for the abandonment (rather than the reform) of the institution and made the unmarried state possible for women. I conclude that this loss of significance has been more beneficial to British women in terms of the possibility of ‘liberation’ than appeals for legal change and recognition, and that we should continue to be wary of looking to law to solve women’s problems.

‘We Exist, but Who Are We?’ Feminism and the Power of Sociological Law

In this article the author revisits Carol Smart’s 1989 publication Feminism and the power of law. She engages with Smart’s main claims by way of a number of other thinkers. Following Marianne Constable’s description of contemporary American legal thought as socio-legal, the author tentatively considers if it could be argued that some strains in contemporary legal feminism that adopted a sociological method resulted in a similar absence of justice that concerns Constable. Smart’s caution against the development of a feminist jurisprudence is critically analysed with the benefit of hindsight. Drawing on Deleuze and Guattari, Foucault and Goodrich, the author tentatively considers the becoming of a feminist jurisprudence as a minor jurisprudence. What we most lack is a belief in the world, we’ve quite lost the world, it’s been taken from us. (Deleuze , 176) Sociology takes social creation to be the whole of what is and will be. (Constable , 589)

Comparing Women in Canada

In Feminism and the Power of Law Carol Smart argued “law must also be tackled at the conceptual level if feminist discourses are to take a firmer root” (Smart in Feminism and the power of law, Routledge, London, 1989, 5). In Canada, the Women’s Legal Education and Action Fund (LEAF) ’tackled‘ the concept of comparison in the age equality case of Withler v Canada, 2008 BCCA 539. Rejecting ’similarly situated ‘(or ’groups‘) comparison as inconsistent with substantive equality, LEAF advocated a “contextual” approach to import gender into the Withler frame. However, LEAF did not identify a male comparator even though all of the plaintiffs were women. Accordingly, it is unclear whether LEAF’s contextual approach obviates comparison, permits comparing some women to other women, or is synonymous with ‘grounds’ comparison. I argue LEAF could have named the patriarchal state as the male comparator in Withler, thereby aligning their contextual approach with ‘grounds’ comparison and offering substantive equality a ’firmer root’.

The Power of Feminist Judgments?

Recent years have seen the advent of two feminist judgment-writing projects, the Women’s Court of Canada, and the Feminist Judgments Project in England. This article analyses these projects in light of Carol Smart’s feminist critique of law and legal reform and her proposed feminist strategies in Feminism and the Power of Law (1989). At the same time, it reflects on Smart’s arguments 20 years after their first publication and considers the extent to which feminist judgment-writing projects may reinforce or trouble her conclusions. It argues that both of these results are discernible—that while some of Smart’s contentions have proved to be unsustainable, others remain salient and have both inspired and hold important cautions for feminist judgment-writing projects.

On writing ‘The deviance of women’: observations and analysis

On writing ‘The deviance of women’: observations and analysis

Conversation with Griffith Edwards

Conversation with Griffith Edwards