Because it Is in My Nature – said the Scorpion to the Frog

on 08/16/2015 - 08:51 pm

by Quenby Wilcox

My last blog, Equality Is Only an Illusionary Fairy-Tale touched on the refusal of government authorities to assure integrity, transparency and accountability within the courts – claiming that discriminatory, and even illegal actions, of judicial actors are “protected by judicial independence,” and “judicial prerogative.”   

Not only is this contention ridiculous, but it is dangerous. As Victoria Jennett states in The Relationship between Human Rights and Corruption, (Family Courts in Crisis, 2/14), “Lawyers have a role in protecting the independence and enhancing the accountability of the judicial system. They can also represent corruption risks if their behaviour is not carefully considered.”  Jennett goes on to say that “lawyers across the EU are considered to be the most direct intermediaries in judicial corruption.. [and] litigation departments of top law firms in many countries try to attract people with such backgrounds..”  

Furthermore she says that “the cultural and social factors that make members of the judiciary vulnerable to corruption or make society sensitive to judicial corruption are the most complex... [with] weak control systems and lack of transparency to the public or to other actors, [] as factors conducive to higher levels of judicial corruption.”

Lawyers, and the discriminatory social norms and ideologies that guide them, are important factors in enabling and facilitating corruption with the courts. Therefore, any negligent actions, particularly those which come under ‘omissions of actions,’ need to be meticulously scrutinized in determining how gender-bias attitudes of legal counsel are contributing to the cover-up of domestic abuse, and/or violating women’s property rights during a divorce.

As Kathleen E. Mahoney declares in Human Rights of Women (Canadian Approaches in the Courts), “What must be understood is that gender bias in the application and interpretation of laws is important not only for individual women before the courts. To the extent that the justice system suffers from gender bias, the system fails in its primary societal responsibility to deliver justice impartially. As a consequence the administration of justice as a whole suffers. The legitimacy of the entire system is brought into question.” 

Mahoney goes on to say that “the most troublesome and insidious aspect of the problems of gender bias in the courts is the failure of the legal establishment to recognize its existence… Ironically, the judiciary – the very institution that determine even the most progressive legal reforms through the exercise of judicial discretion and through courtroom behavior – is not scrutinized by social reformers and analysts for discriminatory biases… rarely if ever, are questions asked about judicial use of societal induced assumptions and untested beliefs… The judiciary has the power to permit equality to grow and flourish to meet the legitimate demands and aspirations of the female majority of the world’s population. They also have the power to deny it.”

Therefore, in order for governments to fulfill their “obligation to investigate the existence of failures, negligence or omissions on the part of public authorities which may have caused victims to be deprived of protection,” it is imperative that they “abolish not only existing laws and regulations but also customs and practices that constitute discrimination against women… [as well as] applied stereotyped and therefore discriminatory notions in a context of domestic violence," (González Carreño vs. Spain, UN-CEDAW, 2014).

It is high time that ‘public authorities,’ and specifically regulatory agencies, come down off the proverbial fence and start fulfilling their obligation to investigate the misconduct of those on the front-line of protecting (or violating) the rights of women and children.  For this reason “judicial independence” (or “judicial prerogative”) cannot in any way, shape, or form be used to protect or absolve ‘judicial error’– a catch-all phrase used by authorities around the world in covering-up the discriminatory norms within their courts.

Just as in the popular fable of the Frog and the Scorpion, the forces which propel us to destroy others, propel us to destroy ourselves. The question at present is whether mankind possesses the will and resolve to change our destructive, violent nature, and save ourselves from ourselves.