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42. 'A sort of juridical phantasm' : the criminal law's (lack of) engagement with lesbianism

Author

Derry, Caroline Louise

Subjects
345.02536
Abstract

This thesis examines the ways in which the criminal justice system of England and Wales has regulated, failed or refused to regulate lesbiainism. It identifies the overarching approach as one of silencing, in which lesbianism is not simply ignored or unimaginable but is deliberately excluded from legal discourses. However, the existence of such a policy cannot alone explain the complex ways in which lesbianism has been regulated, and so two particular issues are explored in detail. First, in what ways has the policy of silencing been breached? Historical and contemporary criminal prosecutions over three centuries are identified and their significance examined. That significance can be fully understood only in the context of surrounding social and legal developments which are also considered. Second, the evolution of silencing itself is explored. From the profound changes in popular and medical understandings of sexuality which occurred in the eighteenth and nineteenth centuries to the growth of lesbian visibility and political activism in the twentieth and twenty-first, the contexts in which silencing operates have altered dramatically. Further, the law itself has moved for the first time to an avowedly non-discriminatory, gender-neutral approach with the Sexual Offences Act 2003. In consequence, silencing itself has also had to change. As simple denial of lesbianism's existence has ceased to be feasible, this thesis describes the new forms which silencing has taken in response. Third, the thesis considers the implications of the criminal legal system's approaches for the theoretical underpinnings of lesbian theory and activism. Liberal theories, queer theories and radical feminism are all examined in this context. Their adequacy in explaining and responding to the criminal law's treatment of lesbianism is analysed, and the significance of this analysis for future directions in lesbian activism explored. This thesis offers a significant contribution to knowledge in two respects. First, although many of the cases discussed here have been published elsewhere and subjected to varying degrees of academic analysis, this is the first systematic account of the regulation of lesbianism by the criminal justice system. Thus the discussion of common themes and historical developments is novel. Second, most of the cases have hitherto been considered from a historical rather than legal perspective, while many of the contemporary cases have not previously been considered from a broadly radical feminist perspective. Further, the analysis of the applicability of queer and radical feminist theories to this particular area of the criminal law is also new. This thesis therefore demonstrates the exercise of independent critical powers.

Published
2007

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