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Church Swap

July 10, 2010 – 10:55 pm
By DeusExMacintosh

I can reveal that Dr Jeffrey John, the openly gay but celibate Dean of St Albans, has been blocked from becoming a bishop once again. He has not been chosen as the next Bishop of Southwark. Liberals will be dismayed that the Church has lost its nerve – but there is no reason for evangelicals to celebrate, either. This is bad news whichever way you look at it:

1) The Church has missed an opportunity to show that it is inclusive of homosexuals.

2) Jeffrey John has gained a reputation as a gifted preacher and effective pastor at St Albans cathedral and would have been a popular bishop.

3) It indicates that the Crown Nominations Commission is afraid of appointing any bishops who might bring a bit of colour.

4) A dignified and talented cleric has been embarrassed again.

5) The row over homosexual clergy could have been brought to a head, but will now fester until a gay priest is finally made a bishop.

It is also bad news for Rowan Williams. Although he is only one of 14 members of the Commission, liberals will be perplexed as to why he allowed John’s name to be included on the shortlist if it was only to be rejected at the last minute. To be fair, he didn’t know that this fact would be leaked to me, and he is said to have been livid with the Commission that it was. But, given what happened in 2003 and his apparent distress at forcing his old friend to stand down from becoming Bishop of Reading, it will surprise many that he didn’t use his influence to try and sway the few undecided members who could have secured his selection.

- Jonathan Wynne-Jones, Sunday Telegraph

By DeusExMacintosh | Posted in England, Funnies, Human/Civil rights, Philosophy, Politics, Religion, Society | Tagged , , , , , , , , , , | Comments (5)

Twilight: The Puppet Saga

July 8, 2010 – 11:09 pm
By DeusExMacintosh

Featuring performances by puppets more convincing than several of the original actors…

So bite me. I liked it.

By DeusExMacintosh | Posted in Funnies, Internet, Media, Music, Popular culture, science fiction | Tagged , , | Comments (8)

This ‘n’ that

July 8, 2010 – 9:55 am
By Legal Eagle

There are a few interesting posts around the place today, so I thought I’d just do a round up:

  1. HeathG at Minimal State wonders if GetUp! will get into trouble with copyright law as a result of its political satire video (which lends from various Hollywood blockbusters). I hope not, the video is rather funny, but my lawyer side thinks they might be skating near the edge.
  2. Tim O’Dwyer at Online Opinion bewails the rule of lawyers in our Parliament (he is a lawyer himself – takes one to know one!)
  3. Armagny wonders whether people smugglers should all be tarred as villains, something I’d been wondering too. This whole debate is depressing me. Surely there must be other ways of solving the problem?
  4. It’s a hard job being a psychic octopus: people don’t just want to shoot the messenger, they want to eat the messenger! Paul the psychic octopus correctly predicted Germany’s downfall at the hands of Spain in the World Cup, and his tentacles are at risk.
By Legal Eagle | Posted in Blogging, General, Intellectual property, Law, Politics, Society | Tagged , , , , , , , | Comments (0)

What Katy Did

July 6, 2010 – 7:55 am
By Legal Eagle

“The time has come,” the Walrus said,
“To talk of many things:
Of shoes–and ships–and sealing-wax–
Of cabbages–and kings–
And why the sea is boiling hot–
And whether pigs have wings.”

(Lewis Carroll, The Walrus and the Carpenter)

Well, I doubt that it’s much of a secret. I know that many of my fellow bloggers know who I am. Indeed, I’m told that many worked it out easily, but were too polite to say so. After all, how many female academic lawyers are there in Melbourne who are simultaneously obsessed by property law, restitution and the Talmud? At least two of my former students guessed it! (*waves to former students*) So here I am, Katy Barnett, a.k.a. “Legal Eagle”: lawyer, blogger, mother, almost-Dr-Katy.

Why have I chosen to come out now? The answer is threefold. First, there’s no real point in keeping one’s identity secret if most people know it. Secondly, it looks like I have ongoing employment in the bag at last (hurrah!) Thirdly, I will be appearing on SBS’s Insight program in early August in an episode about “Climate Sceptics”, so I thought I’d better come out prior to that point.

I was pseudonymous in the first place because I was still on maternity leave from my firm. In fact, my first blog, The Legal Soapbox, started out as a record of my thoughts on law firms and the problems with the law. I think it had a grand total of about 5 readers, two of whom were my mother and my sister. One day I rang my sister with excitement. I’d had two comments from people with different names. “Umm,” said my sister with some embarrassment, “that was actually me under two different pseudonyms.” It seems quite astounding to think how the blog has grown in four years.

I kept the pseudonym after I resigned from my firm because I only had sessional lecturing work with the university. It probably would have been fine to “come out”, but hey, I’m a lawyer, so I’m neurotic.

In addition, I was worried that students might find the blog and feel constrained by my political or legal beliefs (as I described on this post on lecturing and ideology). Note to students: I definitely do not want you to parrot back my beliefs to me. I welcome political views which are very different from my own (which is why I blog with two women who challenge my views constantly). I encourage students to take a different approach to the law than my own if they wish to do so. Within reason, I don’t mind what a student believes; I judge a student on how convincingly he or she justifies that belief, and how much the student is prepared to enter into a dialogue about that belief. It doesn’t matter to me whether a student favours equitable interests in Torrens or whether she thinks all unregistered interests should not be allowed, as long as she explains why.

I’ve always written as if I were writing under my real name. I don’t ever want to write something that I am ashamed to acknowledge as my own. Still, it’s a relief to “come out” and be me.

By Legal Eagle | Posted in Blogging, Personal | Comments (32)

Life, the Universe and pretty much everything

July 5, 2010 – 11:08 pm
By DeusExMacintosh

Eye-candy du jour, for the inner science geek.

This is the extraordinary place where we all live – the Universe.

The picture is the first full-sky image from Europe’s Planck telescope which was sent into space last year to survey the “oldest light” in the cosmos.

It took the 600m-euro observatory just over six months to assemble the map.

It shows what is visible beyond the Earth to instruments that are sensitive to light at very long wavelengths – much longer than what we can sense with our eyes.

- BBC News

By DeusExMacintosh | Posted in Academia, Environment, Science, Skeptics | Tagged , , | Comments (5)

Mandatory Lourdes trip for DLA claimants

July 5, 2010 – 8:00 am
By DeusExMacintosh

Chancellor George Osborne has outlined plans to cut incapacity benefit, insisting those capable of working should work, citing the example of coma patients who could easily take up gainful employment as draft excluders.

His comments come as the government seeks to make further inroads into the £155bn budget deficit, with those on incapacity benefits seen as an easy way to save a couple of billion a year…

Osborne said that in these times of austerity, people with considerably less wealth than him would probably insist those people who are on incapacity benefit should be making some sort of contribution to society.

He continued, “I just don’t believe that all these people should stay at home being all incapacitated when they could be out there contributing to society as a drugs tester or one of those guys sat in a chair holding a ‘golf sale’ sign.

“Look at all those coma patients, what sort of middle class family wouldn’t want such an eco-friendly draft excluder? It’s all natural and 100% biodegradable.”

“It’s minimum wage work, granted, but it still means fewer benefits paid by the state, which is obviously a good thing.”

- Newsarse.com

By DeusExMacintosh | Posted in Britain, Economics, Funnies, Politics | Tagged , , , , , , , | Comments (0)

They may be vile customs, but they’re our vile customs

July 4, 2010 – 8:02 pm
By skepticlawyer

Henry Kissinger once said of Saddam that ‘we knew he was a son of a bitch, but we thought he was our son of a bitch’. I think it’s fair to say that Saddam ruled his country with spectacular nastiness, but that he also did enough to garner the support of a significant chunk of the population.

When the countries who had once backed him turfed him out in 2003 and offered better governance in exchange, the shock and dismay of those policy-makers who naively expected that the locals would prefer being well-ruled by foreigners to being tyrannized by one of their own was a sight to behold. Perhaps they should have listened to the wise words of Lord Napier, he who eliminated suttee from the Indian Subcontinent, at least while the British were in charge:

So perverse is mankind that every nationality prefers to be misgoverned by its own people than to be well ruled by another.

He made this comment in 1842. Similar sentiments turn up in the writings of other liberalizing colonials, from Julius Caesar to Napoleon. There is even empirical evidence for it. Economists Daron Acemoglu, Simon Johnson and James A Robinson argue (with good data to back them) that those countries most thoroughly colonised — where both local institutions and a portion of the local population have been displaced by the colonial power’s institutions and population — are now more prosperous than countries where European colonizers either did not stay or did not bend local institutions to their will.

The problem with this awkward fact is that the locals tend not to like it very much, up to and including indulgence in the rankest nostalgia for some pretty appalling customs. Think, for example, of Frantz Fanon’s rhapsodic defence of the Islamic veiling of women, for example. This is not a modern phenomenon. Colonised people historically have been perfectly capable of recognising that there were times when the colonizer was better at the ‘governance thingy’ than they were, and still resented the colonial power. Here is an almost Pythonesque lament from the 1st Century AD, pulled from the Babylonian Talmud:

How beautiful are the works of this nation (the Romans). They have established markets, they have built bridges, they have opened bathing-houses.’ R. Jose said nothing, but R. Simeon b. Johai said: ‘All these things they have instituted for their own sake. Their markets are gathering-places for harlots; they have built baths for the purpose of indulging themselves in their comforts; they have built bridges to collect tolls from those who cross them.

(Note the worrying about the wimminz; ‘harlots’ here is a reference to the fact that Roman women were not chaperoned, while Jewish women were. I have often suspected much anti-colonial activity to have quite a bit of hysteria about the wimminz at the bottom of it; it fairly drips from the pages of Fanon, and it was Gayatri Spivak who got herself into a dreadful tangle when it came to ‘white men saving brown women from brown men’ over suttee).

It is this preference for ‘our sons of bitches’ and ‘our vile customs/institutions’ that will almost certainly ensure economist Paul Romer’s innovative proposal for Charter Cities will be stillborn, a point Lorenzo makes with some force here. Lorenzo argues that there are Medieval models that Romer could more fruitfully adopt, but even they strike me as involving considerable meddling in the internal affairs of a modern nation-state, and would likely be resented in much the same way as colonial enterprises like Hong Kong (a point Lorenzo makes) or Julius Caesar’s refounding of Corinth as a ‘free city’ (no port taxes, thoroughly mercantile city charter) in 44 BC. (The Romans had destroyed it and sold the population into slavery in 146 BC; its looting was supervised by a general who always struck me as a Roman Sir Les Patterson).

I was put in mind of the above by two things.

First, I watched the director’s cut of the Wicker Man, and second, I read a piece of Lorenzo’s on the uses of ‘tradition’ in arguments about the danger of changing social customs. The Wicker Man — in its longer form — is not only a superb film (Christopher Lee called it the best scripted film he had ever acted in), but also a powerful meditation on the constructed nature of tradition. Shaffer and Hardy’s first rate novelization brings this out even more strongly; I highly recommend it.

For those who have lived under a rock since 1973, much of the Wicker Man revolves around the reversion to paganism on a remote island in Scotland’s Outer Hebrides. In the course of a police investigation, a strongly Christian police officer (a more sympathetic character in the novel; Edward Woodward is something of a ‘Wee Free‘ cipher in the film) is confronted with a society whose organising principles are ‘as foreign to him as India’ (p 121). However, it also emerges that the island’s reversion was deliberately engendered by the Great-Grandfather of the current Laird, a landlord who opted not to undertake the Highland Clearances along with his wealthy fellows, opting instead to try his hand at developing productive agriculture and so keeping the crofters in their homes.

Opposed by the local kirk (the novel reveals that various churchy types tossed his newly developed artificial fertilizer into the harbour), the Laird decided to break the kirk by making his small group of pagan followers more economically prosperous than their Christian rivals. In time, his Great-Grandson boasts, ‘the ministers fled the Island, never to return’ (p 138). The modern islanders are indeed happy, prosperous and utterly, utterly alien. It has taken a mere 150 years for a new set of traditions to take hold, to seem completely ‘natural’ and ‘organic’.

Thing is, anyone with any knowledge of classical paganism can recognise the synthesis the Laird undertook: there’s bits from Celtic paganism (the Hand of Glory, the Triple Goddess), bits from Roman paganism (Diana of Nemi, the fire leap), bits from Germanic paganism (the totenkopf) and even a steal from Afro-Caribbean paganism (patron deities and totemic animals). In other words, it’s a fudge. And then the current Laird reveals that his Great-Grandfather was an atheist.

The religion was a construct, put there so the Laird’s family could make everyone stinking rich, starting, of course, with the Laird’s family. Problem is, 150 years on, all but those few islanders who have been educated to university standard (variously at St Andrew’s, Edinburgh and Oxford) believe it and practice its rituals assiduously. (Including one horrifyingly vile custom, which I will not reveal out of courtesy to Legal Eagle, who hasn’t yet seen the film — NO SPOILERS IN THE COMMENTS PLEASE). The point is that the islanders like their customs and traditions, even the ugly ones, and one gets the distinct impression that attempts to change them would be met with fierce resistance (Scots are good at fierce resistance).

Lorenzo’s piece concerns an attempt — a nuanced one, to be fair — to argue against gay marriage on the basis of tradition, to which Lorenzo responds (in so many words) ‘which tradition?’:

The “naturalness” of the familiar is a powerful thing. Indeed, a working definition of our sense of something being “natural” is ‘accepted background constraint’. But Harris goes too far: the notion that traditions are “hardwired into our neural circuitry” is nonsense, they vary too much across societies and across time.

The awareness of this variety is, of course, itself corrosive of tradition, for it means that tradition loses its sense of “naturalness”, of being part of the “necessary” and “normal” structure of things, because clearly, if traditions vary so much, they are not such.

Being the careful medievalist he is, Lorenzo tracks through a selection of traditions, many of which contradict each other, and some of which are — like the Scots Islanders’ paganism and the police officer’s Christianity in The Wicker Man – mutually exclusive. All of these traditions have their strengths and weaknesses. All are both ugly and beautiful in different ways and to different degrees. All are constructs, often deliberately envisaged in opposition to another set of constructs. And all are claimed by one group or another, including the vile bits.

There are, I think, some profound truths to be found in both the constructed nature of traditions and the ferocity with which people claim them to be natural and clasp them close. First, it behooves us to look carefully at which ‘traditions’ contribute to human possibility: in Hayek’s words, which traditions make our society ‘one in which we would like to live’. Second, it also behooves us to recognise that people will cling with utter perversity to a given set of traditions (good, bad or indifferent) simply because those traditions are theirs, not the coloniser’s or some other outsider’s. If nothing else, these brute facts should make us chary of foreign adventurism in a liberalizing cause (Iraq, Afghanistan), but also give us a willingness to say — no matter how cherished a tradition may be — ‘I’m sorry, but you made that up, and it’s not helping.’

UPDATE: LE has now seen the director’s cut so SPOILERS may now commence ;)

By skepticlawyer | Posted in Economics, Law, Popular culture, Public Policy, Religion, scotland | Tagged , , , , , , , , , , | Comments (20)

More on cyberbullying

July 1, 2010 – 12:42 pm
By Legal Eagle

[Cross-posted at The Fortnightly Review of IP and Media Law - please check this excellent resource out]

In a follow-up to my post on cyber-bullying, the Australian government are intending to amend the Sex Discrimination Act 1984 (Cth) in an attempt to deal with the phenomena of cyber-bullying and “sexting”.

1. Current provisions of the Sex Discrimination Act

Presently, s 28F of the Sex Discrimination Act prohibits “sexual harassment” in educational institutions in the following terms:

(1)  It is unlawful for a member of the staff of an educational institution to sexually harass:

(a)  a person who is a student at the institution; or

(b)  a person who is seeking to become a student at the institution.

(2)  It is unlawful for a person who is an adult student at an educational institution to sexually harass:

(a)  a person who is an adult student at the institution; or

(b)  a member of the staff of the institution.

(3)  In this section:

“adult student” means a student who has attained the age of 16 years.

“Sexual harassment” is defined by s 28A of the Sex Discrimination Act as follows:

(1)  For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

(a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2)  In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Section 28F applies only to harassment by persons within the same educational institution as the complainant, and also requires the complainant to be over 16 years of age.

2. Proposed amendments to the Sex Discrimination Act

The Age reports that a variety of amendments are proposed, including a change to the age of persons who can sue for sexual harassment, and an extension of the organisations in which sexual harassment may take place:

The changes…will mean that for the first time students under the age of 16 will be able to resort to the Sex Discrimination Act, provided perpetrators are over the age of 16.

The overhaul will also mean that sexual harassment laws will no longer be limited to staff and students within the same schools but are extended to cover peers or teachers from other institutions who might mingle at combined events such as sporting carnivals and theatrical productions.

I wonder if the amendments will include reference to modern technology for the avoidance of doubt on the matter?

3. Students harassing staff?

The present Act and the proposed amendments do not seem to cover the possibility of students sexually harassing staff.

There has been a recent case in South Africa on this point (hat tip: Obligations Discussion Group): Le Roux & Ors v Dey [2010] ZASCA 41. The case arose when a 15-year-old student (the first defendant) found a picture of two gay bodybuilders in a compromising position when searching the internet. He replaced the heads of the bodybuilders with photos of the principal and the vice-principal of his school, and obscured the genitals of the men with a school badge. The first defendant sent the photo to a friend, who then texted it to various other students, including the second defendant, a 17-year-old student at the school. The photo was quickly disseminated through the student body. The second defendant printed out the photo and displayed it to a teacher and other students. Then the second defendant persuaded the third defendant, another 17-year-old student, to place the photograph on the school notice board. The photograph was soon discovered by another teacher and removed.

The plaintiff, the vice-principal whose head had been featured in the manipulated picture, brought a claim for sentimental damages for two delicts (or wrongs): the infringement of his dignity (dignitas) and reputation (fama). The plaintiff appears to have been a devout Christian who suffered acute embarrassment and humiliation as a result of the publication of the doctored photograph. The North Gauteng High Court held that the defendants were liable for infringement of dignity and reputation, and awarded R45,000 against the defendants. The defendants appealed. On appeal, a majority of the South African Supreme Court of Appeal upheld the claim in respect of the injury to reputation, and upheld the quantum of damages. The majority found that there was only one relevant cause of action, and the action for injury to reputation encompassed infringement of dignity. By contrast, in the minority, Griesel AJA found that the conduct amounted to an infringement of the plaintiff’s dignity, not his reputation, but still upheld the amount of the award.

What would occur if something like this happened in an Australian school? Let us presume that a 17 year old student disseminated sexually explicit photos which were manipulated to depict a teacher in a compromising position. The provisions of the Sex Discrimination Act as they presently stand would not cover this conduct (which seem only to contemplate harassment by teacher to student), and it does not seem that the amendments will change this. I suspect the teacher would have to rely on defamation. We do not have a tort of injury to dignity, although as discussed in my previous post, there have been obiter suggestions by Maxwell P in Giller v Procopets that Australian law might adopt a tort of intentional infliction of mental suffering, similar to that which exists in the United States.

4. Protection from Harassment Act 1997 (UK)

There has been discussion among the Obligation Discussion Group as to whether the Protection from Harassment Act 1997 (UK) would cover instances of cyberbullying between students. We do not have an equivalent Act in Australia. Section 1 of the Act prohibits “harassment”, and s 2 confirms that a breach of s 1 is an offence. Section 3 gives the person who is the victim of the harassment a civil remedy against the perpetrator. Section 4 provides that putting people in fear of violence is an offence.

The general consensus seems to be that the Protection from Harassment Act would potentially apply to a case of cyberbullying between students. “Harassment” is not actually defined in the Act, although s 1(2) specifies, “the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.” Section 7(2) also provides that harassment includes “alarming the person or causing the person distress.”

In Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34 , Lord Nicholls said at [30]:

Where…the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. (emphasis added)

Baroness Hale noted at [66] in the same case:

A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.

Lord Nicholls “oppressive and unacceptable” test was applied and elucidated last year in two cases of the English Court of Appeal. In Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 the Court of Appeal confirmed that the test was whether the conduct was “oppressive and unacceptable”, and thus worthy of criminal sanction. It was emphasised that the course of conduct must be grave. In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288, a case involving workplace bullying, the Court of Appeal again applied the “oppressive and unacceptable” test. The Court ultimately found that, although harassment would not usually be present in a workplace context, in this case it was present on the facts because of the extraordinary severity of the conduct. Malice was not required to establish harassment, but establishing malice made it easier to establish that the conduct was “oppressive and unacceptable”.

Thus, depending on the nature and severity of the cyberbullying, if conduct was grave, oppressive and unacceptable it may fall under the Act. It was also noted in the ODG that defamation would be another cause of action available to a UK victim of cyberbullying. And, as I have noted in my earlier post, a defendant was charged with making threats to kill over Facebook in a schoolyard bullying context.

5. Conclusion — other questions for organisations to consider

When I was in the final years of primary school, there was a student who had been held back because of learning difficulties. He was somewhat older than his classmates, and had come from a different school. He used to behave in an inappropriately sexual fashion in class, and sexually harass female students repeatedly. I’m not sure if the teachers were aware of the extent of the problem, and if they were, I suspect that they didn’t know what to do. This kid once held me up against the lockers and thrust himself against me, which was pretty scary. After I attempted to kick him and said I’d scream, he left me alone. The interesting thing was that, in the absence of any appropriate response from the teachers at the school, the other boys policed this kid and used to beat him up for inappropriate behaviour towards girls. Of course, the boys who beat up the kid used to get in trouble. I wish I’d been articulate enough at that age to explain to the school administration why they’d done it.

I was also thinking of a school teacher friend of mine who recently started teaching at a new school and found that a large proportion of the male students had a habit of publicly, erm,  “adjusting” or “fiddling” with themselves in class or when in conversation with the teacher. My friend was taken aback by this behaviour, and went to talk to the school administration after a younger female colleague confessed she felt very uncomfortable around the male students, but he was told that any problems were his, not the students’.

Schools and other organisations (orchestras, sports teams & etc) will have to be careful to police this kind of behaviour. Obviously the example of the highly sexual primary school student wouldn’t be covered by the amended or present Sex Discrimination Act because the kid was too young, but the second scenario might be caught by the Act if some female students complained about the conduct of a male student and were offended by it.

I guess the question remains as to always the question of how appropriate it is to police this kind of behaviour with laws. Unlike my co-blogger, I’m not a libertarian. I think it’s appropriate to have some kind of regulation to prevent discrimination and sexual harassment. Nonetheless, a close inspection of the Sex Discrimination Act worried me. The conduct described in s 28A includes conduct of a sexual nature which offends, humiliates or intimidates. (Cue song: Which one of these things is not like the other things?)

To my mind, offence is very different to humiliation and intimidation.  Humiliation and intimidation seek to belittle the person’s standing as an equal human being in the eyes of the community. In a Kantian sense, the perpetrator inflicts a moral injury by trying to belittle the other. By contrast, offense is a very subjective concept. Some girls may be offended by seeing that a boy had a picture in his locker of a voluptuous semi-naked babe, but the boy never intended to create offence in others, and merely kept the picture in his locker for his own daydreams.  If I were seeking to extend the provisions of the Sex Discrimination Act to cyberbullying and “sexting”, I’d cut the “offence” part, but leave the humiliation and intimidation, because that is the kind of conduct we really want to prevent.

By Legal Eagle | Posted in Free Speech, Internet, Law, Media, Popular culture, Society | Comments (7)

Drawing a long bow – Gillard and cohabitation

July 1, 2010 – 9:14 am
By Legal Eagle

Bettina Arndt wrote a piece in the SMH the other day which Paul Norton at LP has described as a “Bondi cigar“, and I must say I’m inclined to agree with Paul’s assessment. Jason Soon alerted me to the piece in the first place, and I must say I’ve stolen his heading for my post (*dips hat*).

The premise of the piece is as follows:

It’s fine for Gillard – a 48-year-old woman – to live with her bloke. Yet as a popular role model for women, her lifestyle choice may influence other women into making big mistakes about their lives.

Cohabitation produces two groups of losers among women and children. Most women want to have children – Gillard is an exception – and some miss out after wasting their primary reproductive years in a succession of live-in relationships that look hopeful but go nowhere, leaving them childless and partnerless as they hit 40.

…

While the de facto lifestyle leads some women to miss out on having children, others are taking the risk of becoming parents despite these unstable relationships. A growing proportion of children is now born to de facto couples – up from less than 3 per cent in 1975 to 12 per cent in 2000, according to data from the Household Income and Labour Dynamics Survey.

It is often assumed these children will provide the glue to keep de facto relationships together, but sadly this is not so. David de Vaus, a sociology professor from La Trobe University, found cohabiting couples who have children are more like to break up than married parents, increasing their risk of the negative impacts of family breakdown.

So then, of course, I was curious about de Vaus’ research. Had Arndt accurately represented it? My co-blogger, SL, suggested that she had cherry-picked arguments which suited her own purposes.

Research on cohabitation

Contrary to popular wisdom, research has shown that couples who live together before marrying have a greater risk of subsequent divorce than those who do not. However, in a 2005 paper in the Journal of Population Research, de Vaus et al show that it is more complicated than that, and it depends on the changing social context. These days, couples normally live together for a time before they marry. I lived with my husband prior to marriage, my sister did and almost all my friends did. De Vaus et al show that the risk of divorce for couples who lived together before marriage was considerably greater in the 1970s than it was in the 1980s and 1990s, and that there was a progressive decline. The decline was most obvious when controlling for selection effects: once these were controlled for, in the most recent group, “direct” and “indirect” marriages were at equal risk of separation. In fact, some evidence emerged to suggest that premarital cohabitation screened out relationships which were unlikely to last in the long term. De Vaus et al said:

The change in the link between the pathway to marriage and subsequent marital separation highlights the importance of ensuring that conclusions about any heightened risk of indirect marriage are based on recent data. Over the last thirty years the social meaning of cohabitation has changed as premarital cohabitation in many Western countries has changed from being a deviant to the normal pathway to marriage. The duration of premarital cohabitation has doubled, the separation rate of cohabitations has increased substantially, and the conversion of cohabitation to marriage has declined. These changes suggest that premarital cohabitation may now be operating more effectively as a screening-out process whereby the longer time living together is resulting in more unviable relationships not proceeding to marriage.

(David de Vaus, Lixia Qu and Ruth Weston, ‘The Disappearing Link Between Premarital and Subsequent Marital Stability, 1970 – 2001′ (2005) 22 Journal of Population Research 99, 115)

SL pointed me to very recent research which shows that the picture may be even more complicated than this. Jose et al have published an article in the 2010 volume of the Journal of Marriage and Family. This study suggested that, while cohabitation prior to marriage was generally likely to be negative, where the partners who cohabited had an intention to proceed to marriage, their marriages were more stable than those who did not cohabit before marriage. Jose et al say:

The major practical implication of this review is psychologists can inform the public that, despite popular belief, premarital cohabititon is generally associated with negative outcomes both in terms of marital quality and marital stability in the United States. This review also suggests, however, that cohabiting with the eventual marital partner may not be negatively associated with marital stability. In light of this finding, those who are considering cohabitation would be well served to consider their own commitment to the relationship as well as their expectations about what cohabitation will (or will not) lead to. Open discussion between partners about the meaning each person assigns to cohabiting, what each person’s expectations are, and what each person’s desired outcome is may be crucial to coming to a mutual understanding of the experience.

(Anita Jose, K. Daniel O’Leary and Anne Moyer, ‘Does Premarital Cohabitation Predict Subsequent Marital Stability and Marital Quality? A Meta-Analysis’ (2010) 72 Journal of Marriage and Family 105, 113)

You can’t just say that research indicates that living in a de facto relationship is bad, and that you are more likely to split up. It all depends upon the level of commitment of the parties at the outset and the extent to which they have communicated their expectations.

Cohabitation – pros and cons

Cohabitation is not necessarily a Bad Thing. The difficulty comes (as I have discussed in this post) when one party has an expectation that the relationship is quasi-marital and the other party has an expectation that it is not. I reiterate Jose et al’s suggestion that people should carefully consider their expectations when they move in with one another, and be aware of the level of commitment that their partner is willing to provide. I also wonder, as I discussed in the previously linked post, whether we need a default rule for de facto relationships which forces people to “show their hand” so that everyone knows exactly what is intended:

…[I]n Roman times, people who had cohabited continuously for a year were deemed to be in a de facto marriage. Sometimes, a partner would move out of the de facto home just before the year was up to symbolise that he or she did not intend to make the relationship binding. If we had something similar to this in our law, there would be less confusion about the status of a relationship. Each party would be aware of the legal consequences of moving in together, and if one party suddenly moved out, their lack of commitment to the relationship would be perfectly visible to the other.

The rule would have to be well-publicised and broadly known for it to work.

Sexist assumptions of Arndt’s piece

The other thing which annoyed me about Arndt’s piece is that it presumes all women want marriage and children. Yes, many women do want marriage and children. I happen to be one of those, and luckily, I have achieved my desires. But some women do not want marriage, and some women do not want children. Gillard happens to be a woman who does not want children, and has been derided for that choice (think of Senator Heffernan’s jibe that she was “deliberately barren”). From my point of view, if a woman thinks she doesn’t want children, it’s far better that she not have them. As I’ve recounted in a post some time ago, Gillard got in trouble for saying that it would be difficult to be a top politician and a mother. She’s spot on. If you really wanted to devote yourself to the job in the way she has, your children would have to be grown up, or you would have to leave the care of your children to someone else and barely see them. Gillard has made a choice that she is going to concentrate on career, and that’s fine by me. Not every woman is meant to be a mother.

I do sometimes worry that the kind of women who get their hands on the policy levers are women who don’t have children, or women who have made a choice to leave the care of their children with someone else, because you simply can’t get into a position of that power otherwise. Thus, they assume that other women are like them, and regard their career as all-important. As I’ve discussed, some attitudes to maternity leave reflect the idea that women are simply champing at the bit to get back into that career, but not all women feel this way (particularly if their job was not very stimulating in the first place). My main concern is that women have choice. If they want to marry and have children, they should be able to choose that. Alternatively, if they want to live in a de facto relationship, remain childless and become Prime Minister of Australia, they should be able to choose that. And policy should be constructed around giving people choice.

Further, if men don’t want children, I think that’s a choice they should be able to make. Couples have to talk about this kind of stuff openly and frankly, and if a woman is in a de facto relationship where she wants to have kids and the man keeps stalling…well, maybe she needs to consider what his level of commitment to her is.  I’m reminded of the title of that book which was popular a few years ago — ‘He’s Just Not That Into You.’ You can’t blame Julia Gillard for women finding themselves in that position. That wins the Agincourt Award for Drawing the Longest Bow (an award I am told was invented by Mark Bahnisch).

A bad role model?

There’s been a lot of excitement about the symbolism of a female Prime Minister. The other side of the coin is this kind of piece by Arndt – Gillard provides a bad role model for women by being unmarried and barren. Now, there is a part of me which is really pleased to see a woman as Prime Minister. (I might have even gotten a little teary during Gillard’s speech for this reason.) But ultimately, what matters is not whether Gillard is a woman, whether she’s married or whether she believes in God. I really don’t care about those things. All I care about is whether she does her job well (better than KRudd, hopefully). And I want her to be mindful that she represents the people and that she understands their concerns and fears.

I have never really understood this obsession with famous people as role models – I think we’re more likely to take our immediate cues from those who directly surround us. I don’t know that I’ve ever regarded a famous person as a role model. My role models are friends and family, teachers and bosses, not celebrities.

Conclusion

Yes, Arndt’s piece is a Bondi cigar. It doesn’t fully consider the complexities of the research it cites. It doesn’t consider other ways to fix the problem of women being caught in relationships where the men don’t want to commit. It contains a variety of sexist assumptions that irritated me. It buys into that whole “she’s a role model” rhetoric without examining it critically. It is simplistic and draws a very long bow. It should be flushed out to sea.

Update: Mindy and Pavlov’s Cat in comments have pointed out that usually people don’t make an active decision not to have kids — it’s just something that unfurls from a series of small decisions or happenstances. I think that’s something important to remember as well.

By Legal Eagle | Posted in Children, Feminism, Law, Marriage, Motherhood, Politics, Public Policy, Society | Tagged , , , , , , , , , , , , , , , | Comments (40)

The Herd Mentality and the fall of Rudd

June 29, 2010 – 9:49 am
By Legal Eagle

The thing that has been fascinating me about the last week in politics is the evidence of the herd mentality (psychologically speaking). The herd doesn’t move direction until one person breaks ranks, and then suddenly everyone is following the new direction. I’m talking, of course, of the sudden political demise and dethroning of KRudd.

A year ago even, this scenario would be almost unbelievable. KRudd was sailing high in the opinion polls, and could apparently do no wrong. I had actually heard about KRudd’s personal character flaws (swearing, anger, dogmatism) but none of that was being reported widely in the press. The Liberals were regrouping, having experienced their own divisive leadership spill.

Then things started to go wrong with the insulation scheme and with the BER scheme. As I see it, the press became disenchanted with KRudd at this point. They turned.

I’ve been thinking about why I also became disenchanted. I knew about KRudd’s character flaws, and never particularly warmed to him (despite the glowing opinion polls). To be honest, the positive opinion polls poleaxed me somewhat, as I saw KRudd as smarmy, a person who pandered to populism. But I didn’t say anything. Perhaps I wanted to give KRudd the benefit of the doubt. One mistake, well…everyone makes mistakes. Two mistakes, not so good… Plus, I’m not a political commentator, and I only rarely write about domestic politics. I’ve charted my own progress of disenchantment in a previous post. If the government had stopped and fixed the things that went wrong, I think that would have been better, but instead it brushed the wreckage of the old schemes into the corner, and hurriedly started piling new initiative on top of new initiative.

Suddenly the knives were out. It wasn’t just the “right wing” opinion writers who were criticising the guy. Media commentators which had traditionally been regarded as “left wing” started in on the action. The press salivated when KRudd got angry after he was questioned on The 7:30 Report. David Marr opined that KRudd was driven by anger. We heard from Marr that KRudd had publicly described the Chinese as “rat-f**kers” at the Copenhagen Climate Conference. We heard about KRudd’s penchant for using swear words off the record. Humans are social beasts, and we take our cues from the behaviour of other people. It’s like we looked at each other and thought, “Hey, it’s okay to criticise and question this guy, everyone else is doing it.” We also take our cues for what is appropriate behaviour from others. There are sound reasons behind this behaviour, and it has some very positive aspects. To use a crude example, people are unlikely to defaecate in public in Australia because of the herd consensus is that this is utterly inappropriate behaviour.

Now, from what I hear, what I like to call the “Labor machine” had been waiting for this moment. Alexander Downer (former Liberal opposition leader and former Liberal Foreign Minister) said in The Spectator:

It has taken an incredible three years for the Australian public to realise who their national leader really is. I sat with a Labor luminary having a late-night drink in June 2008. He turned to me and said: ‘Mate, one day the Australian public will grow to hate Kevin Rudd as much as I do.’ That day has arrived.

The Labor machine had kept schtum while KRudd was riding high in the polls, but once he’d fallen from grace in the eyes of the media and the public, the cogs whirred and it started into action. There was no way it was going to let a personally unpopular leader lose this election for them. I do wonder when the plan to remove KRudd was initiated. I’m pretty sure that it wasn’t an impulsive decision (contrary to the way in which it was portrayed last week). After all, Gillard’s new hair-do and colour was evident a few days before the putsch, and it seems odd to have it done then, rather than in the parliamentary recess…unless she knew what was coming. Of course, she does have a hairdresser as a partner…lucky thing…

An informal poll of my friends after the putsch indicates that many are more satisfied with Gillard as leader than KRudd, and they are disposed to respect her, but they remain uncomfortable with the ruthless way in which it occurred.

Even though I’d lost confidence in KRudd totally by the end, I did find the sight of him crying on national television heart-rending, and I couldn’t watch it. I’d feel the same for any person of any political stripe in his position. (One of my early political memories is of seeing Malcolm Fraser crying after losing to Bob Hawke, and feeling puzzled and very sorry for him, even though I loved Hawkie. I asked Dad why Fraser was crying — I think I had actually thought men were incapable of crying — and Dad said, “It’s understandable that he’s crying; he’s just lost a very big and important contest.”)

Then KRudd was sitting despondently in the backbenches during Question Time with an expression of bewilderment and devastation: you could tell he was thinking, “How did it all go so horribly wrong?” His failure to realise it was going horribly wrong is in part the reason for his downfall. Once the herd turns against you, particularly those who were formerly on your side, you’re on a slippery slope downwards. KRudd’s failure was that he did not realise that the zeitgeist had changed for many (although to be fair, not everyone followed the herd on this — see, for example, LP posts here and here). KRudd did not take his cues from the herd and amend his actions accordingly. In fact, he’s still not taking his cues from the herd. Reportedly, he asked Gillard for a frontbench position twice and was rejected. I wouldn’t have had the cheek to do it once, myself. I would have slunk off to the backbench to hide.

The fascinating thing for me now is watching people who formerly avowed support for KRudd now disavowing him, and claiming that never supported poor old KRudd in the first place. Tim Blair has collected a few. Samuel J at Catallaxy has wondered if the government would indulge in the Roman practice of damnatio memoriae if it were allowed.

Personally, I’m left a little uneasy by the whole thing. To be honest, I’m glad KRudd’s gone. I think Lorenzo’s observation that KRudd was like the Pointy Haired Boss from Dilbert is spot-on. I hope sincerely that Gillard will be a better Prime Minister. But I remain uncomfortable with the ruthless method of dispatch, and I’m a little freaked out by the power of the herd (the media herd in particular). It’s not so much that they turned, it’s the way in which the attitude of the media from the beginning to the end of KRudd was so extreme. The progressive media herd thought KRudd was beyond reproach at the start. I don’t think that’s acceptable. Surely he was the same man from beginning to end, and surely we should have heard critical analysis about any flaws or problems in KRudd’s leadership from the start.

By Legal Eagle | Posted in Media, Politics, Society, The Left | Tagged , , , , , , , , , , , , , | Comments (48)