Feminist interventions: Learning from Canada

Abstract

This article explores the potential of third-party interventions by feminist lawyers in ongoing litigation to support the development of the common law consistent with women’s equality rights. The article briefly illustrates the need to account for the realities of women’s experiences in the New Zealand common law, outlines<br/ >the legal basis for third party interventions and describes the few feminist interventions that have taken place in New Zealand. It then draws on the extensive experience of feminist interventions before the Supreme Court of Canada, including those by the Women’s Legal Education and Action Fund, and the literature that attempts to measure the effects of interveners to both describe<br/ >the factors that have supported such interventions and suggest that they have had an impact on legal development. To illustrate the potential of feminist interveners, the article then compares two cases from Canada (R v JA) and New Zealand (R v S), each dealing with the issue of the legal culpability of men who sexually penetrate unconscious women and decided within a few years of<br/ >the other. While not a proposition fully capable of causal “proof”, the article concludes that the evidence suggests that feminist interveners make a difference in the law’s progress in bringing women’s collective interests before the courts and addressing the systemic impacts that specific doctrinal interpretations will have on women’s rights and interests.