A Woman's Way: Interview with Helena Kennedy QC

As a septuagenarian, Baroness Kennedy of the Shaws might have assumed that her inherent fear of being sexually assaulted, abused or harassed would have diminished with time, but as a woman, she knows it never truly goes away.

“It’s terrifying, really, but from about the age of about nine onwards, our mothers and our fathers are telling us about the dangers of being out alone – don’t go into the park, always be with friends, stay in well-lit areas, don’t talk to strangers, etc, etc – and what’s behind that?

“Well, they are telling us that as a girl you are vulnerable to men, that you might be raped, assaulted, impregnated, and that fear about what men can do to you is inculcated in us from a very early age. And so that’s why, even now at my age, you remain on alert.

“I’ll leave the House of Lords tonight after speaking to you and after the vote, and I’ll be very aware of my vulnerability. I go home on the underground and when I get out of the station, I walk up a road, not a very long road, but a dark road, to get to my house.

“I carry my keys tightly and I walk up the middle of that road, I don’t walk on the pavement because there are trees all around, and it’s very, very, shaded. It’s the instinctive thing for me to do, to walk up the middle of the road. Because it’s late at night, there are very few cars, and I feel safer in the middle of the road where I am out in the open. 

“That fear of being attacked is very real. It’s a fundamental fear that some man might try to assault me. And like all women, I’ve lived with that fear all my life and believe me, it doesn’t go away just because you get older.

“And of course, that constant vigilance wears you down, but that is how women’s lives are sadly shaped, and that fear dictates how we act, and how we present to the world. It’s been there all my life and for young women today, that is the life they are still having to think about, so, yes, I am tired, and of course, I want that to change. I have wanted that to change for a very long time. I’ve been listening to this kind of stuff for over 40 years, and I am tired of it, but here we still are.”

Despite having lived in London all her adult life and always practised at the English bar, being Scottish matters to Kennedy. She was born in Glasgow in 1950. She is one of four sisters and lived with her family – her father was a dispatcher with the Daily Record and her mother was a housewife – in a ‘two-room and kitchen’ tenement flat in a working-class area on the south side of Glasgow. She attended Holyrood RC Secondary School where she was appointed head girl and where, she says, the most important lesson she was taught was to ask ‘why’. It’s a question she has never stopped asking.

From 1992 to 1997, she was chair of the constitutional reform group, Charter 88, persuading the Labour government to make devolution and human rights legislation central to their manifesto. She was tipped to be one of Blair’s rising stars following the 1997 election but found it difficult to not be critical of New Labour.

And since being elevated to the House of Lords in 1997 – which some saw as a way of shutting her up – she became something of a thorn in the side of what was then New Labour, constantly voting against the party whip.

When I interviewed her first, over a decade ago, she told me that the party had been “mad” to not realise the kind of woman she was and that there was a plurality to her politics. So much so that she seriously considered an offer by the then Scottish first minister, Alex Salmond, back in 2011 to become the Scottish solicitor general.

Kennedy has instead dedicated her legal and political career to giving a voice to those with the least power by championing civil liberties and promoting human rights. As a respected barrister, she has been involved in some of the country’s most high-profile cases including the Brighton Bombing, the Guildford Four appeal and the bombing of the Israeli embassy.

She has also made something of a name for herself by defending a number of battered women who have killed their partners because of the domestic violence they suffered. Her infamy in this field led to her being mentioned during an episode of Inspector Morse as someone who could get a woman off with murder. This is not an accusation that bothers her.

More than 30 years ago, she published the seminal legal book Eve Was Framed which detailed just how appallingly the law failed women. And while much has changed for women over those three decades, a great deal prompted by Kennedy herself, progress has been slow and fundamental discrimination and inequality persists particularly within the justice system.

And it is for all those reasons that in February 2021, Kennedy was delighted to be asked by the Scottish Government to head up a working group to explore whether there should be a stand-alone crime of misogyny in Scotland. 

The work, which she admits was testing, followed an outcry from women that a much-awaited hate crime bill, which listed aggravators such as race, religion, and sexuality, did not include misogyny and that women, despite the clear harassment and abuse that they receive, day in and day out, simply for being women, was not included in the new legislation. 

And so, with that backdrop, coupled with a collective fury about women’s safety following the murder of Sarah Everard and Sabina Nessa, revelations about the deep-seated misogyny within the Met and Police Scotland, and further, set within the context of a toxic debate about sex and gender and what even defines a ‘woman’, Kennedy and her hand-picked panel carried out their year-long work which culminated in the publication last week of her groundbreaking recommendations. 

Kennedy says she keenly felt the anger expressed by women about being left out of the original hate crime legislation but she is equally adamant that she did not want to be distracted by the increasingly febrile debate around trans rights and definitions of what a woman is. She says her entire focus was on misogyny, what it means, where that comes from, and how to tackle it.

With misogyny, we’re talking about a vast quantity of people in our population, over half the population – women are not a minority – who go about their lives experiencing this stuff every day

“Women were quite right to say, ‘what about us?’ I mean, it’s one thing that people can be abused with all manner of other insults, and that should be acknowledged in law, but where were women in all of this? My instinct when I took this on was that if you were to sit down and talk to women, the picture would be a much more complex one, and one that was much more about a sense that criminal justice just generally does not deliver for women. 

“And too often, the pat answer from lawyers about this kind of work is always that there’s already plenty of law around, it’s just a question of people choosing where to find it, and we don’t need yet more law, what you need is cultural change and it is for schools, and it’s for parents, to deal with, but I’ve been listening to this stuff for decades, over 40 years, and I’m tired of it. Women are tired of it and we need more than platitudes.

“I’ve learned about women’s rights from my clients, from sitting with women who have been at the receiving end of a whole lot of terrible stuff, and what’s at the heart of all of this is that the majority of women, and yes, sometimes it will be somebody who is perceived to be a woman, is that they suffer abuse, day in day out because they are women, and the justice system does not deal with it because of the fundamental belief in the neutrality principle – that the law is neutral.

“But it’s a lie. It’s a pretence, it’s like saying to everybody, we’re all equal now and therefore all law must be couched in neutral language.

“And of course, domestic violence happens to men as well as women, and yes, men are raped as well, and men suffer harassment too, and so on, but that doesn’t take account of the quotidian nature of this stuff that women experience, day in day out. Men don’t experience that. It is different. 

“And so, at the heart of all of this is misogyny, it is not really about hatred, it’s about primacy. It’s about entitlement. And unless we deal with that, and deal with it within our criminal justice system, we, as women, will never get justice.

“And so, I want to deal with the majority, I do not want to be getting into this thing of who is a woman and who isn’t. I’m dealing with what most of the female population experience daily from men. Not all men do it, but there isn’t a woman that you’ll find who hasn’t experienced it. So that’s what we’re trying to deal with here. 

“One of the central things I’m seeking to do is to concentrate minds on what misogyny is, and misogyny is about male entitlement and male primacy and the maintaining of male primacy. That’s what leads to all these behaviours that we’re talking about from the serious end, with Sarah Everard, of rape, murder, horrible domestic violence, etc, and all the way down to the so-called low-level stuff. Things like standing at a bus stop and you get the whole ‘where are you going tonight, you’re looking very nice,’ and you ignore them and then they turn nasty and it turns into a thing where you’re frightened that this guy might follow me home, he might come on the bus and if I go home, he’ll see where I live… all of that.

“We’ve been trained to think that way since we were nine or 10, right? That’s part of the female experience and why I want us to talk about women, about what they live with, and how we turn the dial on this.”

The proposed Misogyny and Criminal Justice (Scotland) Act would create a new statutory misogyny aggravation operating outside of current hate crime legislation, as well as three new offences of stirring up hatred against women and girls, designed to target the growing influence of ‘incel’ culture, public misogynistic harassment, and issuing threats of or invoking rape, sexual assault or disfigurement of women and girls, online and offline.

Kennedy says she wants the whole package implemented, with no “pick ‘n’ mix” by the Scottish Government, and is also very clear that things need to change at a systemic level. “The dial has to move,” she says. “The focus has to be on males’ behaviour towards women, rather than on women’s behaviour and how they adapt their lives to accommodate risk.

“I’ve spent my life wanting to challenge this business of saying the law is neutral, because neutral law, i.e. treating us as if we’re already equal, is not going to help us because we’re not yet equal, this is unfinished business.

“And so, for me, this is an opportunity to start getting people in the law, whether it’s police, or prosecutors, or judges or defence lawyers, to get them to start thinking, ‘is this misogyny?’, ‘is this about holding contempt for women?’, ‘is this about treating women in a way that is expressing a sort of entitlement?’ I want them to start asking those fundamental questions.  

“Let me tell you what we’re doing here, which is moving the focus from the victim and moving it to the guy, the perpetrator. So, we’re saying, what’s going on in his mind? What is his intention? Why is he suddenly starting to shout at a woman, saying, ‘nobody would fuck you, anyway’? Why is he saying that? And by doing that, you really are interfering with some of the givens and you start making people think, is misogyny present here?

“So, if a man is in a pub and gets drunk and as he’s leaving, he decides to throw a bottle back in because he’s been ejected, and the bottle hits a woman on the head, is it misogyny? No, of course it’s not. So, the whole point about it is that a policeman is going to have to think, ‘it’s a woman, is it misogyny?’ and no, of course it isn’t because he could have hit a guy. So there are things that might involve women that are not misogynistic, but there are things that most definitely are. 

“A police officer or a prosecutor is going to have to decide which is the appropriate aggravation, but there’s a strong statement being made in the very title of this bill. The Misogyny and Criminal Justice Bill and [it] makes it an act of the same name that is going to apply to women, and women are going to have a piece of legislation that, in itself, makes a difference because it is challenging the fiction of legal neutrality. 

“I want us to stick with the business of what happens to women in their daily round. And the only way to do this is by creating law that is for women. And misogyny is a particular thing that people don’t want to admit to. Men don’t, it’s very discomforting to think that men are still not treating women equally after all this time. And yet, at the same time, there’s the failure to understand what women are even talking about. You see, it’s not about treating people the same. It’s about the fact that we want to be treated as equals. And that’s different. 

“And because I have been around for a long time, it makes me laugh that, for example, we argued that when it came to things like divorce, a woman had given up often her own career, her own possibilities and chances, because she had children, she ran the show at home, she did work part time, but she didn’t allow her career to develop.

“And she enabled the possibility of her husband’s career, therefore, we argued that when it came to divorce, she shouldn’t be just put on the scrapheap and account had to be taken of the fact that she’d sacrificed so much, right? And so, you’ll now have a woman, and we all know them, women who did work hard, but also looked after the kids, did have a career… and then there’s a divorce and because she’s a high earner, the husband wants half of her income and half of her pension plan, and so on. And so, what was an intention to make up for historic discrimination and historic disadvantage, the courts have failed to understand that, and had more of an even-Stevens attitude to it, when now it’s not making up for anything. 

I’ve spent my life wanting to challenge this business of saying the law is neutral, because neutral law, i.e. treating us as if we’re already equal, is not going to help us because we’re not yet equal, this is unfinished business.

“I feel that there’s been a real failure to understand what equality means around that. And yet judges will often say the same sort of thing when they’ll say, ‘what sentence would I give a man, well, I’m going to give her the same because you women all wanted equality, so, I’m going to give you equality’ when they’re not taking into account the injustices about the particularities of a case. 

“You can pretend that you’re doing lots of wonderful things for women, but you’ll never cure what’s really wrong until you start dealing with the ways in which there’s still that primacy, that sense of entitlement. And you have to start getting down into the sub soil because that’s where this begins. And you must also start recognising that the stuff that is considered to be low level, actually, is the breeding ground for the stuff that ends up being high level. 

“Not every young man who behaves in a nasty, unpleasant way towards women is going to end up raping people, but there will be some who will and what I want to be saying is that we’re never going to cure anything while half the population is still putting up with this stuff. And in fact, all those folk who are concerned about trans rights and so on should be coming alongside with us to try and make sure that we end one of the most fundamental discriminations of all, which is misogyny, and we unpick the patriarchy which holds it in place.

“At any one time, politically, in any situation, there are going to be different campaigns going on, and so on, and there are, if you like, competing rights, and that’s the nature of rights, that sometimes they will compete with each other.

“However, with misogyny, we’re talking about a vast quantity of people in our population, over half the population – women are not a minority – who go about their lives experiencing this stuff every day and if you don’t address that, you’ll never reach the humanity of people to get them to start saying that in addition, we must make sure that we’re treating Muslims properly, that we’re treating trans people properly, and so on. If you don’t deal with the most fundamental of disrespects and the contempt for women, then we’re never going to have the kind of society that will be truly compassionate, equal and fair.”