Legal Theory / Contract Law Article Part One
Gendered Stereotypes and the “Facts”

Author: Dr Robert N Moles and Bibi Sangha

[This is an article about a miscarriage of justice. It helps us to appreciate that sometimes actions in the civil courts can be every much a miscarriage of justice as are wrongful convictions. We have studied the transcript of the trial and formed the conclusion that Mary was seriously dudded by the legal system which seems to have preferred one of their own – even if untruthful – to someone they could not even try to understand. This article was previously published in the Flinders Journal of Law Reform.]

In recent times there has been much discussion of the bias of the judiciary and of their employment of gendered stereotypes. Law students might often regard the “finding of facts” in the reported cases, as their starting point for legal analysis. We feel that this approach might be rather unfortunate, for as we have already suggested in our discussion of Mr Bamber, there is often more to finding the facts than just plain “finding”.

We feel that we have to go beyond the expressions of outrage at the obvious and particularly unfortunate expressions used by some judges, and to look in greater detail at a broader range of judgments (particularly those in commercial law as we have already mentioned) in order to fully appreciate the extent to which the law embodies male-dominated interests and attitudes. [ See also Threadgold T "Legal Practice in the Courts: Discourse, Gender and Ethics", (1991) 7 Australian Journal of Law and Society, 39.]

One particularly interesting case in this regard is that of Diprose v Louth. [(No 1) (1990) 54 SASR 438 – hereinafter referred to as “Judgment”] A case, which on the face of it appears unremarkable, save for the fact that it indicates a slight widening of the category of special disadvantage in the doctrine of unconscionability in contract law. [ J Starke, N Seddon and M Ellinghaus, Cheshire and Fifoot para 811, and Greig and Davis, Contract Law 5th cumulative supplement text page 775.]

It is our view that this case is worth a more detailed study for it reveals interesting insights into the way in which contemporary judges interpret evidence and utilise stereotypes in their depiction of the relationships between people and the way in which this is influenced by their notions of "proper conduct". We will suggest that the imagery of "women" and the way in which they are constructed in their judgments should give rise to serious concern.

But let us begin by indicating how this case unfolded in the courts. We will first outline the view of the situation as given by the trial judge. In doing so, we will compare the picture painted by the trial judge with the transcript of evidence to show how "the facts" have been given shape and colour by him.

In doing so, we will not be claiming that the judge has departed from the appropriate standard of neutral, scientific, fact finding. Such a "story" is indeed, as colourful a distortion as that of the judge we are concerned with - and such "explanations" are designed to conceal more than they reveal. We accept that the fact finding process will inevitably bring in some of the orientations or values of the fact finder. We no longer believe in the "point of viewlessness" which has been much criticised by the feminist writers.

The important question we think, is not whether we can be "value free", or whether we can operate without “organising frameworks”. The point is rather, whether we are to have a reflective awareness of the values or frameworks which we employ. By careful scrutiny of a particular case, we can demonstrate that the values implicit in this judgment are not acceptable. Our examination will also show that there are structural deficiencies within our present legal system which mitigate against the correction of those problems. We claim that the examination of many such cases is necessary if the extent of the problem is to be properly appreciated. However, that sort of examination will not take place, unless the current generation of law students develops an awareness of the issues involved.

If the "education of the judiciary" is to be of any benefit, we must be mindful of the problems to which that education is an answer. The problems must be spelled out - not only in general terms - but also in the detailed study of the problem cases. This may be only one such case, but if our understanding of it is correct - it points to a problem which is more deeply rooted and pervasive than many current commentators would allow for.

Individual and Systemic Bias

There are two aspects to the injustice which arise in the problems of bias against women. The individual bias of judges - and the systemic bias of the legal system. We seek to show in our analysis that the solution must go beyond the re-training of individual judges, and also address the important question of the proper role of the judges in the appellate courts. For unless there is significant change in this area, the value of the self correcting mechanism of the appellate courts, will prove to be inadequate. Sir Anthony Mason has recently declared that the Australian High Court will be a major vehicle for reform. It might well set a good example by examining whether there is a need to correct systemic inadequacies within our present appellate procedures. There is nothing like putting your own house in order to show that you mean business.

We recognise, of course, that a single case will do no more than enable us to appreciate that there is a serious issue to be examined. In putting forward the arguments contained in this chapter, we hope that we are doing so in the spirit advocated by Sir Anthony Mason himself - as academics concerned about the constructive and principled development of the law and the legal system.[ Address at the "Inauguration of The Faculty of Law, University of Wollongong" - 19 February 1991 - The Honourable Sir Anthony Mason, A.C., K.B.E., Chief Justice Of Australia.]

Individual Bias

The insidious aspect of bias is that often, it may not be apparent on the face of the record, but be subsumed beneath the "fact finding" of the judges. The so-called "facts" are often inferences (abstractions) drawn from the more detailed evidence and which involve a good deal of judgment and creativity in their formulation. To appreciate the significance of this we have to examine different aspects of that creative process.  At this stage we engage in a type of “archaeology of language” - looking beneath the surface of the expressions used in order to develop an understanding of the underlying dynamics.

It may well be that there are things that we do which are unintended, and yet which we see upon reflection operate unfairly against one group and in favour of another. By having a reflective awareness of the language that we use, and the presuppositions which are contained within it, we are not just tinkering with “political correctness”, but attempting to ensure that the political, social and psychological judgments which they contain, are all coherent and in accordance with sound judgment.

Selectivity

Fact finding inevitably requires an element of selectivity by the judge. After all, a judgment which merely repeated the transcript would hardly be of much value. The judge has to identify those aspects of the evidence which are most pertinent, and which then become "material facts" in the judgment. The necessary corollary of this is that some aspects of the evidence will be ignored when it comes to writing the judgment. Very often, this determination of relevance may well be uncontroversial. On other occasions, as here, the privileging of certain aspects of the evidence at the expense of others, will give rise to an important question.

Did the judge genuinely attempt to understand the perspectives of both of the parties when evaluating the evidence - as we are told that judges do - or did the judge simply work from a pre-existing frame of reference? Impartiality does not require us to accept "point of viewlessness", but it does require us to be sensitive to "different" points of view and allow each of them fair expression and evaluation. We will point to many issues which were important to any evaluation of the parties in this case, yet which were not referred to by the judge. This selectivity by the judge, we claim, worked consistently in favour of the male plaintiff.

Formulations

In resolving the conflicting and difficult combinations of claims and counter claims into a coherent narrative, the judge is required to employ formulations which are used to refer to, or sum up, the evidence. By this, we mean that the judge re-expresses in summary form what the evidence was about - in language which often will not have been used in the arguments before him. An examination of the expressions used will help us to appreciate the values, and the conceptual frameworks being employed by the judge, and which influence the understanding of the evidence. To regard the female defendant, for example, as "niggardly" or a "nag" gives us a valuable, but disappointing insight into the judge's evaluation of the defendant as a person and fails to show respect for her point of view.

Attributions

By this, we mean that the judge will inevitably bring something to the understanding of the evidence, but which is not contained within it, or drawn from it. Cardozo referred to “those forces acting on the judges which they do not recognise and cannot name”.

“There is in each of us a stream of tendency, whether you choose to call it a philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them - inherited instincts, traditional beliefs, acquired convictions...” Benjamin N. Cardozo The Nature of the Judicial Process (1921) Yale University Press, p12.

Such forces, may work by way of what we might call “attributions” This is where the judge goes beyond the utilisation of some framework or other, to assertions, which may well fill out the picture but which are not directly supported by the evidence. For example, in this case the judge refers to the female defendant's "unexpressed wish" that the plaintiff should do certain things, in order to explain why he thought the plaintiff did those things.

"She then refused offers of assistance short of full ownership of the house knowing that his emotional dependence upon her was such as to lead inexorably to the gratification of her unexpressed wish to have him buy the house for her." [Judgment p448, emphasis added]

Of course, there will always be unarticulated assumptions from which the parties giving evidence and their legal advisors were also working. We will be suggesting that this requires the judge to engage in a thoughtful analysis of the evidence to work towards a genuine understanding of the witness’s position. Otherwise the judges will fill the gaps with assumptions of their own. We will suggest that this is the root cause of failure to develop understanding across different social or cultural groups, such as occurred in this case.

Each of these activities is an expression of the judicial values and orientations which are being employed. We should emphasise that there is no choice between working with values and working without them, so that the values, per se are not the issue. What is at issue is the extent to which the values actually employed will be likely to discriminate unfairly against women and in favour of men.

Systemic bias

It follows from what we have said that the values, or the conceptual frameworks which are utilised by the judges as part of the fact finding process are often not stated explicitly, but have to be inferred. By this, we mean that if we examine the evidence, we can make reasonable or necessary inferences concerning the criteria which were employed by the judge as part of the interpretive process. In other words, we would have to infer the criteria which would have to be employed in order to make sense of the choices which the judge has made.

In order to be able to make these judgments, we have to look at as much of the evidence as we can. Given that we were not able to be present at the trial, the best reconstruction of the available evidence is by the use of the transcript. This will not, of course, give us access to the whole of the evidence which was available to the judge. We cannot, for example, have access to the sound and the look of the witnesses.

Trust the judges?

The lack of availability of these factors to appellate judges has often been taken by them to mean that we cannot therefore make any independent assessment of the evidence. We simply have to take the facts as found by the judge - rather like the judge saying - "I saw the witnesses - trust me". Yet, it may be argued, is it not just those factors which are most likely to give rise to bias? This has long been recognised by both counsel and witnesses, when the witness or the accused is sent off to buy or borrow new clothes and to visit the hairdressers before their appearance in court. The fact that the witness speaks differently, or dresses differently, may so affect the judge as to influence unfairly what the judge "hears", or fails to hear.

It was suggested by one of the legal advisers appearing in this case that Mary Louth was not sufficiently aware of this issue. She turned up in court with her best gear on. It just happened to be a red dress / suit, with plenty of jewellery. It may well have been her sense of “best dress” but thought by some, I’m told around the court as “not quite right”. The judge, of course was a good Catholic chap, whose views of appropriateness regarding the respective parties was to play a leading role in his findings.

We claim that the abstemious view of the appellate courts with regard to the facts amounts to an unnecessary fettering of the appellate courts' role. If the topic of judicial bias is to be tackled seriously, we must see the appellate courts, in an appropriate case, engaging in a more careful scrutiny of the factual sub-strata of the cases. We will argue that there was much in the fact "finding" - and we might add, the fact "losing" in this case which left a lot to be desired. Whilst there were two dissenting judgments in the appeals, which to some extent provide support for the arguments put forward in this chapter, we will argue that neither of those two judgments went far enough in recognising the extent of the potential injustice in this case.

We appreciate that a careful examination of the transcript may give rise to questions which can only be answered by a proper consideration of the non-textual factors. But we should be very careful before going to the extreme of suggesting that the non-textual factors are always so important that no reconsideration of the evidence is possible without them. After all, it may also be argued that to examine the transcript without these factors may enable us to focus more clearly on what each of the parties actually said, rather than on what the judge thought that they said. After all, it is a commonplace of psychology that if the interpreter is bored, or displeased in some way with the person who is speaking to them, they may well "hear" things which fit in more with their expectations than with the actual evidence. 

After our work on the transcript we became more and more convinced that the real case of the defendant - Mary - was hardly presented to the court at all, and to the limited extent that it was, it was not "heard" by the judge, or by counsel in the case - even to some extent by her own counsel.

Diprose v Louth - the “facts”

1981 We have a man and a woman - Louis Diprose and Mary Louth - who meet up at a party in Tasmania, and became friendly. Their previous relationships with their respective partners had not worked out successfully. They had a brief sexual encounter. Louis was gainfully employed but Mary finds it hard to get by.

1982 Mary went to Adelaide where her sister and brother in law could help her out by providing her with a house at a low rent.

1983 Louis follows Mary to Adelaide

1984 Mary is accused of shoplifting and Louis, being a solicitor, assists her by arranging for the charges against Mary to be dropped.

1985 Louis offers to buy the house which Mary was renting and put it into her name - which he does.

1988 Louis demands that the legal ownership of the house be transferred to him, and a summons is issued one month later.

1990 The trial starts and the evidence is heard before King CJ in the South Australian Supreme Court.

Louis and Mary

The parties are introduced to us by the judge, and if we have any sensitivity to the way in which this is done, we could probably tell from the outset where the judge's sympathies lie.

Louis is introduced as a person who, at the time of the trial, was 48 years old and a solicitor. "...his first marriage had ended in divorce and the final separation from his second wife was imminent" and he had custody of his 3 children from his first marriage. [Judgment p 439] All of this is expressed in fairly neutral terms. We might note that Louis's status as a solicitor, comes before any mention of his personal circumstances.

Mary, by contrast, is introduced as "a married woman whose marriage was in trouble, and about to end" and she had two children. [Judgment p439 emphasis added]. We might simply observe that the language used to express Mary's marital difficulties is far less neutral than that used to describe Louis's situation. It almost suggests that Mary was not only "in trouble" but that she might indeed "be trouble".

Louis is insistent

King CJ opens his judgment by pointing out that Louis's behaviour in this matter was "bizarre". We are told that he was very much in love with Mary, whom he had met at a party. He wrote poems which the judge said were “tender, sentimental passionate - and expressed an unrequited love”.  After Mary had moved to Adelaide , Louis visited her.  We can see from what the judge tells us next that Louis is not the sort of man to be put off easily.  We are told that Mary refused to go out with Louis at this time, because she had by then met another man.  One imagines that many people would have returned home disappointed, but resolved to seek their happiness elsewhere. But not Louis. He decides, despite this - to make a permanent move to Adelaide - because of Mary. Obviously, according to the judge, there can only be one sort of explanation for such conduct.

Louis was "in love" with Mary?

Louis is portrayed by the judge as a person who was "in love" with Mary. Indeed this depiction of Louis is hardly contested in any of the judgments of the case on appeal. From Mary's point of view this was very unfortunate. Louis clearly had a “sexual” interest in Mary, which was manifested in his behaviour and in his writings to her. For the judge to accept the "love" without an examination of the "lust" perspective, means that Louis's motivations were not properly examined. This may well have been an important aspect of this judge's prejudice. If it had been argued that Louis was engaging in sexual harassment, the perspective may well have been different.

The trial judge says that Louis "immediately fell very much in love with [Mary]" and that he "remained very much in love" with her. [Judgment p439]

During the years which followed, Louis sent Mary some poems which he had written. They were, said the judge, "tender, often sentimental, sometimes passionate, and very often on the theme of unrequited love". [Judgment p439] Louis was described by the judge as a "strange romantic character who had a sustained infatuation for [Mary]". Indeed, says the judge:

“from the time they first met he was utterly infatuated by her. He had had unhappy domestic experiences and was anxious to lavish love and devotion upon a woman. He fell completely in love with [her]”. [Judgment p448]

He "had a deep emotional attachment to her and desired only to have her love and to marry her". [Judgment p447] emphasis added. Because of this love which Louis had for Mary, he was, according to the judge, in a position of emotional dependence upon her and this gave her a position of great influence upon his actions and decisions. [Ibid] In fact, Louis was so infatuated with Mary, that he was "unable to make a worthwhile judgment as to what is in his best interest".

This view of the judge that "love" should be a disabling factor is a feature of this case which was more asserted than examined. Of course, it would suit Louis's argument if it were accepted that he had somehow "lost his reason". However, this was not a momentary impetuosity, but a course of conduct which took place over several years. It would be more consistent with the evidence to say that this was part of a rational plan of action - Louis, in every other respect appeared to be behaving "rationally" throughout this time.

In fact, given that Louis had made a not dissimilar offer to Mary shortly after meeting her, there was a remarkable consistency to the way in which he behaved. When Louis first met Mary, he tried to persuade her to stay with him by offering to transfer a half interest in his house -  she declined his offer. However, the judge found that:

“Despite being a solicitor, Louis's emotional dependence upon Mary was such that his professional qualifications and experience counted for nothing in his relations with her and that he was deprived of an independent and voluntary will”. [Judgment p449]

This part of the evidence is riddled with the sort of attributions which we spoke of earlier.

No expert witnesses in psychology or psychiatry were called to speak to the plaintiff's state of mind or the possible reasons for it. Indeed, apart from saying that he was in love with Mary, and had a weakness for her, the plaintiff was not even asked to what extent he was or was not able to control himself. Yet the judge was willing to state that the plaintiff was deprived of an independent will. He went on to say that:

“His will remained subject to her influence, in my opinion, until the niggardliness of her attitude when he was in need of assistance in August 1988 caused the scales to fall from his eyes and for his sound judgment in relation to matters affecting the defendant to assert itself.” [Judgment p449]

So we are faced with the prospect of having a solicitor who despite having discussed this matter with many others, and continued in legal practice throughout this time, had "lost his judgment" for over three years. However, if the judge feels that asking for the house back is a matter of sound judgment, then one would have to explain the long period during which that claim had not been made as unsound, just as the judge did here. This may indeed have been an example of the judge working backwards from his own conclusions, to his reconstruction of the evidence.

We see from the judge's expressions here, that Louis, in wanting his house back was expressing "sound judgment" - as opposed to his earlier frame of mind which was presumably based on "unsound judgment". We also see the judge taking the view that Mary's attitude in being reluctant to help Louis in August 1988, was "niggardly". We must traverse some of the same ground as the judge, to see if we can agree that this was a fair summing up of Mary's position. However, before we go to the underlying evidence on which this judge's opinion is based, we will sum up his view of Mary - the manipulator.

Mary "the manipulator"

The judge says that he formed the impression that:

"[Mary] was a calculating witness who was prepared to tailor her evidence in order to advance her case. In particular I found her evidence as to the circumstances leading to the house transaction quite unimpressive." [Judgment p444]

He forms the view that she "manufactured an atmosphere of crisis" with respect to the house when none really existed - in order to influence the plaintiff to provide the money for the house. She played upon his love and concern by making suicide threats - it was a process of manipulation to which he was "utterly vulnerable" by reason of his infatuation. "I disbelieve the defendant's evidence that she thought the plaintiff was a wealthy man." [Judgment p448]

This part of the judgment amounts to a string of assertions and attributions, with very little in the way of reasoning to support them. It is common ground, for example, that Louis frequently took Mary to expensive restaurants and insisted on buying her French champagne, and that he had his own aeroplane. Without access to a full statement of his financial position, we can see that one could have been easily convinced that he was a wealthy man. Yet the judge merely asserts that Mary was not to be believed in stating that this was her belief. The judge also stated that:

"her manufacture of an atmosphere of crisis where no crisis existed was dishonest and smacked of fraud." [Judgment p448]

Yet Mary's evidence was consistent with that of her witnesses - that she neither experienced feelings of "crisis", nor claimed that there was a crisis. She did however, feel depressed at times and "in need of a friend". She spoke to Louis, because he had told her he would be her friend, and she wished to share those feelings with him. To the judge this was clearly part of a manipulative strategy. The judge did not explore other possible explanations of the fact that Mary sometimes repeated herself, when she said that she was depressed or unhappy, on a number of occasions, or that she wished to share these feelings with a friend. What other possible explanation could such expressions have, thought the judge, unless as part of a rational strategy to secure to her some financial advantage?

Top of Page