This blog explores transnational women’s legal history. More specifically, it looks at a problematic element of historical defamation law affecting women, and how common law jurisdictions around the world were spurred to create legislation tackling this issue throughout the course of the nineteenth century. Thus, while this blog discusses private law within the context of domestic systems, it is very much concerned with transnational tendencies in law’s creation and application, demonstrating the way transnational themes can weave their way through legal systems.
Context and explanation
But first, what is “transnational women’s legal history”? It is a term I have plucked from the writing of legal historian Felice Batlan.[i] In understanding what it means, however, it might first be wise to set out what constitutes women’s legal history more generally. Broadly, women’s legal history interrogates the relationship between women and the law from a historical perspective.[ii] It includes research about historical law targeting or applying only to women; how women have engaged with seemingly gender-neutral areas of law; and how women have attempted to reform the law or mitigate its excesses. Women’s legal history therefore has the power to disrupt traditional narratives about the law by taking seriously the role of gender in legal processes and by destabilising men as the universal subjects or agents of law. Some researchers consequently prefer to use the term “feminist legal history” to describe scholarship of this nature.[iii]
Tracey Jean Boisseau has noted, however, that too often women’s legal history takes the nation state as the default unit of study. This is problematic, as it could encourage researchers to “ignore an international context that necessarily impinges upon law-making and judicial decisions.”[iv] Echoing Boisseau’s concerns, Batlan has urged scholars working in women’s legal history to situate their work within a “global, international, and transnational context” and to take account of transnational themes in their research.[v] There are recent examples of scholars doing just that, such as research that considers the impact of transnational feminist movements upon domestic law and legal actors.[vi] Historical research into women and the law that contextualises legal developments in this way can therefore be said to be “transnational women’s legal history.”
Of course, insights from women’s legal history can also be applied to scholarship investigating the history of international law. Ignacio de la Rasilla, for example, has discussed the nascent development of feminist approaches in scholarship of this nature.[vii] He notes that the chief purpose of these approaches is to redress the ‘invisibility’ of women in the history of international law and to make this history more complete and accurate in the process.[viii] Janne Nijman has similarly spoken of the need to consider gender and race when researching international law history, which includes taking women seriously as both subjects of international law and as creators of it as well.[ix] There is thus more than one way to bring “international” or “transnational” insights into women’s legal history and to further a global perspective of women’s historical interactions with a variety of legal systems.
Case Study: Sexual Slander of Women
This blog will look at one example of transnational women’s legal history: the reform of laws regarding sexual slander of women in the nineteenth century. It will show how multiple common law jurisdictions – which were national, federal and colonial in nature – adopted a common solution to an aspect of defamation law that was problematic. But it starts with a personal story. Over a decade ago, as an undergraduate at the University of Auckland, I was intrigued to learn in a history lecture that New Zealand women could not easily sue for verbal imputations against their chastity until the Slander of Women Act 1898. This spurred me to write my LLB honours dissertation on the topic, which was published in a student law review.[x]
So why is it that an Act was needed to make this possible for women? The answer is that the common law historically drew a distinction between “libel” and “slander” in the law of defamation. Libel involved written defamation and was actionable per se, without any need to prove any actual damage. Slander involved verbal defamation and (apart from a few specific types of insult) required special damage to be proved, which was understood as meaning economic loss. Yet this requirement for special damage could be a significant barrier for female plaintiffs. An oral accusation of engaging in premarital sex or embarking upon an affair could have disastrous social consequences for a woman. Her reputation could be shattered and her friendships ruined. But it might be very difficult for her to prove pecuniary damage and therefore successfully claim slander for such an insult. Hence, New Zealand enacted legislation in 1898 which expressly removed the requirement for special damage in relation to words which imputed “unchastity or adultery to any woman or girl.”
England, of course, was the place where the legal requirement of special damages for slander had originated. Thus, overseas jurisdictions that inherited the common law as part of empire building – such as New Zealand, the Australian colonies, and parts of North America – also inherited the same legal rules restricting women’s ability to sue for sexual slander. This led to dissatisfaction on the part of claimants, lawmakers and jurists in these various places and a desire for change.
Consequently, over the course of the nineteenth century, legislation was passed in jurisdictions around the world that removed the special damages requirement for sexual slander. States in the USA which passed such legislation included: North Carolina (in 1808); Kentucky (in 1811); Missouri (in 1835); and New York (in 1871). Australian colonies that passed similar legislation included New South Wales (in 1847); South Australia (in 1865); Victoria (in 1887) and Western Australia (in 1900). Legislation was also passed in Canadian jurisdictions, such as in Ontario in 1889. In 1891, England followed suit, passing the Slander of Women Act 1891 (UK) to amend the common law there. New Zealand was therefore one of the last jurisdictions to pass legislation of this nature in 1898.
Politicians in New Zealand were aware however of the legislative reform overseas. Parliamentary member William Downie Stewart first introduced the Female Redress Bill in 1880 to remove the special damages requirement in New Zealand for women who suffered sexual slander. Stewart stated during parliamentary debates that the Bill was to some extent based upon the New York legislation of 1871.[xi] While this Bill was unsuccessful, a Bill introduced in 1898 did become law. During parliamentary debates concerning the 1898 Bill, Stewart pointed out that the requirement for special damages had been removed in England, South Australia, and in parts of the United States.[xii]
Lawmakers in the Australian colonies were equally aware of overseas developments, as the recent scholarship of Jessica Lake shows. Her research into Victoria’s Slander Act 1887 reveals that legislators, lawyers, judges and even the media were aware of the New York legislation and considered it a proper model for the Australian colony to follow. [xiii] Likewise, legislators in New South Wales were aware of conversations in England about sexual slander and the desirability of legal reform.[xiv] Thus law change in Australia and New Zealand did not occur in a vacuum but was inspired by change in other places. This shows how the removal of the requirement for special damages in women’s sexual slander cases was a trend that transcended domestic boundaries and can be seen as transnational in nature.
Lake’s research into sexual slander in colonial Australia is particularly insightful for women’s legal history. It highlights that legal reforms that removed the requirement for special damages in sexual slander were “progressive, in affording women greater protection by the law”, but also regressive in reinforcing sexist and racist stereotypes concerning the value of a white woman’s chastity and virtue.[xv] There was consequently duality in what this legislation achieved.
Moreover, Lake explicitly argues that these reforms were part of a global reform movement that connected the English common law world.[xvi] She states that:[xvii]
“Debates surrounding the advocacy, opposition to and enactment of these reforms—in court rooms, legislatures and newspapers—travelled—precedent to precedent, parliament to parliament, page to page—across British colonies and former British colonies, generating common patterns but also particular permutations.”
She therefore engages in a transnational analysis of this aspect of women’s legal history that “enhances our understanding of how ideas about women … circulated and allows a comparison of the expression of these ideas within different common law societies.”[xviii]
In this way, the history of the sexual slander Acts shows how the transnationality of law can seep through domestic boundaries. It illustrates how researchers can identify an issue concerning women in multiple jurisdictions and assess how domestic law responded to those international forces. Legal change in one place can stimulate legal change in another, leading to a domino effect as similar reforms are adopted worldwide. Adopting a global perspective consequently enriches our understanding of how women and the law have interacted historically, while also enriching our understanding of the numerous ways in which law can be transnational.
[i] Felice Batlan, ‘Introduction: Making History’ (2012) 87 Chicago-Kent Law Review 335, 337.
[ii] See Maria Drakopoulou, 'Feminist Historiography of Law: An Exposition and Proposition' in Markus D Dubber and Christopher Tomlins (eds), The Oxford Handbook of Legal History (OUP 2018) 607, referring to Mary Lyndon Shanley, 'Suffrage, Protective Labor Legislation, and Married Women's Property Laws in England' (1986) 12 Signs 62.
[iii] See Erica Rackley and Rosemary Auchmuty, 'The Case for Feminist Legal History' (2020) 40 Oxford Journal of Legal Studies 878, 889; Russell Sandberg, Subversive Legal History: A Manifesto for the Future of Legal Education (Routledge 2021) 85–86.
[iv] Tracey Jean Boisseau, ‘Foreword’ (2012) 87 Chicago-Kent Law Review 331, 332.
[v] Batlan (n 1) 338, 346.
[vi] For example: Anne Cova, ‘Legal Position of Women in Portugal: The Case of the Standing Committee on Legislation of the National Council of Portuguese Women (CNMP), 1914–1947’ in Sara L Kimble and Marion RÓ§wekamp (eds), New Perspectives on European Women’s Legal History (Routledge 2017).
[vii] Ignacio de la Rasilla, ‘Feminist Approaches to the History of International Law’ in International Law and History (CUP 2021).
[viii] ibid 183.
[ix] Janne E Nijman, ‘Marked Absences: Locating Gender and Race in International Legal History’ (2020) 31 European Journal of International Law 1025.
[x] Alice Krzanich, ‘Virtue and Vindication: An Historical Analysis of Sexual Slander and a Woman’s Good Name’ (2011) 17 Auckland U L Rev 33.
[xi] NZPD HR 10 June 1880, vol 35, page 211.
[xii] NZPD LC 13 July 1898, vol 101, page 458.
[xiii] Jessica Lake (2022) ‘Protecting ‘injured female innocence’ or furthering ‘the rights of women?’ The sexual Slander of Women in New York and Victoria (1808–1887)’ (2022) 31 Women’s History Review 451, 463–465, 468.
[xiv] See Jessica Lake, ‘Whores Aboard and Laws Abroad: English Women and Sexual Slander in Early Colonial New South Wales’ (2023) 35 Gender & History 916, 929–930.
[xv] Lake, ‘Protecting ‘injured female innocence’’’ (n 13) 470.
[xvi] See Lake, ‘Whores Aboard’ (n 14).
[xvii] Lake, ‘Protecting ‘injured female innocence’’’ (n 13) 454.
[xviii] ibid.
