Men and the Law


Men are hot topics in the courts of late. In the past few weeks, two important decisions have been handed down by judges across the country. One that wrongly undermine male autonomy and another that rightly proscribes male violence.

The dateline for the first case is the Civil and Administrative Tribunal in Victoria last week, where a Canberra widow’s wish to transport to NSW the sperm of her late husband  – killed years ago in a car crash on a Victorian road â ‚¬  in order to conceive a child, was granted. Posthumous insemination is illegal in Victoria. And rightly so. Among the foundational principles of medial ethics are the prohibition on violating a corpse for reasons other than that person’s own benefit, and the requirement that informed consent be obtained from a person prior to a procedure being undertaken.

The grieving widow and the prospective grandparents argued that taking the sperm and using it to create children was not contravening the dead man’s autonomy but  – by doing what ‘he would have wanted’  – extending it. The problem was that this assertion (made by claimants who must be pitied but can, in no way, seen to be disinterested) was based on the man’s expressed desire, when he was alive, to start a family with his wife.

While this was clearly enough for the Tribunal President, it overlooks the obvious fact that it is significantly different for a man to consent to use his sperm to create a child while he is alive and intending to remain that way, than to consent to have his sperm extracted from his body, stored and later used to create one or more children after he’s dead and gone. One could easily imagine that a man â ‚¬  perhaps this one, perhaps not â ‚¬  could give informed consent to the former, but withhold it for the latter.

The flow-on effects of this ruling are also easy to picture. Stay tuned for the bereaved husband who claims that extracting his dead wife’s ovum to export overseas for fertilisation and implantation in a surrogate was what the woman would have wanted because â ‚¬  while she was alive â ‚¬  she had wanted to become a mother.

Interestingly, in the Northern Territory, the autonomy of men was also being overridden, but for far better reasons. Autonomy, or self-governance, is one of the pre-eminent values of democratic nations, yet even it has limits. Typically, the autonomy of a person to make key life choices according to what she defines as her needs and values is constrained only when it cuts into the freedom of others to do likewise, or the capacity of free and democratic societies to achieve justified objectives. This is in part why murdering, raping, and inciting violence â ‚¬  among other things â ‚¬  are prohibited, no matter how sincerely the perpetrator sees such activities as constitutive of a good and meaningful life.

Clear? Crystal.

Until the freedoms at peril are those belonging to women and children of cultural or religious minority groups. Then, confusion often reigns about whether the entitlements the law guarantees to all it’s citizens â ‚¬  to life, liberty and the freedom to live in service to one’s own values â ‚¬  or the entitlement of cultural subgroups to live differently from the mainstream should take precedence. When a small group of men cite a cultural mandate to dominate, mutilate, force into arranged marriages, rape and even kill ‘their’ women and children to preserve honour, the law â ‚¬  fearful of appearing colonialist or culturally insensitive â ‚¬  often hesitates.

But not any more. Last week, in a case involving a man found guilty of aggravated assault and carnal knowledge of a 14-year-old girl, Justice Mildren from the NT Court of Appeals increased the offender’s initial custodial sentence from one to 18 months. Said the judge: ‘The courts view very seriously and will not tolerate violence by Aboriginal men upon Aboriginal women or children, whether that violence is tolerated by Aboriginal law or not.’

Mildren, it seems, was clear that while respect for religious and cultural difference is the lifeblood â ‚¬  and the pride â ‚¬  of pluralist societies like Australia, the multicultural project is only debased and undermined by individuals who use it as an excuse for behaviour that should be, and usually is, a crime in every culture and religion: the exploitation and oppression of the weak by the strong. The Justice cottoned on to the key fact that undergirds the international campaign for human rights: that no one chooses to be a mere instrument â ‚¬  to be used and discarded at will â ‚¬  by others pursuing their own life projects, no matter how much fear or learned helplessness may impel them to say they do.

Perhaps the girl in the NT case said it best when she told police: ‘I told that old man I’m too young for sex, but he didn’t listen.’

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.