Janet Albrechtsen and Submission


‘A Muslim girl does not make her own decisions or seek control. She is trained to be docile. If you are a Muslim girl, you disappear, until there is almost no you inside you. In Islam, becoming an individual is not a necessary development … You submit; that is the literal meaning of Islam: submission.’

These sentences from Ayaan Hirsi Ali’s memoir Infidel seem to have struck Janet Albrechtsen with the force of truth or rather, the truth of Islam. Albrechtsen quotes the sentences at the head of her recent column on Hirsi Ali (‘Desperate for Enlightenment,’ The Australian, 6 June 2007), where she repeats the claim that submission is ‘the heart of Islam.’

Albrechtsen fails to note that submitting to God is an obligation that falls upon men as well as women, just as she fails to note that Hirsi Ali’s brother was genitally mutilated at the same time as Ayaan and her sister Haweya all without any possibility of consent. However, Albrechtsen’s opposition to female submission is not of long standing. In particular, her part in a defamation case suggests that she is a relatively recent convert to the cause of women who are punished for not submitting to the will of men.

The case in question was brought by the New South Wales magistrate Pat O’Shane, who sued John Fairfax Publications for defamation arising out of an article published in the Sydney Morning Herald on 16 December 1999, entitled ‘Extreme Views from the Bench’ (the article is reproduced in Justice Kirby’s discussion in O’Shane v John Fairfax Publications P/L [2001] NSWSC 264).

A jury found that the article gave rise to the defamatory imputations that O’Shane was biased and incompetent and that anger and bitterness so affected her judgment that she undermined the judicial system.

Fairfax appealed on various grounds (O’Shane v John Fairfax Publications Ltd [2004] NSWSC 140; John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164). The case neared its conclusion in November 2005, when special leave to appeal to the High Court was refused John Fairfax Publications Pty Ltd v O’Shane [2005] HCATrans 965 (18 November 2005).  

‘Extreme Views from the Bench’ was written by Janet Albrechtsen. Mark Latham once mistakenly claimed that Albrechtsen had been found ‘guilty’ in various defamation actions. She has not been found guilty, nor has she been found liable for defamation Fairfax has taken the fall for her. But is it certainly difficult for Albrechtsen to shake off the odour of the O’Shane case.

Image thanks to emo.

Albrechtsen’s column was sparked by O’Shane’s conduct of the case of Michael Kanaan. In the course of the article, Albrechtsen also made various claims about O’Shane’s conduct in other cases. One of these was the 1993 Berlei bra billboard case, in which a group of four women had been discharged by O’Shane after admitting to defacing a billboard which showed a woman wearing Berlei underwear being sawn in half by a magician, over the caption, ‘You’ll always feel good in Berlei.’ The women had added the words: ‘Even if you’re mutilated.’ In an interview with Adrian McGregor published in the SMH (‘Sweet Justice,’ 20 March 1993), O’Shane placed her conduct of this case against the background of remarks made by Justice Derek Bollen in rape cases in South Australia.

It was chiefly Albrechtsen’s comments on O’Shane that were at issue in the defamation case, but what’s largely escaped notice are her article’s final sentences:

They [‘O’Shane and her supporters’] support the injection of convictions into the courts by activist judges provided they are in line with their own. They were the first to chastise Justice Derek Bollen who made comments in a rape in marriage case which some suggested gave the impression that he condoned ‘rougher than usual handling’ by husbands to persuade wives to have sex. He was similarly castigated for telling a jury that a wife who had killed her husband had not been ‘sufficiently battered’ to claim self-defence. Yet O’Shane and her staunch supporters should remember that a society which accepts a Pat O’Shane should also accept a Derek Bollen.

The Bollen ‘rougher than usual handling’ case to which Albrechtsen refers was heard in August 1992, and concerned charges of rape brought against a man by his wife. In his direction to the jury in the case Bollen implied that the man concerned could not be guilty of rape not because she was his wife, but because she had, in his view, agreed to the act in saying to him, ‘I suppose you won’t stop until you have it, so get it over with.’ According to Justice Bollen, ‘That would be a consent, a reluctant consent.’

Justice Bollen went on to give the jury lessons in how consent might be obtained in such cases, saying:

Submission is not consent. Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree. Sometimes it is a fine line between not agreeing, then changing of the mind, and consenting.

When he was later asked to explain these remarks to the South Australian Court of Criminal Appeal, Justice Bollen noted that he was merely giving a direction of law, not giving a personal opinion condoning violence of a man against his wife:

I did not have ‘violence’ as properly understood in mind I had in mind vigorous hugging or squeezing and pinching. I was directing the jury that if such acts acceptable to, and done in a way acceptable to the wife, did produce a changing of mind then there was consent.

Both in his direction to the jury and in his explanation of his direction, Justice Bollen seemed to think it was acceptable and reasonable to use certain physical acts to persuade a woman to have sexual relations, especially if the woman suffers from a regrettable lack of sexual openness to her husband’s need. Justice Bollen noted of the woman in this case, ‘On any view of the matter, it does seem, speaking colloquially, that Mrs [J] had hang-ups which made engaging in sexual intercourse less easy for her than for many people.’

Justice Bollen stressed that submission is not consent. However, his remarks blur that distinction in their conveying of the idea that a woman’s yielding to the persuasion of certain physical acts is consent, and that a man’s successful practise of such persuasion is virile seduction rather than violence.

And after all, this case was not about tickling and squeezing. The charges at issue concerned three incidents involving penile penetration of the vag
ina, one incident of penetration of the vagina by a bottle, one incident of penile penetration of the anus, and one incident of attempted fellatio. The accused man denied these incidents, and the truth of the allegations was not at issue in the judicial review of Justice Bollen’s direction to the jury. What was at issue was his apparent confusion between consent and submission, and the lesson he attempted to teach the woman in the case, and women more generally, about what men are entitled to expect from them.

Albrechtsen’s arguments in ‘Extreme Views from the Bench’ have been defended for more than five years, and at great expense, by Fairfax. Neither Albrechtsen nor Fairfax has offered an apology for the imputations in the article. And neither she nor Fairfax has backtracked from the concluding defence of Justice Bollen’s remarks in the article.

Apparently, defending those who teach submission and docility to women is not the sole preserve of Islam.

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.