Are your lulz low quality? Valerie Aurora is here to help

This article originally appeared on Geek Feminism.

Warning for mention of sexual assault, and extensive discussion of harassment.

In May, my GF co-blogger and Ada Initiative co-founder Valerie Aurora posted Handy tips for my Internet harassers on her blog. They included:

Threatening my job: Unfortunately, I am my own boss. Try emailing one of the Ada Initiative sponsors? Although they might take that as a sign that the Ada Initiative is doing important work and make another donation. Hmmmm. Maybe create a Yelp page for my file systems consulting business and leave bad reviews? Endorse me for CSS on LinkedIn?

Rape and death threats: Run spell check! There’s nothing more jarring than reading an otherwise creative and well-written death threat and then seeing “decapetate.” Also, chain-saws are so last year. Remember, Gmail won’t display images by default. P.S. I happen to know one of the members of Nirvana and your bright idea has already been done.

Why did she do such a thing, and what resulted? Geek Feminism obtained an exclusive tell-all interview.

Q. Have you received any harassment as a result of this post? Was its quality indeed improved?

Sadly, no. Part of the problem is that my friends loved it — I’ve never had so much positive feedback on a post — but they didn’t want to share it with other people online. I like to joke that it’s the ultimate in dark social since people only talk about it offline using vibrations in the air called “sound.” I think that my friends are more afraid of me being harassed than I am.

Q. The post is pretty out there! Why did you put this post up? What point are you trying to make?

“Self-doxxing” myself (thanks, Kate Losse for the term) was inspired in part by how incompetent and bad the online harassment that I’ve received has been. Most people doing online harassment are just trying to impress other online harassers, at the same time that what they are doing is, frankly, totally unimpressive. The reality is, anyone can spend $25 and get another person’s home address and a bunch of other personal information, but we act like it is some kind of amazing act of computer hacking. By showing how bad people are at online harassing, I’m hoping to remove some of the motivation for people to do the harassment, or at least make them spend more time on it before they get the reward of “so cool, bro!”

I was also inspired by Krystal Ball , who ran for U.S. congress in 2010. When her political opponents tried to slut-shame her into quitting her political campaign over “sexy photos” of herself that they published, she turned around and shamed THEM — both her opponent and the media outlets that published the photos. It was glorious, and it hit home for me: if we let the existence of sexy photo of a woman prevent her from serving in political office, then I and every woman born after 1990 were out of luck. Women’s representation in political office would go down.

Q. Should other people do this?

For most people, no, I wouldn’t recommend it. It was okay for me for a lot of reasons: I already went public about sexual abuse in my family, I’m white, I’m my own boss, I don’t have children or a partner, I have skills that are in high demand, I have lots of friends and a huge support network — my emotional, physical, and economic safety is pretty good. Most women have a lot more to lose.

However, I think it is a very good exercise to think about worst cases like this: what if the thing I am most afraid of other people finding out got published all over the Internet? Because a lot of times, that thing actually doesn’t reflect on you – the shame is on the person who did the original act or publicized a private matter. It can be healing to plan what you might do, even if you don’t actually go public with it yourself.

Q. Why won’t you accept my endorsement for CSS on LinkedIn? I taught you everything you know, dammit.

I’d hate to embarrass you by letting anyone else know that you are the source of my mangled <div>’s! [Ed: good point, well made.]

Q. When are you monetising this? How can investors contact you? How big is your Series A and at what valuation?

Actually, that is a great idea. Instead of vetting a political candidate and saying yes or no, you investigate them and then publish everything that might be a problem in a funny blog post.

Or better yet, here is my favorite idea: If I ever run for political office, I’m going to scan in all my embarrassing naked photos, then watermark them with the email addresses of various journalists. Then email them anonymously to said journalists. Then when the photos get published (it’s “news,” someone else would have, etc.), I can expose the specific person who decided that slut-shaming a candidate was “news” and put the shame where it belongs. Sexism-shaming as a service, SSaaS. I’m accepting funding now.

Code of Conduct timeline and postmortem

This article originally appeared on Geek Feminism.

Last week, Geek Feminism announced we’ve adopted a Code of Conduct.

As Annalee said in that announcement, this comes long after adoption of codes in other communities, especially events:

You’ve been promoting Codes of Conduct for years. Why didn’t you adopt one of your own sooner?

We dropped the ball in a big way here. We’ve known for at least two years that we needed a Code of Conduct internally. We’re sorry for the inexcusable delay.

We thought it would be useful to other communities to discuss how this happened.

Timeline

May 2008: Skud founded the Geek Feminism wiki, two and a half years before anti-harassment policies and codes of conduct began to be promoted by geek feminists.

August 2009: Skud founded the Geek Feminism blog, more than one year before anti-harassment policies and codes of conduct began to be promoted by geek feminists. At the time of launch. the blog had a strong comment policy which remains in essentially the same form (albeit expanded since). We weren’t the first by a long way to have such a policy (in fact it was based fairly closely on that of Hoyden About Town) but this was at the time unusual among the technical blogs and forums that many of the original bloggers frequented.

November 2010: Warning for assault Nóirín Plunkett was assaulted at ApacheCon. Within the month, Valerie Aurora had released a draft anti-harassment policy for events and finalised it for events to adopt. This is the policy that is now maintained on the wiki.

I have not found any discussion of Geek Feminism adopting such a policy internally at this time, which isn’t surprising considering it was envisaged as being for in-person events.

Early 2011: there were person-to-person complaints within the Geek Feminism community that an individual within it is harassing people when Geek Feminism contributors meet up in person (as sometimes happens at conferences we attend and similar).

January 2012: AdaCamp Melbourne (the first event I know of run by Geek Feminism community members that occurred after the development of the event anti-harassment policy) has an anti-harassment policy.

July 2012: Blogger Nice Girl reported harassment at OSCON by attendees identifying as geek feminists and using terminology from our wiki. (We do not know the identities of these people.) In August, Skud wrote on the blog:

We are taking a few different steps to address the specific concerns raised. One is that we are reviewing our wiki pages to make sure that we have information on slut-shaming and that it is appropriately cross-linked with articles about sexualised environments at geek events to help reinforce/educate people that criticising an individual woman’s choice of clothing is very different from criticising (for instance) a business that uses booth babes as a marketing device.

The second thing is that we are setting up a process so that people can contact us if they experience harassment by someone associated with GF. This is a work in progress, especially since GF is (as mentioned) a loose affiliation with no official membership, and because we may be asked to deal with harassment that occurs outside our own spaces. However, if someone is harassing another person under GF’s name or in a way associated with GF, then we want to provide a private way for people to contact us, and respond appropriately.

On the same day, Skud wrote the first version of the wiki’s Slut shaming page.

At around this time, Skud founded Growstuff, reducing her available volunteer time; her participation in the blog and other Geek Feminism activities dropped drastically over the next few months.

July/August 2012: Emails about the harassment by a Geek Feminism member discussed earlier began to circulate among Geek Feminism bloggers, presumably with our awareness of internal harassment risks heightened by the public and private discussions of Nice Girl’s reports. More than one person reported feeling unsafe and no longer recommending our backchannels as safe spaces. Skud first became aware of these reports at this time.

Given the seriousness of a known harasser operating in a community central to anti-harassment policy promotion, it didn’t seem appropriate to wait for a policy and response group as mooted by Skud to be in place and instead Valerie Aurora spearheaded a letter asking this person to leave the community, which was signed by several others including myself. The person left our community.

After this, I cannot find any further internal discussion of an anti-harassment policy for approximately another year.

April 2013: Recognising her lack of availability for volunteering due to work commitments, Skud formally announced she was stepping down as a Geek Feminism administrator. There was a discussion about handing over various technical responsibilities but not (that I can find) about the anti-harassment status.

July 2013: I sent an email to the blogger backchannel reminding them that an anti-harassment policy is still to be developed. There was a short and inconclusive discussion.

October 2013: Annalee produced an early draft policy document with many unresolved questions, particularly who the policy was intended to apply to, and how reports would be resolved. Comments on the document were made by several community members.

November 2013: Rick Scott began to formalise existing editorial practice on the wiki in the Editorial guidelines page, which was revised over a few months by a small group of wiki editors. It is intended more to communicate norms to newcomers and onlookers than to protect wiki editors from each other.

January 2014: Discussion had died down on Annalee’s draft. I sent an email with some open questions but no one including myself follows up before May.

May 2014: Annalee produced a new draft anti-harassment policy and circulated it for discussion. Skud, Tim, Valerie and myself all commented and edited substantially. Annalee asked for consensus on adopting it, Valerie suggests she JFDI, and I ended up proposing a timeline through to late June for circulating it more widely, giving people time to familiarise themselves, appointing the Anti-Abuse team, and then making the document public.

June 2014: The Anti-Abuse Team was appointed after an internal feedback process. Annalee announced our Code of Conduct publicly. I made our policy made available for reuse and promoted adoption by other communities.

Post mortem

Things we did right

Skud established best practices (particularly the comment policy) at the time our community was founded.

When it became clear that harassment in our community was a periodic problem, we acknowledged publicly that we had not put best practices into place (a anti-harassment policy) and began discussing one suitable to our community.

We returned to the issue periodically without further external prompting or known (to me) incidents of harassment and eventually got a policy in place. In the process, we hope we have developed a new best-practice policy for communities to use so that others do not have to go through this process.

Our new policy has a pretty sophisticated description of various types of harassment, based on a wide variety of personal experiences and reports of harassment received by those of us who do anti-harassment action or advising in other communities. It is better adapted for a long-lived community than the event policy is, by, eg, considering incidents of harassment in the past and in other communities. It has a more explicitly feminist stance in, eg, stating that it centres the concerns of marginalised people, and that tone-policing will not be regarded as harassment.

Things we did wrong

Various individual members of the community were slow to recognise harassment in our community based on first-hand reports from victims.

We were very slow at responding to the known need for a policy, especially for a group which was among the leaders in advocating that in-person events adopt policies. Even on the most generous reading of this timeline, there was explicit discussion of an internal anti-harassment policy in August 2012, at the time Skud discussed Nice Girl’s harassment, meaning that nearly two years passed between us explicitly committing to it existing and it being put in place. We seem to have been caught in a common problem here: we had no active need for the policy (that I know of personally), and so we did not push ahead with it.

Less central members of our community report that they wondered why we didn’t have a code of conduct, but did not feel empowered to ask about it.

Where to from here?

It is far better to have clear documentation concerning safety in particular, and common problems in general, before they are needed. We hope our reusable policy gets adopted by other communities or assists them in drafting their own, to avoid some of the slowness involved in starting from scratch.

Skud reviewed our community structure and documentation in the lead-up to her Open Source Bridge talk and found various inadequacies. She and Annalee have each raised the issue of reviewing our community’s processes,. We would need to look at questions such as:

  • are we following best practices in anti-harassment, anti-abuse and establishing safer spaces?
  • is our group unusually reliant on certain individuals and if so (it usually is so in any community), how can we share knowledge and resources so that there are less single points of failure?
  • is our documentation sufficient for a newcomer to the community?

Does anyone have pointers to similar review processes in other groups? That would be really handy.

Skud suggests that in addition, with important projects like a code of conduct, a relatively structureless group like ours explicitly appoint people to the project, so that they feel empowered to act on it. We particularly need to be alert to Warnock’s dilemma (does silence signify consent, ignorance, lack of understanding, lack of interest or contempt?) in discussing changes to our community. We also need to be alert to hidden hierarchies, to, eg, the sense that nothing can go ahead without approval from, say, Skud as founder or myself as the most frequent poster.

Annalee suggests that we need to improve our institutional memory with documentation like that above, together with internal private documentation where it is impossible to make things public. This helps identify when things were done for a very good reason, versus having emerged essentially by accident, versus never having been done at all by anyone. We also need to clarify (probably continuously) about whether we are a JFDI community, or whether projects must have people appointed to them, or other.

Acknowledgements

Thanks to Annalee, Maco, Skud, Valerie and one of the linkspammers for their review of this post. Except where explicitly attributed, all opinions herein should be taken to be mine, informed by discussion with others in Geek Feminism but not necessarily co-signed by them.

Is harassment in your community unwelcome? Adopt a Community Anti-Harassment Policy!

This article originally appeared on Geek Feminism.

Last week, the Geek Feminism community announced that we’ve adopted a code of conduct in our community. Our code begins:

The Geek Feminism (GF) community is dedicated to providing a harassment-free experience for everyone, regardless of gender, gender identity and expression, sexual orientation, disability, physical appearance, body size, race, or religion. We do not tolerate harassment of participants in any form.

This code of conduct applies to all Geek Feminism sponsored spaces, including our blog, mailing lists, and wiki, as well as any other spaces that Geek Feminism hosts, both online and off. Anyone who violates this code of conduct may be sanctioned or expelled from these spaces at the discretion of the Geek Feminism Anti-Abuse Team.

We took quite a long time to do this, after two harassment incidents associated with the Geek Feminism community (albeit, one probably not by people who are actually active in our spaces and who therefore can’t be excluded from them). We’d love it if others learned from our example and adopted a policy within their own communities. To that end, as of today, our Community Anti-Harassment Policy is available for re-use under Creative Commons Zero/public domain and we are beginning to develop associated resources, just as we have done over the past few years for the Conference anti-harassment policy

Here’s what you need:

  1. a policy (remember, ours is available for re-use, either as is, or in a modified form)
  2. a contact point where harassment reports can be received
  3. a group of responders who receive reports and have the power to act on them up to and including excluding harassers from your community

If your community does not have an obvious way to create a group of responders, start discussing how you can create one. In many communities, there is likely to be an existing volunteerocracy at the very least. Can these people reach consensus that your community should be safer from harassment, and that they are unwilling to work with harassers? Simply announcing to people that they must cease a behaviour, or they must leave the community, is in fact very effective as long as there is basic consensus around community norms. For online groups technical structures can help, but social structures are in fact the root of anti-harassment. You don’t need ops or admin power or the crown of the ancient rulers to enforce anti-harassment policies in your community, you need consistent anti-harassment responses by people with social power.

If you don’t know that your community has concensus on being anti-harassment. as a start you can declare your own personal anti-harassment stance, and publicly call for your community to adopt a anti-harassment policy, and a structure that enables the response team to exclude people from the community.

As Geek Feminism shows, activist groups or groups that have advocated for anti-harassment are not safe from internal harassment and still need a policy. And groups with no known harassment incidents are also not safe; it’s quite likely that people in your community have experienced harassment they felt unable to identify or report. Take steps to ensure harassing behaviour becomes known, and that it is known to be unacceptable.

One specific model we encourage you to avoid is the Our community is amazing! So wonderful! We rock! PS no harassment model in which you spend a lot of time affirming your community’s goodness and make a general statement about anti-harassment in passing. We discourage putting this in your anti-harassment policy for these reasons:

  1. you probably do not know the extent of harassment in your community without a policy and a reporting mechanism, and may not rock as much as you think
  2. stating that you are “anti-harassment” without saying what harassment means to you doesn’t give your existing community and potential new members the information they need to find out if their safety needs are a close enough match for your community’s norms

Stating your community’s great work or exemplary behaviour can be really useful for establishing social norms and letting people understand what joining your community means. They form a good basis for specific policies. But don’t make such statements in your anti-harassment policy, make them in a separate document listing your community’s values and goals. And it may be best to say that you aspire or intend to create an amazing space, rather than that you have definitely attained that goal. Statements that you are definitely no questions amazing may be used to silence people with critical feedback and in the end reduce your amazingness.

We also discourage private anti-harassment policies (shared only within a community or within its leadership), for reasons outlined by the Ada Initiative [disclaimer: I co-founded the Ada Initiative].

Do you already have a community anti-harassment policy, or have we convinced you to adopt one? List your community on the Community anti-harassment adoption page! And thank you.

Quick hit: Google publishes their EEO-1 diversity data

This article originally appeared on Geek Feminism.

As promised earlier this month, Google’s diversity data is now up on their blog.

They write:

We’ve always been reluctant to publish numbers about the diversity of our workforce at Google. We now realize we were wrong, and that it’s time to be candid about the issues. Put simply, Google is not where we want to be when it comes to diversity, and it’s hard to address these kinds of challenges if you’re not prepared to discuss them openly, and with the facts.

Their numbers — globally — are 70% male, 30% female (this seems to add up to 100%, which suggests that either Google or the EEO-1 process need to review their gender categories), dropping to 17% female among their technical employees. We’ve tabulated some data at the Geek Feminism wiki. You can compare with female-male breakdowns from some other companies (many quite small) at We Can Do Better.

Google’s US workforce is also 2% Black, way below US national figures of 13% nationwide and 3% Hispanic against 17% nationwide. (Nationwide figures from US Census numbers dated from 2012 and rounded to the nearest whole number to have the same precision as the Google figures.)

What do you think? Is disclosure a meaningful action here? Are you surprised by Google’s figures? Do you think the rest of the tech industry will or should follow?

Happy 100th, Galactic Suburbia!

This article originally appeared on Hoyden About Town.

I first heard of the Australian speculative fiction podcast Galactic Suburbia here at Hoyden About Town in 2011 and then promptly didn’t listen to it for a further three years, until I found myself doing just enough driving and sitting around watching children’s swimming lessons to make podcasts worthwhile, at which point I promptly subscribed and it became a fave.

And a great time it was to subscribe too, because they were in the countdown to their 100th episode, which has been up on their site for nearly a week. I probably will never count as a real Galactic Suburbia fan, because I don’t intend to go back and listen from episode 1 as many new fans apparently still do, and I am not making an actual Galactic Suburbia-themed cake for their contest (but perhaps you should! entries close 27th May), but here’s the next best thing.

First, a picture of a cake! Not my cake! But a cake!

Cake decorated with a rocket ship and aliens
Rocket Ship Cake, CC BY-SA, mags @ Flickr

And second, a note that you can pick up the Galactic Suburbia Scrapbook at Twelfth Planet Press, including several interview transcripts. (Accessibility note: as Lauredhel noted in 2011, Galactic Suburbia is not regularly transcribed.)

Happy 100th!

Geek Feminism: a family cloud

This article originally appeared on Geek Feminism.

Skud and I were both separately musing recently on the complex ancestry of some of the Geek Feminism, geek feminist, geek social justice and similar initiatives. Things like this: Double Union arose partly from discussions among AdaCamp San Francisco alumni, AdaCamp is a project of the Ada Initiative and draws on my experiences with my earlier LinuxChix miniconf (later Haecksen) event, the Ada Initiative exists in turn partly because Valerie Aurora and I met through LinuxChix, and so on.

Skud then founded the Geek Feminism family tree project which maps influences from one project to another in geek feminism and geek social justice projects. It’s enormous!

As an example, here’s the portion of the graph that relates most closely to the origins of the Geek Feminism blog and wiki, and the projects that have arisen from them:

Flowchart of relationships between geek feminist and social justice projects
Part of the Geek Feminism family tree

Important note: this is an edited version of the graph that excludes many projects not so directly related to the Geek Feminism blog and wiki. You can see the most recent version of the full image for a better idea of how complex this is. Please check it before reporting that your project hasn’t been added yet!

Contribution guidelines:

  • This project is ongoing and does not claim to be complete. We’d love your help. Corrections and additions welcome! If you’re a github user you could submit a pull request directly to Skud. Otherwise feel free to leave comments here with suggestions of what nodes and lines to add, change, delete or annotate!
  • A line is intended to denote some form of influence or inspiration, not ownership or perfect agreement. So, for example, a project might have been inspired by another, or filling gaps in another, or founded by members who met through another, and so on. The two projects may or may not be aligned with each other.
  • You can view a fuller description of some of the relationships between projects in the source file for the graph.

Quick hit: when non-macho guys are on top of the heap

This article originally appeared on Geek Feminism.

There’s a discussion around the journalism startups that well-known journalists are involved in, and the extent to which they are yet another set of startups full of white men. (Basically, yes.) Emily Bell wrote Journalism startups aren’t a revolution if they’re filled with all these white men.

I thought readers here would especially enjoy Zeynep Tufekci’s contribution, No, Nate, brogrammers may not be macho, but that’s not all there is to it. An excerpt:

Many tech guys, many young and recently ascendant, think something along these lines: “Wait, we’re not the jocks. We aren’t the people who were jerks. We never pushed anyone into a locker and smashed their face. We’re the people who got teased for being brainy, for not being macho, the ones who never got a look from the popular girls (or boys), the ones who were bullied for our interests in science and math, and… what’s wrong with Dungeons & Dragons, anyway?”

In other words, as Silver puts it, “We’re outsiders, basically.”[…]

[L]ife’s not just high school, and there is not one kind of hierarchy. What happens when formerly excluded groups gain more power, like techies? They don’t just let go of their old forms of cultural capital. Yet they may be blind to how their old ways of identifying and accepting each other are exclusionary to others. They still interpret the world through their sense of status when they were “basically, outsiders.”

Most tech people don’t think of it this way, but the fact that most of them wear jeans all the time is just another example of cultural capital, an arbitrary marker that’s valued in their habitus, both to delineate it and to preserve it. Jeans are arbitrary, as arbitrary as ties[…]

How does that relate to the Silver’s charged defense that his team could not be “bro-y” people? Simple: among the mostly male, smart, geeky groups that most programmers and technical people come from, there is a way of existing that is, yes, often fairly exclusionary to women but not in ways that Silver and his friends recognize as male privilege.

Tufekci’s whole piece is at Medium, come for the Bourdieu, stay for the Dr Seuss!

Fetal personhood in NSW: “an issue that should be of serious concern to all of us”

This article originally appeared on Hoyden About Town.

NSW Parliament is sitting in March, and after Crimes Amendment (Zoe’s Law) Bill (No. 2) 2013 passed the lower house after a conscience vote late last year, it is before the upper house. The campaign opposing it is Our Bodies Our Choices (see also @OurBodiesChoices on Twitter).

I attended a forum on 26th September 2013 hosted by Greens MLC Dr Mehreen Faruqi with speakers opposing the law and hope to transcribe and share them with you this week. The first speaker, shown in the video below, was health lawyer Julie Hamblin, opposing the bill on the grounds that even limited recognition of fetal personhood, combined with the legal grey area of abortion access in NSW, would allow someone to challenge access to abortion in NSW.

(
{“video_url”: “http://www.youtube.com/watch?v=cN3jRfxgE-U”}
)

Note: as with Philippa Ramsey, the following speaker, I think most members of the Hoyden community will be concerned by Hamblin’s positioning of abortion on the grounds of fetal anomaly as a special case concerning. In 2009 Lauredhel wrote the following:

As a feminist, I believe that we can have the abortion-rights conversation without marginalising, othering, and disparaging people with disabilities. I believe we can talk about abortion within that broader framework of reproductive justice, and that we can confront the ableism that creeps into some abortion-rights conversations head-on. This takes effort; we must think clearly, write carefully, read closely.

As I recall, Ramsey in particular was challenged on this in question time, Leslie Cannold, who spoke third, agreed with the question and wanted the pro-choice movement to stop relying on this argument.

Transcript

Mehreen Faruqi: Good evening and welcome everyone. I’m Mehreen Faruqi and I’m a Greens MP in State Parliament. I have the carriage of the Portfolio for the Status of Women for the Greens and I also have the privilege tonight of being your MC. I’ll start by acknowledging the traditional owners of the land we’re meeting on the Gadigal people and pay my respect to the elders past and present. This land always has been and always will be Aboriginal land.

I’d also like to acknowledge a couple of my colleagues from NSW Parliament: Greg Piper, who’s an Independent in the lower house and Dr John Kay, who’s a Greens in the upper house. Thank you both for coming. And thank you all of you for making time tonight to come and participate in this community forum which really is about helping us unpack some of the implications of this fetal personhood law which is also known as “Zoe’s Law” that we have in front of Parliament at the moment.

This law is being debated in NSW Parliament at the moment so I think it’s really timely that we talk about it discuss it and get enough information about it to see why it is actually inappropriate and dangerous for women’s rights. The media has given quite a bit of coverage the last couple of months also NSW Bar Association and the Australian Medical Association Family Planning NSW and the Greens have come out and clearly stated their position in opposition to this Bill. There’s also a coalition, a group formed by a coalition, of women’s groups called Our Bodies Our Choice who are running the campaign also to provide information to the community to lobby the MPs, to provide information to them about the implications of the bill.

And tonight we’re really fortunate to have three excellent speakers with us who will take us through the legal, health and medical implications as well as the consequences for women’s rights of this particular bill. Each of our guests is going to speak for about 10 to 15 minutes and then we’ll open up for about 30 minutes to 40 minutes to have a discussion and also to ask questions of our speakers.

We will be recording tonight’s session and we’ll make a Youtube and put it up on our website so if you have any issues being recorded it will mainly be the speakers but we might record you when you’re asking your question if you have any issues with that just let us know and we’ll edit you out.

OK, so our first speaker for tonight is Julie Hamblin. Julie is a lawyer with more than 20 years experience advising the public and private health sectors on health law, medical negligence, clinical risk, bioethics and public health. She has held a number of government appointments in the health sector including the Australian Research Integrity Committee, the Australian National Council on HIV/AIDS and Related Diseases, and the board of the former Central Sydney Area Health Service. In December 2012, Julie was appointed to the NSW Clinical Ethics Advisory Panel. Julie has a long standing interest in sexual and reproductive health, and has undertaken consultancy work with HIV and related sexual health issues in more than 20 countries, in Asia, the Pacific, Africa and Eastern Europe. So please warmly welcome Julie Hamblin.

[applause]

Julie Hamblin: Thank you Mehreen, thank you everyone for coming along tonight to talk about this really important issue it’s something that’s very close to my heart and I, um, think it’s so important that we all understand exactly what is at stake with the bill that is before NSW Parliament at the moment.

What I wanted to do in my comments is to talk first of all very briefly about how the law currently regards fetuses and why a legal person — a fetal personhood law would be such a significant change to the existing law. And then I want to spend a little bit more time talking particularly about the legal status of abortion in NSW because this is one of the things that I am particularly concerned about in relation to Zoe’s Law because we have a really uniquely precarious position with abortion law in NSW. And i think we all need to understand the fragility of lawful abortion in this state in order to realise just how risky it would be if this bill goes through.

So just to give a little bit of a background about how the law has traditionally regarded fetuses. In short, the law in NSW has always adopted what is known as the ‘born alive’ rule. And what that says is that until a child is born and takes a breath the child is not to be regarded as a legal person. And so there are some situations around the edges where the law has had to look at should there be changes made to the born alive rule?

Let’s say for example, there have been cases where a pregnant woman has been involved in a car accident and has had, has sustained injuries which has included an injury to her fetus. And the courts have held that if that fetus goes on to be born alive, hence the born alive rule, goes on to be born alive, the fetus as a person, as a legal person after birth, will have the right to claim damages, to be compensated for the injuries sustained while in his or her mother’s womb. But that legal right only crystallises, and this is a really important point, that legal right only crystallises once the child is born alive.

And so although there is a recognition of injuries sustained while a fetus, the principle of the born alive rule is maintained. And there are numerous examples of that. There was one I was reading about just a couple of weeks ago in relation to the coroner’s jurisdiction. Because under the coronial legislation certainly in NSW and I think in most states in Australia the coroner has jurisdiction only to investigate deaths. So if it’s a stillbirth, under the Coroner’s Act, the coroner doesn’t have jurisdiction, because you haven’t had a person who has been born alive. And there has been some debate about whether it would be appropriate for the coroner’s jurisdiction to be expanded so that the coroner could investigate circumstances surrounding stillbirths as well as circumstances surrounding the deaths of children who have been born alive.

But that hasn’t happened, and even in the literature about a possible extension of the coronial jurisdiction to stillbirths which would be much less concerning than a full recognition of fetuses as a person there has been opposition to that on the basis that that would encroach upon the born alive rule which is considered to be a very important dividing line as to why—, when and in what circumstances the law should recognise someone as an individual person.

So that’s a starting point. We have in NSW the born alive rule, it is a very strong and very well established legal principle. And I am certainly not aware of any other case, and an example of a court decision or of legislation, which has departed from the born alive rule.

So that’s the background that we have when we look at Zoe’s Law. Because Zoe’s Law would be a radical departure from the born alive rule. And all those who support it say but it’s only limited to the particular circumstances of grievous bodily harm offenses that it would relate to but none the less, in legal terms, it would be a very significant development because it would be the first time that NSW law
has recognised a fetus as a legal person. And that is a very significant change to the law.

Why does it matter? As I’ve said all those people who are supporting Zoe’s Law say but it’s limited to the circumstances of these particular grievous bodily harm offences, it won’t affect other areas of the law such as abortion. I believe that is simply an incorrect legal analysis.

I just wanted to spend the second part of my time um, going over a little bit of the background what is the legal position of abortion in NSW. And why given that background having a provision that recognises a fetus as a person even if it’s only in the context of these particular sections of the criminal code why that would a threat to lawful abortion in this state.

So, what is the current abortion law in NSW? Um, I can guarantee you, because I’ve done this a million times, if you take a straw poll against your friends and colleagues, and you say “Is abortion legal in NSW?” The overwhelming majority of people will say “of course it’s lawful in NSW.” People simply don’t realise that abortion is still a crime in NSW.

One of the major problems that we have doing abortion advocacy is to convey to people that there is a problem. Because the majority of people think that it’s all been sorted that we have abortion on demand in NSW.

Sadly, the truth is a long way from that. Abortion is still a criminal offence in NSW. It always has been for as long as the Crimes Act has been in place, which is now well over 100 years and the offence has not changed over that time. Ah, it’s imported from the original British criminal code provisions. And it’s an offence, I put up the wording of the offence on the slide there, it’s an offence both for a woman who does something to herself to procure her own miscarriage which is the wording that they use and it’s also a criminal offence for another person to administer something, to perform a procedure that brings about a woman’s miscarriage.

But the critical word, which you can see there in both those offences is “unlawfully”. Because it says “whosoever unlawfully administers to herself” or if you’re a doctor or someone else “whosoever unlawfully administers to a woman”. And so the interpretation of a lawful abortion in NSW hinges on this one small word, “unlawfully”. And it’s quite an unusual provision in the context of the Crimes Act
because the Crimes Act doesn’t define what “unlawfully” is. In most of the other offences in the Crimes Act it says “well, these are the elements of the offences, and these are the things that might be a defence to a particular criminal offence.” It doesn’t say that in relation to the abortion offences. So that’s a really significant problem to start with in terms of getting clarity as to what the legal position is.
So what the law says is “if you do something unlawfully it’s a criminal offence.” Particularly unhelpful.

And so in terms of deciding and determining what really is lawful and what is not lawful we have to look to how the courts have interpreted that one word “unlawfully”. Um, there have not been many court decisions but the ones that there have been—

[Hamblin was interrupted here by troubles with the projector]

So the definition of unlawfully and the way unlawfully has been interpreted by our courts goes back to two very old decisions one in 1969 in Victoria and one in 1971 in NSW. And what they’ve said in short, I’ve put up the precise wording there, what they have said in short is that it will be lawful if the abortion is considered to be — is reasonably considered to be — necessary to preserve the woman from a serious danger to her life or her physical or mental health and in the circumstances is not out of proportion to the danger.

So in short what you need to show in order to establish that an abortion is lawful is that it’s necessary to prevent a serious risk to the life or health of the woman. It’s known as the Menhennitt rules, the test. And in NSW we had a case in 1971, R v Wald, where that test was adopted.

Actually a very interesting background to that case. It was, it was, quite a shocking set of circumstances that gave rise to it. Dr Wald was a doctor who ran a termination clinic in Clovelly I think, somewhere in the eastern suburbs, and there was a police raid on that clinic, without notice one day, with women on the operating table in the middle of having terminations. And Dr Wald was charged with unlawfully performing an abortion. And the main statement that we have of the law in NSW comes from that case, and it’s not even from an actual decision by the judge. It’s from directions that the judge, in the criminal trial of Dr Wald, gave to the jury. But what the judge did was to adopt the test of serious risk to the life or health of the woman.

Since then we’ve only had a very very small number of cases. And that I guess is a good thing, it shows there isn’t a lot of appetite to bring criminal prosecutions to court. And the cases that we have had by and large have upheld the test in Wald, which says that an abortion is lawful if it is necessary to prevent a serious health to — er, serious risk to the life or health of the woman. And it’s been expanded to acknowledge that there might be economic and social grounds on which the continuation of the pregnancy might pose a serious risk to the woman’s health or life.

And so everything seemed to have a sort of uneasy equilibrium until 2010 where in Queensland as you may have read there was a prosecution brought against a young woman who had a medical abortion at home
using RU486, that she administered to herself. And she was criminally charged under the Queensland criminal code which was very similiar at that time to our code. It’s since been amended to make it a little bit better, not much but a little bit. And so she was charged with unlawfully procuring her own termination.

She was acquitted by the jury we don’t have reasons so we don’t know exactly what the thinking was of the jury. We have some hints from the directions that the judge gave to the jury. And I can talk more about that later I don’t really have time to go into that now.

So she was acquitted and that’s a good thing. But it certainly was a very stark reminder of just how precarious a position we have in NSW and Queensland where we still have these outdated offences in our criminal code that can be brought into life at any time if the circumstances come together such that uh, either a woman or a medical practitioner, could be criminally charged.

So just briefly, and to sum up, why is the existing abortion law so unsatisfactory?

Well, you know, where do you begin? There are so many reasons.First of all, it remains a criminal offence, and as I’ve said that’s obviously a problem. Because this, the lawfulness depends upon how the courts interpret this word “unlawfully” on the facts of a particular case. It’s a very unstable foundation for lawful abortion in this state. It’s subject to particular facts of the case, it’s subject to the personal inclinations and beliefs of particular judges, and we have had a case that was overturned in appeal in NSW — the Superclinics case — where the particular personal beliefs of a judge clearly intervened in his decision in declaring a particular abortion had been unlawful.

And as I’ve said, we know from the case in Queensland that while prosecutions are rare, they’re certainly a very real possibility. In practice what it means of course is that abortion is in a grey zone. It is not fully legal like other mainstream medical procedures. In NSW terminations are performed overwhelming in the private sector, not in the public sector, and there are really concerning issues about cost and access as a result of that.

Fetal anomaly is not a relevant consideration to the test of unlawful abortion except to the extent that a child, if born disabled, might have an impact upon the psychological health of the mother. And that’s just ridiculous. You know, we know that the overwhelming majority of public opinion supports access to abortion at least in that — in those circumstances. Indeed the majority supports it in an even broader set of circumstances. But certainly to have a law that doesn’t recognise serious fetal anomaly as grounds in itself for a lawful abortion is quite concerning.

And so we’re left with a disconnect between what the law says, what most people think it says, and what is actually happening in practice. Because we have clinics who— that are operating where terminations are performed but where it’s done with a concern constantly to be able satisfy this very limited test of serious risk to the life or health of the woman that doesn’t really accord with the motives and with the reality of what’s happening with a lot of terminations.

And so finally just to bring it back to the concern about Zoe’s Law: because we have this fundamental instability and a lack of a secure foundation a secure legal foundation for abortion in NSW, any law that recognises a fetus as a living person — which is what Zoe’s Law will do — however limited it is to the particular section of the Crimes Act that the amendment relates to — however limited it is — it provides ammunition for someone who wishes to challenge the lawfulness of an abortion the next time a case comes to court. And that’s an issue that I think should be of serious concern to all of us.

Thanks very much.

Sunday spam: muesli bars and gummy snakes

Muesli bars and gummy snakes are what I ate at about 7am before my recent 9am childbirth… thus thematically appropriate for this small collection of links, some of which I’ve had sitting around for a while.

Using WOC in the Natural Childbirth Debate: A How-To Guide.

If you are a progressive in the Natural Childbirth Movement (or any other, for that matter), use Africa City women to promote the idea that “natural is better.” Talk about women who toil in the fields, squat down to give birth and return to picking rice. Or peanuts. Or anything else that can be picked. After all, the women of Africa City are resilient! Strong. So strong that they do not even require support from the other women of Africa City. Or medication. Or comfort. This example–of giving birth in the field–illustrates how over-reliant “we” have become on useless technology. Of course, you don’t expect “us” to be quite that strong. We are not beasts of burden, after all…

If you oppose the Natural Childbirth Movement (or any other, for that matter), use Africa City women to remind “us” of how bad “we” used to have it, before all of our live-saving medical advances. If women die in childbirth in Africa City, it is only because they lack the Modern Technology we should be grateful that every last one of “us” has unfettered access to. Use infant mortality statistics from the most war-torn countries to argue why a healthy woman from Portland shouldn’t give birth in her bathtub with a midwife who carries oxygen and a cell phone. Redact all mentions of Africa City women who are not hopelessly impoverished. Ignore those who are systematically abused with Modern Technology, sacrificed as Guinea pigs on its altar. All bad outcomes in Africa City are due to the lack of Medical Technology, never unrelated to it, and certainly never caused by it.

Early Labour and Mixed Messages

The emphasis on hospital as a place of safety whilst also encouraging women to stay away results in some very contradictory messages and ideas (please note these statements do not represent my own views)[…] We are the experts in your labour progress, our clinical assessments can predict your future labour progress… we will send you home if you are found to be in early labour… if you then birth your baby in the car park it is not our fault as birth is unpredictable[…] This is a safe place to labour…. but you can only access this safety when you reach a particular point in your labour… preferably close to the end of your labour i.e. you should do most of it on your own away from safety.

Warning for discussion of pregnancy loss. The Peculiar Case of Miscarriage in Pop Culture

Miscarriage is a tricky cultural thing, pop culture or not. It’s a deeply forbidden subject, much like many other things deemed ‘mysteries of womanhood,’ like menstruation, like pregnancy itself. People don’t talk about miscarriages and that discouragement means that many people aren’t aware of how common they are, let alone how devastating they can be. When people lose a child, they can reach out to their community for help and they are given space and time for healing. When they lose a fetus, they’re expected to keep it to themselves.

Sadly, sometimes pro-choice people can be the most vehement about this, concerned about blurring the lines between fetus and child, and saying that claiming a fetus is morally or ethically equivalent to a fully-developed, extrauterine human being could be dangerous. This makes the mistake of applying broad strokes to the issue, though. Legally, of course, a fetus should not be equivalent to a child. Personally, however, losing a wanted pregnancy is an intensely emotional experience and it can feel on some level to the parents like losing a child, with the added burden of not being allowed to acknowledge it, talk about it, or ask for help.

Reproductive rights round-up: NSW, Vic, SA, Tas

This article originally appeared on Hoyden About Town.

There’s a lot going on right now in terms of trying to implement fetal personhood provisions and wind back legal abortion around Australia. Here’s the news from four states, anything we’ve missed? What actions are you taking in response?

New South Wales: Crimes Amendment (Zoe’s Law) Bill (No. 2) 2013 has passed the Lower House

Discussion of this has previously appeared on HAT. Since that post, this bill has passed the Legislative Assembly (lower house) following a conscience vote and by a large margin (63 to 26). It will be read in the Legislative Assembly (upper house) in 2014, and if passed there, will become law. Coalition and ALP MPs have been granted a conscience vote by their parties. The Greens oppose the bill. This bill is opposed by the NSW branch of the Australian Medical Association, and by the NSW Bar Association. The campaign against this bill is at Our Bodies, Our Choices.

I’d love to publish transcripts of the Greens community forum on this bill (held prior to it passing in the Assembly), but am unlikely to have time to transcribe an hours worth of video for at least another week. If you’d like to help out, here’s the Amara links for subtitling: Julie Hamblin’s speech (about half subtitled to date), Philippa Ramsay’s speech (not subtitled) and Leslie Cannold’s speech (not subtitled).

South Australia: Criminal Law Consolidation (Offences against Unborn Child) Amendment Bill 2013 not passed

A bill with fetal personhood provisions in the case of grievous bodily harm to the pregnant person was recently before South Australian parliament, but was rejected. Information is being made available by Tammy Franks, Greens MLC, see Stop the Misguided Foetal Personhood Laws and the transcript of the reading in Parliament. Unlike in NSW, it appears that the ALP did not allow a conscience vote. The debate opens with Kyam Maher, government whip:

The Hon. K.J. MAHER (00:11): I will be extraordinarily brief. The government does not support this bill.

Victoria: early proposals to remove Section 8

At present, the Abortion Law Reform Act 2008 requires (in part):

SECT 8

(1) If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—
(a) inform the woman that the practitioner has a conscientious objection to abortion; and
(b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

A Victorian doctor, Mark Hobart, is facing deregistration over defying these provisions, and a group of Victorian doctors and nurses called Doctors Conscience opposes Section 8 and advocates for its repeal. The Age reports that Labor MP Christine Campbell intends to table the Doctors Conscience petition in Victorian parliament. (A second Victoria doctor, Dr K. — not Mark Hobart — is discussed in the article, who not only defies Section 8 but has been quoted as expressing the opinion that women who seek abortions deserve death. This is detailed in Daniel Mathews’ blog post which provides quotations allegedly from Dr. K. Doctors Conscience has issued a press release stating that they do not advocate for or support harm to pregnant women for any reason.) The Age also reports that the Victorian branch of the Australian Medical Association supports the repeal of Section 8.

Today The Australian reported that premier Denis Napthine had advised independent MP Geoff Shaw on what would be involved in overturning (or perhaps substantially revising) the Abortion Law Reform Act in Victoria. The ABC reports that Napthine describes himself as having issued pro forma advice on legislative process.

Bills to repeal Section 8 or make wider changes to the Abortion Law Reform Act 2008 are yet to be proposed.

Tasmania removes abortion from the criminal code

On November 22, Tasmania removed references to abortion from the criminal code. In addition, like in Victoria, legislation now requires that doctors (and counselors) who conscientiously oppose abortion refer pregnant people to others who they believe do not have such an objection. A PDF of the Reproductive Health (Access to Abortion) Bill 2013 is available.

Bonus USA

NPR recently reported on the findings of Paltrow & Flavin, Arrests of and forced interventions on pregnant women in the United States (1973-2005) who report:

  • Arrests and incarceration of women because they ended a pregnancy or expressed an intention to end a pregnancy;
  • Arrests and incarceration of women who carried their pregnancies to term and gave birth to healthy babies;
  • Arrests and detentions of women who suffered unintentional pregnancy losses, both early and late in their pregnancies;
  • Arrests and detentions of women who could not guarantee a healthy birth outcome;
  • Forced medical interventions such as blood transfusions, vaginal exams, and cesarean surgery on pregnant women;

… Analysis of the legal claims used to justify the arrests of pregnant women found that such actions relied on the same arguments underlying so called “personhood” measures – that state actors should be empowered to treat fertilized eggs, embryos, and fetuses as completely and legally separate from the pregnant woman. Specifically, police, prosecutors, and judges in the U.S. have relied directly and indirectly on… [f]eticide statutes that create separate rights for the unborn and which were passed under the guise of protecting pregnant women and the eggs, embryos, and fetuses they carry and sustain from third-party violence… [my emphasis]

I think this point bears repeating: provisions that were introduced allegedly for the protection of pregnant people and fetuses from third parties have been subsequently used to police the behaviour of pregnant people, including but not limited to those seeking abortion, and including forcing medical procedures on them, and confining them. Fetal personhood provisions are designed to control the bodies of pregnant people.