Law Professor. Advisor. Commentator.
Expert on Violence Against Women & Girls
Publications
A complete list of publications can be found on my Durham University home page here.
Authored Books
Cyberflashing: Recognising Harms, Reforming Laws
(Clare McGlynn & Kelly Johnson (2021), Bristol University Press)
Cyberflashing has been on the rise since the Covid-19 pandemic. Yet, despite its prevalence and significant harms, cyberflashing is not a criminal offence in England and Wales. This crucial book provides new in-depth analysis, understanding and insight into the nature and harms of cyberflashing. The authors consider recently adopted laws in the US, Singapore and Scotland, and set out proposals to criminalise cyberflashing as a sexual offence in English law. This unique and timely study presents the first comprehensive examination of cyberflashing and the need to reform the criminal law.
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Image-based sexual abuse: a study on the causes and consequences of non-consensual nude or sexual imagery
(Nicola Henry, Clare McGlynn, A Flynn, K Johnson, A Powell and A Scott, 2021, Routledge)
This book investigates the causes and consequences of image-based sexual abuse in a digital era. Image-based sexual abuse refers to the taking or sharing of nude or sexual photographs or videos of another person without their consent. This book investigates the pervasiveness and experiences of these harms, as well as the raft of legal and non-legal measures that have been introduced to better respond to and prevent image-based sexual abuse. The book draws on ground-breaking empirical research, including surveys in three countries with over 6,000 respondents and over 100 victim-survivor and stakeholder interviews.
Families and the European Union: law, politics and pluralism
(Clare McGlynn, 2006, Cambridge University Press)
In the first book to offer a comprehensive analysis of family law in the European Union, McGlynn argues that a traditional concept of 'family' which has many adverse effects - on individuals, on families (in all their diverse forms), and indeed on the economic ambitions of the EU - is forming the basis for the little-recognised and under-researched field of EU family law. This book examines three different aspects of family life - childhood, parenthood and partnerships - and critically analyses existing EU law in relation to each. It examines the emerging field of EU family law, providing a highly sceptical account of recent developments and a robust challenge to the arguments in favour of the codification of European civil law, including family law.
The Woman Lawyer - making the difference
(Clare McGlynn, 1998, Oxford University Press)
This eye-opening book provides a fascinating study of the status and experiences of women in the law, and is unique in its analysis of developments from the law school to the judiciary. The Woman Lawyer also advocates the need for fundamental reforms in law schools and legal practice and canvasses many options. Combining detailed empirical evidence, including material specifically gathered for the book, with information and advice, The Woman Lawyer seeks to raise the level of public debate on these issues. In addition, the book aims to inform, encourage, inspire and empower women studying and working in the law.
Edited Books
Feminist Judgments: From Theory to Practice
(Rosemary Hunter, Clare McGlynn, & Erika Rackley, 2010, Bloomsbury)
While feminist legal scholarship has thrived within universities and in some sectors of legal practice, it has yet to have much impact within the judiciary or on judicial thinking. In this book, a group of feminist legal scholars put theory into practice in judgment form, by writing the 'missing' feminist judgments in key cases. The cases chosen are significant decisions in English law across a broad range of substantive areas. In some instances they are written in a fictitious appeal, but in others they are written as an additional concurring or dissenting judgment in the original case, providing a powerful illustration of the way in which the case could have been decided differently, even at the time it was heard. Each case is accompanied by a commentary which renders the judgment accessible to a non-specialist audience.
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Rethinking Rape Law: international and comparative perspectives
(Clare McGlynn and Vanessa Munro (eds) 2010, Routledge)
Rethinking Rape Law provides a comprehensive and critical analysis of contemporary rape laws, across a range of jurisdictions. In a context in which there has been considerable legal reform of sexual offences, Rethinking Rape Law engages with developments spanning national, regional and international frameworks. It is only when we fully understand the differences between the law of rape in times of war and in times of peace, between common law and continental jurisdictions, between societies in transition and societies long inured to feminist activism, that we are able to understand and evaluate current practices, with a view to change and a better future for victims of sexual crimes. Written by leading authors from across the world, this is the first authoritative text on rape law that crosses jurisdictions, examines its conceptual and theoretical foundations, and sets the law in its policy context.
Journal Articles
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Pornography, the Online Safety Act 2023 and the need for further reform
Clare McGlynn, Lorna Woods, Alex Antoniou (2024) Journal of Media Law
The UK’s Online Safety Act 2023 regulates pornography in a range of new ways which could radically alter both how pornography is accessed and the nature of the content available. However, while the Act ostensibly represents a new form of regulation focusing on the systems and processes of online platforms, in practice it is content-based. Our analysis reveals that the Act generates eight new classifications of pornography, each associated with a distinct legal framework, thereby creating a confusing and unnecessarily complex regulatory regime. Accordingly, we recommend further reforms to fortify and clarify the regulatory regime, as well as a more comprehensive review of pornography regulation in general, with the overall aim of reducing the harms of pornography.
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Towards a New Criminal Offence of Intimate Intrusions
Clare McGlynn (2024) Feminist Legal Studies
This article suggests a new approach to tackling women’s experiences of harm and abuse, particularly online, namely a criminal law of ‘intimate intrusions’. It seeks to reinvigorate Betsy Stanko’s (1985) concept of intimate intrusions, developing it particularly in the context of the ever-increasing prevalence of online abuse against women and girls, as well as establishing how this conceptualisation might manifest in law reform. Intimate intrusions, it is argued, provides a valuable umbrella concept that may better encompass both the range and nature of existing harms, as well as, crucially, the yet-to-be-imagined modes of abuse. Further, in suggesting a new criminal offence of intimate intrusions, this article challenges the common process of piecemeal criminal law reform, with each new manifestation of abuse resulting in a specific offence tackling that specific behaviour. While such an approach provides new redress options, it remains limited. Following an examination of recent reforms in Northern Ireland, where three distinct new criminal offences were adopted covering downblousing, upskirting and cyberflashing, this article suggests that the concept of ‘intimate intrusions’ provides a better foundation for a new criminal offence and outlines its potential nature and scope.
Towards an EU criminal law on violence against women: The ambitions and limitations of the Commission’s proposal to criminalise image-based sexual abuse
(Carlotta Rigotti & Clare McGlynn (2022), New Journal of European Criminal Law 13(4), 452-477)
In March 2022, the European Commission proposed a new landmark Directive on combating violence against women and domestic violence which includes measures on the non-consensual distribution of intimate and manipulated images. We refer to this form of violence against women as ‘image-based sexual abuse’, a term that encompasses all forms of the non-consensual creating, taking or sharing of intimate images or videos, including threats to share such material and altered material. In this article, we provide a new analysis of current Member State laws covering all forms of image-based sexual abuse, as well as the first detailed examination of the Commission’s proposals to tackle this form of violence against women. We suggest that the Commission’s proposal is characterised by both its ambition and limitations. It is ambitious in its attempts to set minimum rules in challenging areas of criminal law and, in doing so, recognises the serious harms of image-based sexual abuse. At the same time, by seeking to expand the reach of EU criminal law, inevitably requiring compromise, the scope of the proposed measures is somewhat limited. Such compromises and limitations risk entrenching hierarchies between different forms of abuse and, ultimately, the proposal fails to provide a comprehensive response reflective of victims’ experiences.
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Read the policy briefing on this research
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Challenging anti-carceral feminism: Criminalisation, justice and continuum thinking. Women's Studies
(Clare McGlynn 2022, International Forum 93: 102614)
While anti-carceral feminism – which challenges the use of the criminal law and criminal justice system to tackle violence against women – is increasingly dominant, this article builds on an emerging body of work contesting its central premises. In particular, this article emphasises that some sexual violence survivors seek criminal justice redress and examines the work of feminist organisations both supporting survivors and demanding radical change. It argues that some anti-carceral feminism risks reifying existing criminal laws and reproducing sexual violence myths and stereotypes. In doing so, it defends criminalisation of ‘new’ and emerging forms of abuse and offers ‘continuum thinking’ (Boyle, 2019) as a way of moving beyond the polarised and binary approaches of current debates and activism. The aim is to encourage a nuanced, complex approach to the criminal law and criminalisation which recognises both a role for criminal justice and alternatives; which listens to the voices of all survivors, including those whose understanding of justice includes criminal justice; and which is fully alive to the risks and challenges that all justice approaches entail whether state or community based.
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‘Devastating, like it broke me’ Responding to image-based sexual abuse in Aotearoa New Zealand
(Nicola Henry, Nicola Gavey, Clare McGlynn, & Erika Rackley, 2022, Criminology & Criminal Justice)
The non-consensual taking or sharing of intimate images, also known as ‘image-based sexual abuse’, has become a widespread problem. While there has been growing attention to this phenomenon, little empirical research has investigated victim-survivor experiences. Drawing on interviews with 25 victim-survivors, this article focusses on the different responses to image-based sexual abuse in Aotearoa New Zealand. We found that victim-survivors had diverse and often multiple experiences of image-based sexual abuse, perpetrated for a variety of reasons, which extended beyond the paradigm of malicious ex-partners seeking revenge. Some participants described the harms experienced as ‘devastating’: a form of ‘social rupture’. Few had formally reported to police or pursued other justice options. While participants held different justice ideals, all sought recognition of the harms perpetrated against them. Yet they faced multiple obstacles when navigating justice, redress and support options. The authors conclude that far-reaching change is needed to improve legislative, policy and prevention responses to image-based sexual abuse.
Cyberflashing: Consent, Reform and the Criminal Law
(Professor Clare McGlynn, 2022, The Journal of Criminal Law 86(5), 336–352)
In the context of growing calls for a new law criminalising cyberflashing – the digital distribution of penis images to another without consent – this article makes the case for a comprehensive, ‘consent-based’ criminal offence specifically targeting cyberflashing. It justifies this approach by examining the core wrongs of cyberflashing and suggests draft legislative text for such an offence. In making this case, the article analyses and rejects the Law Commission’s recent proposal for a ‘motive-based’ cyberflashing law. Ultimately, it is argued that while the Law Commission's proposal is a welcome recognition of the harms of cyberflashing and need for reform, it does not go far enough to offer the redress victim-survivors are seeking, nor does it provide an appropriate normative foundation for education and preventative initiatives.
Read a policy briefing on why a consent-based law should be introduced.
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Seeking justice and redress for victim-survivors of image-based sexual abuse
(Rackley, E., McGlynn, C., Johnson, K., Henry, N., Gavey, N., Flynn, A. & Powell, A., 2021, Feminist Legal Studies 29(3): 293-322)
Despite apparent political concern and action – often fuelled by high-profile cases and campaigns – legislative and institutional responses to image-based sexual abuse in the UK have been ad hoc, piecemeal and inconsistent. In practice, victim-survivors are being consistently failed: by the law, by the police and criminal justice system, by traditional and social media, website operators, and by their employers, universities and schools. Drawing on data from the first multi-jurisdictional study of the nature and harms of, and legal/policy responses to, image-based sexual abuse, this article argues for a new joined-up approach that supports victim-survivors of image-based sexual abuse to ‘reclaim control’. It argues for a comprehensive, multi-layered, multi-institutional and multi-agency response, led by a government- and industry-funded online or e-safety organisation, which not only recognises the diversity of victim-survivor experiences and the intersection of image-based sexual abuse with other forms of sexual and gender-based violence and discrimination, but which also enables victim-survivors to reclaim control within and beyond the criminal justice system.
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Sexual violence as a sexual script in mainstream online pornography
(Vera-Gray, Fiona, McGlynn, Clare, Kureshi, Ibad & Butterby, Kate, 2021, British Journal of Criminology 61(5): 1243-1260)
This article examines the ways in which mainstream pornography positions sexual violence as a normative sexual script by analysing the video titles found on the landing pages of the three most popular pornography websites in the United Kingdom. The study draws on the largest research sample of online pornographic content to date and is unique in its focus on the content immediately advertised to a new user. We found that one in eight titles shown to first-time users on the first page of mainstream porn sites describe sexual activity that constitutes sexual violence. Our findings raise serious questions about the extent of criminal material easily and freely available on mainstream pornography websites and the efficacy of current regulatory mechanisms.
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Read the policy briefing on this research
‘It’s torture for the soul’ The Harms of Image-Based Sexual Abuse
(Clare McGlynn, K Johnson, E Rackley, N Henry, N Gavey, A Flynn, A Powell (2021). Social and Legal Studies 30(4), 541–562)
Beyond ‘scandals’ and the public testimonies of victim-survivors, surprisingly little is known about the nature and extent of the harms of ‘image-based sexual abuse’, a term that includes all non-consensual taking and/or sharing of nude or sexual images. Accordingly, this article examines the findings from the first cross-national qualitative study on this issue, drawing on interviews with 75 victim-survivors of image-based sexual abuse in the UK, Australia and New Zealand. We adopt a feminist phenomenological approach that permits more nuanced and holistic understandings of victim-survivors’ experiences, moving beyond medicalised, trauma-based accounts of harm. Our analysis develops five interconnected accounts of the harms experienced, that we have termed social rupture, constancy, existential threat, isolation and constrained liberty. Our findings shed new light on the nature and significance of the harms of image-based sexual abuse that emphasises the need for more comprehensive and effective responses to these abuses.
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The psychology of non-consensual porn: Understanding and addressing a growing form of sexual violence
(Asia Eaton and Clare McGlynn (2020). Policy Insights from the Behavioral and Brain Sciences 7(2), 190–197)
Abstract: As of 2020, legal protections for victims of image-based sexual abuse in the U.S. remain inadequate. For example, no federal law yet criminalizes the sharing of sexually-intimate material without a person’s consent (i.e., nonconsensual porn), and existing state laws are patchy and problematic. Part of the reason for this problem may be that U.S. lawmakers and the general public have yet to grasp that nonconsensual porn is a form of sexual abuse, with many of the same devastating, recurring, and lifelong consequences for victims. This review of psychological research on nonconsensual porn includes frameworks for understating this image-based sexual abuse, correlates and consequences of victimization, victim blame, and the nature of perpetration. Then, we analyze U.S. laws on nonconsensual porn in light of this review, and argue for comprehensive legislative solutions.
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Possessing Extreme Pornography: policing, prosecutions and the need for reform
(McGlynn, Clare & Bows, Hannah (2019), The Journal of Criminal Law 83(6): 473-488)
The law criminalising the possession of extreme pornography, first enacted in 2008 and amended to include rape pornography in 2015, continues to generate considerable controversy and calls for reform. In order to inform these ongoing discussions, we undertook a study to find out information about who is being charged with extreme pornography offences and their characteristics in terms of gender, age and ethnicity, as well as data on the specific type of pornography forming the subject-matter of those charges. Utilising freedom of information requests, our study provides valuable new information to help inform debates over the policing of extreme pornography across England and Wales. Overall, we found that the vast majority of those charged were white men across all age groups; that bestiality images formed the most common basis for charging and that, in respect of the data provided, the majority of charges were brought together with other sexual offences.
Kaleidoscopic Justice: Sexual Violence and Victim-Survivors’ Perceptions of Justice
(McGlynn, Clare & Westmarland, Nicole (2019). Social and Legal Studies 28(2): 179-201)
This article proposes a more multifaceted way of thinking about victim-survivors’ perceptions of justice; what we have termed ‘kaleidoscopic justice’. Developed from an empirical investigation with 20 victim-survivors of sexual violence, kaleidoscopic justice understands justice as a constantly shifting pattern; justice constantly refracted through new experiences or understandings; justice as an ever-evolving, nuanced and lived experience. Within this framework, a number of justice themes emerged, namely justice as consequences, recognition, dignity, voice, prevention and connectedness. This approach develops current understandings, in particular by emphasizing the fluidity of justice, as well as the centrality of prevention and connectedness in sexual violence survivors’ understandings of justice. We suggest that it is only by better understanding victim-survivor perspectives on justice, and embedding the concept of kaleidoscopic justice, that we can begin to address the sexual violence ‘justice gap’.
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Using restorative justice approaches to police domestic violence and abuse
(Westmarland, N., McGlynn, C. & Humphreys, C. (2018). Journal of Gender-Based Violence 2(2): 339-358)
The use of restorative justice in cases of domestic abuse is highly controversial. While little is known about how restorative approaches are used by the police, recent research shows they are used on a widespread basis to respond to domestic abuse throughout England and Wales (Westmarland et al, 2018). This study delves deeper, to look at 62 cases within one police force. Qualitative police data extracted from force systems were analysed to discover in what type of domestic abuse incidents restorative approaches are used, and what type of approaches are used. We argue that while the language of restorative justice was used, the spirit of restorative justice was often missing. In some cases, the police seem to be using the language of restorative justice to respond to cases they do not think would benefit from further criminal justice intervention (a ‘new NFA’ (No Further Action)). We conclude that further differentiation between different forms of domestic abuse and different forms of restorative approach is needed to enable a more informed conversation. Further, it is essential that the domestic abuse sector work more closely with restorative justice communities in order to more safely and more appropriately consider the challenges and opportunities that restorative approaches may offer.
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Under the radar: the widespread use of 'Out of Court resolutions' in policing domestic violence and abuse in the United Kingdom
(McGlynn, Clare, Westmarland, Nicole & Johnson, Kelly (2018). British Journal of Criminology 58(1): 1-16)
The suitability of ‘out of court resolutions’ (restorative justice and community resolutions) in cases of domestic abuse is theoretically contentious and empirically under-researched. This study investigated the nature and extent of out of court resolutions for domestic abuse using the Freedom of Information Act. Out of court resolutions were used by every UK police force except Scotland to respond to over 5,000 domestic abuse incidents (including intimate partner abuse) in 2014. Some of these incidents related to offences with sentencing tariffs up to life imprisonment. Such widespread use has been taking place ‘under the radar’ in stark contrast to police guidance, has immediate implications for policy and practice, and fundamentally shifts the research terrain in this field.
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Image-Based Sexual Abuse
(Clare McGlynn and Erika Rackley (2017). Oxford Journal of Legal Studies 37(3): 534-561)
Advances in technology have transformed and expanded the ways in which sexual violence can be perpetrated. One new manifestation of such violence is the non-consensual creation and/or distribution of private sexual images: what we conceptualise as ‘image-based sexual abuse’. This article delineates the scope of this new concept and identifies the individual and collective harms it engenders. We argue that the individual harms of physical and mental illness, together with the loss of dignity, privacy and sexual autonomy, combine to constitute a form of cultural harm that impacts directly on individuals, as well as on society as a whole. While recognising the limits of law, we conclude by considering the options for redress and the role of law, seeking to justify the deployment of the expressive and coercive powers of criminal and civil law as a means of encouraging cultural change.
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Beyond ‘Revenge Porn’: The Continuum of Image-Based Sexual Abuse
(Clare McGlynn, Erika Rackley and Ruth Houghton (2017). Feminist legal studies 25(1): 25-46)
In the last few years, many countries have introduced laws combating the phenomenon colloquially known as ‘revenge porn’. While new laws criminalising this practice represent a positive step forwards, the legislative response has been piecemeal and typically focuses only on the practices of vengeful ex-partners. Drawing on Liz Kelly’s (1988) pioneering work, we suggest that ‘revenge porn’ should be understood as just one form of a range of gendered, sexualised forms of abuse which have common characteristics, forming what we are conceptualising as the ‘continuum of image-based sexual abuse’. Further, we argue that image-based sexual abuse is on a continuum with other forms of sexual violence. We suggest that this twin approach may enable a more comprehensive legislative and policy response that, in turn, will better reflect the harms to victim-survivors and lead to more appropriate and effective educative and preventative strategies.
Rape Trials and Sexual History Evidence: reforming the law on third party evidence
(McGlynn, Clare (2017). The Journal of Criminal Law 81(5): 367-392)
Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials. It focuses particularly on evidence relating to persons other than the accused (third-party evidence), following the recent controversial judgment of the Court of Appeal in R v Ched Evans where such evidence was introduced. The justifications for restricting sexual history evidence are considered, as well as research data on how often it is being used. Following an analysis of the current law, the article concludes that urgent reform is needed and a number of law reform options are examined.
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More than ‘Revenge Porn’ Image-Based Sexual Abuse and the Reform of Irish Law
(McGlynn, Clare & Rackley, Erika (2017), Irish Probation Journal 14: 38-51)
Summary: In the past few years, there have been a worrying number of press reports detailing the extent and harms of ‘revenge porn’. In response, governments across the world have begun to take action, often adopting new criminal laws. However, both the term ‘revenge porn’ and many of these new laws are limited and fail to cover the nature and breadth of this growing phenomenon. Accordingly, the current law reform discussions in Ireland are taking place at an opportune moment. Ireland has a real opportunity to learn from the mistakes of other jurisdictions and to introduce an effective package of measures to reduce the prevalence of these pernicious practices. But in doing so, it will be vital that law and policy looks beyond the paradigmatic example of ‘revenge porn’, where a vengeful ex-partner shares private sexual images without consent. To be truly comprehensive, and to ‘future-proof’ legislation in a context of rapidly changing technology, the legislation must encompass the range of activities increasingly understood and conceptualised as ‘image-based sexual abuse’.
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Challenging the law on sexual history evidence: a response to Dent and Paul
(McGlynn, Clare (2018), The Criminal Law Review 2018(3): 216-228)
Responds to an article by N. Dent and S. Paul, "In defence of section 41", Crim. L.R. 2017, 8, 613-627, defending current policy on use of sexual history evidence in trials under the Youth Justice and Criminal Evidence Act 1999 s.41, with reference to R. v Evans (Chedwyn) (CA). Challenges their rejection of criticisms of the current regime, including that it may cause victim blaming and that Evans opens the floodgates to admitting such evidence.
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Would John Stuart Mill have Regulated Pornography?
(McGlynn, C. & Ward, I. (2014). Journal of Law and Society 41(4): 500-522)
John Stuart Mill dominates contemporary pornography debates where he is routinely invoked as an authoritative defence against regulation. This article, by contrast, argues that a broader understanding of Mill's ethical liberalism, his utilitarianism, and his feminism casts doubt over such an assumption. New insights into Mill's approach to sex, sexual activity, and the regulation of prostitution reveal an altogether more nuanced and activist approach. We conclude that John Stuart Mill would almost certainly have accepted certain forms of pornography regulation and, in this light, we argue that Mill can provide the foundation for new, liberal justifications of some forms of pornography regulation.
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Prosecuting the Possession of Extreme Pornography: A Misunderstood and Misused Law
(Rackley, Erika & McGlynn, Clare (2013), The Criminal Law Review (5): 400-405)
On 8th August 2012, Simon Walsh was acquitted of five counts of possessing extreme pornography. The case was not, of course, the first prosecution under the extreme pornography provisions contained in the Criminal Justice and Immigration Act 2008 (CJIA). Crown Prosecution Service (CPS) figures indicate that there were 799 prosecutions in 2011. However, unlike many of the other prosecutions, Walsh’s case was the focus of extensive public debate. It was touted in the press as a ‘landmark’ case defining the boundaries of the extreme pornography provisions, in which ‘common sense prevailed’ through a ‘sensible jury verdict’. The Walsh case provides an opportunity to revisit what continues to be a misunderstood and, in this case, mis-used, law. The CJIA is a flawed piece of legislation. It represents a lost opportunity by the previous Labour Government to take bolder and more intellectually defensible steps to tackle harmful extreme forms of pornography. This marginalisation of feminism is also evident in the debate around the Walsh case. In the end, discussion focussed on practices which when carried out with consent are unproblematic. What the Walsh case highlights is the need to shift debate from the margins of what is included within the law, to focus on the extreme. There is, of course, a role for law in determining the boundaries of the law and legal cases are all about interpretations on the edge of the law – the simple cases being clear-cut. But, we have lost sight of what, in our view, should be the focus of laws on extreme pornography, namely the pornographic images of rape which inexcusably remain beyond the law.
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John Stuart Mill on Prostitution: Radical Sentiments, Liberal Proscriptions
(McGlynn, Clare (2012). Nineteenth-Century Gender Studies 8(2))
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"I just wanted him to hear me": sexual violence and the possibilities of restorative justice
(McGlynn, Clare, Westmarland, Nicole & Godden, Nikki (2012). Journal of Law and Society 39(2): 213-240)
The use of restorative justice in cases of sexual violence is highly contentious. Resistance comes from those who argue that it may trivialise violence against women, re-victimise the vulnerable and endanger the safety of victim-survivors. On the other hand, from the perspective of victim-survivors, it may enable us to hear their stories more holistically; it may offer greater control, validation and may reduce victim-blaming. It may also provide an additional opportunity to secure some form of justice. Debate over the validity of these competing claims has largely taken place in an empirical vacuum. To begin to remedy this gap in our knowledge, and particularly our understanding of victim-survivor perspectives, this article considers the results of an exploratory study which investigated a restorative justice conference involving an adult survivor of child rape and other sexual abuse. The results of this case study, while necessarily tentative, provide good ground to consider afresh the possibilities of restorative justice in cases of sexual violence. We suggest that for those victim-survivors who wish to pursue this option, restorative justice may offer the potential to secure some measure of justice.
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Read the Policy Briefing
Rape, Defendant Anonymity and Human Rights: adopting a "wider perspective"
(McGlynn, C (2011). Criminal Law Review (3): 199-215)
For six months during 2010, debate raged over the Coalition Government’s plan to grant anonymity to those accused of rape. This contentious public debate focused almost exclusively on rape-specific arguments for or against rape defendant anonymity, to the exclusion of broader criminal justice and human rights concerns. This resulted in an impoverished debate which, specifically, gave no consideration to recent jurisprudence in which the highest courts have examined the appropriate balance between freedom of speech and the protection of privacy when considering defendant anonymity orders. This article remedies this lacuna, analysing this case law and applying its insights to the proposal to grant anonymity to rape defendants. While the Government’s proposal has been abandoned for the time being, this article lays the groundwork for a more reasoned and human rights conscious debate in the future, when such a reform will no doubt be proposed once again.
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Feminism, Rape and the Search for Justice
(McGlynn, C (2011). Oxford Journal of Legal Studies 31(4): 825-842)
Justice for rape victims has become synonymous with punitive state punishment. Taking rape seriously is equated with increasing convictions and prison sentences and consequently most feminist activism has been focused on reforming the conventional criminal justice system to secure these aims. While important reforms have been made, justice continues to elude many victims. Many feel re-victimized by a system which marginalizes their interests and denies them a voice. Restorative justice offers the potential to secure justice for rape victims, but feminist resistance has resulted in few programmes tackling such crimes. In After the Crime, Susan Miller evidences the positive outcomes of a restorative justice programme tackling serious offences including rape and recommends their development. However, her vision is ultimately limited by her recommendation of only post-conviction restorative processes and the implicit endorsement of the conventional criminal justice system. I argue that feminist strategy and activism must rethink its approach to what constitutes justice for rape victims, going beyond punitive state outcomes to encompass broader notions of justice, including an expansive approach to restorative justice.
Pornography, Pragmatism and Proscription
(McGlynn, Clare. & Ward, Ian. (2009), The Journal of Law and Society 36(3): 327-351)
The Criminal Justice and Immigration Act 2008 criminalizes the possession of extreme pornography, namely, images of bestiality, necrophilia, and life-threatening or serious violence, and is the immediate context for this article which seeks to present a pragmatic liberal humanist critique of pornography regulation. Such a critique, derived in particular from the writings of Nussbaum and Rorty, presents an alternative case for regulation, eschewing the visceral competing fundamentalisms which characterized the ‘porn wars’ of the 1980s and 1990s. Whilst moral and epistemological philosophers squabble with radical feminists and radical libertarians, extreme pornography can nurture real injustice and ruin real lives. A pragmatic liberal humanism demands a pragmatic response to extreme pornography. The first part of this article will revisit the longer history of the ‘porn wars’; the second describes the parameters of a pragmatic liberal humanist critique; the third examines the shorter history of pornography regulation written into the provisions now enacted in the 2008 Act.
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Criminalising Extreme Pornography: A Lost Opportunity
(Clare McGlynn & Erika Rackley, 2009, Criminal Law Review (4): 245-260)
This article considers provisions criminalising the possession of ‘extreme pornography’ in the Criminal Justice and Immigration Act 2008. It begins by outlining the current criminal law regime governing pornography, before considering the new measures in detail. We highlight the areas which are most likely to witness challenges, and the areas about which confusion seems inevitable. We close by considering the arguments for proscribing the possession of extreme pornography and possible ways forward, while recognising that, regrettably, the legislative opportunity to take action in this field has most likely now been lost.
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Rape, Torture and the European Convention on Human Rights
(Clare McGlynn, 2009, International and Comparative Law Quarterly 58(3): 565-595)
This article examines the legacy of the ground-breaking judgment in Aydin v Turkey in which the European Court of Human Rights held that rape could constitute torture. Ten years on, it examines jurisprudential developments in the conceptualisation of torture in the specific context of the offence of rape. It is argued that while all rapes should be found to satisfy the minimum threshold for Article 3, rape does not per se satisfy the severity of harm criterion for torture. Nonetheless, where the severity of harm is established, the case is made that the purposive element of torture is satisfied in all cases of rape. Finally, in relation to the scope of State responsibility for rape, particularly by private individuals, the article suggests that while the Court's achievements in recognising rape as a serious harm are considerable, there remain further avenues for jurisprudential development which would ensure that rape as a form of torture is recognised in a wider range of situations and circumstances than is currently the case.
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McGlynn, C.M.S. (2002). Rights for Children: the potential impact of the European Union Charter of Fundamental Rights. European Public Law 8(3): 387-400.
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McGlynn, C.M.S. (2001). The Europeanisation of Family Law. Child and Family Law Quarterly 13(1): 35-49.
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McGlynn, C.M.S. (2000). Ideologies of Motherhood in European Community Sex Equality Law. European Law Journal 6: 29-44.
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McGlynn, C.M.S. (2000). The Business of Equality in the Solicitors' Profession. Modern Law Review 63: 442-456.
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McGlynn, C.M.S. (1999). Women, Representation and the Legal Academy. Legal Studies 19: 68-92.
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McGlynn, C.M.S. (1996). Equality, Maternity and Questions of Pay. European Law Review 21: 327-332.
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McGlynn, C.M.S. (1995). European Works Council: Towards Industrial Democracy? Industrial Law Journal 24: 78-84.
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McGlynn, C.M.S. (1995). Re-writing the Corporate Constitution. Journal of Business Law 858-590.
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