Addressing the Vilification of Women: A Functional Theory of Harm and Implications for Law

© 2020 Aparna Anjalee De SilvaCertain categories of vilification, including, in particular, vilification on the basis of race, are expressly recognised as legal wrongs under Australian, international, and foreign domestic laws. Notwithstanding its prevalence, vilifying speech directed at and about women on the basis of their female sex remains unregulated in most jurisdictions. Nor has the issue of sex-based vilification received much scholarly or policy attention. This thesis examines the need for anti-vilification laws to address sex-based vilification. It relies on critical and speech act theories to arrive at a functional theory of sex-based vilification with reference to its harms, as relevant to law, as discriminatory treatment of women that constitutes and causes the systemic subordination and silencing of women on the basis of their sex. It applies that functional theory of harm to sex-based vilification as it manifests as part of the cyber harassment of women to arrive at some commonly occurring categories of sex-based vilification, namely: threats and violent invective; sexualised invective; non-consensual pornography; other objectifying speech; and other contemptuous speech. It argues that speech constituting one or more of those categories of sex-based vilification systemically subordinates and silences women on the basis of their sex, in ranking women as inferior or for use on the basis of their sex and (re)enacting permissibility facts in and of patriarchal oppression that legitimate the treatment of women accordingly. This thesis then considers some implications of that functional theory of harm for law. In order to consider the utility of potential sex-based vilification laws, this thesis considers what the sex-based gap in anti-vilification laws, policies, and policy conversations plausibly presently does, as well as what sex-based vilification laws plausibly may do if enacted. It argues that the gap in the law accommodates and authorises sex-based vilification’s systemic subordination and silencing of women on the basis of their sex. It argues that, conversely, the enactment of sex-based vilification laws would constitute a counter-speech act of the state’s that plausibly may quash or mitigate some of the systemic subordination and silencing harms to women of sex-based vilification. It also considers the strength of the free speech interests to which sex-based vilification gives rise and that, accordingly, its regulation by law would potentially burden. It argues that speech constituting sex-based vilification ought to receive a relatively low degree of protection pursuant to a liberal free speech principle, unless it has communicative functions with relatively strong connections to the values, interests, or purposes that underly or motivate such a principle