Gender injustice in compensating injury to autonomy in English and Singaporean negligence law

The extent to which English law remedies injury to autonomy (ITA) as a stand-alone actionable damage in negligence is disputed. In this article I argue that the remedy available is not only partial and inconsistent (Keren-Paz in Med Law Rev, 2018) but also gendered and discriminatory against women. I first situate the argument within the broader feminist critique of tort law as failing to appropriately remedy gendered harms, and of law more broadly as undervaluing women’s interest in reproductive autonomy. I then show by reference to English remedies law’s first principles how imposed motherhood cases—Rees v Darlington and its predecessor McFarlane v Tayside Health Board—result in gender injustice when compared with other autonomy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A minor gender-neutral ITA is better remedied than the significant gendered harm of imposing motherhood on the claimant; men’s reproductive autonomy is protected to a greater extent than women’s; women’s reproductive autonomy is protected by an exceptional, derisory award. Worst of all, courts refuse to recognise imposed motherhood as detriment; and the deemed, mansplained, nonpecuniary joys of motherhood are used to offset pecuniary upkeep costs, forcing the claimant into a position she sought to avoid and thus further undermining her autonomy. The recent Singaporean case ACB v Thomson Medical Pte Ltd, awarding compensation for undermining the claimant’s genetic affinity in an IVF wrong-sperm-mix-up demonstrates some improvement in comparison to English law, and some shared gender injustices in the context of reproductive autonomy. ACB’s analysis is oblivious to the nature of reproductive autonomy harm as gendered; and prioritises the father’s interest in having genetic affinity with the baby over a woman’s interest in not having motherhood imposed upon her

Reconceptualising fault in the criminal law : a defence of reasonable mistake of law

This is a thesis about criminal culpability and the need for a moral theory of criminal fault. The liberal positivist ideal of separating law and morals has resulted in the moral reductionism of the doctrine of mens rea. Originally a normative concept that was used to evaluate blameworthiness in moral terms, mens rea has been transformed into a descriptive concept that merely identifies the technical, psychological mental states that are required for particular offences. It is argued that the doctrine of mens rea should be recast in an overt normative mould. This work does not suggest that the morality of prohibited conduct or the moral virtue of the accused be brought into question in determining culpability. The thesis merely argues that morally innocent accused should not be subjected to criminal liability. In order to achieve this, the thesis reconceptualises criminal fault in terms of moral blameworthiness. The doctrine of mens rea is consequently reconstructed so that it can be expressly used to attribute moral blameworthiness more fairly. It is argued in this dissertation that a person is morally blameworthy when he or she engages in prohibited activity, knowing that it is illegal, or where he or she ought to have known, that it is illegal. Where an accused was reasonably ignorant or mistaken as to the legality of the conduct, he or she should be regarded as morally (and hence, legally) innocent. Thus, the legal rule that ignorance of law is not a defence is unfair, contrary to fundamental principles of justice and can no longer be supported. It is proposed that a general defence of reasonable mistake of law be recognised. The work exposes a hidden normative doctrine of fault. Because this normative doctrine is formally suppressed, internal contradictions in the key notions of culpability are inevitable. It is demonstrated that by relying on theoretical, historical, doctrinal and comparative analyses, these contradictions can be resolved

The Public Prosecutor and Sentencing: Drug Trafficking and the Death Penalty in Singapore

10.1080/14729342.2018.1471835Oxford University Commonwealth Law Journal18146-7