Thursday, July 10, 2014

Unnecessary gender pronouns in legal writing

One of the advantages of writing is that an author has more time to think about how to put into words a thought that a speaker may only clumsily express.

Writing can be more aesthetically pleasing that speech, even if both forms of the language comply with grammatical rules.

A phrase which is acceptable when spoken, such as “he or she”, “his or her”, and similar conscientious efforts at avoiding sexist language, can disrupt the flow of the printed word. There are cleverer ways of avoiding sexism in writing.

It is never necessary to refer to a neutral noun with a gender-specific pronoun. And an aggregate of gender specific pronouns is a clumsy way of attempting neutrality. It is equivalent to the foolish thought, “Oh, I just wrote ‘he’, so now I have to write ‘or she’”. Better not to have unnecessarily written ‘he’ in the first place.

Textbook writers can be awful at this, and I admonish myself here too. They are usually associated with institutions that are particularly careful about sexism - and rightly so - but its avoidance tends to dominate concern about how something is written. Focus is, in such cases, and perhaps understandably, on what is written rather than how it is written.

The highest appellate courts whose judgments I consider here very rarely use expressions like “he or she”. From judgments handed down in June and July there are the following instances, which are like the kind of English written by judges’ clerks.

Judge’s English: “Accordingly a prisoner can be recalled under section 255 even if he has fully complied with the conditions of the licence.”

Better English: Accordingly a prisoner can be recalled under section 255 even if the conditions of the licence have been fully complied with.

Judge’s English: “I appreciate, of course, that the judge imposes the sentence which he or she thinks correct, without regard to the right to early release.”

Better English: I appreciate that the judge imposes the sentence which is thought to be correct, without regard to the right to early release.

Judge’s English: “The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.”

Better English: The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where the need is seen for further inquiries, but a choice is deliberately made not to make those inquiries.

Going back to May (just for the sake of pointing a finger at the HCA), we find: Judge’s English: “An accused person may be prejudiced in his or her defence because he or she can no longer determine the course to take at trial according only to the strength of the prosecution case.”

Better English: The defence may be prejudiced because it is no longer possible to determine the course to take at trial by reference only to the strength of the prosecution case.

Note that in the second example I have omitted the judge’s phrase “of course”. Bernard Williams was good on this: it can indicate “a knowing condescension to whatever view is being interrogated, from the standpoint of some other, vaguely implied, view which would itself be patronised and ridiculed if it were being questioned.”

And to be fair, here is an example of one of my own clumsinesses in a textbook:

I wrote: “A defendant who successfully completes diversion will be told by the police that he or she does not have to reappear in court ...”

Oh, if only I had written: A defendant who successfully completes diversion will be told by the police that further appearance in court is not required ... .

Previously, here on 19 December 2013 I have mentioned pronouns in legislation in the context of the power of Chief Parliamentary Counsel to adjust legislation to conform to current drafting standards. In a recent NZSC case, on which I have not yet commented, the Court refers to the now-repealed s 381A of the Crimes Act 1961. The current provision is s 296 of the Criminal Procedure Act 2011, which commendably avoids gender pronouns. But the old version included this:

381A(2): The prosecutor must apply as soon as reasonably practicable after the Judge gives his or her reasons for the direction, and in no case later than 10 days after the reasons for the direction are given.

This "his or her" is unnecessary. There is no need for pronouns here. The subsection makes perfect sense revised to read:

 "The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after the reasons for the direction are given."

You could even improve it by omitting the repetition of "reasons for the direction":

"The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after those reasons are given."

But then you notice the opportunity for using a gender-neutral pronoun, to make it even better:

"The prosecutor must apply as soon as reasonably practicable after the Judge gives reasons for the direction, and in no case later than 10 days after they are given."

Back to the Criminal Procedure Act 2011, which has numerous instances of "he or she", "him or her" and so on. Not a few of these are due to a provision which is repeated several times, containing the phrase

"issue a warrant to arrest the defendant and to bring him or her before the court".

Far better, but much less obvious, would be

"issue a warrant to arrest, and to bring before the court, the defendant".

I like this suggestion, because it puts the defendant as a remote target of the collected powers.

Currently, the best legal prose is found in the judgments of the leading appellate courts, but even these can have infelicities deserving of reconsideration.