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Jessica Lake, "Special Damage: The Slander of Women and the Gendered History of Defamation Law" (Stanford UP, 2025)
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C
Welcome.
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B
Welcome to the New Books Network.
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C
Hello and welcome to another episode on the New Books Network. I'm one of your hosts, Dr. Miranda Melcher, and I'm very pleased today to be speaking with Dr. Jessica Lake about her book titled Special the Slander of Women and the Gendered History of Defamation Law, published by Stanford University Press in 2026. Now, this is a really interesting book because we get to understand why where we get defamation law, which we still have, is still very much relevant, but it has origins that we're probably less aware of and it has to do with all sorts of other related laws and norms and behaviours, especially around what women are called and what they can and cannot do about being insulted in these particular ways. Now, this would be interesting kind of if we were looking at really any country to understand this history, but this book sort of does that in triplicate because we're not looking at just one country. We're looking at the United States, we're looking at Australia, and we're looking at England. Now, obviously, those countries have some legal history in common, but they don't have identical laws. And as this book shows, they don't have identical development of laws either. So it's a really interesting investigation and comparison at the same time and clearly gives us a lot to discuss.
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D
So, Jessica, thank you so much for.
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C
Joining me on the podcast.
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D
Thank you, Miranda, and thank you for that lovely introduction. It's very good to be here.
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C
Well, speaking of introductions, can you please introduce yourself a little bit and give us the sort of origin story of why you decided to write this book?
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D
Yeah, sure. I'm a senior lecturer at the University of Melbourne Law School in Australia, and I research, write and teach in the area of media law, particularly in defamation and privacy law. I also do some work on cultural and legal history, but also prior to working as an academic, I practiced as a media entertainment lawyer for several years at a law firm in Melbourne. And defamation law was my bread and butter back then as well. In terms of why I decided to write this book, there are a few reasons. Firstly, defamation law has been kind of fairly untouched by any kind of feminist or kind of gendered analysis, really, compared to other areas of law, such as kind of domestic violence or property law or other areas. And it's been taught and written about as if it's some kind of sort of neutral doctrine that has kind of equally protected the reputations of all people, of men and women. And it's only really been in the last few years and since, particularly since the MeToo movement, that people have begun to critique defamation law's kind of operation. And, for example, the way in which it silences some voices, the way in which it privileges the reputations of some groups over others in society. And so with that in mind, a few years ago I was reading just a mainstream defamation textbook in Australia, and I came across a tiny footnote referencing an act that had just been repealed in Victoria, in the state of Victoria, and it was called the Slander of Women act, and it had been repealed in 2005. And this tiny footnote, you know, I had such a background in defamation law, both in kind of study and practice, but I'd never heard of the Slander of Women Act. And the tiny footnote contained no further information, but it really piqued my interest. And so I began researching, like everything I could about that particular act. And then kind of a whole story cracked open in front of me, I guess you could say yeah, that's really interesting.
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C
When one kind of encounters something that might seem like a small snippet and you're like, well, wait a second, what is this? And the investigation opens up something much, much bigger than just that snippet.
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D
Yeah, I mean, absolutely. It's like pulling on a thread and then suddenly, you know, it all kind of a jumper falls out or something. You suddenly kind of realize this whole kind of area that you didn't know about.
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C
But of course, that is sort of the rise and fall of research. Right. You start with a small snippet, you pull the thread, you end up with loads of stuff, and then you have to figure out how to organize it back into a coherent linear narrative. Right. For everyone else to be able to follow along. So why do you decide that kind of the best way to put all that together is to start the book in New Jersey in 1788. We don't start in the Australian state of Victoria. Why do we start in New Jersey in 1788?
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D
It's a good question. So how do you put the book together to tell the story that needs to be told? And what I kind of realized when I was researching this area and these laws is that this was a global story, this was a kind of transnational story that needed to be told about these kind of reforms that crisscrossed the kind of British empire during the 19th century. And so I've thought about how to tell the story of those reforms and the way in which they kind of, bit by bit, kind of crept across the world, influencing each other and also kind of manifesting in quite different ways. And so I start the book in 1788 in New Jersey because that was where and when the slander of women legal changes really started. And I should probably, for listeners, say something about, you know, what were those changes, what were the slander of women reforms and why did they matter? And so at that point in time, so the late 18th century, kind of early 19th century in England, which of course, was the kind of fount or the matter of authority for kind of all British law across the Empire, defamation law was categorized as either liable, being kind of written material or slander, which pertain to kind of spoken words. And if you wanted to bring a slander claim in a common law court, it could only kind of relate to certain types of accusations that might be levelled against a person. And they were things like being a criminal or being incompetent or dishonest in your job or carrying a particular kind of disease. And if the Accusation, though, was something that was kind of sexual in nature, some kind of sexual misconduct. In other words, if someone was accusing you of adultery or fornication, being sex outside of marriage, or incontinence, which was the word that comes up a lot in the 19th century, which basically kind of means being a slut, you had to show a specific type of loss that was called special damage. And so hence the kind of title for my book. And special damage was defined for women really, really narrowly, narrowly by English precedent. And what it meant was kind of the cancellation of an upcoming marriage. And so if you couldn't prove that, you know, you had some engagement to somebody that was, and the marriage was imminent, and yet you had been accused of sexual misconduct and therefore the marriage was cancelled, if you weren't in that situation, and of course the vast majority of women weren't in that situation, then you couldn't bring a case for sexual slander in the common law courts of England. And so in England, this kind of. This injustice or this kind of burden on women was recognized by some jurists. But it wasn't so much of a problem there in the late 18th century because women could bring cases for sexual slander in the English ecclesiastical courts, so in the kind of spiritual church courts. But when the British Empire expanded, so when it kind of expanded into kind of North America and into kind of setting up the Australian colonies, as well as out of New Zealand and Canada and then later in Singapore and South Africa. So when it kind of expanded, it passed on, or it kind of brought with it English common law, but it didn't sort of generally, the British Empire didn't set up ecclesiastical courts in these places. And so this meant that women in, for example, the US Colonies or the Australian colonies could really not do anything, you know, when they were called whores or unchaste or adulteresses, which would be really ruinous to their reputations, they couldn't do anything about it because they couldn't prove special damage. So why New Jersey? Well, this comes to a kind of. This issue of not being able to kind of protect your reputation as a woman comes to a crisis point in New Jersey just after the Revolutionary War. And it does so at a time that the United States is a fledgling republic. So in kind of the late sort of 1780s, 1790, and a young woman, Mary Smith, is slandered by various men in the community who say that she's basically a fornicator, that she's had sex out of wedlock, and that she's carrying a bastard child. And so she brings a slander suit to shut them up and to try to redeem her reputation in the community. Because basically no one wants to have any kind of connection or kind of, as they say, social intercourse with her at all anymore. And so the defendant, though, argues in response to her case that she brings that as her kind of accusations relate to fornication, that of course she needs to prove special damage. But Mary Smith is not engaged to anyone. She wasn't engaged to anyone. And so of course she can't prove special damage. That's required in English law. And the case is really interesting because the court papers which I retrieved from the New Jersey State Archives, are at pains to kind of represent Smith as a worthy, what's called subject of the state of New Jersey. And they don't emphasize her femininity, which is unusual at the time. So they don't call her a kind of a lady or a female. Or they kind of don't emphasize that she'd kind of, you know, dashed her hopes for marriage or anything like that. They press that all people, women and men, should have the right to a good reputation in this kind of new society of New Jersey, this new state of New Jersey. And the language is important because at the time, women in New Jersey were the only ones in the British common law world who were enfranchised, meaning that they could vote. And it only been a few years earlier that the New Jersey Constitution had given the vote to women as well as free blacks and immigrants, which was a situation that was exceptional in the United States. And also across the British common law world. Those kind of liberal, quite progressive enfranchisement laws only persisted for about 30 years. And then they were kind of wound back and reconfined. Voting was reconfined to just white men. But it was during that kind of 30 year period when women were seen as kind of members of this kind of diverse body politic that the slander of women changes to defamation law first occurred. And in Smith's case, the Chief justice, so Chief Justice Kinsey, who was a staunch Quaker at the time, Quakers were very much a kind of political presence in New Jersey as well as in other kind of states, of course, like Pennsylvania, he presided over her case. And he agreed with the defendant, who was called Isaac Minor, who was a young man, that the British, under British common law, she had no case because she couldn't prove special damage. But he couldn't kind of abide by the result. And so he chose to kind of break quite defiantly with the traditions of British common law, and that he declared that in New Jersey now all sexual slander was going to be actionable for women as well as for men. It was a gender neutral change. And this was. Even though it was kind of written, you know, as a kind of judgment, and in that sense it's kind of fairly stayed in tone. It was a kind of revolutionary judgment and it really kind of kicked off the slander of women movement. So that's why the kind of book starts there, because it's the first. It's the place where these kind of debates and these changes are happening for the first time in the law.
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C
Yeah, that definitely makes sense as a starting point then with that background. And really interesting as well to see already these sorts of debates around, like, well, is it gender neutral? And how does this thing that might seem really niche actually relate to questions like what does it mean to be a citizen? Right. Like, it's already showing that this isn't just something that's kind of off in one little bit of law and not related to anything else. But of course, if we move to Australia at this point somewhere, for example, like New South Wales, Australia is not independent.
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D
Right.
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C
So we're not talking about questions of citizenship at this point. So then why were accusations against women concerning in places like New South Wales, given that the sort of new Republic aspect that we've discussed with New Jersey. That's not what's going on. So what is happening?
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D
Yeah, that's not what's going on. That. That's right. And the second chapter of my book focuses on the Australian colony of New South Wales, which of course was, you know, invaded by the British and settled by the British in 1788, which was the same year that Smith brought her case in New Jersey. So you've got these kind of contemporaneous things going on. And of course, in basic terms, Britain turns to colonizing Australia because it's lost its colonies in North America. And some of the same people who are involved in the Revolutionary war in New Jersey end up in New South Wales. So it's, you know, these places are very much connected at the time, but early New South Wales, you know, in the late 18th century, it's. It's really kind of a small penal settlement. It's on the lands of the indigenous Gadigal people, who, of course, are the people who occupy the traditional lands of Sydney. The European population is small. It's sort of under, you know, almost constant frontier conflict with indigenous populations. Provisions are really scarce. Conditions are fairly difficult and social status and social kind of reputation in New South Wales at this time is really determined via class. So. But not the same. Not class in the same way that kind of Britain is occupying like the Metropole is occupying at the same time. It's a bit different in New South Wales. The classes are kind of, whether or not you're a convict, for example, or a servant or a kind of free migrant or, you know, part of the kind of officials or the gentry. And the first sexual slander case in Australian history. So the very first case brought, you know, relating to sort of sexual misconduct, defamation in Australia's history occurs in 1800 when the wife of a free migrant, so John Lewin, who was the. Was brought. Was being brought over by the British government because he was an amazing artist. And his wife, Maria Lewin, travels to Australia on her own on a ship unaccompanied by him, which, you know, has a kind of funny. Well, funny backstory because he was meant to be traveling with her from the uk, but he got off the ship at the last moment and then it sailed without him. So she travels on her own on this kind of long journey from the UK to New South Wales, which takes about nine months or so. And during that time, she becomes subject to kind of various slurs and rumors about her on the ship, particularly about, you know, her being a whore and being a servant, and those two things are kind of connected. And of also having kind of more particularly kind of having sex with various men on board is kind of the accusations, such as the captain now her slander case against the man. So she. She arrives in New South Wales and brings an action against the man who's been kind of leveling these slurs at her. And she's actually successful in that case. She's actually able to kind of redeem her reputation and show that she is a kind of, you know, respectable wife of a free migrant in that kind of category, and not a kind of servant who is under kind of sexual suspicion. But she's only able to do so. I mean, you can imagine she can't prove special damage. I mean, she's married, so she can't prove that she's had a cancellation without coming married. So she can only do so because the courts in New south Wales in 1800 were extremely rudimentary. There was very little knowledge of any kind of English law. The people who presided over them were usually kind of laymen with no real legal training. And if, of course, she had actually brought this case, you know, in England, she couldn't have brought it in the common law courts because of the lack of special damage. So she succeeds with that case. And it's an interesting one in terms of kind of how sort of suspicions about sexuality and sexual reputation were connected to kind of your class category in New South Wales. But the most interesting case, I think, and the one that kind of highlights what happens in New South Wales, is that some years later, an English governess, Harriet Spencer, brings a similar case, a similar kind of facts in New South Wales. She's also accused of having sex with various men on board the ship on her way to New South Wales. And the rumours in this case are actually spread by the captain of the merchant ship that she travels on and he's the one that she sues. So her case being kind of Spencer against Jeffrey, because Captain Jeffrey is the defendant and the court finds in that instance at first instance as well. So after the kind of trial, the court sort of finds for her and states, and this is a quote, in this country, more particularly, the calmenies circulated against the plaintiff could admit of but one construction, and that construction could not fail to sink her in the estimation of the world. And he goes on to say that sexual slander in New South Wales is ruinous for women like Spencer because it blocks her ability to make a living. She's a governess, remember, and if she is seen to be kind of somehow unchaste or a whore, or has those kind of suspicions and rumors kind of circulating around her, she can't continue in her job as a governess. So it's not about whether or not she can get married or not, it's about whether or not she can actually hold her job as a governess. And in that case, she loses on appeal because she can't prove special damage. Because by that point, the courts in New South Wales have advanced enough that British kind of common law has been inherited. But her lawyers try to argue that the law should be changed in the same way as it had been in New Jersey, because she relies on her reputation in order to keep her employment. But unfortunately, her lawyers don't succeed and she kind of loses her case. But then further reforms are kind of put into action in New South Wales.
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C
Yeah, this is really interesting to see, kind of how the links are being made across different places and sort of expanding what was there and how, you know, as the world is sort of, you know, as women, for example, can have more jobs, like, well, that's changing how things work. It's no longer just about, can you get married if we move though, beyond individual cases, like when and where do we get the first title of an act that, you know, the Slander of Women Act. Right. That's very clear in the title, what it's about. When and where does that happen and why is it in this place at this moment?
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D
Yeah, yeah, it's a good question. So this, the first Slander of Women Act. So the first kind of reforms that change the law and remove this kind of burden of special damage. And where the act is actually called the Slander of Women act is in North Carolina. So that, that's actually the third chapter of my book. And so whereas New Jersey kind of changes the law kind of judicially in 1790 and on gender neutral terms, as we said, it's in 1808 that we see the first kind of Slander of Women Act. So, you know, some years later, 18 years later, we see the first Slander of Women act being passed. The first in the whole common law world. So the entire of the British Empire and it is in North Carolina and it's introduced this, this very small act. I mean, this is one of the interesting things about these reforms is that they're kind of consequences both for individual women, but also kind of for women as a group in terms of being able to kind of fight back against sexual slurs. The consequences are large. You know, they're quite significant. But the act, the acts themselves changes to the law are very small. I mean, there are only a few kind of lines. They're just kind of saying that to say about a woman that she's incontinent is kind of slander per se, which is another way of saying, you know, slander without having to prove special damage. And so this act, the Slander of Women act in North Carolina is introduced by a fairly kind of powerful figure who is a plantation owner, an enslaver, and a member of the North Carolina House of Commons, who was called William Jones. Now, I mean, apart from being out of cobble together kind of various information about him, as I said, about what property he owned, including, you know, who he owned as well as kind of what he did and where he came from and who his family members was, I was able to cobble that information together from various kind of census property and government records. But he's actually, other than that, a fairly difficult kind of figure to get a handle on and doesn't exist in any other kind of, you know, literature at the moment. And so we can only kind of speculate about his particular motivations for bringing this act in 1808. We know. Well, I know from my research that he's the father of two daughters, for example, who were coming of age at exactly that kind of time. And also that there'd been a series of articles in the local and national newspapers at that time in North Carolina about the problem, the problems caused by men in society slandering, you know, what they often termed as innocent and delicate women. And so maybe his daughters had been the subject to such slurs. We don't know, of course. But he introduces this short bill that sets out that kind of doubts had arisen as to whether women could bring actions against persons who may attempt, it says, in a wanton and malicious manner, to destroy the reputation of innocent and unprotected women. It goes on to say that their very existence in society depends on the, quote, unsullied purity of their character. And so it deems that any words that are spoken about a woman which may amount to a charge of incontinency, so incontinence, he being kind of sexual, kind of looseness, shall be deemed and held actionable. So, of course, as I said before, that means that special damage is no longer required. And the key to kind of understanding, I think, what's going on in North Carolina at this time is that kind of phrase that makes its way into the act called unsullied purity. Because the act is intended to protect kind of elite or kind of middling white women who are considered sort of to be innocent and chaste and really the kind of very bedrock of the kind of Republican family and sort of Republican civil kind of virtue at the time. But the really interesting thing about this is if you just look at the act and you just look at kind of the newspaper article at the time, you'd think, well, you know, that's how this act operated. It just operated to protect the reputations of. Of kind of white elite women. But actually, if you look at the case law, that kind of results after the 1808 act, you can see that actually no women really of that kind of class brought sexual slander cases. And it's likely that any, if any, such disputes existed, that they were kind of settled privately within families and communities. But the women who actually relied on this act and that, who pursued cases all the way to the North Carolina Supreme Court, they were really women existing on the margins of society. And that's what I found most interesting about the kind of. The consequences of that kind of 1808 slander act. And sometimes these women, you know, who many of Them, you know, are poor. Many of them. Some of them are labeled, you know, quote lunatics. Many of them occupy kind of racially ambiguous status. Some of them, a really kind of prominent example is some Native American sisters who bring a case against a white plantation owner. So they kind of. They're existing kind of on the margins of this society, and they're using this act to kind of vindicate their reputations and fight back against kind of sexual slurs that have been kind of levelled against them. And even though they don't always win, and the kind of politics about, you know, who wins and where, you know, whether it's in their local community or in the Supreme Court, all the way in the middle of rally in North Carolina, the politics of who kind of wins is. Is one thing, but even when they. They lose their cases, you could argue that they kind of win in other respects because the act kind of enables them to. To put their side of the story kind of on the public record.
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C
Yeah, this is really interesting to see, kind of the act itself, but as you said, I think even more intriguing to see what happens in practice.
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D
Right.
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C
What's written down and the logic behind it versus what happens in reality with it. And I especially want to pick up this point about encoding not just things around class, which we've talked about again, when it comes to Australia, but also race.
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D
Right.
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C
We're talking about here when it comes to the US in this period. And that's something you look at beyond North Carolina. So can we maybe talk about the ways in which this shows up in other Southern states like Georgia, but also Northern states in the US that don't have slavery in the same way?
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D
Yeah, absolutely. So, yeah, I mean, in the south of the United States, as you said, and as I was speaking about before, these kind of laws, really, you know, they were passed, they were kind of intended to protect and privilege the reputations of white women. I mean, that was quite clear in the kind of rhetoric they kind of wanted to protect and associate white women with chastity and innocence and racial purity as well. And in North Carolina, you know, that didn't work out as intended, which was, you know, a good thing. And at one point, even just before I move on to Georgia, at one point in North Carolina, faced with a kind of a relatively poor African American plaintiff, one judge actually said quite explicitly that these were not the kind of, quote, unsullied women that the act was intending to protect. So was quite explicit about, like, you know. No, no, no, no. You're not the Kind of person that we're, you know, trying to protect with this slander of women act. But in Georgia, things were even more kind of upfront when it came to race, which is probably not surprising. I mean, due to its agricultural agriculture and its kind of history, it was a society that was even more extensively than North Carolina, based on kind of industrial slavery and various upper levels of society being kind of legislatures and politicians and the judiciary. They had kind of interests, both personal and political, in kind of maintaining a strictness of color lines that, you know, perhaps a little bit more flexible in places like North Carolina, which didn't have the kind of industrial level of slaveholding and slavery that places like Georgia did. And Georgia was also. It's also a very interesting state because it was really heavily invested in, in. In legal codification. And so. And by that, I mean, it sought to kind of record and write down all of its laws in statute books, rather than relying on the so called unwritten common laws. So the common law of England being often referred to as kind of judge made or unwritten law, because it doesn't actually exist in statute books. Well, Georgia tried to kind of write down, have a project of writing down all of its laws in statute books. And it prided itself with being a kind of leader of the codification movement in the United States that was kind of rapidly gaining momentum in the 19th century. And in doing so, it cracked down really heavily on what could be said about white women in the state of Georgia. And sex, of course. And in one judgment in the late 19th century, reflecting on its own history, the Georgia Supreme Court actually admitted that, like, admitted with pride that it led the world in kind of speech suppression. And so in 1859, what we see happening in Georgia is in response to a really high profile case, which was called Castlebury and Kelly, where a rural white woman had been accused of having sex with a black man. So kind of the most ruinous slur you could kind of level in such a society against a woman. The legislature passed a law that stated specifically that any words imputing to a white woman that she had carnal knowledge or connection with a, quote, slave, negro or free person of color, would be held actionable per se, without special damage. So this, in 1859 is sitting right at the eve, of course, of the Civil War. This is George's own distinctive slander of women act. So it kind of makes imputations of sexual slander. You're able to bring them without proof of special damage, but it does in very kind of racially you know, explicit terms. And when it comes to kind of the northern United States that you asked about, of course, they regarded themselves as, you know, more enlightened and progressive when it came to kind of matters of race. And they largely kind of looked down on the Southern states reliance upon and their defense of slavery, of course, as its time. And as I said, George's Slander of Women act is passed in 1859 on the eve of the Civil War. But it's interesting, actually, that it nonetheless survives the Civil War, that particular Slander Women Act. And it kind of persists well into the 20th century. Now. New York, of course, abolished slavery much, much earlier in the early 19th century, but it did so in a kind of protracted and slow and kind of painful way, especially for African Americans in New York State. And the kind of process of emancipation in some ways in New York kind of elevated racial hostility and tensions. And New York also was an interesting place in the sense that it had a kind of emotional or maybe sort of conservative adherence to kind of British common law in a way that other states didn't. It kind of. It. It kind of stuck fixedly to kind of British common law as long as it could. But debates about slander of women and reforms relating to slander of women in New York, unlike in Georgia, they don't make explicit mention to race. But instead, what you see and what I found when I was researching kind of New York debates and newspaper articles and cases about this issue is what you see is kind of the way in which the language of color kind of pervades with imagery. So sexual slander is kind of stain, stains women, it discolors women. They're a kind of vivid sort of metaphor used about women's reputations being like clean pieces of white paper or pure white fleece that then had become discolored or soiled or sullied or stained via sexual slander. So this kind of imagery that's conjured up in these kind of debates about sexual slander are really kind of, you know, consciously or unconsciously or whatever, they're trying, they sort of work to associate whiteness with purity and sexual innocence and with ideas of kind of civilization. And so you see kind of these associations kind of being made, but they're not done in the same kind of explicit way. But New York finally, you know, it does hold out for a long time. So it's one of the last states in the US to kind of pass the Slander of Women act. And it passes it in kind of 1871. So almost kind of right at the end of the 19th century.
- [36:05]
C
That's really interesting to understand because as you said, the kind of Georgia element may not be super surprising given what else we know about Georgia at this point, but the New York one, I think, might surprise some people and is interesting to kind of see them all in comparison with each other. And of course, as you've mentioned, this is a comparison we can take beyond the US States.
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D
Right.
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C
You talked a little bit about how kind of some people involved in New Jersey then turn up in New South Wales. And that's not just something at the beginning of the 1800s. Right. Can you tell us about the movement of ideas that we see towards the end of the 1800s, for instance, people in Australia debating these sorts of issues, looking at what's happening in places like Georgia and New York?
- [36:43]
D
Yeah, sure. So, yeah, I mean, as I said before, like, one of the things that was kind of most interesting about the slander of women reforms was the way in which these, you know, largely, I mean, obviously the wording with the Georgian ones was different, but the way in which these kind of otherwise kind of very similar reforms, which are pretty technical in nature, I mean, you know, wouldn't have necessarily been kind of understandable to a lay audience without explanation. They're fairly kind of technical in nature because defamation law is so overly technical at this time, and they're very short in wording, but they have these kind of outsized implications. But the way in which they were framed so differently in various places across the globe, and when it comes to the Australian colonies, women's kind of access to, as I kind of talked about in relation to New South Wales, that kind of reoccurs women's access to and kind of ability to engage in paid work is so central and important to slander of women debates in the Australian colonies. So, as I said, we first see that with Harriet Spencer, but it also kind of pops up in cases in Victoria and South Australia with women who are barmaids, professional piano players, hotel owners, shopkeepers, who bring and kind of argue these cases across kind of New South Wales, South Australia and Victoria. And so, and in those places, quite unlike the United States and England, actually, legislatures and judges recognize the necessity of the slander of women acts to kind of enable women to keep working. And so that's kind of one quite obvious point of difference between what's happening in different locations with these acts, but in terms of connections and the way in which ideas kind of circulated, sometimes, quite often it was via precedent. So networks of kind of legal periodicals and law reports, which are kind of growing in extent and distribution during the 19th century. They, of course, would write up and share case reports for the purposes of kind of building and feeding this kind of English common law precedent system. So, you know, what exactly is special damage? How should we define it? What if it leads to woman being refused service at a restaurant or kicked out of a social club or whatever? You know, so all these kind of little questions about, you know, that. That relate to kind of defining and understanding and applying the law. Courts kind of rule on these aspects. And then other courts, of course, in the common law kind of world system take notice. And so they cite and borrow each other's ideas. So a case in South Australia, for example, brought by a hotel maid could influence and would influence, say, a case brought by a rural New York farm woman by virtue of the system of precedent. And so that, you know, they, of course, would have no idea, these particular women who were bringing these cases, that the outcomes or the decisions, you know, of the cases that they bring would go on to have this kind of influence in other parts of the world. But that's one of the things that happened. Another way in which kind of ideas circulated, of course, was. Was by kind of legal magazines or periodicals and newspapers. And in this regard, in this, you know, in one example, that Victoria and New York were really close on these kind of issues. So not just this issue, but also kind of other things. So the Albany Law Journal, which, of course was published in the capital of New York state in Albany, and the Australian Jurist Magazine, which was published in Melbourne, they constantly kind of were in dialogue with each other in this late 19th century, and they shared ideas about things and they shared each other's columns and they republished each other's cases. So they were very much kind of aware of each other and had a kind of companionship of sorts. And that was exactly how and why that kind of legal minds in Victoria learned about what had happened in New York with the Slander of Women Act. And it was on that basis of those kind of reforms happening in New York that Victoria kind of really took up the issue with gusto. Like the Victorian lawyers took up the issue with gusto and argued that Victoria needed to follow suit to kind of be like New York in this sense of kind of being part of this progressive new world.
- [41:19]
C
That's such an interesting connection to find, not just in the case law, but in kind of the discourse around it. To what extent did England care, though? Right? Like, that's where all of this originally comes from, like, are any of the judges in London paying attention to places like North Carolina or Victoria?
- [41:36]
D
Yeah, a little bit. I mean, the legal community in England, they were increasingly aware, so through the 19th century that their colonies or their former colonies in the sense of United States, were kind of breaking away in various ways from the traditional law of defamation. So they were aware, for example, of the reforms that were passed in New south Wales in 1847. And in fact, many kind of legal minds in England, such as Lord Campbell, who was an important figure, had tried to reform the law in England in the 1830s and 40s to get rid of the burden of special dam because it was injustice on women. But he, you know, he had little, very little success. He didn't get anything through. And he thought, and he argued that England looked, you know, in quote, marks barbarous in terms of its treatment of women and their reputations in defamation law. And that that was something that I found really interesting in my research was the extent to which England's approach to defamation law and the common law generally, generally actually was described and labeled by people in the US And Australia, but also critics within the UK as being kind of barbarous and uncivilized. So they kind of. I mean, these terms are circulating a lot in the 19th century because of the project of colonization and because of kind of trying to, of course, categorize indigenous peoples. But they're kind of. These terms are kind of flung back at them and, you know, that their treatment of women is barbarous and uncivilized. And so it would have been. And it was, you can see that in the records, a kind of galling insult for England, the Metropole, to be kind of told that they were barbarous and uncivilized, particularly by their colonies, you know, particularly by places such as New South Wales and Victoria, where they considered them to kind of be, you know, the ragged, their ragged edge of empire. And so it was Victoria's Slander of Women act that they part. So Victoria passes their Slander of women act in 1887. So theirs is kind of comes about really because of what's happened in New York as well as kind of prominent local cases. And it was Victoria's act that finally pushed England to move on the issue, really, because they increasingly, and you see this in kind of parliamentary debates in England. They increasingly felt humiliated by being considered backwards and barbaric. And that their colonies, you know, these places like Victoria, would now be kind of more progressive and enlightened. And so they, they get around to finally passing their own Slander women Act in 1891, which is, you know, almost the last slander of Women act to be passed across the British common law world. And it's a great, this, this kind of story is a great example of the fact that Britain was definitely not the leader of so much law in the 19th century. I mean, it's kind of assumed in standard legal histories written about Australia, for example, that we kind of inherited the ideas and reforms and cases that were happening in the uk but actually the kind of movement of legal ideas and legal arguments also went the other way around. And so it's a good kind of example of that, that they're kind of. And that's why I kind of end the book really, in England, because they're the kind of one of the last places to finally sort of drag their feet and pass the Slander of Women Act. But of course, when it comes to, you know, it's so late in the 19th century, by the time they actually get around to doing this, that of course it's caught up with debates around women's suffrage and kind of the equal treatment of men and women. And so actually the act, which, you know, of course is seen in some ways as kind of advancing women's reputational rights, of course it's actually objected to by the Women's Franchise League, so one of the kind of main suffrage groups in England at the time, because they're worried that it sets up a double standard of sexual morality, which was a particular concern in late 19th century when they're kind of in, there's a social hygiene movement and they're figures like Josephine Butler and they're raising the age of consent and there's all kinds of things going on, going on. And so the act is actually opposed by that group and they want it to be gender neutral. So what they want is kind of, yes, get rid of the burden of special damage, allow women to bring these kind of claims that silence kind of sexual attacks against them, but also don't just make it women, you know, make it men as well. And so what they really want, which is interesting, is kind of of harks back to what New Jersey did 100 years earlier that finally kind of comes around to England in the late 19th century.
- [46:45]
C
This is such an interesting transformation to understand again. And that's why, as I mentioned right at the beginning of our conversation, the comparison in this book is so powerful because it does let us see these connections and go, well, hang on, why did that happen when it did. And what else was going on? You know, law is not just something that happens, even domestic law.
- [47:04]
D
Right.
- [47:04]
C
It's not something that just happens domestically, as it were. So I think that's a good place to end our discussion on kind of the main ideas of the book historically. But I am curious whether there was anything you came across that really surprised you in pulling this thread.
- [47:21]
D
Yeah, I mean, I guess what surprised me most was the fact that these kind of rich and important stories had been ignored or forgotten or whatever, left out of the kind of defamation history books, but also kind of histories of women and law really for so long. And because it became clear to me in my research that the slander of women, that particular kind of issue, it was the most kind of important kind of issue in kind of defamation law in the 19th century in terms of what people were kind of debating and talking about and sharing and objecting to and that kind of thing. It was, you know, the most important thing that was happening in defamation law in 19th century. And also one of the most important things that was happening in law generally in a kind of global, transnational kind of sense, when reputation was so important in these kind of different places. And so, yeah, that's what surprised me was that these stories, I mean, some of them had been briefly kind of written about in law review articles, for instance, like in terms of the United States, but not much beyond that. And also nothing about what had happened in the Australian colonies or in England at all, and also in other places. So the conclusion of my book, book, the places that I look at chapter by chapter are just kind of a few of the places that pass these reforms. And so the conclusion of my book kind of actually goes into more detail about how all the states across the US that kind of pass them, but also the other parts of the British Empire. So New Zealand passes these reforms, so to call other places in Australia, so Western Australia and Tasmania and Queensland, but also the Canadian provinces pass them. And also really interestingly, of course, other parts of kind of Asia, for example, so Singapore, which is part of the British Empire, passes these reforms in the mid 20th century. So they kind of get around to it by then. I mean, they're kind of one of the most kind of late outliers. But yeah, nothing previously that's what surprised me is that nothing had previously kind of been written about them much. And I mean, I think. I think probably, you know, and, you know, unfortunately, and predominantly it was because it concerned women. I mean, you know, these were called the slander of women Acts, and largely. Not always, but that's what they were largely called. And the issues about whether you could kind of bring a case for sexual slander was not generally, you know, an issue that, you know, concerned male plaintiffs. And so, I mean, I think that that's why, you know, this was all kind of forgotten and not really written.
- [50:16]
C
About and yet not a good enough reason to keep forgetting about it.
- [50:20]
D
So I'm so glad that you've managed.
- [50:22]
C
To pull this string and excavate all.
- [50:24]
D
Of these pieces and put them together.
- [50:26]
C
Definitely very helpful on a number of fronts for this project. What, may I ask, might you be working on now that it's out in the world? Anything related or unrelated that you want to give us a sneak to preview of?
- [50:39]
D
Yeah, well, I mean, I do because I work on media law, both kind of, you know, historically, but also in a contemporary context. I do kind of keep working on things like the regulation of pornographic deep fake images, for example, and what we can do about them, of course. I mean, one of the other things I say in the beginning of this book is that, you know, back in the 19th century, words, you know, spoken words was really the main medium for kind of attacking women. But now there's a whole lot of media and means in which you can do it, of course, and deep fake pornography really is the kind of latest way of doing that. And so I'm kind of interested in what laws can be used to kind of combat that and what might be most effective. Whether it's a kind of. I'm not generally in favour of technologically specific laws. I'm kind of more in favour of kind of human centered, human value, kind of broad laws that can be adaptable. So that's kind of one thing I'm looking at and also other kinds of projects, particularly one relating to medical defamation. Actually, I have a heap of cases to go through from the 19th century where doctors actually sued their patients for things that were said about them, you know, that they had given the child the wrong medicine and had died as a result, or whatever it might be. So, you know, these cases in the 19th century are really kind of. They happened before the idea of medical malpractice and they relate to what we're seeing a lot today in our courts in relation to Google reviews. So patients who post Google reviews of their doctors are increasingly being sued by those doctors and those medical practices. And I'm interested in those kind of issues because it kind of, it relates to broader ideas about expertise and experience and who gets to kind of have the right to tell particular stories and who gets the right to kind of have knowledge. So I'm going to be digging in and through all of those cases. And yeah, hopefully I can talk about that to you in future.
- [53:03]
C
Yeah, no, please come back when you've got that. And in the meantime, of course, listeners can read the book we've been discussing titled Special the Slander of Women and the Gendered History of Defamation Law, published by Stanford University Press in 2026. Jessica, thank you so much for joining me on the podcast.
- [53:21]
D
Thank you, Miranda. It's been.
- [53:28]
C
Sam.