tag:blogger.com,1999:blog-1842716712395997133.post8016771040498905839..comments2023-05-22T18:46:59.904+10:00Comments on Curl: Sex & Immorality: The Court's TakeKate Gallowayhttp://www.blogger.com/profile/02528291056525962535noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-1842716712395997133.post-76075732707563956902012-02-03T11:24:46.372+10:002012-02-03T11:24:46.372+10:00Thank you for your comment, zmkc. I think that you...Thank you for your comment, zmkc. I think that your comments are indeed directly relevant - if a court purports to make pronouncements on morality, then I agree with you that they should be considering such issues as 'tenderness' and the context of the (albeit) private relationship. In all fairness though, it is difficult to establish the 'truth' of the claims when one party (ie Mr Pratt) is deceased. In spite of this though, his estate did not deny the evidence as to the nature and state of the relationship.<br /><br />I think your comment highlights the problematic nature of 'immorality' as a legal construct and, as you point out, the issue of representing 'public' in public policy. Thanks :)Kate Gallowayhttps://www.blogger.com/profile/04000215843776429775noreply@blogger.comtag:blogger.com,1999:blog-1842716712395997133.post-24989970302053207422012-02-02T20:37:10.520+10:002012-02-02T20:37:10.520+10:00Absolutely fascinating - thank you for elucidating...Absolutely fascinating - thank you for elucidating the derivation of meretricious. As a complete innocent in the ways of the law, I am truly astonished the word 'strumpet' can appear anywhere near a 21st century court and even more astonished/horrified by the idea that a court can ignore the possibility of 'tenderness' and make findings about private sexual morality in a case such as this. I know these comments are not directly relevant to the legal points you make, merely the reactions of a member of the public, on whose behalf, presumably, the court believes it is making its decisionszmkchttps://www.blogger.com/profile/08972549292961948240noreply@blogger.comtag:blogger.com,1999:blog-1842716712395997133.post-52607205814052121102012-01-30T17:21:52.390+10:002012-01-30T17:21:52.390+10:00Thanks PleagleTrainer. Well morals in general coul...Thanks PleagleTrainer. Well morals in general could be considered to fall in the 'I know it when I see it' category. And in my view, you highlight the test for a sound approach: would it apply in other circumstances?<br /><br />It also occurred to me, if Ms Ashton is no longer able to support herself and her children, will she not return to the 'escort industry'? Is this not 'immoral' on these standards? Could this 'immoral' outcome not be saved by upholding at least part of the claim?<br /><br />I see this as an unsustainable concept, or threshold test for the validity of a contract. (All abstract of course, because there was no intent to create legal relations...yet another thorny issue.)Kate Gallowayhttps://www.blogger.com/profile/04000215843776429775noreply@blogger.comtag:blogger.com,1999:blog-1842716712395997133.post-69448450580755506502012-01-30T17:18:38.360+10:002012-01-30T17:18:38.360+10:00Thanks MsKatieKatieKay. I think this is a good poi...Thanks MsKatieKatieKay. I think this is a good point. Sale of women's bodies are sanctioned now in legislation - I was reflecting on the intersection of the common law public policy and statute in this regard. Telling also is the NSW Act cited re cohabitation, that *still* says 'notwithstanding public policy'. I guess this acknowledges that there remains a public policy against cohabitation outside the terms of the legislation. So parliament seems complicit in this also.Kate Gallowayhttps://www.blogger.com/profile/04000215843776429775noreply@blogger.comtag:blogger.com,1999:blog-1842716712395997133.post-78605707892715249492012-01-30T16:46:38.391+10:002012-01-30T16:46:38.391+10:00I agree, Kate has clearly set out an important asp...I agree, Kate has clearly set out an important aspect of the court's reasoning with a very interesting critical analysis. It also seems to me that what is 'meretricious' has a quality of 'I know it when I see it'. I cannot help but wonder hypothetically if a similar arrangement between a same sex couple would have attracted the same reasoning. Or, picking up Kate's point about the children's protection, what if both parties to the contract were deceased and an action was brought by the children's guardian to enforce the contract?PleagleTrainerhttp://thekglawyerblog.com/ptblognoreply@blogger.comtag:blogger.com,1999:blog-1842716712395997133.post-34137523847396955952012-01-30T13:07:24.305+10:002012-01-30T13:07:24.305+10:00Fantastic analysis - a great reminder of the conti...Fantastic analysis - a great reminder of the continuing relevance of a feminist perspective to legal issues.<br /><br />Another point I find distasteful about the aspect of the Court's decision discussed in this post is that, by applying without question a rule dating back centuries, the Court has implicitly accepted the three category approach (referred to in Markulin v Drew), which distinguishes cohabitation arrangements from an agreement with a prostitute. The law continues to find nothing immoral about a contract for a woman to provide sexual services to (usually) men, which effectively amounts to the dehumanizing of the woman's body to a product to be purchased or rented. That is, the body of a prostitute is not worthy of protection, whereas middle class morals about cohabitation are. MsKatieKatieKaynoreply@blogger.com