After the last post’s moan about emasculation imagery in legal writing and law reports, today I turn to another annoyance which happens to appear in my recent land law reading: the strange survival of the term ‘mistress’. It comes up in the important case of Stack v Dowden, and, as another quick electronic search shows, in many other places as well.
And what is wrong with using ‘mistress’, it may be asked. Well, while it can’t really be escaped in certain historical contexts (think Louis XIV), and, when a person calls herself that (Mistress R’eal appeal – dominatrix not bound by video on demand ruling (Case Comment) Ent. L.R. 2016, 27(3), 118-121), then what else can you do?, but, otherwise, it is best avoided when talking about the modern world, because of (a) its ambiguity and (b) its embodiment of extremely unequal assumptions about gender relations.
So – a quick survey (Clearly this is something which is worthy of much more sustained research – where is my Research Council grant?) Mistresses can be seen in academic article titles – either real women (e.g. ‘Grierson spent GBP 630,000 on mistress’, S.J. 2012, 156(23), 5) or more metaphorical (and not in a nice way – ‘fickle mistress’ anyone – ‘A flexible friend or capricious mistress?’ E.G. 1994, 9416, 138-139). Have to say I am quite taken by the title ‘Power is my mistress’ (great indie album title, no?) – but not enough to read a journal called ‘Tax’ (Tax. 2007, 159(4092), 102).
Looking at cases, (once head-mistresses and post-mistresses are filtered out) there are many examples of the term being used by others and transferred into the reports – e.g. in defamation cases against newspapers etc. Can’t really hold that against the reports. But there are also still too many other examples of unnecessary and inappropriate mistressings – in all sorts of cases, from crime to ecclesiastical matters.
Succession cases are another stronghold of the usage (see e.g. Rowena Ferneley v Stephen John Napier, Catherine Emma Brooks, Derrick Arthur Napier  EWHC 3345 (Ch) at ; Elisabeth Gorjat, Philippe Gorjat, Sophie Charriere v Lucrecia Gorjat  EWHC 1537(Ch) at 
Although the old beneficial interests cases are stuffed full of mistresses, it’s a shock to see it still being used in Stack v Dowden  UKHL 17 ,  quoting the first instance judge’s description of a couple as ‘man and mistress’. As well as being sexist (not partners, cohabitants, the symmetrical man and woman, nor pairing mistress with some equally judgmental male word [which doesn’t exist]) it is quite obviously inappropriate to use this single designation for a couple with a complex and fluctuating relationship, in which the female partner was at least her partner’s equal.
There might be half an argument for keeping ‘mistress’ if it helped to define the relationship better than other, less offensive words, but when it is used, ‘mistress’ now seems rather indefinite. It no longer means a ‘kept’ woman. It may or may not involve adultery by the ‘mistress’ or the ‘man’ (Lilburn v HM Advocate  HCJAC 50 ). It may or may not involve the pair living together, or having a family (pair living together – with man’s wife as well – R. v Barry McCarney  NICA 27 at ). She may be a much younger woman with whom a man has ‘taken up’ (Re Lindley (Setting of Minimum Term), Re Queen’s Bench Division  EWHC 1436 (QB), Westlaw Case Analysis). A ‘man’ may have more than one ‘mistress’ (Hawk Recovery Limited v Natasha Anastasia Eustace, Brunswick Wealth LLP  EWHC 115 (CH) at )
The ‘mistress’ appears in some ecclesiastical cases to have an almost official standing, though the exact definition is not explained (see discussion of the rights of mistresses against widows in In re St Augustine’s Churchyard, Droitwich Spa; In re Spickenreuther’s Petition  ECC Wor 2; Ormandy, Re (Court of Ecclesiastical Causes Reserved 25 August 2009, Westlaw Case Analysis, unreported). In succession cases, the ‘mistress’ may be set up as the rival of a former wife (John Arthur William James, Stephen Neil Mountford v Kathleen Louise Williams and others  EWHC 1166 (Ch) at ). Again, I am not sure the full meaning is beyond dispute.
Another level of ambiguity comes from the fact that ‘Mistress’ has come to have overtones of (transgressive?) sexual dominance (Stephen Dawson v Laura Bell  EWCA Civ 96, concerning ‘a fetish website with a Mistress Directory’. The idea of mistress as dominant partner in sex is seen in Y v Slovenia (2016) 62 E.H.R.R. 3 at ),
All in all, it seems best jettisoned. Failing that, perhaps a movement to insist that every usage of ‘mistress’ is paired with an appropriate demeaning/judgemental term from the list: ‘philanderer’, ‘fancy man’, ‘little turtle dove’ etc. etc.