08/07/04

Feminist Legal Theory

Babette Francis

Replacing "the reasonable person" with the unreasonable feminist.

There are many people of good will who imagine that feminism is a benign movement concerned about equal rights for women and the removal of discriminatory practices. The dictionary definition of "feminism" is "a belief in equal rights for women" and in that sense all of us who believe in democracy could be described as "feminists". The prototype feminists were the suffragettes who argued for women's right to vote and the right to own property. However, contemporary feminism has gone far beyond lobbying for equal rights and is more concerned with how "equality" is to be achieved. Equality is defined not merely as a matter of rights, equal opportunity or equal access, but is measured in terms of equal outcomes, i.e. the outcomes in the lives of adult men and women must be the same.

Hence for contemporary feminists it is not enough that women have as equal a right as men to attend university or to apply for jobs. In the feminist thought system, women must also have access to abortion on demand, because pregnancy may prevent or delay a woman going to university, and a baby may be an impediment to her career. Women must be made as "impregnable" as men.

Furthermore, if despite equal access, there are not as many women as men in certain jobs, or in the top salary categories, this in itself "proves" discrimination, and must be redressed by "affirmative action" i.e. the preferential hiring and promotion of women even if their qualifications are inferior to those of men who have also applied for the same job or promotion.

The third prong of the feminist demand for equal outcomes is "affordable, high quality, 24 hours per day child care". This child care is to be paid for, or heavily subsidised, by tax payers, and the only group of child carers to whom feminists would deny payment are the child's own parents, especially the mothers. I suspect feminists might even agree that fathers who stay home and look after their children be paid a child care allowance or wage, but they would find it unacceptable for mothers. It was Simone de Beauvoir who first said that mother should not be paid to stay home and care for their children or "too many would make that choice". Her view has been echoed by other prominent feminists, which is quite ironical as they pride themselves on being "pro-choice".

One of the major underpinnings of the democratic system we enjoy in Western democracies like Switzerland and Australia is the rule of law. Our legal systems are based on principles such as individual rights, equal treatment for all, and objective standards of proof. I have already mentioned that "affirmative action" violates the principle of individual rights in favour of group rights. There is also now in English-speaking countries, feminist legal theory which seeks to eviscerate the foundations of our legal system, the neutrality of the courts.

The ideology of feminist jurisprudence today goes far beyond dismantling legal barriers which, in the past, may have denied women equal opportunity. Contemporary feminism holds that the prevailing culture is "patriarchal", i.e. a male-dominated social structure, and the feminist agenda is not equal treatment for both sexes but the redistribution of power from the "dominant class" (men) to the "subordinate class" (women).

Patriarchy is seen to be as all-encompassing as the thickest London pea-souper - those fogs London suffered when the houses were heated by coal fires. To fight one's way out of this fog, feminists claim one must discard the concepts of judicial impartiality and traditional notions of rights and justice, because these perpetuate male dominance. These principles must now be replaced by a neo-feminist philosophy and jurisprudence premised on "connections between persons". Law must be used to change the distribution of power; this requires not equal treatment but "an asymmetrical approach that adopts the perspective of the less powerful group with the specific goal of equitable power sharing among diverse groups".

Three main areas which have been impacted by this feminist legal theory are: (i) the increasingly vague and subjective definitions of sexual harassment and rape, (ii) dangerous moves to abandon the presumption of innocence in sexual assault cases, and (iii) in cases of battered wives a loose concept of self-defence that can almost amount to a licence to kill an allegedly abusive spouse.

The cause celebre case of alleged sexual harassment of course was Anita Hill's testimony in the confirmation hearings of Judge Clarence Thomas to the United States Supreme Court. However, nearly a year before in 1991, in Ellison v Brady, the Ninth Circuit Court of Appeals in California abandoned the traditional test for offensive conduct ,the "reasonable person" standard and submitted a "reasonable woman" test, dealing a blow to common law construction. That's actually an "unreasonable feminist" test because in its ruling the Ninth Circuit Court drew on feminist legal texts for the proposition that "men tend to view some forms of sexual harassment as 'harmless social interaction to which only overly sensitive women would object'" and stated that "We....prefer to analyse harassment from the victim's perspective (which) requires an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women....A male supervisor might believe for example, that it is legitimate for him to tell a female subordinate that she has a 'great figure' or 'nice legs'. The female subordinate, however may find such comments offensive.....We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women".

Prior to the development of feminist legal theory, female plaintiffs were able to deal with unwanted sexual overtures in the workplace by using the common-law remedies of tort and contract. However, US feminist lawyer, Catharine MacKinnon, expressly rejects the common law remedy because of what she perceives as "the conceptual inadequacy of traditional legal theories to the social reality of men's sexual treatment of women". A tort remedy would treat sexual harassment as a personal affront rather than systemic persecution of women as a gender. MacKinnon and her feminist cohorts want sexual harassment defined as sex discrimination.

Once the common law approach of tort and contract is abandoned, the problem arises as to how to define sexual harassment. The US feminist National Organisation for Women defines it as:

"Any repeated or unwanted sexual advance, sexually explicit derogatory statements, sexually discriminatory remarks that cause the recipient discomfort or humiliation."

Under this broad category, it is not surprising that feminists claim 85% of women will have been sexually harassed in the work force at some point in their lives. It is comparable to replacing speed limits with a law under which one could be fined for driving through a neighbourhood at any speed which made some of its residents uncomfortable.

There is an on-going case in Australia at the moment where a female employee is claiming sex discrimination because an Air Traffic Controlling body would not appoint her as an Air Traffic Controller. She failed the practical examination in air traffic control work, a pre-requisite required of all applicants for such a position. It was suggested her performance in the practical exams raised the possibility that planes might collide with each other from time to time when she was in control, but she claimed her failure was due to sex discrimination and a "hostile work environment". (The Air Traffic Controlling body does not employ other female air traffic controllers).

You will notice here the the illogicality of the feminist position. On the one hand they claim that there are no differences between the sexes and that any disparity in outcomes is the result of discrimination, and on the other hand they claim that workplace banter is perceived differently by men and women. One wonders how academics in disciplines other than the feminist ghetto of "Women's Studies" tolerate the contradictions in feminist theory. At the same time as feminists claim men and women are the same, they also proclaim that women are different from men because they are better, and if women held the positions of power we would have a more caring and compassionate world. Lionel Tiger and Joseph Shepher point out in "Women in the Kibbutz" that "it is paradoxical to argue that there are no differences between the sexes but that only men are effective in gaining power and retaining it".

However, feminists need to hold both doctrines at the one time: if men and women are different, then the traditional division of sex roles and the traditional family is a natural development. But if men and women are identical, i.e. men as a group are not oppressors, women would lose their claim to disadvantaged victim status, so the paradox is accepted: men and women are identical but all men are oppressors (and usually rapists too) while women are the oppressed.

This brings us back to the legal question - should society and legislation treat men and women as identical or as different? Feminists are not at all fazed by such questions - Alison Jaggar, Chairman of the American Philosophical Association's Committee on the Status of Women, writes in an essay in "Theoretical Perspectives on Sexual Differences", edited by Deborah L. Rhode, published by Yale University, that feminists should insist on "having it both ways", i.e. "Feminists should embrace both horns of this dilemma....They should use the rhetoric of equality in situations where women's interests clearly are being damaged by being treated either differently from or identically with men....Sometimes equality in outcome may be served best by sex-blindness, sometimes by sex-responsiveness".

To those who, still subscribing to rationality, plaintively claim that one cannot have it both ways, that men are either different from or identical to women, but to insist on both is against reason, the feminist retort is that rationality or reason is a male construct anyway, or as Ms, Jagger would say, "it is preferable to live daily with contradictions". Thus in one fell swoop feminism has gotten rid not only of much of our legal system, but of rationality too, one of God's greatest gifts to mankind. Rationality is the basis of Western civilization, science and development. Feminists are not too emanoured of Western civilization anyway, holding that it is little more than a white, male patriarchy, holding women in bondage. They hanker after a mythical Amazonian Eden where women were warriors and presumably men looked after the babies.

Free Speech and Pornography

There is a division of opinion within the feminist movement on the issue of free speech and pornography. In the United States, some feminists were responsible for repealing old laws that made it a misdemeanour to speak "any obscene, profane, indecent, vulgar, suggestive or immoral message" to a woman or girl. They considered that women did not need that kind of protection. Now other feminists argue that pornography is sex discrimination and that it's just as actionable for a man to call a woman "honey" or "baby" as to call her a "bitch". The "unreasonable feminist" standard is than any man's words can be punished if some woman subjectively doesn't like them: the basis is how the woman felt rather than what the man said.

In Australia, a feminist Magistrate, Pat O'Shane, acquitted five protesters caught defacing an advertising billboard which showed a woman being sawed in half by a magician. Using a discretionary provision of state law to release the women without convictions, costs or damages, O'Shane declared that the real offenders were the advertisers. Criticised for gender bias, O'Shane responded "Women have a different worldview than men... We have a duty to bring that to bear on how we discharge our functions".

In Canada a landmark case, Butler v the Queen, the Canadian Supreme Court voted unanimously to redefine Canada's criminal obscenity laws to apply to any material that "subordinates, degrades or dehumanizes". Armed with this decision, Canada's feminists, without even resorting to the courts, have succeeded in banning the Miss Canada Beauty Pageant, and pulling "sexist" beer commercials from television.

Banning beauty pageants and ber commercials is quite a restriction on free speech. Jokes, any joke, can also be dangerous. If a man in an office tells a joke and some woman takes offence, he is in trouble. But if he tries to avoid the trouble by whispering the joke only to his male colleagues, he is also in trouble because he is discriminating against his female colleagues. Either way he has "created a hostile work environment". It would probably be better if he avoided the office altogether and just stayed home minding the babies.

No presumption of innocence

Historically, Anglo American law has treated rape as one of the gravest crimes. However, rape victims were often not well treated by the courts which frequently took the view that rape complainants were less trustworthy than complainants in other crimes. Now the pendulum has swung too far the other way, with the presumption of innocence being undermined.

The constitutional and common law precept that the prosecution must prove its case beyond a reasonable doubt is being eroded by the shifting of the burden of proof of consent to the defendant. This has happened already in the State of Washington in the US. The Washington Supreme Court states that "we believe the removal from the prior rape statute of language expressly referring to nonconsent evidences legislative intent to shift the burden of proof on the issue to the defence". The result of this burden-shifting will be not to jail more violent rapists because lack of consent is easy enough for the state to prove in those cases, but to make it easier to send someone to jail for failing to get an explicit nod of consent from an apparently willing partner before engaging in sex. There is a man in prison in Michigan at the moment, William Hetherington, accused of raping his wife from whom he was separated. He contends that they had consensual sex during a reconciliation attempt.

Radical feminists believe that sexual relationships within marriage are a form of legalized rape or legalized prostitution (take your choice), and Catharine MacKinnon, America's foremost feminist legal scholar, holds that all heterosexual sex should be considered rape unless an affirmative, while sober, explicit verbal consent can be proved. Clearly rape laws based on such a theory presents obvious dangers, to the presumption of innocent unless proven guilty beyond reasonable doubt, but a veritable feast for crimina lawyers.

A student at the University of Michigan was threatened with disciplinary action for pointing out on a computer bulletin-board exchange that a charge of date rape could be false. A memo from the Dean informed him that his opinion constituted "discriminatory harassment".

Another anomaly in cases of alleged sexual harassment is that the name of the accused is published but not that of the accuser. A few years ago a Master of a college at a Melbourne university had his career ruined because he was accused of touching the breast of a student at a dance after a dinner function at the college. The case received enormous media attention - newspapers, radio and TV - his name and photo were published everywhere. Although he was eventually found not guilty, he lost his job and has found it impossible to get an equivalent job in academia. He now works part-time in an unrelated field. A mature-age feminist, Helen Garner, who wrote a book about this case described the ideology of those supporting the allegation against the Master as "a certain kind of modern feminism: priggish, disingenuous, unforgiving". (Helen Garner: "The First Stone", Picador, Australia 1995)

Helen Garner relates a conversation she had with another feminist about the case: '"It's terrible to me,' I said, disconcerted, 'to see the effects of this on his life, on his family". 'Oh', (the feminist replied) 'I don't think he deserved what happened to him. He may be innocent - but he's paying for many, many other men who have not been caught. It's the irony of things, that sometimes the innocent or nearly-innocent pay for what the guilty have done'".

This kind of feminist justice reminds one of the story of the mother who took her child to her first day at school and told the teacher: "My child is very sensitive. If she is naughty, just smack the child next to her. That will teach her a lesson". Feminists are extremely sensitive.

They may be priggish as well, but in Australia a group of feminists is lobbying for the age of consent to be lowered to 16 years, and 'restricted consent' to be set at 10 to 16 years. They also want the offence of incest to be abolished. (Beatrice Faust in The Australian, 21 December 1996)

In the Melbourne sexual harassment case, like Anita Hill and Judge Clarence Thomas in the United States, the student asked the alleged sexual harasser for a professional reference some time after the alleged offence occurred, but before she reported the incident to the college authorities. It seems strange for Anita Hill or the Melbourne student, to seek a job reference from a man they believe is harassing them.

In May 1996 Miss G, a woman employed in a Melbourne bank alleged her 26 year-old supervisor, Mr. W. had stalked her at her home and made loud sexual remarks about her at their workplace. The case was originally heard before a woman magistrate who appeared to proceed upon the basis that allegations of this nature, though totally uncorroborated would not be made unless they were true, and made a 'stalking' order against Mr. W. The magistrate refused to believe any of the evidence of seven bank employees who worked in close proximity and who said none of the remarks were made, because, she said, if this conduct was occurring, "they all would have a motive to deny it".

A stalking order usually has very serious consequences in that knowledge of it will ordinarily prevent a man obtaining any other job where there are women employees. Although the bank appeared to have accepted the probability that the allegations were false, the stalking order thereafter prevented Mr. W. obtaining promotion.

In February 1997 the case was reheard before an experienced County Court judge. After a twelve day hearing at which 18 witnesses were called to deny various aspects of Miss G's allegations, the judge found Miss G's allegations were false and malicious, that Mr. W. had never stalked her and that his behaviour at the bank was always professional and appropriate. The stalking order was rescinded and Mr. W's reputation at the bank was fully restored. However, the total cost to Mr. W. of proving his innocence was more than $50,000, money he is never likely to recover from Miss G.

A further development in the United States is the Violence against Women Act (VAWA), which makes "crimes of violence motivated by the victim's gender" a federal civil rights violation. In a civil trial the modicum of proof needed for a showing of liability is lowered significantly, from "beyond a reasonable doubt" (about 90%) to a "balance of probability" (about 51%) and evidentiary rules are relaxed. VAWA will allow only damage suits, not criminal prosecutions, but feminists are likely to argue that since crimes motivated by race are subject to criminal prosecution, it would be discriminatory to treat gender-motivated offences as lesser crimes. This will facilitate two successive prosecutions for the same alleged sexual offence.

Domestic Violence & the Battered Wife Syndrome

While the notion that a man has a right to beat his wife is obviously morally and legally unacceptable, feminist definitions of "domestic violence" go far beyond the ordinary category of physical violence. In a recent government survey funded on domestic violence in Australia, "threatening with a gun" includes "leaving a gun somewhere obvious or knowing that a gun is accessible - toy guns, starter pistols etc. are to be included" (!) Another survey question was "Has your partner ever tried to prevent you from using the telephone or the family car?" It would be difficult in Australia to find couples who never disagreed about the use of the car or the size of the phone bill. It is not surprising that based on such surveys, feminists claim that one in three women are or will be the victims of "domestic violence".

In an American survey, a husband walked out of the room while his wife was taunting him about her adultery. She is counted as a "victim of domestic violence" because he ignored her. (The Age, Melbourne, 22/1/96). Significantly, violence by women against men or violence perpetrated by women against their children is not included in feminist surveys of "domestic violence", even though hospital admission data show that a significant proportion of domestic violence victims are men.

Lenore Walker, a psychologist, legal theorist and Director of the Domestic Violence Institute in the US, is the leading exponent of the battered woman syndrome. In her book, "The Battered Woman", (Harper Collins, New York, 1979) Walker defines a battered woman as "a woman who is repeatedly subjected to any forceful physical or psychological behaviour by a man in order to coerce her to do something he wants her to do without any concern for her rights....". Walker makes it clear that a woman can be "battered" even if there is no physical violence. "I decided that a woman's story was to be accepted if she felt she was being psychologically and/or physically battered by her man".

In the case of one couple Walker profiles, she acknowledges that the wife clearly initiated the physical assault, throwing a glass at her husband's head and hitting him with a chair, but adds that "it is clear from the rest of her story that Paul had been battering her by ignoring her and working late, in order to move up the corporate ladder for the entire five years of their marriage".

To Lenore Walker, members of patriarchy's ruling class are not only not entitled to traditional civil rights, but, in some cases are not entitled to live. For self defence to be a valid defence in homicide cases, the common law principle is that the threat has to be immediate and great enough to warrant killing the offender. With the "battered woman syndrome" defence, a wife can shoot her sleeping husband and be acquitted, even if it is known she has taken out a large insurance policy on his life, and has a lover as well.

Lenore Walker has been an expert witness for the defence in such a case. The defendant, Peggy Sue Saiz, went target shooting the day before the killing, and disco dancing after the killing, yet Walker argued that her behaviour was consistent with "battered woman syndrome": "Battered women become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation short of killing the abuser".

Of course this image of demoralized women, so passive that they are unable to even leave their abusers and seek help at the nearest police station or refuge at a Church shelter, is quite contradictory to the confident, assertive image feminists want women to project - remember the Helen Reddy song, "I am woman, hear me roar" which was the feminists' anthem in the seventies?

If logic is regarded as a patriarchal construct, it is hardly surprising that feminism is so full of contradictions. However, most of us do not want to live in a world predicated on the assumption that most sexual intercourse is rape and the presumption that most men are guilty. Men are not the enemy - men are our fathers, husbands, brothers and sons.

They are also our friends, and far from being involved in a conspiracy to oppress women, men have invented all of the labour-saving devices - washing machines, refrigerators, computers - that have freed us from drudgery and given women, including unfortunately feminists, the time and energy to be involved in such pursuits as jurisprudence and the law.