Feminism and the Law

Two years ago, I took a course in legal philosophy at UAlbany in which we studied “feminist jurisprudence”, a school of thought holding that the institution of law has been used to historically subordinate women. It posits that we live under, and by, the law. So, to exclude women from political influence, ban them from voting. Would you like women to avoid engaging in adultery? Pass legislation to that effect. Think war is man’s work? Good. There’s a law for that. This is not hard to understand.

The corollary to this idea is that we can use law as an instrument to aid in women’s liberation, and indeed we have. Universal suffrage was passed in 1920. The Wade ruling in 1973 allows women, not by statute but by court precedent, the right to abort a pregnancy. (Worth noting is the fact that SCOTUS, in the majority decision, deems abortion a “fundamental right” protected by the Fourteenth Amendment. This designation requires all laws seeking to restrict access to abortions be put against the standard of ‘strict scrutiny’, a legal test used by the Supreme Court to determine the viability of a law.)

The world’s march toward a more inclusive notion of civil liberties and who may claim access to them parallels the expansion of the rule of law. ‘Rule of law’ simply means all citizens are accountable to the law, and that no one is “above the law”. Contrasted with ‘rule of man’, it is generally accepted that the proper and fair application of law helps aid the functioning of a healthy democracy. Imagine if a wealthy industrialist/banker/inventor/etc. shot someone in an unprovoked attack, and bribed their presiding judge to make the charges vanish. That’s obviously unjust, right? If you believe someone’s wealth is immaterial to whether they should be fairly accountable to the law, then you subscribe to the idea that all people should be held to the same standards. Where do those standards come from, you ask? They come from the law as prescribed by our elected officials.

In my legal philosophy class, we discussed the ideas of Catherine MacKinnon, a lawyer and legal scholar of note who is an outspoken critic of what she describes as a societal-wide sexual male dominance. We read a paper she wrote about a legal principle called the “reasonable man”. In cases of rape, juries must decide if a “reasonable man” would have discerned whether or not a woman wanted to engage in consensual sexual intercourse with him. So, absent outright kicking and screaming, it is difficult to decide what exactly “reasonable” means here. For example, MacKinnon outlined a rape trial in Baltimore many years ago, in which a man was accused of having sex with a woman using just about every method outside of violently restraining her. This man and woman met at a bar, and had a few drinks. He asked her for a ride to his apartment in a less-than-hospitable part of Baltimore, and upon arriving, he invited her inside. She declined, and was about to drive home when the man grabbed the car keys, still in the ignition, turned the car off, and held the keys at arm’s length, demanding this woman accompany him inside his apartment if she wanted her keys back. The woman begrudgingly went inside. Once inside, her attacker stated that he would only return the keys if she would have sex with him. The woman decided she could not physically overpower him, nor did she feel any safer walking home or trying her luck with a taxi. In the end, she had sex with him, and he returned her keys. She later filed charges of rape against him, alleging that even though the man did not “physically” force her to have sex, she felt literally no alternative.

At trial, a judge stated that the woman should have known the man intended to have sex with her, saying to the effect, “…they weren’t going to play board games.” The attacker was found not guilty because he was not facing any negative physical reaction to his advances. This is obviously wrong. He deprived her of safe transportation home and then demand she satisfy his sexual cravings. It seems one step away from strapping her to the bed and having his way. MacKinnon argues for a “reasonable woman” standard in all future rape cases. Where a woman would not need to physically defend herself from unwanted sexual intercourse, but that a simple “no” would suffice and any further advances would constitute rape because a “reasonable woman” could decide for herself whether she wanted to have sex or not. “No” is no. Full stop. No discussion necessary. A man’s sexual frustration does not grant them carnal knowledge unless a woman lets him.

This plays into what I stated earlier about women’s equality and the rule of law. If such a principle were to be included in statutes dealing with rape, women might, and I believe probably would, be far more likely to pursue their attackers to trial. While I agree that a judge should realize a woman, and only that particular woman, will have the right to decide when, where, and with whom she has sex, the fact remains it is often outside the purview of judges to determine such things. A judge exists to interpret the law as written to the best of their abilities. A verdict is far more likely to survive a possible appeal if it has strong grounding under the law. For example, a judge who despises terrorists is still obligated to issue a writ of habeas corpus (a legal action which demands a person under arrest must be brought before a judge) if such a person is detained beyond a reasonable time frame.

If I had to condense this entire essay, I’d write this: for every step toward women’s equality, a step must be taken in law. Otherwise, you’ve failed to provide a way for women to seek tangible justice if the need arises.

Lucas Henry

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