Chapter 12 power point

Women and the LawChapter 12

Feminist Legal Theory

• Feminism• Defined• Both a social movement and worldview

• Feminist jurisprudence• Defined • Law is codification of cultures normative practices that

are deeply masculine in nature• Laws have been written embodiment of patriarchy

Feminist Legal Theory: Patriarchy

• Defined• Literally means “rule of the father”• “Male” traits lauded, “female” traits downplayed• Embraces conflict view• Similar to feminists as capitalism is to Marxists

• Feminists believe law is mirror of patriarchy• Patriarchies have used law as gender-control mechanism

Feminist Jurisprudence: Two Major Debates:

Reformist/Radical• Reformists• Liberals who want to retain current system• Reconfigure it to recognize women and men as

equals• Radicals• Present system needs to be abandoned• Too corrupted by patriarchy• Needs to be replaced by one that is free of biases

Feminist Jurisprudence: Two Major Debates:

Sameness/Difference• Should women and men be equal?• Sameness view• Accuse difference feminists of using protection arguments

• Difference view• Accuse sameness feminists of being blind to obvious biological

differences• Compromise position• Law must accept relevant gender differences• Should focus on consequences, not differences

Women and Law in History: The Birth of Misogyny and

Other Triumphs• Greeks• Ambivalent• Began with Earth Goddess creator• Soon male gods assumed rational role• Pandora’s Box• Myths provided subtle underpinning for misogyny

• Homer (800 BCE)• Plato and Aristotle


Other Triumphs• Athens• Pleasure of men was central

• Sparta• Emphasis on breeding• Led more public lives

• In general, laws were repressive• High-status women in Greek city-states• Authoritarian versus republics


Other Triumphs• Romans• Cicero• Twelve Tables of Roman Law• Women were minors of fathers or husbands

• Medieval Europe-Feudal system• Subjugated state supported by church theology• “Natural state” ordained by god• 1 Corinthians 11:3-9


Other Triumphs• Renaissance• Women seen as virtuous and not worldly• Laws kept women in home to protects them

• 16th century• Protestant faiths reinforced concept of domestic

patriarchy• Men sovereign rulers in politics and home• Women homebound, uneducated, and restricted


Other Triumphs• Thomas Hobbes and John Locke• Conceded some right to women• Still subordinate to men in all matters• Still considered naturally inferior

• Jean-Jacques Rousseau• Demanded equality for men• Expressly denied it for women

• Women could not be citizens• Proper sphere for women and men

Mary Wollstonecraft (1792)

• A Vindication of the Rights of Women (1792)• Cannot know natural abilities of women to reason• Prostitution of women• Women should be educated for own development• If girls allowed to mature mentally as boys were

• Women began to accrue some legal rights throughout nineteenth century

The Relative Value of Citizens: The Struggle for

Women’s Suffrage• Despite Fourteenth Amendment’s Declaration, basic right of citizenship still denied to women• Appeared to not be included in definition of “person”

• Before American Revolution• Some colonies allowed unmarried women with

property to vote• None of new state constitutions allowed this except

New Jersey• Rescinded in 1807


Women’s Suffrage• Women not allowed to be fully functioning adults• Blackstone (1765-1769)

• Coverture system• Defined• Married women had no legal rights• Later compared to slavery• Founding father paid little attention to pleas of wives

to vote• Women still considered too emotional and unpredictable


Women’s Suffrage• Women given the right to vote in Wyoming

and Utah territories and their subsequent states• Women given right to vote in Colorado and

Idaho• Rest of country waited until 1920• 19th Amendment


Women’s Suffrage

• 1872: Suzan B. Anthony and fourteen women on trial for illegally voting• Found guilty when judge instructed them to do

so• Judge did not make her pay fine or serve time• Why did he do this?


Women’s Suffrage• Minor v. Happersett (1874)• First case relating to voting rights• Court unanimously rejected argument

• International Women Suffrage Conference in 1902• In Washington, DC• Five countries sent delegates• Next meeting was in Berlin (1904)• Developed Declaration of Principles


Women’s Suffrage• Major result of conference was creation of

International Women’s Suffrage Alliance• Subsequent conference saw growth in delegates• Supportive men’s alliances sent delegates by 1910 meeting

• Great Britain• Women age thirty or over given right to vote in 1918

• Most other European countries followed suit in 1920s and 1930s that had not already done so

Woman as Human and Person

• Women have been legally and culturally considered to be property

• Madonna/Whore Duality• Madonnas

• Maintained place, marries, and is obedient• To be placed on pedestal• Protected by men from predation

• Whores• Did not marry, were widowed, divorced, or abandoned• Subject to rape, persecution, and harassment

Woman as Human and Person

• Matilda Joslyn Gage• Militant human activist• One of first to campaign for separation of church and state• Claimed U.S. law was actually cannon law

• Notable remarks on witch hunts (1484-1784)• Women chiefly accused• Idiosyncrasies contributed to witchcraft• Strong, intelligent, beautiful women were in league with devil

Rape and Other Misogynous Atrocities: Susan Brownmiller

(1975)• Laws against rape and beating of women and

girls historically focused on property rights of male owners• Historically women considered property• When damaged, not recognized as suffering loss

• Ancient Babylonian and Mosaic law• Criminal rape was theft of virginity• Embezzlement of fair market price of daughter

Rape and Other Misogynous Atrocities: Susan Brownmiller

(1975)• If woman was not a virgin, male rape concerns

revolved less around “property damage”• More about concerns of her supposed behavior surrounding

crime• Code of Hammurabi• Raped married women drowned with attacker if no longer

wanted• Ancient Hebrews• Stoned both rapist and victim

Rape and Other Misogynous Atrocities

• Efforts of feminists to obtain legal protection against abuse linked to conception of them as property• Owners have right to do what they will

• “Rule of Thumb”• Recognized under early American common law• Rhodes v. Iowa (1868)• North Carolina case


• Petite treason• If husband kills wife• If wife kills husband

• Wives across globe punished severely for crime of adultery• Not generally men• Reflects proprietary interest• Reason given by Samuel Johnson

• Offspring• Serious injury


• Islamic laws• Women accusers must produce four Muslim male

witnesses• May face charges of adultery if married• Unmarried and cannot produce witnesses

• Africa and Arabia• Mutilation of little girls

Women’s Work and Other Legal Matters

• Laws seeking to treat people differently based on immutable characteristics must pass most stringent constitutional tests• Sex not considered suspect classification

• Until latter part of twentieth century• Laws treating men and women differently evaluated

by rational basis test


• Reed v. Reed (1971)• Women can administer estates• Court added intermediary scrutiny standard of

review• Defined sex/gender as quasi-suspect classification

• Nguyen v. INS (2001)• Children need mothers more than fathers• Satisfies difference feminists


• First wave of feminist movement concentrated on achieving voting rights• Second wave focused on other basic rights and

liberties• Property rights• Educational and employment opportunities• “Outing” male violence against women and children

• Many of these changes did not occur until 1970s


• Frontiero v. Richardson (1973)• Women entitled to equal benefits from government

• Duren v. Missouri (1975)• Women had right to serve on juries

• Ruth Bader Ginsberg• Instrumental in litigating these landmark cases


• Periods in American history where women were allotted more rights than previous• Soon were taken away

• Colonial period• Shortage of women and labor• Free white women afforded rights to own and dispose of

property, and operate a business• After Revolutionary War• Women pushed back into home

The UNCEFDW and the Equal Rights Amendment

• International standards:• Recognized gender roles are not arbitrary “stereotypes”• Preserve differences while protecting economic and

political participation• Article 11 of United Nations Convention on

Elimination of All Forms of Discrimination• Passed by United Nations General Assembly in 1979• Became international treaty in 1981

The UNCEFDW and the Equal Rights Amendment

• Guarantees women same kind of rights feminists have strived to introduce in United States• Equal Rights Amendment (ERA)• Introduced to Congress in 1923• Passed by Congress in 1972• Not yet ratified by United States

• Passage would lay down certain rights that have been ignored, inconsistently applied, or even rescinded at any time

Domestic Violence

• Defined• Disproportionately affects women• Most prevalent form of violence in United States• Most involves intimate partners

• Intimate partner violence (IPV)• Overwhelmingly committed by males against females• Evidence indicates primary drive is male sexual jealousy

and suspicion of infidelity

Domestic Violence

• IPV most common in environments where infidelity most likely to occur:• Where marriages are most precarious• Where moral restrictions on pre- and extra-marital sexual

relationships are weakest• Where out-of-wedlock birth rates are highest

• Consistently found that women in lowest income group approximately five times more likely to be victims of domestic violence• Although not limited to lower classes

Domestic Violence

• Domestic violence most prevalent among completely disadvantaged (CD) males• CD males have lower mate value• Have less to offer

• May turn to violently coercive tactics to prevent defection• Violence against Women Act (VAWA)• Passed in response for calls to “do something” about issue • Part of Violent Crime Control and Law Enforcement Act of

1994

Violence against Women Act (VAWA)

• National model of response to domestic violence• Provides funding for training programs in various

aspects• Provides example of dynamic interplay between

law and social movements• Tactics include:• Mandatory arrest• No-drop prosecutions

Women’s Representation in the Legal Profession

• Admittance into legal profession fraught with struggle and hardship• Major victories have been achieved while some

obstacles remain• Based on long tradition of excluding women

• Believed feminine characteristics not suited for practice of law• Women viewed as lacking logical capacity• Accused of being overly subjective and emotional


• Bradwell v. Illinois (1873)• Court upheld right of Illinois to deny admission to legal practice

• Women were allowed to join ABA in 1918• Allowed on all state bars in 1920• Allowed to enter Columbia Law School in 1928• Allowed to enter Harvard Law School in 1950• Not admitted or practiced in any large numbers until

1970s


• Discrimination tempered by second wave of feminism• Passage of Title VII of Civil Rights Act of 1964• Passage of Equal Employment Opportunity Act of

1972• Passage of Title IX of Higher Education Act of 1972

• More women applying to law school now than before


• Gendered experiences found• Men expect to work in law firm or for company

• Most likely to submit to law review• Women expect to work for non-profit or legal services

• Feel less confident in legal skills

• Women’s careers in profession have shifted over time• Female law professors underrepresented• President’s more willing to appoint to female judgeships


• Women lawyers underrepresented in judgeships, full partnerships in legal firms, and law school faculty than expected

• “Mommy track” effect• Latent sexism still present

• Today women outperform men in undergraduate grade point average except law school• Some report differential treatment


• Still, more similarities than differences exist• Job satisfaction• Job value• Attitudes about punishment issues and defendants

The Bias Studies

• Women defendants and litigants face uphill battle• Bias manifested in beliefs, perceptions, and

practices of courtroom actors and clients• Sexual assault cases• Victims have less credibility

• Divorce, marital property, and child support cases• Treatment of female attorneys and judges

Law, Equality, and Justice

• Has been concerted effort over centuries to force law to recognize women as people and equal citizens

• Smart (1989)• Law is androcentric, and therefore female victims of male crimes will be

viewed through masculine lenses• Gilligan (1982)

• As more women enter workforce, feminine traits will make inroads against masculine traits

• Mackinnon (1993)• Law should be fashioned so there is basic equality in treatment and

protection