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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.
References:
1. Martha Chamallas, Feminist Constructions of
Objectivity: Multiple Perspectives in Sexual and Racial
Harassment Litigation: Texas Journal of Women and the
Law, 1 - 1992.
2. Cato Institute Policy Analysis: Feminist
Jurisprudence: Equal Rights or Neo-Paternalism? June 19,
1996.
3. Banning of the Miss Canada pageant see Anna Lisa
Korman, Past Perfect, Chicago Tribune, February 9, 1992
p.4. Also Waiter, my Beer is Sexist, The Gazette,
Montreal, July 21, 1991, m o, A1.
4. Dinesh D'Souza, Illiberal Education, Free Press, New
York, 1991.
Babette Francis is a regular contributor to The
Journal of the Australian Family Association. As MRA
considers this excellent article defines the problems
with modern day feminism and details the damage caused
by extreme feminism to our legal system and our
families, we sought the permission of the Australian
Family Association to reproduce the article on the net.
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