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FEMINIST JURISPRUDENCE: Equal Rights or Neo-Paternalism?
by Michael Weiss and Cathy Young
In essence, these changes are taking us toward a strict criminal liability regime, where all heterosexual sex is like statutory rape unless affirmative, explicit verbal consent given in a clear and sober frame of mind can be demonstrated. These laws are not only unfair to men in reversing the age-old presumption of innocence; they are also patronizing to women. As one dissenting feminist points out, "The idea that only an explicit yes means yes proposes that women, like children, have trouble communicating what they want." [178] Interestingly, some feminist legal scholars welcome the parallel between women and children. According to MacKinnon, "Some of the same reasons children are granted some specific legal avenues of redress . . . also hold true for the social position of women compared to men." [179]
MacKinnon has also repeatedly and outspokenly stated that almost all heterosexual sex is rape. She points out that "men see rape as intercourse; feminism observes that men make much intercourse rape." [180] Combine this with the similarity between the patterns, rhythms, roles, and emotions, not to mention acts, which make up rape (and battery) on the one hand and intercourse on the other. All this makes it difficult to sustain the customary distinctions between pathology and normalcy, paraphilia and nomophilia, violence and sex, in this area." [181] Clearly, there is much to fear from an approach to rape law based on a theory with that sort of dogma at its core. It means that the government can enter American bedrooms to force men to receive explicit consent to sexual activity--which, to say the least, does not comport with how most people conduct themselves in private--or risk a jail sentence.
Few people would like to see a return to days when rape victims could be subjected to humiliating interrogation about their private lives even when the inquiries had no relevance to their relationship with the accused, or questioned about their lack of resistance in a life-threatening situation. But the pendulum has swung too far. According to Boston defense attorney and former sex crimes prosecutor Rikki Klieman, "Now, people can be charged with virtually no evidence. . . . Prosecutors are not exercising very much discretion in their choice of cases. In certain places in the country, I think they're exercising none. If a female comes in and says she was sexually assaulted, then on her word alone, with nothing else--and I mean nothing else, no investigation--the police will go out and arrest someone." [182] A comprehensive review of rape laws is in order to ensure that the reformed legislation does not reverse the burden of proof and does not eliminate physical force or threat of force from the legal definition of rape.
When sexual assault statutes stipulate that the victim is not required to resist her assailant, the text should specify that it does not apply to the failure to rebuff advances that do not involve force (as in Berkowitz). To prove a charge of rape or sexual assault, the prosecution would have to convince the jury that (a) the victim was physically unable to prevent sexual intercourse (because of physical restraint and/or incapacitation by alcohol or drugs), or (b) the victim reasonably feared bodily harm if she attempted to prevent sexual intercourse by pushing the aggressor away or by leaving. The statute should be narrow enough that, on the one hand, the victim's nonresistance in the face of physical restraint, force, or threats would not be held against her, while on the other hand a man could not be found guilty of sexual assault for engaging in persistent and aggressive but nonforcible advances, or for failing to obtain an explicit "yes." The possibility of such a middle ground is suggested by the position of the California State Supreme Court in Barnes: "[T]he complainant's conduct must be measured against the degree of force manifested or in light of whether her fears were genuine and reasonably grounded." [183]
Domestic Violence
VAWA has a broader purpose than to make rape a federal civil rights violation. It seeks to place all crimes seen as directed primarily at women into a special category. That applies, above all, to violence in relationships.
Again, the feminists' concerns are not groundless. While the notion that hitting his wife was considered (until recently) a husband's lawful prerogative is wrong (the first criminal code enacted by American colonists in 1642 forbade wife-beating), there was a marked tendency on the part of police and courts to view family violence as a private matter. [184] Criminologist Lawrence Sherman argues that "police underenforce [the law against] all violence associated with interpersonal conflicts. . . . In that sense, they are not discriminating against women, but against most violence." [185] However, there were enough well-publicized cases of police neglect of battered wives to warrant public support for the feminist call for change. One obstacle to policing of domestic violence was the general rule that arrests could not be made without a warrant in misdemeanor assaults the officer had not witnessed, even when there was probable cause to believe that violence had taken place. In 1983, 22 states did not allow warrantless arrests; by 1988, the number was down to 9. [186]
Not content to stop there, however, feminists have called for laws mandating arrest on probable cause for misdemeanor assault (which includes a slap or a shove). Such laws now exist in 15 states and in the District of Columbia; most recently, Maryland has a mandatory arrest law. [187] In other jurisdictions, a woman who signs a complaint against her husband for domestic violence is not permitted to drop assault charges. [188] Such rules do not apply to any other kind of misdemeanors: various studies have shown that when both the suspect and the complainant are present in misdemeanors (domestic or not), arrests are made less than half the time. [189] Recent studies have shown that the deterrent value of mandatory arrest for domestic violence, particularly in poor, high-unemployment communities where such violence is most common, is dubious at best. [190] Nonetheless, opposition to mandatory arrest has been frequently met with objections based on politics, not demonstrated effectiveness. [191] VAWA, which establishes federal grants for states and municipalities to combat domestic violence, requires as a condition of grant eligibility "laws or official policies [which] mandate arrest of spouse abusers on probable cause." [192]
Ironically, mandatory arrest laws have often backfired against women (who, ample research shows, are about as likely as men to resort to violence in domestic situations [193]). Analyzing the 1985 National Family Violence Survey, the largest survey on domestic violence, sociologists Murray Straus and Jan Stets write, "Of the . . . respondents who experienced one or more assaults, both parties engaged in violence in 49% of the cases, violence by men occurred in 23% of the cases, and violence by women occurred in 28% of the cases. No significant differences were found by gender of respondent . . . [W]omen not only engage in physical violence as often as men, but they also initiate violence about as often as men. [194] In Wisconsin, two months after the mandatory arrest law was enacted, a woman was arrested for slapping her 18-year-old son "because he sassed her and made an obscene gesture." [195] Some states also showed a high rate of "dual arrests," in which both partners in a violent incident were arrested. This, says Sherman, "resulted in intensive lobbying [by battered-women's advocates] not to arrest women regardless of probable cause to do so." [196] VAWA requires that states and municipalities eligible for federal grants for anti-violence programs must "demonstrate that their laws, policies, practices, and training programs discourage 'dual' arrests." [197]
Stalking
Another area of feminist legal activism where good motives have been marred by an attempt to cast too wide a net has been the "stalking" legislation that has proliferated in recent years. While stalking is not exclusively a male offense against women (an Illinois police chief says that many men who are stalked are too embarrassed to get the police involved), it is often portrayed as such by advocates and by the media. [198]
The first stalking law was enacted in California in 1990; similar statutes are now on the books in 48 states and the District of Columbia. Their purpose, essentially, is to take a preemptive strike against a likely offender. As the former U.S. Attorney Jay B. Stephens put it, "We should not have to wait until an overt act of violence occurs to take action." [199] That seems to run counter to the principle that persons can only be punished for crimes they have already committed. To overcome that barrier, stalking--defined as a combination of threats, harassment, and surveillance--has itself been made a crime. In the past, such behavior was defined simply as harassment, a summary offense which carried no serious penalties.
In most states, stalking laws have been passed in response to a shocking crime that could have been prevented. In March 1992, 26-year-old Connie Chaney of Des Plaines, Illinois, was gunned down in her office by her estranged husband Wayne, who had repeatedly violated a protection order and had been released on bond after allegedly raping her at gunpoint. [200] A law that made stalking a felony punishable by a maximum of three years' imprisonment and a $10,000 fine was passed by the state legislature in June of that year and signed by Gov. Jim Edgar. The law requires proof of a threat of harm followed by at least two instances of following or watching the victim. [201]
Other states have passed laws that are far broader and more vague. The District of Columbia law covers not only harassment that puts a person "in reasonable fear of bodily injury or death," but also "conduct with the intent to cause emotional distress to another person"; the penalty on the first offense is a fine of up to $500, up to one year in jail, or both. [202] The Pennsylvania stalking statute, signed into law in June 1993, likewise covers conduct demonstrating "an intent to cause substantial emotional distress." [203] Some advocates even insist that there should be no need to prove intent to cause distress. [204] In Virginia, a district judge found the state anti-stalking law unconstitutional because it "goes too far and attempts too much." [205] In the case, the charge against the defendant was based on such actions as sending flowers to a woman and trying to attend her church and get a job at the place where she worked. The state claimed that those actions had caused the woman "great distress." In Georgia, a 63-year-old city councilman resigned after being arrested for stalking a woman who had broken off their relationship six weeks earlier. He was accused of repeatedly calling her at odd hours, leaving notes on her car saying, "I can't live without you," and, "Why did you turn on me?" and parking near her residence.
Such behavior is admittedly unpleasant, but one may question whether--unaccompanied by some expression of intent to cause harm--it warrants a charge that would result in one to five years of imprisonment on a second offense. The Georgia statute defines stalking as following or contacting a person in a way that "causes emotional distress by placing [the] person in reasonable fear of death or bodily harm," but adds that this "shall not be construed to require that an overt threat of death or bodily injury has been made." [206] The resulting application of the law, as the case of the city councilman demonstrates, obviously stretches the definition of "reasonable fear."
To reach the largest possible number of cases, anti-stalking-law advocates often want the statutes to be written as broadly as possible. In the District of Columbia, for instance, city attorneys argued that "defining stalking as just 'following and harassing' someone could unnecessarily limit stalking cases." [207] But for that very reason, stalking laws often run into the constitutional problem of vagueness and overbreadth. [208] In Florida, one county judge ruled that the state's stalking statute was unconstitutional. He said the law was so broad that a tenacious journalist could "run afoul" of it by following someone to obtain a comment. [209]
There are other aspects of anti-stalking statutes that civil libertarians and others find troubling. The challenged Florida law permits warrantless arrests on stalking charges. In Illinois in spring 1993, a state appeals court struck down a provision in an anti-stalking law that allowed stalking suspects to be denied bail. [210] (Further appeals are pending.) There is also the issue of standards of proof, which often come down to he said-she said. In 1993, a Chicago man was convicted of stalking his ex-girlfriend, despite evidence that after their breakup and during the time when he was alleged to have terrorized her, they spent time together in a motel and she listed him on a hospital form as the person to contact in case of emergency. [211]
Because of notorious incidents of stalkers who turn violent, anti-stalking laws have broad public support. In egregious cases where there is clear evidence of violent intent, such laws can be valuable and can be drafted narrowly enough to avoid violating individual freedom of movement. But under the banner of protecting women, the legislation as it is being written can become a weapon for levying criminal penalties for behavior that is merely annoying--or for offenses one is suspected of intending to commit. There are concerns that the law pressures the courts to lock up vast numbers of petty offenders to catch the few who will go on to commit serious violence. As Judge Harold Sullivan of the Skokie branch of the Cook County (Illinois) Circuit Court put it, "We can't send all these people to the County Jail until trial." [212]
Violence by intimates, which disproportionately affects women, is a problem that deserves serious attention. But exaggerated claims of its dangers, uncritically picked up by the media, have created a climate of hysteria in which the rights of mostly male defendants are easily trampled. (In fact, only 6.5 percent of all murders and non-negligent manslaughters committed in the United States in 1990 involved men killing their wives or girlfriends while 3.4 percent involved women killing husbands or boyfriends. [213]) Elaine M. Epstein, past president of the Massachusetts Bar Association, has written:
The recent media frenzy surrounding domestic violence has paralyzed us all. Police, prosecutors, judges and attorneys alike all seek to protect themselves from potential criticism. . . . The truth is that it has become impossible to effectively represent a man against whom any allegation of domestic violence has been made. In virtually all cases, no . . . meaningful hearing or impartial weighing of the evidence is to be had. . . . In many [divorce] cases, allegations of abuse are now used for tactical advantage. [214]
Battered Woman Syndrome
While feminist legal thinkers take a cavalier attitude toward procedural safeguards for male defendants, their views shift radically when the other sex stands accused. To Lenore Walker, members of the patriarchy's ruling class not only are not entitled to traditional civil rights but, in some cases, are not entitled to live. A psychologist, legal theorist, and director of the Domestic Violence Institute, Walker is the leading exponent of the battered woman syndrome. She makes no secret of the ideological nature of her work:
A feminist political gender analysis has reframed the problem of violence against women as one of misuse of power by men who have been socialized into believing they have the right to control the women in their lives, even through violent means. . . . [T]he underbelly of interpersonal violence is seen as the socialized androcentric need for power. Feminists believe that violence against women is at the core of all violence in the world. [215]
In her book The Battered Woman, Walker defines the elements of the battered woman syndrome: "A battered woman is a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights. . . . To be classified as a battered woman, the couple must go through the battering cycle at least twice." [216]
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. [217] 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 also clear from the rest of her story that Paul had been battering her by ignoring her and by working late, in order to move up the corporate ladder, for the entire five years of their marriage." [218]
When battering is defined so broadly and so vaguely, it is hardly surprising that Walker finds it to be quite common: "Our research and most other studies show that wife-battering occurs in 50 percent of families throughout the nation." [219] Walker believes that virtually every woman who kills her mate is a victim of the battered woman syndrome. As the New Jersey Supreme Court (echoing Walker) described the condition, 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. [220]
Recently, the emphasis on the "learned helplessness" aspect of the syndrome has come under fire from some feminist legal theorists such as Elizabeth Schneider. What worries them is not only that the image of the battered woman as passive and helpless perpetuates damaging stereotypes but that women who are "too strong [and] assertive . . . to fit the definition" may not be able to take advantage of the defense. [221] If battered women are not helpless, one may ask why they do not terminate the abusive relationship rather than the abusive partner. Some feminist scholars cite the danger of violence when battered women try to leave. [222] But Schneider also falls back on explanations that smack of helplessness, citing the women's financial and emotional dependency and even the fact that "they love the men and want to maintain whatever intimacy and sense of connection they have." [223] As in much feminist legal theory, logic (a patriarchal construct) takes a back seat to expediency.
While Walker describes the battered woman syndrome in psychological terms, she considers it vitally important to emphasize that the syndrome is not a form of insanity: "[The] behavior of battered women who kill their abusers needs to be understood as normal, not abnormal." [224] She advocates a radical shift in legal treatment of abused women who kill--not just leniency but full acquittal--and in social attitudes. In her view, "Women don't kill men unless they've been pushed to a point of desperation." [225] Courts initially rejected Walker's theories as biased and advocacy-driven. Yet by 1991 she had testified in about 150 criminal cases. [226] She charges $170 to $200 an hour as an expert witness for such defendants as Peggy Sue Saiz, the Denver, Colorado, woman who fatally shot her husband George in November 1990 after the two had sex and he fell asleep. Saiz then ransacked the home to make it appear that the crime had been committed by a burglar and went disco dancing with her sister. Although Saiz was involved in an extramarital affair at the time, took out hundreds of thousands of dollars in life insurance on her husband a few weeks before the killing, and went out target shooting the day before, Walker argued that all her behavior was consistent with battered woman syndrome. [227]
In the 1970s and early 1980s, women charged with murdering their alleged batterers began to assert self-defense claims based on the battered woman syndrome. The first question faced by state courts was whether expert testimony on the syndrome was admissible. In 1979, the first decision allowing such testimony came down from the District of Columbia Circuit Court of Appeals. [228] Since then, appellate courts in 26 states have addressed the issue. Seventeen states have concluded that expert testimony on the battered woman syndrome is admissible; only three exclude it. [229]
Traditionally in the Anglo-American system, those pleading self-defense in murder trials had to prove that they faced imminent danger at the time of killing with no means of escape. In other words, they had to show that they had been fending off an actual attack and had had to use force to do so. Once the aggressor made a move to retreat, the defense of self-defense was no longer available. [230]
Proponents of the battered-woman defense claim that existing legal doctrine "is defined in a narrow and male-identified fashion to encompass . . . encounters between men of roughly equal size and strength" and "refuses to take into account the social context of a battered-woman defendant's act." [231]
In fact, as New York University law professor Holly Maguigan (who is sympathetic to the battered-woman defense) acknowledges, traditional self-defense law does not exclude the context of the event, such as previous threats or assaults. In 1902, long before battered woman syndrome was born, the Texas Court of Criminal Appeals reversed a woman's conviction for killing her husband because evidence of past violence had been excluded from the trial:
[I]t is admissible for the defendant, having first established that she was . . . in apparent danger, to prove that the deceased was a person of ferocity [and] excessive strength . . . for the purpose of showing either (1) that the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder in the first degree; or (2) that she was in such apparent extremity as to make out a case of self-defense. [232]
In other spousal homicide cases in the pre-feminist 1940s, 1950s, and 1960s, appellate courts held that such factors as prior abuse and differences in physical strength needed to be considered to determine whether the defendant was reasonably responding in proportion to the threat. [233] If, as Maguigan argues, the law is often not applied fairly in cases of this kind, that is no reason to overhaul the basic premises of self-defense law.
The battered-woman defense seeks to establish the possibility of self-defense in cases where, even with such factors as prior violence or differences in strength taken into account, no court would have made such a finding under traditional doctrine. In 1981, Janice Leidholm stabbed her husband Chester to death as he slept after an argument that involved yelling and shoving; the marriage had a history of violence. [234] Under legal precedent, evidence of past abuse should have been inadmissible because it could have no bearing on whether Leidholm was in imminent danger. (She clearly was not, with her husband asleep.) Yet the judge allowed prior abuse into evidence and instructed the jury on self-defense. When Leidholm was found guilty nonetheless, the North Dakota Supreme Court threw out the conviction on the grounds that the judge had told the jury to consider whether she had acted justifiably by the standard of a person "of ordinary prudence and circumspection," rather than by her own subjective standards. [235] When killing a man in his sleep can be justified as self-defense, it seems like a prescription for legalized murder.
Once again, Canada leads the trend. The Canadian Supreme Court has unanimously decided to permit the battered-woman defense throughout Canada. This defense began as a mitigating circumstance that could be used to reduce the charge from murder to manslaughter. [236] It is now being used to acquit completely, even in questionable scenarios such as the case of Angelique Lavallee, who shot her abusive common-law husband Kevin in the back of the head as he was leaving the room after threatening her. The Supreme Court sustained the acquittal, upholding the admission of controversial expert testimony on battered woman syndrome. [237]
Other Canadian cases in which the battered-woman defense has been invoked include that of "Jeannette," who stabbed her boyfriend to death after a quarrel. Although this boyfriend had not abused her, Jeannette claimed that her history of being abused by other men sufficed to allow evidence of the syndrome as a defense to the killing. [238]
In the United States, too, attempts have been made to use the battered woman syndrome as a defense for women who kill people other than their alleged abusers. In the 1993 New Jersey case of Irene Seale, convicted of kidnapping in the abduction and death of Exxon executive Sidney Reso, Walker submitted a brief for the defense arguing that Seale was a victim of her husband (with whom she participated in the kidnapping and extortion scheme) and, as a battered wife, had become so numb to her feelings that "Sidney Reso was not a real person to her." There appeared to be no evidence that Seale had been abused. [239] Currently, Faye
Copeland, convicted with her husband Ray in 1990 of murdering five drifters the Copelands had hired as farm hands, is seeking a new trial on the grounds that she was not allowed to present the battered woman syndrome as a defense at her trial. Several family members testified that they had never seen Ray Copeland physically abuse his wife but that he "would say things like 'shut up' and 'you're stupid.'" [240]
When battered-women's advocates have not succeeded in the courts, they have often prevailed by using political pressure on the executive branch to free women who kill their mates. In 1991, Gov. Richard Celeste of Ohio and Gov. William Donald Schaefer of Maryland commuted the prison sentences of a number of women convicted of killing or assaulting alleged abusers. In Ohio, "15 of the 25 women selected for clemency had said they had not been physically abused, six had discussed killing their boyfriends or husbands, sometimes months before doing so, and two had tracked down and killed husbands from whom they were separated." [241] One of the women freed in Maryland had hired a hit man to kill her husband and had collected on their $20,000 insurance policy. [242]
Thus, due to the persistent efforts of certain feminists, women who have not even been physically abused are released after serving very short sentences for killing their husbands. A 1994 Bureau of Justice Statistics analysis of murder cases disposed in 1988 in the courts of large urban counties found that wives convicted of killing their husbands were sentenced to an average of 6 years in prison while husbands convicted of killing their wives were sentenced to an average of 17 years. (By comparison, the average sentence for a non-family murder is 14.7 years.) Sixteen percent of the wives, but only 1.6 percent of the husbands, received probation. In addition, the acquittal rate was 12.9 percent for wives accused of killing their husbands compared to 1.4 percent for husbands accused of killing their wives. [243]
Other cases are never even tried. Reviewing a sample of female-offender homicides, sociologist Coramae Richey Mann found the case of a woman who claimed self-defense after shooting her husband six times in the back of the head in a domestic argument during which he had threatened her with a chair. The case was dismissed. [244] In Brooklyn, New York, in 1987, Marlene Wagshall shot her sleeping husband in the stomach with a .357 magnum revolver after finding a photo of him with another woman. (He survived but lost parts of his stomach, liver, and upper intestine.) There was no evidence to corroborate her claims of physical abuse. A grand jury indicted Wagshall for attempted murder, but feminist District Attorney Elizabeth Holtzman reduced the charge to second-degree assault and accepted a guilty plea with a sentence of one day in jail and five years' probation. [245]
In a speech in Banff, Canada, Andrea Dworkin exhorted her audience to "stop men who beat women": "Get them jailed or get them killed. . . . When the law fails us, we cannot fail each other." [246] The exhortation to break the law if it cannot be tailored to the radical feminist program shows the lengths to which the activists are willing to travel to implement their vision of a redistribution of power. Instead of focusing on measures to prevent and punish domestic assault no matter who commits it--a need to which police, courts, and social agencies should be more responsive--they seek to have one set of laws for women and another for men. What is alarming is that, all too often, the courts are helping in this endeavor.
In some spousal homicide cases, a history of past violence and especially threats to the person's life may undoubtedly be relevant to a finding of self-defense. Here, expert opinion on spousal abuse may have a place in the courtroom. Nonetheless, the concept of the battered woman syndrome needs to be reexamined impartially, given clear evidence that this condition was originally formulated on the basis of political rather than scientific premises.
Conclusion
The issues examined in this discussion cover only a portion of the feminists' attempt to overhaul our legal system. Their attack on "the masculine voice of rights, autonomy and abstraction" bodes ill for a liberal society. [247] Leslie Bender of the Syracuse University College of Law writes that "[t]he feminine voice can design a tort system that is caring . . . and responsive to others' needs or hurts" instead of "protect[ing] efficiency and profit." [248] The late Mary Jo Frug of the New England School of Law suggested that a woman should not be bound by a contract if her failure to read it before signing stemmed from concern for others' feelings. ("She was acting like a reasonable woman." [249])
It is often said that today's radical feminists are trying to roll back the clock to an era when frail women had to be protected from the harsh world and the natural predatory inclinations of men. That is only partly true. What the radical feminists want is the traditional special protections women had in more paternalistic days plus all the rights that they have gained in the quest for equality with men. Their effort to abolish male privilege while preserving and expanding female privilege is likely to create the very backlash feminists fear. Moreover, most women do not want their brothers, husbands, or sons to live under a legal system that presumes them guilty; nor do they believe that sex is rape, freedom is a male plot, and an abused woman can be her own judge, jury, and executioner.
Yet because a small and vocal minority--the Catharine MacKinnons, the Andrea Dworkins, the Lenore Walkers--has been widely perceived as acting on behalf of all women, it has managed, in less than 15 years, to achieve spectacular successes. Some of their positions have been embraced by the supreme courts of the United States and Canada, and by the governors and voters of several states. They have commitment and time. If their win-loss average continues at its current pace, the day may soon arrive when sexual and political repression to fight sexual and political repression, gender hostility to fight gender hostility, and arbitrary laws to fight arbitrary laws become the order of the day.
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