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Chapter 12 power point
- 1. Women and the Law Chapter 12
- 2. Feminist LegalTheory • 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
- 3. Feminist LegalTheory: 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
- 4. 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
- 5. 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
- 6. 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 andAristotle
- 7. Women and Law in History:The Birth of Misogyny and 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
- 8. Women and Law in History:The Birth of Misogyny and Other Triumphs • Romans • Cicero • TwelveTables 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
- 9. Women and Law in History:The Birth of Misogyny and 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
- 10. Women and Law in History:The Birth of Misogyny and 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
- 11. MaryWollstonecraft (1792) • AVindication of the Rights ofWomen (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
- 12. The RelativeValue 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” • BeforeAmerican Revolution • Some colonies allowed unmarried women with property to vote • None of new state constitutions allowed this except New Jersey • Rescinded in 1807
- 13. The RelativeValue of Citizens:The Struggle for 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
- 14. The RelativeValue of Citizens:The Struggle for Women’s Suffrage • Women given the right to vote inWyoming and Utah territories and their subsequent states • Women given right to vote in Colorado and Idaho • Rest of country waited until 1920 • 19th Amendment
- 15. The RelativeValue of Citizens:The Struggle for 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?
- 16. The RelativeValue of Citizens:The Struggle for Women’s Suffrage • Minor v. Happersett (1874) • First case relating to voting rights • Court unanimously rejected argument • InternationalWomen Suffrage Conference in 1902 • InWashington, DC • Five countries sent delegates • Next meeting was in Berlin (1904) • Developed Declaration of Principles
- 17. The RelativeValue of Citizens:The Struggle for 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
- 18. 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
- 19. 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
- 20. 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
- 21. 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
- 22. 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 ofThumb” • Recognized under earlyAmerican common law • Rhodes v. Iowa (1868) • North Carolina case
- 23. Rape and Other Misogynous Atrocities • 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
- 24. Rape and Other Misogynous Atrocities • 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
- 25. Women’sWork 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
- 26. Women’sWork and Other Legal Matters • 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
- 27. Women’sWork and Other Legal Matters • 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
- 28. Women’sWork and Other Legal Matters • 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
- 29. Women’sWork and Other Legal Matters • 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
- 30. 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 NationsGeneral Assembly in 1979 • Became international treaty in 1981
- 31. 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
- 32. DomesticViolence • 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
- 33. DomesticViolence • 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
- 34. DomesticViolence • 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 WomenAct (VAWA) • Passed in response for calls to “do something” about issue • Part ofViolentCrime Control and Law Enforcement Act of 1994
- 35. 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
- 36. 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
- 37. Women’s Representation in the Legal Profession • 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
- 38. Women’s Representation in the Legal Profession • Discrimination tempered by second wave of feminism • Passage ofTitleVII of Civil Rights Act of 1964 • Passage of Equal Employment OpportunityAct of 1972 • Passage ofTitle IX of Higher Education Act of 1972 • More women applying to law school now than before
- 39. Women’s Representation in the Legal Profession • 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
- 40. Women’s Representation in the Legal Profession • 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
- 41. Women’s Representation in the Legal Profession • Still, more similarities than differences exist • Job satisfaction • Job value • Attitudes about punishment issues and defendants
- 42. 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
- 43. 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