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A Law of Her Own
A Law of Her Own
The Reasonable Woman as a Measure of Man
Caroline A. Forell and Donna M. Matthews
Foreword by Barbara Y. Welke
NEW YORK UNIVERSITY PRESS
New York and London
2000 by New York University
All rights reserved.
First published in paperback in 2001.
Library of Congress Cataloging-in-Publication Data
Forell, Caroline A.
A law of her own : the reasonable woman as a measure of man /
Caroline A. Forell and Donna M. Matthews.
p. cm.
Includes bibliographical references and index.
ISBN 0-8147-2677-1 (pbk.)
1. Sex crimesUnited States. 2. Criminal liabilityUnited
States. 3. Defense (Criminal procedure)United States.
4. Sexual abuse victimsLegal status, laws, etc.United States.
5. WomenLegal status, laws, etc.United States. I. Matthews,
Donna M. (Donna Meredith). II. Title.
KF9325.F67 1999
345.7304dc21 99-6811
CIP
New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability.
Manufactured in the United States of America
10 9 8 7 6 5 4 3 2
For Mum, Dick, Ian, and Emily C.F.
For Kevin, Rusty, and my parents D.M.
Imagine if you will a world of law in which women are the predominant players and where the male is the exception to the norm.
Judge Francis X. Hennessy,
Connecticut Court of Appeals
Contents
Foreword
A fundamental tenet of the American legal system is uniform application of the laws based on an objective standard. But, as this disturbing, even haunting narrative makes clear, a single nongendered standard of reasonable conductthe reasonable personremains as elusive as ever.
Through case after case involving hostile environment sexual harassment, domestic homicide, stalking, and rape, Forell and Matthews reveal a harrowing truth: the reasonable person is little more than a mask for the reasonable man it replaced. Man remains the measure of woman and as a result the law continues to condone mens victimization of women. Taking to heart another fundamental tenet of lawthat law is a system of valuesthe authors propose a radical departure: if we truly believe in rights to bodily integrity, individual agency, and autonomy, why not make woman the measure of man?
The authors proposal that a reasonable woman standard should apply in all cases of sexual harassment, stalking, domestic homicide, and rape is uncompromising and provocativea frontal challenge to the male standard that remains deeply embedded in American law. Whether or not the reader embraces their proposal, there is no turning back from the legal reality their narrative so baldly exposes.
Barbara Y. Welke
Department of History
University of Minnesota
Acknowledgments
Thanks to our families, friends, and colleagues for their support and patience. We couldnt have done it without you.
Many readers provided valuable assistance by reviewing drafts throughout the evolution of this book. Particular thanks to Nancy Adess, Dan Fletcher, Leslie Harris, Lisa Kloppenberg, Margie Paris, Peggy Pascoe, Ken Pendelton, Jamie Ross, and Merle Weiner for reading and commenting on drafts. The Law Research Interest Group of the University of Oregons Center for the Study of Women in Society both gave us helpful feedback on a few chapters of the book and an opportunity to go public for the first time. The students in Caroline Forells 1999 Women and the Law seminar read the introductory chaptersthe second time to go publicand made helpful comments.
Thanks for providing us with contacts go to Mary Forell Davis and Jennifer Freyd. We are also grateful to the people who provided us with prepublication reviews for our cover: Martha Chamallas, Barbara Ehrenreich, Susan Estrich, Alison Jaggar, and Gloria Steinem. We are especially grateful to Barbara Welke for her wonderful foreword. Anna Quindlen and Carol Sanger also provided us with support and ideas for promoting the book.
Nancy Farmer kept the system going with her great administrative support, and lent her eagle eye to proofread the manuscript page proofs. Research assistance was provided by Rebecca Hotchkiss, Ellen Theordorson, Sandy Gorman, Melanie Smith, Meredeth Allen, and Tim Bennett, students at the University of Oregon School of Law.
Special thanks to Suzanne Lewis for taking our photograph and for her good humor through the process.
Our editor, Niko Pfund, through his extraordinary e-mail responses, was always instantly available to us. His humor and constant support made a huge difference to our morale and determination to make the most of the opportunity that NYU Press gave us to get our ideas out through our first book.
Finally we acknowledge each other and the wonderful way in which our abilities and interests complemented each other. It was truly a joint effort throughout with none of the strife that can accompany such effort. We both improved as writers and editors through working together. This was collaboration at its best.
Introduction
This book is intended for people concerned about how the law treats women. Despite the apparent progress in womens legal status, the law remains profoundly male. We believe the laws fundamental paradigm must change because superficial changes serve primarily to mask the continuing, pervasive violence and injustice against women. The spectrum of violence and disregard of women is most evident and problematic in the law of sexual harassment, stalking, rape, and domestic homicideall areas in which acquaintances or intimates usually inflict the injury. Men harass, beat, stalk, rape, and kill women, yet the law still minimizes, or even denies, these injuries. We therefore propose a method by which the law can better redress the injuries women experience.
We advocate that courts apply a reasonable woman standard to the conduct of men in certain legal settingswhere mens and womens life experiences and views on sex and aggression diverge and women are overwhelmingly the injured parties. Such a woman-based legal standard would make currently acceptable or excusable conduct unacceptable and inexcusable by focusing on respect for bodily integrity, agency, and autonomy. It would help rectify the imbalance in how society and its legal system view sexual and gender-based harassment, rape, stalking, and domestic imprisonment, violence, and death. This reasonable woman, based to the extent possible on the experiences and expectations of most women, would become the standard by which mens behavior is measured. When women are the aggressors, their conduct would also be held to the reasonable woman standard.
Our proposal is radical. The reasonable woman standard is intended to make a difference by affecting both the head and the gut. In certain contexts, this paradigm shift will entirely change the outcome in womens lives and in legal cases. It is based on the premise that human beings have great ability to learn, empathize, adapt, and to control their own behavior. Men who batter or kill their intimates, who harass, stalk, or rape,