A Law of Her Own
The Reasonable Woman as a Measure of Man
Publication Year: 2000
Despite the apparent progress in women's legal status, the law retains a profoundly male bias, and as such contributes to the pervasive violence and injustice against women.
In A Law of Her Own, the authors propose to radically change law's fundamental paradigm by introducing a "reasonable woman standard" for measuring men's behavior. Advocating that courts apply this standard to the conduct of men-and women-in legal settings where women are overwhelmingly the injured parties, the authors seek to eliminate the victimization and objectification of women by dismantling part of the legal structure that supports their subordination.
A woman-based legal standard-focusing on respect for bodily integrity, agency, and autonomy-would help rectify the imbalance in how society and its legal system view sexual and gender-based harassment, rape, stalking, battery, domestic imprisonment, violence, and death.
Examining the bias of the existing "reasonable person" standard through analysis of various court cases and judicial decisions, A Law of Her Own aims to balance the law to incorporate women's values surrounding sex and violence.
Published by: NYU Press
Title, Copyright Page
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Foreword by Barbara Y. Welke
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Thanks to our families, friends, and colleagues for their support
and patience. We couldn’t 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,...
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This book is intended for people concerned about how the law treats women. Despite the apparent progress in women’s legal status, the law remains profoundly male. We believe the law’s fundamental paradigm must change because superficial changes serve primarily to mask the continuing, pervasive violence and injustice against...
I The Idea and the Reality
1 Locked In and Locked Out
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The status of women has changed significantly since the time of Virginia Woolf. But in many ways, it has not. In Woolf’s time, women were almost wholly locked out of public and professional life and locked in the private sphere, subjugated to husband, father, or other male “guardian.” While this is no longer true, many women continue...
2 The Meaning of Equality
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Women’s intellectual freedom, as Virginia Woolf observed seventy years ago, requires material things, such as a room of one’s own and an adequate income. Women’s freedom of movement, physical safety, and full personhood require less tangible but no less essential things. Just as a poet must have a room of her own in order to write, a...
II Sexual Harassment in the Workplace
3 Men, Women, and Sex at Work
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The concept of a nongendered reasonable person is sometimes a non sequitur. The reasonable person assessing sex at work is a prime example. Psychology professors Barbara Gutek and Maureen O’Connor note that the prevalent view that men and women perceive sex in the workplace differently has “a basis in both common sense and...
4 How and Why Different Perspectives Matter in Hostile Environment Sexual Harassment Cases
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Many sexual harassment cases arise in male-dominated workplaces such as heavy industry, law enforcement, gambling, and construction. In such settings women are clearly “the other.” At best, women are ornamental, and at worst, they are intruders. Antiwoman sentiment is...
5 Gender, Race, Sexual Orientation, and the Reasonable Woman
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As the cases in the previous chapter demonstrate, the reasonable person standard represents a male perspective. When applied in hostile work environment sexual harassment cases, it disadvantages women and perpetuates sex discrimination and inequality in the workplace. Accepting this claim of injustice, an important question remains:...
6 The Reasonable Woman after Harris v. Forklift Systems
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After Harris, courts still disagree about whether to apply the reasonable woman or the reasonable person standard to the hostile work environment determination. We believe that shifting the boundary between acceptable and unacceptable workplace behavior by applying...
7 Stalking and the Gendered Meaning of Reasonable Fear
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The Minnesota Supreme Court reversed Paul Orsello’s conviction for stalking, finding that the prosecution had not proved that he “intended to stalk his wife.” (Note that the court refers to Diane as his wife, even though they were divorced.) The court’s reasoning can be understood only in the context of the deep gender bias that still permeates...
8 The Continuum of Stalking, Sexual Harassment, and Domestic Homicide
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The primary focus in the discussion of stalking and sexual harassment is on two cases that use a reasonable woman standard to assess sexual harassment claims, Ellison v. Brady and Fuller v. City of Oakland. Both cases also involve stalking. By applying stalking laws to the Ellison and Fuller facts, we demonstrate how the reasonable...
IV Domestic Homicide
9 Slips in a Dangerous Game
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Both men who kill their domestic partners and women who kill their batterers represent extreme outcomes of male violence against women. Male violence against women all too frequently culminates in severe injury or death. The law of domestic homicide reveals in a particularly gruesome way the disparity between the law’s treatment of men and...
10 “Provoked” Intimate Homicide
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Despite this evidence, the majority of the Louisiana Supreme Court held that “the evidence clearly proves that the crime resulted from sudden passion and heat of blood.” The court went on to explain: “Although taller and heavier than his wife and a trained soldier, David Lawrence does not fit the stereotype of the wifebeater who...
11 When Battered Women Kill
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American law derives almost entirely from the law of England in the eighteenth century. As this quote from Blackstone shows clearly, that legal paradigm did not recognize self-defense by a woman against her “lord and master,” father or husband. Men ruled the kingdoms of their homes: even the poorest peasant could go home and beat...
12 Rape and the Use and Misuse of the Reasonable Woman
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Just saying “no” to sex in our society is not enough to make unwanted intercourse rape under the laws of most states. Jenny’s viewing unwanted sex as her fault despite her saying no is typical. Maria T’s case, as described in People v. May, further illustrates the law’s problem with “no.”...
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The words Mary Wollstonecraft penned at the end of the eighteenth century represent our hopes for women at the beginning of the twenty-first century. Women aren’t better than men, nor are they worse. But women differ from men in how they perceive and experience certain conduct. As this book has demonstrated, sometimes the...
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About the Authors
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Page Count: 261
Publication Year: 2000