A Law of Her Own: The Reasonable Woman as a Measure of Man

Postscript

Postscript I wish to see women neither heroines nor brutes but reasonable creatures. —Mary Wollstonecraft, A Vindication of the Rights of Women, 1792 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 differences between men and women seriously affect how the law treats perpetrators and victims. For sexual harassment, stalking, domestic homicide, and rape, a male standard excuses conduct as reasonable that a female standard condemns as unreasonable and harmful. We intend our reasonable woman standard to alter the way in which the law views certain kinds of behavior. Changing the lens through which law sees—doing what Katharine Bartlett, in her article “Feminist Legal Methods,” calls “asking the woman question”—entails a paradigm shift that raises the minimum level of legally acceptable behavior for gendered injuries. Our proposal is radical. The reasonable woman standard, even as used in the law of sexual harassment, certainly has its critics. Shirley Robin Letwin in her article “Law and the Reasonable Woman,” starts off by stating, “One of the most insidious threats to our liberties since World War II has been an attack from within.” Letwin goes on to describe how advocating the reasonable woman standard—and feminist jurisprudence in general—constitutes “an attack on all rational discourse .” Aside from the hyperbole, we and others, disagree with Letwin’s claim and instead believe that the reasonable woman is liberating . “Our” liberties must include freedom and dignity for women 241 and true respect for the perspectives and experiences gendered female in our society. It is neither fascist nor antimale to propose, or to adopt, a legal standard that helps make this possible. Already some judges, including the former dean of Yale Law School, Judge Guido Calabresi, explicitly apply a reasonable woman standard to men accused of sexually harassing women—but the sky hasn’t fallen. Throughout this book we have provided other examples of male judges who clearly understand what a reasonable woman standard demands —and sadly, a few examples of female judges who don’t. Over time, as the standard becomes more common and accepted, as what is expected is better understood, most male and female judges and jurors can and will learn to correctly apply the standard. That is, decision makers will routinely apply a woman’s version of the reasonable woman standard, not, as in traditional rape law, a man’s version. In this book we have argued that it is time for women to define what is just and fair in certain contexts. Until the law incorporates women’s views of what respect for their bodily integrity, autonomy, agency, and self-determination means, women will remain unequal to men. Women should have the right to work without being reviled, objectified, and sexually harassed as “the other.” They should have the right to live in their homes free of violence, to leave a relationship safely, and to defend themselves and their children with deadly force if necessary. They should have the right to be free from stalking, to be left alone. And they should have the right to choose whether to engage in sexual activity . A law of her own, a law a reasonable woman would choose, explicitly guarantees these rights. The reasonable woman should become the measure of man so that women can finally be “created equal.” 242 | Postscript ...