During the next four years, the Clinton administration will appoint dozens of federal judges, in addition to (perhaps) two or three Supreme Court Justices. In the confirmation procedures for these individuals, issues of gender politics are likely to predominate. Abortion will obviously be one such question, as may sexual harassment, but we should also hear much more about other controversies based ultimately on perceived conflicts of interest between the sexes. We already know how conservative justices are interrogated on these matters; but we should also be familiar with the key questions that can appropriately be posed to a justice of liberal or feminist inclination.
For example, it would be proper to ask about cases involving women who allege they have been victimized by male suspects. hi such cases, is the presumption of innocence vitiated by the race or gender of the accused or the victim? Should the burden of proof be transferred to the accused? Is it proper to impose severe penalties without due process of law? And should criminal law be so broadly defined as to leave it up to one individual to decide whether a crime has occurred, regardless of corroboration or proof? hi short, what (if any) legal rights and protections should exist for men accused of victimizing women? These questions may seem absurd, but they have all been posed by numerous laws passed by American states as a consequence of the feminist revolution in legal theory that has occurred in the last quarter of a century.
The feminist movement in law is based on principles that are collectivist and authoritarian, and the statutes founded on these ideas involve a systematic violation of natural fairness and justice. Recent legislation has effected drastic changes in the commonly accepted principles of Anglo-American law and constitutional practice, although the “revolution” has so far received remarkably little criticism or even comment. In the 1990’s, feminist theory will certainly cause a vast expansion of the scope of both civil and criminal law and produce new litigation on a scale that could overwhelm the existing court system. It may also provide the intellectual and political justification for some significant manifestations of judicial oppression.
Modern American feminism grew up in the shadow of the black civil rights movement of the 1960’s, and that heritage is apparent in its emphasis on the suffering and violence believed to derive from gender-based inequalities of power. Similar too is the quest for solutions in the form of penal legislation to correct these perceived injustices. There is now a substantial body of feminist writing and research in the areas of crime, law, and justice, and there are many feminist academics studying these areas. As we might expect from the contemporary academic world of North America, it is extraordinarily rare to find dissident voices challenging feminist orthodoxies on these issues, and the literature generally speaks with one (monotonous) voice.
In the first decade of the new feminism, one major emphasis of the movement was on the crime of rape, which was presented as the moral equivalent of the lynchings inflicted on blacks in the segregation era. The antirape campaigns of the 1970’s had a decisive impact on subsequent feminist belief and practice, and it is useful to summarize the views that developed on this subject. Rape was said to be an offense that results from the social distribution of wealth and power in a “patriarchal” society. The crime happens with enormous frequency, although official statistics record only a tiny handful of actual occurrences; and rape involves savage violence that often leads to death or serious injury of victims. In response to such a gross violation of the rights of half the human population, the justice system offers a parody of protection in the name of “due process” and objectivity, permitting trials in which the victim is effectively accused of having caused or provoked the attack.
We may sympathize with many of these claims. Reforms of the 1970’s undoubtedly did contribute to making police agencies more sympathetic to rape victims and ending the obscene spectacle of defense lawyers examining every minor detail of a victim’s previous sexual history, to the prurient delight of the media. Having said this, the use of the rape issue also established some far less desirable principles, such as the belief that women are subjected to extreme and frequent victimization to which the justice system is neither willing nor able to respond. This lethal violence could only be challenged by changes in the law and its enforcement, which in practice meant imposing quite draconian penalties, and doing so on the basis of evidence far weaker than had hitherto been demanded.
In particular, there now developed a belief, amounting to an unchallengeable orthodoxy, that stated women simply did not lie about such victimization—never lied, not out of personal malice, not from mental instability or derangement. This assumption places an almost insuperable burden of proof on an individual falsely accused in such cases, and subsequent measures have aggravated the situation. Canada is now proposing that a man accused of rape be required to show that he has taken all reasonable means to obtain the free and informed consent of the woman prior to sexual contact, regardless of prior relationship or marital status. Quite literally, the only defense against a rape charge in such a situation might well be a properly notarized pre-intercourse contract. There are even feminist lawyers who wish to revive the ancient offense of “seduction,” permitting a woman to sue a man who has misrepresented himself to her in order to gain sexual access—effectively a demand for truth in sexual advertising.
Of course, the assumption of “believing the victim” greatly facilitated the workings of the criminal justice system, which had earlier faced the task of having to determine the guilt or innocence of suspected persons. Now it would be possible to assess the nature of and responsibility for the action solely on the basis of one testimony! No jurisdiction ever went quite so far in eliminating traditional standards of corroboration and proof, but some states went a good way in this direction. Many rape suspects wrongly convicted under such circumstances are only now succeeding in establishing their innocence with the coming of new forensic technologies for genetic testing.
The antirape campaigns were critical in shaping the feminist theories that have since transformed the laws on such matters as domestic violence, sexual assault, child abuse, and pornography. Here again, we find the same ideas, above all the notion of women being subjected to mass victimization, which can only be countered by emergency legislation that reduces or suspends suspects’ rights. Only thus can victims be offered immediate protection or redress. The severity and scale of the threat is established by familiar rhetorical devices, including the use of bogus or inflated statistics (one woman in three will be raped in her lifetime; six million women are victims of domestic violence each year; and so on). This is normally achieved by stretching to the breaking point the definition of such crimes: for example, the domestic abuse figures include victims of such behavior as “progressive social isolation” and co-dependency, but the figures are presented as if they all refer to savage physical battery.
In addition, spectacular cases are publicized as if they are somehow representative or typical. Ideally, such cases should depict significant failures by the police or courts, resulting from an over-tender respect for the rights of an accused person. The argument then follows that women can only be protected if such archaic rights are bypassed or abolished, while new legal principles are established and backed by substantial criminal penalties. In all these debates, the issue of the victim’s credibility becomes crucial, as so many of the alleged atrocities occur in intimate and family circumstances, in which the victim has been “sleeping with the enemy,” perhaps over many years.
The workings of feminist jurisprudence can be observed from recent responses to the offense of battering, almost invariably perceived as violent behavior by a man toward his wife or lover. The feminist emphasis on domestic violence is a valuable rhetorical tool, which highlights the adversarial and occasionally lethal relationships that can prevail within the framework of married life. No less than the belief in widespread sexual abuse, the rhetoric surrounding domestic violence serves to discredit the “patriarchal” family and its relationships.
Traditionally, police probably did tend to treat “battering” as a type of domestic conflict into which the criminal law should not be brought except where absolutely necessary, and this underreaction may have led to unnecessary suffering. On the other hand, recent legal developments suggest that the pendulum might have swung too far in the opposite direction. Many jurisdictions now mandate that police arrest men suspected of domestic violence, even if the woman strenuously denies that such an act has occurred. Moreover, the degree of assault required to qualify as “violence” is liable to considerable subjective interpretation.
Apart from any possible injustice involved, a convincing literature establishes that many men arrested in such circumstances are likely to return home and commit far worse violence against the woman they blame for their misfortunes. In other words, it is reasonably well established that the new laws are going to cause the deaths and injuries they seek to prevent; only the preservation of feminist orthodoxy in the face of the evidence permits the continuation of “mandatory arrest” policies. However, the research also shows that it is overwhelmingly poor and minority women who are likely to be attacked by men newly released from custody, and so academic feminists will probably not shed too many tears over this problem.
For feminists, both rape and domestic violence are offenses so serious that suspects are not entitled to the due process protections they would receive if charged with a lesser transgression, such as (say) arson, treason, or armed robbery. Much of the development here has come in the huge expansion of injunctions and restraining orders, highly discretionary devices long available to courts but now revived under feminist pressure. Most states now seek to prevent domestic violence by a widely used procedure known as “protection from abuse orders,” or some similar term. The order—a “PFA”—is provided by a judge to a woman or her legal representative, often from a local “women’s refuge.” All that is required is a statement that domestic violence has occurred or appears likely, and the PFA is granted without a full hearing, without providing the accused man with legal representation or any chance of redress. The man is then excluded from his home for weeks or months until a full judicial hearing can be obtained. If he violates the order in any way, for example by visiting his children, he becomes guilty of contempt of court, and will probably be jailed. Obviously, he is offered no financial assistance in finding an alternative place to stay in the meantime.
This is an astonishingly broad power for petitioners, who are virtually never denied orders, and there is enormous potential for the abuse of abuse. The procedure makes it simple to strike at a spouse to exact revenge or impose pressure, and it is an invaluable weapon of intimidation in questions of separation, divorce, and child custody. “Abuse orders” should be the subject of national controversy. The only reason they are not is that, once again, the victims are likely to be not just men, but very poor men. Insofar as there is a movement to “reform” the practice, it comes from the 1992 bill proposed by Senator Joseph Biden that would codify many aspects of feminist legal theory into federal law. In the area of PFAs, his solution is to expand the practice by mandating interstate enforcement, thus bringing the FBI into the “war” on abuse.
The problems with the PFA procedure are, or should be, starkly obvious, but they are almost wholly neglected in the academic literature. If one suggests to a feminist criminologist that there might be issues here of injustice or foul play, the initial response is commonly one of utter astonishment that any aspect of the “progressive” legal framework might be subject to criticism. “You just don’t get it!” The next reaction involves a failure to understand how exclusion from home and family might constitute “punishment,” as opposed to civil regulation, which docs not require constitutional scrutiny. And it can be almost impossible to establish the common ground required for any form of meaningful debate. I once had the experience of debating a feminist legal scholar, who asserted that there was no danger of abuse orders being misused, as women (unlike men) never lie about this sort of thing, and certainly not out of revenge or self-interest.
But abuse orders are not an isolated insanity. Again from the area of domestic violence, we are now witnessing the spread of “stalker” legislation across the country. The stereotypical “stalker” is an individual (well, let’s be frank—a man) who pursues and harasses a woman over a period of months or years, and whom the police refuse to take seriously except perhaps by issuing minor warnings. The man habitually ignores cautions and court orders, until he maims or kills the woman in question. “Stalker” laws permit official intervention at an early stage in the process, demanding that police resort to arrest once early warnings are ignored. Also, violators face greatly increased penalties, often raised from a traditional 30 days or so to a major felony sentence of three or five years in prison. California passed the first such statute in 1990; nearly 30 others followed over the next two years. States are now vying with each other to pass the law offering the harshest penalties in the nation, with Michigan currently edging ahead of its competitors.
Stalker laws (like abuse orders) can certainly be justified in some instances; but once again, they give wide discretionary latitude to victims as well as to those who perceive themselves as victims—two categories that are by no means identical. As customarily occurs with such legislation, the statutes are generally drafted in disturbingly broad terms, requiring proof that the accused pursued and harassed someone, “demonstrating an intent to place a person in fear of bodily injury.” But what exactly is “harassment,” sexual or otherwise? As a number of celebrated cases have made clear, it is far from obvious how much any definition of harassment should take into account the standards and beliefs of a particular individual or community. What might be playful banter to one woman is gross harassment to another. What one woman might perceive as stalking might be seen by another as a series of chance encounters. What is the standard, and how is the offense proven? The law does not even include customary legal language indicating that the fear of harm must be reasonably founded.
The recent spate of laws effectively leaves the definition of “stalking” entirely up to the beliefs and perceptions of the woman accuser herself, regardless of her mental state or ideological approach. Such a law could not have been passed 30 or 40 years ago, because it was widely accepted that laws framed so badly could and would be used in a discriminatory way, and it was likely that virtually all the complainants would have been white and all the accused black. Is American society now so completely free of prejudice based on class, race, or gender that we can afford to do without the luxury of traditional legal protections? These points have all been raised by the American Civil Liberties Union, among other groups, but the feminist tide has proved too strong.
Praising one new statute, a Philadelphia Inquirer columnist wrote that “critics say the language is too vague. Women who have been stalked, however, seem to understand exactly what it means.” The respondents may be congratulated on their legal acumen, but judges are likely to be less sanguine, and “stalker” convictions should be a lively issue in the appeals courts for years to come.
The topic of domestic violence has attracted some atrociously formulated pieces of legislation and official policy, but one of the most controversial must be the use of a “battering” defense to excuse murder. Anglo-American law has always recognized self-defense as a justification for or mitigating factor in homicide, but it has traditionally demanded that the defense be more or less contemporaneous with the attack, and not (say) an act of revenge committed an hour or a week later. Since the 1970’s, feminist writers have cited eases where women killed husbands or lovers said to have systematically abused them over a period of years. Some of these cases demanded public sympathy, and judges would often recognize these extenuating circumstances. More recently, the use of a “battering” defense has been pushed much further, and since 1990 some states have offered mass clemency to women believed to fall into this category.
The question, again, is one of credibility. Some of the pardoned women had no evidence other than their unsupported word to corroborate the alleged abuse, while others did not even claim that the abuse had involved actual violence. Some of the eases in Maryland and Ohio were particularly egregious. In one instance, a pardoned woman had hired a contract killer to remove her husband, in the hope that she would profit from his life insurance. Other “abuse victims” tracked down and killed ex-husbands from whom they were already separated—an innovative form of “self-defense.” But these cases again indicate the influence of the core feminist belief that women do not, perhaps cannot, lie when alleging victimization. This point is sufficiently certain to justify granting a literal license to kill.
And the situation is likely to get worse. In 1992, the American Medical Association decreed that all doctors should screen women patients for what they believe to be signs of domestic violence or abuse. If the workings of child abuse legislation are anything to go by, we are shortly going to see an explosion of domestic violence statistics, usually based on the most questionable evidence. These guesstimates will be used to argue for still further expansions of legal devices such as PFAs and stalker laws, as well as other even more appalling legal novelties.
But ill-defined statutes and draconian penalties are by no means the preserve of the criminal law. Feminist legal theorists have also been working intensely in the realm of tort, seeking ways in which “patriarchal” behavior can be modified or deterred by the use of financial damages. Senator Biden’s recent bill to combat violence against women made great use of the threat of civil litigation. It classified rape as a crime of “hate” or “bias,” thus clearing the way for financial settlements under civil rights legislation.
There are many advantages to this approach, not least in that civil cases require a lower standard of proof than criminal ones (“preponderance of evidence” as opposed to “beyond a reasonable doubt”). Also, the popularity of any form of civil litigation creates a bandwagon effect, in that more and more lawyers specialize in this particular subfield, creating a political caucus for the preservation and extension of the law, while increased media attention tends to create greater sympathy among judges and jurors. A widely used form of civil litigation inevitably causes the creation of a network of supporters with strong vested interests in the survival and continuation of the problem.
In the last decade, feminist advocates of legal change have focused their sharpest attack on what they term “pornography”; and again, the campaign is justified on the grounds of preventing sexual victimization. It is universally accepted in these circles that pornography incites violent behavior, such as rape and serial homicide (as the saying goes, “pornography is the theory; rape is the practice”). If that is correct (a major “if”) then pornography should be seen as a violation of women’s rights, and it is therefore subject to the enforcement mechanisms designed to prevent other forms of group discrimination or persecution, with sanctions including fines and civil penalties. This view—developed by feminist theorists Catharine MacKinnon and Andrea Dworkin—was tested in city ordinances passed in Minneapolis and Indianapolis. Most of these experiments faced severe legal challenges and were defeated by about 1985; but in 1992, the MacKinnon principle was upheld by the Supreme Court of Canada.
If sexually explicit material cannot be eliminated by law, then at least the producers should be made liable for its supposed consequences, and this is the principle of another recent federal bill designed to identify and protect “pornography victims.” This would permit victims of sexual crimes to sue the producers or distributors of the material, if it could be shown that the pornographic material contributed to the commission of the crime. The antipornography campaign might seem attractive to people who would normally be hostile to feminist legal innovations, and the city ordinances of the mid-80’s won the support of moral conservatives and religious fundamentalists. In addition, political conservatives and libertarians often differ on the issue of pornography, and whether its suppression would in fact infringe on rights of free speech and expression. However, the particular nature of the feminist assault deserves attention, not least because of its definition of pornography, or lack thereof.
Of course, the term “pornography” contains a subjective value judgment (“I read erotic literature; he reads pornography”). In the Indianapolis ordinance, the definition involved “the sexually explicit subordination of women, graphically depicted, whether in pictures or in words”; and it soon became apparent that the law’s supporters took “subordination” to include consensual heterosexual intercourse. Nor was this a simple error or oversight, as MacKinnon and Dworkin do in fact hold that such “normal” sexual behavior is exploitative, and thus differs from rape only in degree. It was this extreme and somewhat bizarre position that divided feminist opinion on the issue in the mid-1980’s; but the recent Canadian decision accepted the principle that female subordination is the defining characteristic of pornography.
But even excluding the question of “straight” sex, is it really acceptable to regard depictions of sexuality as ipso facto pornographic? The potential for such a broad assault is certainly there, and the possibilities are endless. For example, cases of serial killers over the last century suggest that by far the most frequent inspiration claimed for their atrocities is the florid imagery offered by the book of Revelations, especially in the passages denouncing the “Whore of Babylon” and the Scarlet Woman. Would the proposed federal legislation permit lawsuits against Bible distributors from families that suffered at the hands of such criminals?
The antipornography campaign has much in common with the domestic abuse legislation described earlier, naturally enough because both stem from the same feminist legal tradition. In both cases, activists are using the law to strike at a problem which they believe to be extremely serious, but which they find difficult to define with the precision property required in legislation. In both cases, the enemy is perceived as a trend or an “ism,” an idea such as patriarchy or sexism. However, law is employed against persons, not ideas. It is not possible to strike at “male power” or “patriarchy” without hitting particular individuals within that group, which is seen as acceptable because the underlying theory is profoundly collectivist and because its exponents see little meaning in concepts of rights or obligations other than those of the group.
Victims of these new laws find themselves facing the ultimate legal nightmare of having done things that are defined as criminal or illegal according to the subjective and faddish interpretations of police or courts. In addition, the propaganda (“educational”) value of such laws means that they must carry heavy penalties, in order to express society’s outrage at unacceptable sexist behavior. Ill-defined laws, intrusive police, lack of suspects’ rights, and savage punishments: it is a familiar mixture, but not one that we would have expected in a Western democracy. The feminist legal revolution is not even loosely compatible with the principles of the U.S. Constitution, or any related democratic form. It is open to serious question whether an exponent of this revolution can sincerely affirm allegiance to the Constitution or legitimately hold judicial or administrative office within the government based on that document.