Dear Readers,
My apologies for such a long delay since my last post I have been snowed under with Inn scholarship application forms, interviews, BPTC applications and offers and of course revision for my finals! I have been working on a short article inspired by Catherine MacKinnon a personal heroine of mine and an incredible feminist legal scholar. My apologies that it was not ready for publication in time for International Women's Day but I would like to thank Dr Ksenia Bakina (jurisprudence tutor), Richard Simmons (editor at The Lawyer) and Alex Thirlwell (my long suffering partner and dear friend). I stress any mistakes are completely my own.
A celebration of Catherine MacKinnon- does the law really see and treat women and men see and treat women?
MacKinnon[1] argues
that the liberal state created a legal system that reinforces a social order in
favour of the male interest, in this way law sees and treats women the way men
see and treat women. MacKinnon’s aim is to use radical feminism to ‘uncover and
claim as valid the experience of women, the majority content of which is the
devalidation of women’s experience’.
MacKinnon believes that legal objectivity is actually male objectivity therefore
women’s experiences are not accurately portrayed in law and that gender
hierarchy in liberal states oppress women and devalue their experiences. I will
focus on rape, domestic violence and foetal protection laws in light of
MacKinnon’s statement and analyse them to see what they say about how men see
and treat women and if there is any correlation between how the law sees and
treats women. I will conclude that the law sees and treats women as objects
that need protection from their own irrational actions in much the same way as
some men see and treat women as their property or weak beings that need protect
from the harsh realities of the rational, male, public sphere.
Rape: the objectification of women
Mackinnon argues that rape is
an example of men using the gender hierarchy to abuse women[2].
The law defines rape as the intentional penetration of the vagina, anus or
mouth of another person with a penis[3].
This focus on penetration, MacKinnon argues, shows how the law protects the
interests of the male offender because men see sex as a primarily physical act
whereas for women sex is more of emotional and intimate act. MacKinnon believes
that rape, in law, is defined by the loss of access by the woman’s partner to
the female victim, not based on how the victim feels about the violation of her
sexuality. MacKinnon argues that rape is treated as a crime against female
monogamy and not against female sexuality. Using penetration as the benchmark
for rape leaves many female victims who have been sexually violated without
justice and also shows the juxtaposition between the way women see rape and the
way the law, and men, see rape. Women see the rape in sexual intercourse; the
law sees the sexual intercourse in rape. This goes to show how the law sees
women as objects that can be used by men and the fact that rapes happen show
that some men see their access to women’s bodies as a right.
MacKinnon[4]
argues that basing consent on the male
defendant’s ‘ reasonable belief’ shows how law sees and treats women as men see
and treat women. The law sees force just above normal male sexual behaviour as
acceptable. It is not about the victim’s experience it is about punishing
rapists where their actions look like rape and not sex. This leaves many women
who have been emotionally or financially forced into sex without justice because
the force is not physical so the man can maintain reasonable belief in consent
and so escape punishment.
Munro[5]
argues that MacKinnon sees female victims as weak and this just serves to
reinforce the gender hierarchy. I disagree;
MacKinnon is trying to demonstrate that the female perspective of rape is not
acknowledged at law. This explains why rape report rates are so low.[6] Victims
doubt that they will be believed and so they do not report that they have been
raped. Women are taught from society that they should submit to men and that
men are there to protect them, unfortunately some men abuse this power and
therefore women are doomed to remain the sex objects of men as result.
Domestic Violence: Women as irrational and weak
Munro[7] argues
that because domestic violence cases can be bought to court without the female
victim’s consent the law on domestic violence does not protect women. I agree,
by prosecuting a female victim’s male partner without the victim’s consent the
law is treating women as if they cannot make a rational choice about whether or
not to bring a claim. Whilst it is true that many women do not bring their
partners to court because they have been emotionally manipulated to believe
that the attacks are their fault; it is also true that many male perpetrators
of domestic violence reoffend after they are released from prison.[8] The
law’s view that male domestic violence offenders can be prosecuted without the
victim’s consent is not only patronizing to women but also puts them in danger.
Naffine[9] says that domestic violence is an example of
when the law chooses to infringe on the private lives of citizens. The term
‘domestic’ has traditionally been associated with the safe haven of women where
they can raise children. ‘Domestic’ added to ‘violence’ is an odd juxtaposition
that shows that women are no longer safe in the home; in fact they are in
danger even at the hands of their own partners. For me, this is why the link
between domestic violence and the treatment of women as irrational is so tragic.
The nature of domestic violence ruins the safety of the home and the stability
of the family. The fact that domestic violence is a relatively new crime proves
that the law does not see women as rational claimants who bring serious claims
and deserve equal protection to men who are victims of violent crimes in
public.
Munro[10]
argues that the victim focused agenda has led to a broadening of the powers of regulatory
quasi-state therapeutic institutions which are claiming to protect women yet
still do not consider their views as to whether their partner should be tried
for domestic violence. Whilst this increase in power is beneficial because
domestic violence is being treated more seriously, it does not stop the law
from seeing women as weak, irrational beings who cannot judge for themselves
whether or not to bring a claim. For me, this view of women could lead some men to
believe that they can get away with domestic violence in and it is in this
sense that the law sees and treats women as men see and treat women.
Laws on foetal protection: Women as fragile carers
Sheldon[11]
argues that law sees and treats women as if they are ‘leaky, volatile and
penetrable’ whereas men are seen as ‘strong, impenetrable and stable’. This divide
means that women are seen as a greater risk to foetuses than men. Men ejaculate
and then are physically separate from the foetus whereas women are physically
connected to the foetus and so are deemed to me more of a risk to it that it’s
father.
This is especially evident in
employer’s foetal protection policies which stop pregnant women, or women of reproductive
age, working with dangerous chemicals that could damage the foetus. Women are
treated as weak and in need of protection. Whilst it is right that foetus’
should be protected from chemical toxins, Sheldon argues that the law ignores
the fact that men are at risk from these toxins too and they may go home and
see their pregnant wives, girlfriends and sisters and the toxins on their work
clothes may infect the pregnant women and harm the foetuses anyway. Sheldon
calls for more equality in protective employment policies to ensure that women
are not seen as the only source of danger to the foetus. In Page v Freight Hire[12],
a 23 year old woman was dismissed from her job as a tanker transporting the
harmful toxin DMF because she was of reproductive age and so it was deemed that
exposure to DMF could harm her reproductive abilities. This is an example of
how the law sees and treats women as men see and treat women, fragile beings in
need of protection. Ms Page was not pregnant and had said that she did not want
any more children however she was still dismissed because the company had no
alternative work for her and the court thought that she may change her mind and
decide she wanted more children in future. The court labelled Ms Page fragile
and penetrable because she could be infected by the toxins but also immature as
she was not trusted to make her own reproductive choices. In short, employer’s
policies on foetal protection treat women as fragile and in need of protection whereas
they treat men as stable, strong and somehow less vulnerable to toxins.
Sheldon then goes on to
consider the Congenital disabilities (civil liability) Act 1976[13]
whereby a child cannot sue their mother for negligence during pregnancy unless
they were negligently driving. For Sheldon, this shows how women are seen as
the fragile carers because not being allowed to sue your mother maintains the
child/mother bond and in the law’s eyes the mother is the primary carer of the
child. Conversely, men can be sued but usually have to pay damages which shows
how they are seen as the breadwinners and the child’s economic but not
emotional support. This situation feeds into MacKinnon’s [14]theory
on patriarchy and the subordination of women because men see women as mothers
and wives who need to be protected from the ‘real world’ and men are seen as
strong breadwinners who protect their families.
I agree with Sheldon, however I would add that part of the reason men
are not seen as being an equal risk to foetuses is because scientific evidence
of the effect of drugs, alcohol and toxins on sperm and the male reproductive
system is only just starting to be produced and so the law needs time to codify
these scientific findings. However, as Daniels[15]
says, it is true that women are seen as irrational and likely to take drugs or
put their foetus at risk and so are protected and persecuted by the law whereas
men are seen as invulnerable and capable of withstanding the damage that
toxins, drugs and alcohol can do to the body.
Conclusion
To conclude, I agree with
MacKinnon’s statement that the law sees and treats women as men see and treat
women for three reasons. Firstly, rape law treats women as the sex objects of
men to whom men can have access as long as the rape looks like sexual
intercourse. This is why female rape victims doubt that they will be believed
and subsequently why rape conviction rates are so low and unfortunately one of
the reasons why rapes happen, because men feel like the law will let them go
unpunished. Secondly, law on domestic violence treats women as weak, irrational
beings who cannot judge for themselves whether or not to bring a claim. This
reinforces their abusers perception they are able to be abused and is unlikely
to be brave enough to call the police. Thirdly,
foetal protection laws, support MacKinnon’s theory on patriarchy and the
subordination of women because both the law and men see women as mothers and
wives who need to be protected from the ‘real world’ and men are seen as strong
breadwinners who protect their families.
[1] Catharine
A. MacKinnon [1983], ‘Feminism, Marxism, Method and the State: Towards Feminism
in Culture’ 8 signs Journal of women in culture and society 644-45
[2] Catharine
A. MacKinnon, ‘Sex and Violence: A Perspective’, in Feminism Unmodified:
Discourses on Life and Law (Harvard University Press, 1987), 85-92
[3] Sexual Offences Act 2003 s1
[4] Catharine
A. MacKinnon, ‘Sex and Violence: A Perspective’, in Feminism Unmodified:
Discourses on Life and Law (Harvard University Press, 1987), 85-92
[5] Vanessa
E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in
Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to
Feminist Legal Theory (Ashgate, 2013), 233-248
[6] Ministry
of Justice, Home Office & the Office
for National Statistics ‘An Overview of Sexual Offending in
England and Wales’ [2013] p 16
[7] Vanessa
E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in
Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to
Feminist Legal Theory (Ashgate, 2013), 243-244
[9]
Naffine [2002] ‘ In praise of legal feminism’ 22 Legal studies 73-76
[10] Vanessa
E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in
Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to
Feminist Legal Theory (Ashgate, 2013), 243-244
[11] Sally
Sheldon, ‘ReConceiving Masculinity: Imagining Men’s Reproductive Bodies in Law’
(1999) 26 Journal of Law and Society 129-149
[12] Page
v Freight Hire (Tank Haulage) Ltd [1981] IRLR 13 EAT
[13]
Congenital Disabilities (Civil Liability) Act 1976
[14] Catharine
A. MacKinnon [1983], ‘Feminism, Marxism, Method and the State: Towards Feminism
in Culture’ 8 signs Journal of women in culture and society 644-45
[15] Cynthia
Daniels, ‘Between Fathers and Fetuses: The Social Construction of Male
Reproduction and the Politics of Fetal Harm’ in (1997) 22 Signs 579–616
