Feminist legal scholars are united in their basic belief that society is patriarchal and founded on issues of knowledge, truth and power; a masculated code of justice which inadequately represents the feminine in consciousness. It is this essentialism of the masculine system that has cultivated concern and inaccuracy in definitions of both gender roles and cultural practices alike, providing feminist jurisprudence then, with an analysis and critique of the role of law in maintaining and perpetuating both patriarchy and female subordination. Feminine discourse and awareness of its significance is often grounded in experience and interpersonal truths whereby women are liberated from the constraints of misogynous language based practices and culture, both of which construct a very particular and rigid form of gender identity. This paper will explore and analyse the contribution of law, cultural practices and expectations in constructing, maintaining, reinforcing and perpetuating patriarchy, as well as concepts of power, control and expectation related to gender which attribute the enacting of sexual violence to a dominant masculine force or sexual agent.Feminist legal theory essentially has two major components. The first explores theoretical issues and the interaction between law and gender, the second applies feminist analysis and discourse to specific aspects of law[1]. For the purpose of this essay, legal feminism forms a large conversation spanning the areas which are central to a broader intellectual and political movement: sex-based equality at work, family, criminal law, reproductive freedom and human rights. All of these issues figure centrally in feminist theory and will be considered in depth, examining the degree to which legal feminism has, by and large, reduced the complexities of sexuality for women to the following concerns: that maternalism and sex promote female dependency, the detrimental nature of the repronormativity of motherhood and an in depth look at the social response to domestic violence, pornography, oppression and control. In addition, I will also explore the definition of the battered woman before the law and the practice of female genital mutilation and other forms of female violence.
The term ‘equality’ is also multifaceted and often contradictory; do women expect to be treated exactly the same as men, or does it mean that women should encourage different treatment, because the disparities between the two sexes are such that equal treatment will fail to provide equity? Feminists who argue a reformist approach to equality consider the latter feasible through generating rights and opportunities for women which are paralleled to men’s. Focusing on women’s individuality and highlighting it in the way that law has previously done for men, it necessitates that women demonstrate their likeness to men and thus may be treated like them. Because these perspectives can be regarded as obliging women to become as much like men as possible, and that law regard women as it does men, they are often referred to as assimilationist. In his article Racism and Sexism, Wasserstrom argues that sexism may be contested and even eliminated by reducing the social significance of gender, whereby
“it must be acknowledged that to make the assimilationist ideal a reality in respect to sex would involve more profound and fundamental revisions of our institutions and our attitudes than would be the case in respect to race.”[2]
Wasserstrom thus maintains the view that sexism and gender roles are deeply embedded within society’s ideology and that removing the social significance of sex would require a complete elimination of sex roles, of marriage laws requiring the union of ‘man and woman’, and of the acceptance that female and male morality are equally distinctive.
THE REPRONORMATIVITY OF MARRIAGE AND MATERNALISM
Marriage is the institution at the forefront of radical feminism, long considered the most common enforcement of female subjugation and defeat. The structure of the nuclear family and matrimony itself has been condemned as the foundation of patriarchy which has enabled, endorsed and perpetuated female oppression. According to Foucault, “normalisation [has] become one of the great instruments of power,”[3] not only dictating who is eligible to marry, (ensuring homosexuality and other forms of unconventional relationships cannot be legally validated,) but also the roles delegated to each gender once an official union is achieved. While marriage as a title exists as both a significant religious and legal confirmation, they are also practices which “mark the power relations in their very ordering,”[4] suggesting that cultural practices such as marriage vows, inheritance and name transference all exercise this form of governance.
The repronormativity of maternalism and the collapse of woman’s identity into motherhood is one social value which has demanded that women’s participation in the labour force be compatible with their responsibilities as mothers. The capitalist metaphors of production and consumption and their direct correlation with motherhood, whereby women’s sexual and reproductive capacities are commodified and controlled by men, is deeply enveloped with ideologies of patriarchy, technology and capitalism. In The Woman in the Body: a Cultural Analysis of Reproduction, Emily Martin examines traditional culture’s role in validating the bodily functions of women and the influence of industrial society in denying the reality of female bodies. Similarly, Marx considers the way in which history is determined by changes in the relationship of production and consumption, whereby consumption is considered a mere product of the pressure imposed on individuals by the constraints of ideology. It is these ideologies which create a “false consciousness” that individuals experience as value relations between things, for example, between the money in their pocket and the designer labels they desire. Because consumption generates social meaning or “commodity fetishism”, its expense is also an investment for the individual[5]. The cultivation of this fundamental idea of competition relates directly back to the production and consumption factor within human activity, highlighted by the relationship between mother and child, who exemplify the value applied to resources such as sperm, eggs, wombs and breasts.
“Since the fifteenth century the same English word, ‘labour’, has been used to describe what women do in bearing forth children and what men and women do in producing things for use and exchange in the home and market.”[6]
Applying this notion to social expectations of women and motherhood, where children are seen as objects created by the mother, just as a commodity is made by a worker, society should not subsidise the autonomous choice of the female, whether that preference be to possess an expensive car or bear a child. For these reasons, hopefully legal feminists may consider ways in which the repronormative forces of society and culture affect women’s decisions on motherhood, just as heterosexual practices have come to be silently accepted as mandatory and ineludibly a product of heteronormative prevalence.
SEX CREATING DEPENDANCY FOR WOMEN
Closely linked with maternalism and motherhood is the practice of sex and sexuality itself which is often rendered dangerous by radical feminist theory, cautioning that the willingness of many females to conceptualise sex as hazardous or potentially harmful, effectively marginalises, if not eradicates, the preference of sexual pleasure and female desire which ensues from sex for non-reproductive purposes. Carole Vance has defined a feminist approach to sexual matters as one which “must expand the possibilities, opportunities, and permissions for pleasure that are open to them”[7] whereas a stark contrast is detailed by MacKinnon, the undisputed foremother of legal feminism, who has synthesised a comprehensive critique of the radical feminist agenda which regards,
“…war as male ejaculation. It criticized marriage and family as institutional crucibles of male privilege…. Some criticized sex, including the institution of intercourse, as a strategy and practice in subordination.”[8]
The opposition between radical and libertarian-feminist positions on sexual morality is contradictory without either being more or less credible than the other, though, without a doubt, when it comes to sex, women have succeeded in theorising and justifying the right to say no, however, in doing so, we have only increased the ambiguity of what it might mean to say yes. Aristophane’s Lysistrada, the ancient pinnacle of feminism, illustrates saying no to sex as a principal way of saying yes to power.[9] The response to this strategy is explored by Foucault, who notes, “we must not think that by saying yes to sex, one says no to power,”[10] reformulating the conception of sex a natural process which exists outside of relations of power and structure that regulate sexual behaviour and thought through systematic forms and expectations of sexuality.
Those legal feminists who theorise sex as a form of dependency risk disseminating the view that human sexuality is something to be indulged in only for the purposes of reproduction, rendering it a construction of something that is done to, not by, women. Understandably, many radical feminist views correspond one dimensionally to the culture of pornography, infidelity, prostitution and sexual violence and deviance which all exist in excess in contemporary life. Although much of this conduct can be considered deserving of public scrutiny and regulation, the failure of radical feminist discourse to articulate the importance of female sexuality, particularly in regards to anti-pornography views, ignores and trivializes women’s sexual agency, adhering to the draconian view that sex is yet another commodity, one to be guarded from men or used as leverage against them.
DOMESTIC VIOLENCE, OPPRESSION AND CONTROL BY THE PATRIARCHY AND THE SYSTEM
MacKinnon installs the idea that pornography is a tool of oppression, used by men “to train women to sexual submission,”[11] season them, terrorise them and silence their dissent. She views it as a erpetuation of the patriarchal roles of female victim and male abuser, which are then redistributed back into society and treated as natural, accurate forms of sexual and gender expression.
It is these social values and stereotypes which have influenced women who have been victims of rape, many of whom struggle to reconcile the irrelevance of their behaviour or clothing, convinced that either may have precipitated the attack, a supposition that would be considered absurd in any other violent crime. More than half of women questioned in a survey thought rape victims should in some cases bear responsibility for their attack,[12] an extension of this notion which is furthered in the criticism of mainstream counselling which many feminists regard inappropriate in their approach to treatment used in social services and health agencies which stress the importance of keeping families together, whilst failing to address the power imbalances that exist between the genders and reinforce abuse.[13] Ironically, battered women are also often compelled to seek help in these medical and legal institutions which Westlund believes
“revictimize battered women by pathologizing their condition and treating them as mentally unhealthy individuals… incapable of exercising rational agency over their lives.”[14]
In her tribute to author Susan Schechter, who contributed significantly to the battered women’s movement, Fran Danis explains society’s inevitable shift into recognition that in order to provide safety for women, safe men must be created first in order to repair “the misguided notions of what it means to be a man in our society.”[15]
FGM: WOMEN INFLICTING VIOLENCE ON WOMEN
This need to redefine of our gender roles through a postmodern approach to both the nature of power and the ‘truths’ of masculinity and femininity as static, predetermined categories will effectively eliminate the view of masculinity as homogeneously ‘aggressive’ and oppositional to the ‘passivity’ associated with femininity. In challenging traditional assumptions of who or what constitutes ‘man’ or ‘woman’, the essentialist view of a dominant or hegemonic masculinity as the sole cause and perpetrator of sexual violence will cease, giving a more substantial and comprehensive understanding of the truths behind certain cultural practices such as female genital mutilation.
Just as the expectation of female motherhood and maternalism has been propagated by society, The Bible provides the first evidence of a formal definition of female roles of child bearer and supporter,
“I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children: and thy desire shall be subject to thy husband, and he shall rule over thee.” (Genesis 3: 16)[16]
Human rights activist and attorney Linda Weil highlights the aim of female genital mutilation as way to “deprive the woman of her own sexuality. She is only left to be a babymaker,”[17] providing another example of the sublimation of female desire in the struggle to eradicate sexist practices. Most advocates who work to stop the practice of genital cuttings and mutilation, which have affected 80 million females worldwide[18], do so on the basis that these cultural practices are excruciatingly painful, expose women to infection and are very likely to induce infertility or incontinence. The omission of the importance of the female clitoris in providing sexual pleasure is an exclusion, or downplay, which is common by most, if not all, activists who oppose the practice. The strategic removal of this argument from advocacy against female genital mutilation erases the importance of female sexual pleasure and its significance as a human rights injury. The impact that genital mutilation has on the female capacity for sexual pleasure and the right to sex has been continuously failed to be raised as a justification for federal legislation condemning the practice, which reduces women solely to victims and fails to empower their rights to autonomy, curiosity, desire and success. So why have legal feminists formed such narrow queries regarding sexuality? Many legal theorists make the judgment that such issues cannot be explored positively until the prevalence of female vulnerability, victimisation and dependency are first eliminated. Can law protect pleasure? Should it?
Foucault cautions against involving the law in regulating the sexual domain[19] and as a procedure often carried out by older, female tribal leaders and midwives, how does one reconcile the fact of women inflicting irreversible harm upon other women? Feminism’s condemnation of the gender hierarchy has often been central to theorists such as MacKinnon, who has at times rendered feminism the privileged site for assessing sexuality and equating it with danger by subordinating sexual politics to sex-based subordination and effectively nourished a theory of sexuality as dependency at the expense of a more positive theory of sexual possibility. Any gender theory therefore must be amalgamated with theories of sex and a comprehensive critique of sexual oppression, something I have attempted to do, in order to enrich, rather than restrict feminism.
Rejecting the nurturing role employed by social, cultural and political institutions, as well as the earliest teachings of The Bible, the female responsibility for maintaining well-being is disregarded by those who practice female genital mutilation and despite inadequate laws and international instruments such as the Millenium Development Goal, the discrepancy between the public and private realm has allowed the practice to continue. Many women have historically resigned themselves to roles in the private realm, whereby defending the privacy of the family sphere is has rendered women vulnerable, exposed and unprotected from violence and harm. It is for this reason that local, national and international enforcements have pertained directly to the masculine, public world, effectively excluding and oppressing women.
On the contrary, postmodernist theory offers an in depth critique of these realms and gender constructions, just as feminist theory does, however expands itself into a higher theoretical space which explores the acts of sexual violence by adults in general. Gender remains an unrelated component to this particular human behaviour by rejecting the binaries of male and female, public and private, subject and object. The conceptual space offered by a postmodernist approach allows us develop women as individual agents with dynamic and often contradictory roles within multiple discourses.[20]
Regardless of one’s theoretical preference on gender, how can the application of the Convention against Torture succeed in cases of female genital mutilation without yet again victimising the victims who often acquiesce in an attempt to strengthen their societal status within a patriarchal society? Punishment should be imposed upon governments that tolerate and encourage the practice, while education on its impact should be made available for those who perform and endure it.
Fran Hosken’s anti female genital mutilation discourse deliberates arguments about the effects of the practice and the role of the clitoris, its “equation with a woman’s capacity to be woman” and its essence as the invaluable and “universal site of desire”, bearing a “potent necessity.”[21] As Hosken articulates, all that remains of the mutilated woman is merely the capacity to discern the teachings of Western feminism and of law.
This notion resonates with Foucault’s discourse on sexuality as subjectivity in contemporary Western history and the focus on the individual in western societies as formulators of truth, built firmly around what is considered a libidinal economy of self.’[22] Truth, in what Foucault considers a capitalist economy of self, is the awareness of one’s desires and interests, thus the necessity of desire, which is partially embodied in the female clitoris, assures and protects the individual as a sovereign subject.
As a blatant attempt to control the sexual behaviour of women and as a denial of the freedom of sexual desire and expression, female genital mutilation reinforces the misogynistic expectation of what is and is not appropriate for the female, denoting the expectation that women should exhibit the feminine passivity of compliance and docility. In some cultures, the clitoris is regarded a masculine feature which “must be excised to create true femaleness,”[23] again highlighting the socially and culturally fabricated gender disparities which have ironically failed to acknowledge the possibility that women can and do enact sexual violence against others, a fact regarded by female criminologist Carol Smart as being “feminism’s “best kept secret” which we need to develop further the means of analysing it rather than denying it.”[24]
BATTERED WOMAN SYNDROME AND FEMALE VIOLENCE
Furthermore, the latter notion poses the question: are female offenders the same as male offenders?
A masculinisation hypothesis suggests that violent females abandon their femininity in favour of the more masculine traits of their male counterparts, arguing that once liberated from the constraints of gender stereotypes, they are more prone to violent behaviour. Any gender difference theory again risks reinforcement of the idea of female victimisation and a lack of power, portraying women as helpless and without agency.[25] This view is furthered through the legal application of battered woman syndrome which has contributed in shaping stereotypical images of pathology and victimisation.
The inaccurate view of the male as the transgressor is invalidated by reports on violent relationships whereby 73.4% of physically abused women admitted striking the initial blow to their partners.[26] Furthermore, women have been found to physically abuse children more than their male counterparts do men do,[27] thus showing only minor differences do in fact exist between male and female aggression, failing to impugn the predominantly masculine discourses that have comprised and defined many legal standards. The use of battered women’s actions therefore becomes a redefinition of the female experience within the prevailing structures, by which attempting to confine them to a specific diagnosis or structure will invariably create yet another detrimental legal division of those with acceptable circumstances who will inevitably benefit from the system, and those who fail to satisfy the criterion, who are unfairly discredited.[28]
Whilst many feminist legal academics have praised the acceptance of battered woman syndrome by Australian courts as a significant achievement in female legal rights and anticipated substantive challenges and changes to prevailing patriarchal legal structures, only a limited portion have criticized its application as portraying women as flawed, deranged or abnormal.[29] Despite the irrefutable sufferings of many battered women, the constraints of misogynous language based practices and culture, mentioned earlier, aid in perpetuating a very exclusive and rigid identity between males and females whereby common language places emphasis on pathology, rather than female strengths and effort, and propagates stereotypic images of battered women and related them only with conventional legal dichotomies, disallowing them to transcend them.[30] In short, the use of battered women’s syndrome before the courts has served to reinforce a rather conventional approach to law which fails to broaden the definition of victim/offender, only effective in confining women to the position of victims, erasing their agency and assuming that their behaviour is drastically confined by their sex.
CONCLUSION
I cannot answer many of the questions posed in this paper, however, I hope it has the ability not even to encourage institutional analysis and reform but only to stimulate high order discussion amongst all about our society and law’s foundation as a patriarchal institution which has solidified long standing approaches to gender, feminism and the law. Rather than considering a viable future direction for feminist legal theory, I have sought to examine the complex interrelationships of gender, desire and sexuality as merely promoting equality and liberation for women profoundly voids many basic assumptions which have been constructed about the nature of women and their social, cultural and political roles within society. Legal feminist approaches to the notions of dependency, danger, expectation and the way in which women have been controlled, affected and sometimes ignored by the law is central to the material condition of their sex, perpetuating gender injustices, exploitation and restriction. Feminist legal philosophy has provided a positive effort to critique and reformulate legal doctrines so that they may eventually overcome bias and enforced inequality in order to readdress important human interactions, concepts and institutions for the future.
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[16] (Genesis 3: 16 New International Version)
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