But this leaves those differences which are fundamental such as the ability to be pregnant as differences which must be recognized in the law and accommodated by it.
Littleton's own approach is expressed in the acceptance model. This argues that gender difference must be accepted, and that law should focus on the consequences of such differences, rather than the differences themselves. Although differences exist between men and women, equality should function to make these differences "costless" relative to each other.
Equality should function to prevent women's being penalized on the basis of their difference. Thus equality should require us to institute paid leave for pregnancy and birthing, and to guarantee women's return to their jobs after birthing. Empowerment models reject difference as irrelevant, and shift focus to levels of empowerment. Equality, then, is understood as what balances power for groups and individuals, and dismantles the ability of some to dominate others.
This radical and asymmetrical view does not, however, fit well with the categorization of feminist positions in terms of sameness and difference.
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The empowerment model's focus on domination and the ways in which power is distributed seems to represent a significant departure from the parallel suggested above. Thus some feminist jurists have suggested that it be understood as a separate approach. Judith Baer calls it simply the domination model of feminist jurisprudence. Catherine MacKinnon is one well-known scholar who holds this view.
MacKinnon, In her theorizing of pornography, for example, she focuses on the question of how power is used in pornography to maintain a structure of domination which belies the possibility of equality between men and women. Feminist critiques of rights in general assert that rights have been apportioned based on notions of equality that deliberately exclude the needs of women.
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If rights are to be truly equal, they must be apportioned on a more equitable basis, informed by the experience of women and others previously excluded. Or, following MacKinnon or Patricia Williams discussed below , rights must be apportioned based on how they empower those to whom they are granted.
Feminist scholars debate the ground for understanding rights while working to create a foundation from which women can claim and exercise rights that will be meaningful in their lives. Perhaps the most difficult question for feminist jurisprudence regarding the issue of harm is that of perspective: who defines and identifies harm in specific cases?
Given that law has traditionally worked from a patriarchal perspective, it is perhaps not surprising that identifying harm to women has been problematic. A patriarchal system will benefit from a very stingy recognition of harms against women. Feminist jurisprudence, therefore, must examine the basic question, what is harm?
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It also must ask, what counts as harm in our legal system, and why? What has been excluded from definitions of harm that women need included, and how can such trends be overturned? Three types of harm-causing actions that are typically and systematically directed against women have formed the background for discussion about what harm means, and what counts as harm: rape, sexual harassment, and battering.
Until fairly recently for example, before the legislative reform movements of the s , some forms of these actions were not considered actionable offenses under the law.
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This was largely due to the history of understanding women not as independent and autonomous agents, but as property belonging to men thus issues of the meaning of property are also crucial to understanding harm. Feminist jurisprudence has challenged this state of affairs. As a result, changes have been made in the laws regarding each of the three categories, although the effectiveness of these changes is widely disputed see, e. At the very least, work by feminists has made it possible to speak of these harms by providing a vocabulary for them, by raising awareness about them, and by prosecuting them more frequently and with some success.
Discussions of rape attempt to answer many of the questions that apply to all three types of harm-causing actions. Cases of all three types give rise to similar problems that prevent women from being treated justly: blaming the victim; privileging the point of view of "the" agent, i. Underlying all these problems are assumptions about gender and agency which encourage the law to place responsibility for their own harm on women rather than on the men who cause it.
Women have been believed to be mentally unstable or at least weak-minded, to be scheming and deceptive, and to have an improper motivation for making claims of harm against men. For these reasons, they tend to be seen as untrustworthy witnesses. Because they have been characterized as sexually insatiable and indiscriminate, they tend to be seen as deserving whatever harm they "provoke" from men.
Corresponding assumptions about men's rational superiority encourage their being seen as believable witnesses. At the same time, assumptions about men's natural sexual needs are taken as justification for their violations of women.
Feminist jurisprudence attempts to respond to these problems as double standards and matters of equality and rights. Other issues of harm require different responses.
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Harm-causing actions tend to be defined in terms of external and observable characteristics levels of force , of intention on the part of the agent mens rea , and of the consent of the one harmed. Consequently, what is at issue is how law uses these criteria in determining both when harm has occurred and whether it is to be justified or excused. What feminist jurisprudence has found is that women and men frequently differ over the understanding of each of these criteria.
But since it is a patriarchal understanding which grounds the law, women's understandings tend not to be given a proper hearing. In Susan Estrich's discussion of rape Estrich, , a , she claims that the mens rea criterion can be used to create either too much emphasis on the perpetrator's intention, or too little. In either case, she believes the focus on this criterion makes evident the law's lack of understanding of and concern for the harms women suffer.
The law's focus is to not wrongly punish men, which is achieved at the cost of not protecting women. Further, Estrich argues that the force criterion is understood from a patriarchal perspective: force is seen as a matter of what "boys do in schoolyards. But it ignores the kinds of force that are most frequently used in rape and other types of harm to women, such as psychological coercion.
If the courts expect women to resist physical and psychological coercion in the same ways and at the same level that men do, then the courts impose an unreasonable expectation on the "reasonable" woman. Regarding consent, Estrich explains that the courts have believed that if consent is given, then rape or other harms do not occur. This places responsibility on the one who has been harmed to show that she did not, in fact, consent. But patriarchal courts have held that only the strongest and most emphatic expression of non-consent functions as evidence.
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This means that in many cases, women have been said to have "consented" even though they were physically carried off by men and verbally expressed non-consent Schulhofer Non-consent has not been easily proven unless the woman has been severely beaten, or unless a significant weapon that is, gun or knife was used, or death was threatened in a way that convinces the court. Thus what non-consent means for the court has been very different from what women themselves have said about their consent.
Robin West West, argues along similar lines, claiming that women's social training does not impart the same fundamental values that men's training does. She theorizes that men value separation and autonomy to the point that they would physically fight, desperately, to maintain theirs. But because women value connection and relation most highly, they find it difficult to respond to physical violence with violence of their own.
Violence destroys connection and relationship, which is what women are socialized to value most. This makes it difficult for women to respond to rape, and other harms, in a way which convinces masculine courts that they did not consent. Women's definition and identification of these harms is very different from what the courts have so far constructed. It is difficult to separate out some parts of the reformist or sameness and radical or difference approaches with regard to harm. In general, however, those who argue that current laws can be changed to adequately protect women have reformist or sameness views.
Those arguing that the current definitions of harm simply cannot be revised sufficiently have radical or difference views. Thus Estrich, who concludes that we need to treat rape as we treat other kinds of crime which require nonconsent theft, for example could be considered a reformist view. Mary Lou Fellows and Bev Balos offer a similar analysis of how women's perception of the harms of date rape can be accommodated in current law. This can be accomplished by the application of the heightened duty of care that exists already in the common law doctrine of confidential relationship.
Fellows and Balos, West's argument, based on recognizing and responding to fundamental differences between men and women regarding harm, could be seen as a radical or difference view. MacKinnon's analysis of sexual harassment, which focuses on the need for women to be empowered to define the harms against them, represents a dominance view on harms.
Many feminist jurists challenge the processes of adjudication by raising questions about the neutrality or impartiality that such processes are assumed to embody. Neutrality is believed to function in the law in at least two ways. It is assumed to be built into the processes of the law, and it is assumed to be produced by those processes.
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Feminist jurisprudence challenges the first set of assumptions by raising questions about legal reasoning. It challenges the second by raising questions about how a law created and applied by partial and biased persons can itself be neutral. Thus feminist jurisprudence also raises the question of whether neutrality is a possible, or an appropriate, goal of the law. As traditionally understood, neutrality in law is supposed to protect us from a number of ills.
It protects from personal bias by insisting that judges, attorneys, law enforcement officers, etc. We should be seen only in terms of certain specific actions and our intentions with regard to those specific actions.