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

• Author: Wildman, Stephanie M.
• Position: Review

A LAW OF HER OWN: THE REASONABLE WOMAN AS A MEASURE OF MAN. By Caroline A. Forell and Donna M. Matthews. New York: New York University Press. 2000. Pp. xxii, 260. $35.

A Law of Her Own: The Reasonable Woman as a Measure of Man by Caroline A. Forell(1) and Donna M. Matthews(2) aspires to provide a solution for an enigmatic jurisprudential problem -- the systemic failure of the legal order to recognize and to redress the injuries that women experience. Feminist scholars have agreed that, for women, the legal separation of public and private spheres often insulates from legal review behavior that harms women.(3) But even in the so-called public sphere, women suffer harms that remain invisible and unnamed.(4) The authors identify four legal arenas in which the "spectrum of violence and disregard of women is most evident and problematic" (p. xviii): the areas of sexual harassment, stalking, domestic homicide, and rape. To make the legal system responsive to women's experiences the authors propose applying a "`reasonable woman' standard to the conduct of men in certain legal settings -- where men's and women's life experiences and views on sex and aggression diverge and women are overwhelmingly the injured parties" (p. xvii). The authors argue that by applying the standard of a reasonable woman in each of these areas -- that is by making woman the measure of man -- the legal system will be forced to recognize women's perspectives. They define the reasonable woman as one who wants and demands "respect, personal autonomy, agency, and bodily integrity" (p. xix), and they elaborate that "behavior violating these aspects of woman's humanity is legally unacceptable" (p. xix).

The idea of recognizing the harms women suffer and eliciting regard, respect, and empathy for women in these situations is an important and appealing goal.(5) The use of a reasonable woman standard will not be as effective a means of achieving this goal as actually naming the harms that women suffer and revealing the patriarchal system that maintains the invisibility of those harms. Furthermore, Forell and Matthews' proposal to use a reasonable woman standard implicates two fundamental problems that have plagued feminist thinkers: the "sameness/difference" equality problem and the essentialism problem. Although Forell and Matthews acknowledge these issues,(6) their solution -- looking to a reasonable woman standard -- does not adequately address them because it fails to name the power dynamic that initially creates the problems. Using a reasonable woman standard implicitly accepts the fundamental notion of legal liberalism that all members of society are equally-situated, autonomous actors, albeit with different perspectives. By failing to address the systems of privilege that maintain the sex-based, gendered status quo, the reasonable woman standard cannot go far enough to ensure that the legal system will recognize women's harms.(7)

1. THE ARGUMENT IN FAVOR OF A REASONABLE WOMAN STANDARD

   Forell and Matthews correctly identify the areas of sexual harassment, stalking, domestic homicide, and rape as spheres in which harms against women have long been ignored and are often still misunderstood by the legal system. One of the strengths of this book is the authors' ability to powerfully explain and provide examples of the problems women face. The legal system is not responsive to women's life experience in these four highlighted areas. Forell and Matthews believe that the use of a reasonable woman standard will serve to correct that systemic nonresponsiveness.(8)

   The authors begin in the area of sexual harassment, by reviewing the evolution of legal doctrine and relating the important educational function of the Clarence Thomas Senate confirmation hearings, in which Anita Hill described the, work environment created by the Supreme Court nominee (p. 24). The authors next report a series of cases and urge that the application of the reasonable woman standard would result in the correct decision. According to the authors, the proper result could be achieved by ensuring that a court would look at the workplace conduct through the eyes of the woman employee complaining of the harassment.(9) The many cases in which courts and the public do not recognize the sexual harassment that women experience at work as a harm show that the authors are correct in identifying this area as one in which experiences differ and a woman's perspective is often not regarded as legitimate.

   Stalking is another area in which the legal system has only relatively recently recognized a specific legal harm.(10) As the authors explain: "The law's inaction on stalking exemplifies how the male-biased legal system values the male stalkers' freedom of action and speech over the female targets' security and emotional well-being" (p. 126). Deploring the use of stalking as a scenario for humor in recent films like There's Something About Mary, Forell and Matthews emphasize that stalking is far from flattering or fun (p. 128). The authors perceptively explain that stalking is part of a pattern of gendered violence against women.(11) Here again, the authors urge that use of the standard of a reasonable woman will ensure that stalkers will be prosecuted.(12)

   Addressing the issue of domestic homicide, Forell and Matthews recognize that these crimes involve men trying to control women and "women struggl[ing] to resist coercion and maintain their choices."(13) This characterization of domestic homicide embodies an implicit hierarchy in which men are the more powerful actors. Women are not the equal and independent actors that liberal legal ideology posits; women seek to resist men's efforts at control in a context in which men are more powerful. As the authors explain: "For men, the law generally treats violence against an intimate as more permissible than violence against an acquaintance or a stranger" (p. 163). Many women are simply not safe at home. When a woman reacts to the violence perpetrated by an intimate, the law often blames her, sympathizing with the man (p. 163). The authors criticize the law of provocation, which mitigates a first or second degree murder charge,(14) and urge applying the standard of behavior of a reasonable woman to the male killer's behavior. They contend that asking whether a reasonable woman would have "become enraged, lost control, and killed ... would drastically limit legally condoned domestic violence and passion/provocation homicide" (p. 172). The authors also outline the problems with the traditional law of self-defense faced by battered women who kill. Here, however, improvement is slowly showing, and the authors acknowledge that in some jurisdictions "the legal system is starting to get it right" by accepting the serious implications of domestic violence.(15)

   In the area of rape, Forell and Matthews review the long-standing stereotypes that female rape victims must combat: "women want to be seduced and to have their verbal and physical resistance overcome; women's behavior and clothing indicate willingness to engage in sexual intercourse; and women don't tell the truth about sex" (pp. 222-23). In this male-defined world in which "no" does not mean "no," a woman's consent to sexual intercourse serves as a defense to a charge of rape. The authors acknowledge a debt to Susan Estrich's landmark work on rape law's validation of the male perspective, particularly in the field of acquaintance rape.(16) Catharine MacKinnon, discussing the prevalence of unprosecuted rapes and acquittals in cases in which rape is charged, has taken this criticism a step further, explaining that under this legal regime rape is effectively allowed.(17) Forell and Matthews urge the reasonable woman standard as the remedy, holding men "to the standard of how women would like men to behave."(18)

   Having explored the inadequacies of the legal system in these four areas that affect women's lives, Forell and Matthews offer a self-proclaimed "radical" solution (p. 241). In an effort to remedy these grave inadequacies and to compel the legal system to take seriously the harms that women suffer, they propose applying a "reasonable woman" standard to men's conduct in these situations. Where men's and women's life experiences and views are so different and it is women who are "overwhelmingly the injured parties" (p. xvii), the authors reason that this "deliberate use of the reasonable woman standard in areas involving sex, sexism, and aggression, with careful explanation of what the standard means, will elicit greater empathy for women's experiences from society in general and from legal decision-makers in particular" (p. xix). Forell and Matthews define a reasonable woman as someone requiring "respect, personal autonomy, agency, and bodily integrity" (p. xix). According to the authors:

   a reasonable woman would be more likely to experience pornography and degrading treatment in the workplace as sexual harassment and consider no to mean no when sex is involved. She would also likely view killing a domestic partner who leaves or gets involved with someone else as murder and killing one's batterer out of fear of severe injury or death as self-defense. [p. 18] II. THE REASONABLE WOMAN FACING SEXUAL HARASSMENT AND STALKING

   In the field of sexual harassment the authors describe a series of cases involving the open discussion of graphic sexual stories,(19) display of pornographic pictures,(20) and prevalence of pin-up calendars.(21) Relating the facts in Robinson v. Jacksonville Shipyards,(22) the authors explain:

   [t]hese sexually explicit and degrading images included "a picture of a woman's pubic area with a meat spatula pressed on it, observed on a wall next to the sheetmetal shop"; "a picture of a nude Black woman, pubic area exposed to reveal her labia, seen in a public locker room"; "drawings and graffiti on the walls including a drawing depicting a frontal view of a nude female torso...