How does law reinforces the social construction of masculinity?

 

‘The law-whether developed through the courts, under common law, or enacted in legislative provisions, reflects the gender of those who have created it: men.’

1. Introduction:
Are the attributes and behaviour of so-old masculine dominated society and its attributes are nothing but reinforced by law? If yes, how? This essay attempts a fair discussion of the same through various premises led by the developed research of many authors on law and judiciary. That is an exploration of this observation is carried out by pruning down the key components and reasoning the abovementioned assertion with a deep examination of the patriarchal nature of the criminal law. With a slightest attention, it can be noticed that criminal law has, more or less, evolved from a male perspective and remains to maintain this perspective .
The essay will present existing theories to showcase the reasons for domestic abuse occurring from the point of view that is based on the presumption of each doctrine about a weakness in the character of the victim. Also, it will discuss the masculine stereotype in the context of sexual offences as well. In the end, some alternatives and scope will be brainstormed for a reform in the contemporary laws and judicial system?
2. Masculine superiority and Female Jurisprudence
It is no big surprise that female jurisprudence affirms the masculine superiority in that the legal position of women is regulated by a system begotten of men which is least gender-neutral .
It is the notion, practice and encouragement of masculine superiority by the operation of law which has led to evolve feminist legal theory to oppose it . According to Simone de Beauvoir , a bare masculine observation of ‘female’ portrays a disparity between ‘male’ and ‘female’ with an emphasis on the inferiority of women related with their biological procreative purpose. Quite often, this premise or rather fact can be conceived to reveal animal nature of the masculine thinking as reflected by the following excerpt:
“The word female brings up in his mind a saraband of imagery – a vast, round ovum engulfs and castrates the agile spermatozoon…the most superb wild beasts – the tigress, the lioness… bed down slavishly under the imperial embrace of the male” .
Hilaire Barnett contends that the operation of law is constructed in such a way that it demonstrates that not only the ordinary laws and legal practices display “maleness of law” but also the criminal law.
In relation to this significantly masculine law, women continue to live on the periphery. For instance, the experiences of women are excluded and their sensibilities are seldom attended from a male perspective. A common example in the post-modern theories is the law governing rape. That is, in case of rape the law generally questions the victim’s consent rather than conduct of the alleged perpetrators. To add only, we have pornography which is checked by law for its contradictions in the public interest rather than for its lustful exploitation of women .

3. Domestic violence and the concerned laws
The way laws against rape and pornography affirm the masculine supremacy so the laws regarding domestic violence. We have many theoretical explanations for why domestic abuse takes place. Psycho-analytical and other observations investigated if a woman allows herself to be abused domestically or they submit easily to physical abuse and developed a theory called Self-Defeating Personality Disorder (SDPD) which can to be attributed to these laws. This disorder was coined by persistently including people and their situations that are prone to disappoint . However, SDPD was criticised by Caplan and commented as “an unwarranted pathologising of traditional, socialised feminine behaviour.”
There is also a family systems theory which advocates that although violence take place in any relationship because of the characteristics of both partners but violence is most likely to be started by husband, e.g. case ‘over-adequate women’ and ‘under-adequate’ men whereby violence is used by the husband to re-gain some adequacy to maintain an equilibrium in the relationship” .
The conclusion of abovementioned theories can be seen as the male struggles for power in a relationship that is accompanied by a desire to be in power and control and he achieves it via violence and domination. The feminist use this conclusion as the basis understanding domestic violence.
The underlying masculine interpretations pre-judge the emotional feebleness and vulnerability of female victims of domestic violence. But this poses a serious question viz. what about the ‘helpless’ victim who counteract? In that, the above theories for domestic abuse don’t do their job to account the, now frequent, cases of abused women who kill their violent partners.
The criminal law against domestic violence just reveal the historical masculine construction of law that seems to be developed in accordance with male sensibilities and thereby diminishing and confusing the motivation and experiences of women . When an abused woman kills her violent partner, it is common that verdict returned is addressed for either as convict for his murder or manslaughter. This is practiced on the based on the concept of diminished responsibility . It doesn’t take much now to agree that there is an operation of a masculine system that seems to discharge complete blame to the women or disseminate a prejudice of vitiating responsibility, a mental defect with least attention to her personal situation.
Domestic violence against women is more common as compared to men. For instance in UK, one woman in every four live with domestic abuse as compared to one man in every six men . It was reported in 1991 that 41% of all female victims in homicide were results of murder by their partners . So, from this figure we can easily understand the importance of criminal law defences.
3.1. Defences to murder
In case of murder, there can be only on complete defence ad that is self-defence. A successful defence to murder results in an acquittal. Also there can be two partial defences as well viz. provocation and diminished responsibility but that alleviates the charge from murder to manslaughter. Murder is generally accompanied by one sentence, i.e., life imprisonment. On the other hand in case of manslaughter, the sentence remains at judge’s discretion and may or may not result in a custodial sentence.

 

3.2. Provocation
Provocation is a partial but two-tier defence which was put in S3 of the Homicide Act 1957. It is concerned with the logical and judicious ‘man of the law’ who is reduced to physical violence.
There are two pillars that hold the defence of provocation and they respectively have subjective and objective requirements. When a female defendant pleads provocation, she is required to affirm that the abusive treatment done to her caused to lose her self-control. It is then at the discretion of the jury to differentiate whether her reaction could also be considered as one of ‘the reasonable man’ . As per Camplin , ‘the reasonable man’ is also seeks personal characteristics of the accused that includes age and gender and that seldom is directly transferable to any case of the battered women. In the article of Marie Fox, it is shown that he female problem is four-fold .
A typical example come from the Ahluwalia case and the Thornton case, that is, the cases of Sara Thornton and Kiranjit Ahluwalia which could not satisfy the requirement of ‘suddenness’ so as to meet the purpose of provocation . As a result, the law ended up condemning them as cold-blooded and vengeful murderers. However, it can be noticed that their reactions to the recurring violence reflected a difference between the degrees of their physical strength between their sleeping partners . Duffy received the approval in Thornton case, the trial judge upholding the standard that:
“…most acts of provocation are cases of sudden quarrels, sudden blows inflicted with an instrument already in hand…where there has been no time for reflection…Fists might be answered with fists, but not with a deadly weapon .”
One can see the masculinity of law as per the result of abovementioned case and the upholding standard of the trial judge. It doesn’t take much to realize the presence of obliviousness towards the difference in the physical strengths of the males and females in such cases.
This can extend eventually to the condition of the battered wife because the law ignores the physical differences between men and women and as the fact that a failed retaliation by the victim might bring even harsher repercussions and that may become inevitable in worst case. One can, no doubt, say in the light of above facts that the judiciary has abandoned these women by putting them into a confined theory of the masculine sensibilities of ‘the reasonable man’. If it is not altered or reformed, this practice may continue and the attempt in Camplin to have a ‘reasonable woman’ test shall be overlooked. So says Hilary Allen: “the now commonplace use of the term ‘reasonable man’ keeps alive the ‘illusion’ of a universal and unitary subject of law…on the contrary it is variable, differentiated and very firmly gendered (masculine)” .
Also, the legal definition provocation is not only the masculine but also it renders itself to the male psyche towards “the violence is more commonly transgressed by men than women” . The fact is however that men are more like to be provoked to respond to instances like their partner’s infidelity whereas women are more likely to be provoked by a constant threat of violence to herself or her children. It’s almost 300 years since the law has been seeing provocation to violence to be on the contrary to a woman’s character. Despite some consideration of such a defence, barely the position of female is improved as it seems injustice to attribute female provocation as to merely men’s weaknesses as a threshold .
Therefore, it can be concluded that law has seemingly secret or rather disguised bigotry while boasting of gender neutrality yet attaching greater significance to a man’s sexual security rather than to a woman’s physical and personal safety. To add further, a third area of concern is can deal with the judicial position relating to a woman’s emotional character in a case of abuse .
The society as well the law therein justifies a man’s anger when provoked while it is not easy for women to attribute to their violent retaliations to the fear associated with cumulative violence. In the judicial system, the concept of femininity is perceived in such a way that the anger whether through fear or any other source is least considered as a trait of women. So, a manifestation of anger by any female stays against the grey matter of the criminal law as well as their conception of femininity . On the other hand, man’s provocation is considered genuine in a bigger boundary. For instance, we have the case R v Wells where Bisla Rajinder Singh was pleading of guilty to manslaughter through provocation and the court upheld it very easily . In this case, Singh reacted when his wife Susan, as a result of a series of violent abuses displaying little regard for her right to live, Susan ‘provoked’ him via “cutting hurtful phrases” in relation to him being the real father of his daughter. In this case, Singh killed her by shooting her twice “through no fault of his own” as the provocation given the thought to be of enough intensity governing his actions. So, there we have instances proving the masculinity of law where man’s anger is justified while a battered female victim of domestic violence is rarely given full legal representation.

3.2. Self Defence.
This form of defence confronts any unlawful element in the murder. In UK, a common procrastination exists over the use of this kind of defence in such circumstances. Aileen McColgan inspects the status of self defence in the UK and argues that there is a need for the judiciary to re-interpret the requirement of reasonable force where the actions of the defendants should be compared to the abuse suffered rather than comparing it with the usual model of a bar-room brawl . The existing practice again shows the maleness of law by overlooking the need for additional consideration for women’s self defence, which, however has been started receiving welcome in North America (State v Wanrow) .
Holly Maguigan further reviews the status of self defences in UK in a similar fashion to provocation. She compares feminist perspectives versus the masculine one in case of self-defence in a murder trial and laid off four findings .
i. There is a similarly masculine bias in self defence as in the case of provocation while using the ‘reasonable man’ test as it tends overlook the real state of a female defendant.
ii. Ignoring again the difference in the physique of the male and female, the assumptions that a reaction in self defence must be immediate does not fit well while considering a female subjected to cumulative domestic abuse.
iii. The ‘one-off’ again assumes assailants and defendants to be of equal physical strength which poses a judicial failure to incorporate the social outlook of women towards violence, in same way as it is in the case of provocation.
iv. Also, the ‘duty to retreat’ requirement looks unpractical, particularly in the situation of danger in the home.
3.3. Diminished Responsibility.
The diminished responsibility may be a bit suitable to all kinds of defendants provided we remove masculine overtones of the defences from it . This is so because in case of diminished responsibility, there is lesser importance given to the experiences of the ‘reasonable man’ and it possesses more flexibility on the so as to have better focus on experience of the victim. Therefore, it draws a bit lesser criticisms owing to its consideration of some of feminine attributes. However, it too has two basic requirements viz. S2 of the Homicide Act 1957 that states that kind of defence will be considered only when there is evidence that there is an abnormality of mind of defendant and this abnormality was responsible for the crime .
Despite the advantages of this defence, there exist lots of confusion owing the amalgam of medical and legal terms and definitions. The feminist reaction to this defence is one swathed in caution. However, some critiques again believe an element of masculinity in this law as it brings women to the vulnerability and sympathy of jury in domestic abuse cases . A plausible reasoning behind this notion of some is that this defence can only be justified by proving the abnormality of mind of the accused. However, a masculine tag on this law can be given while realizing the fact that in an attempt to focus on proving the mental abnormality, the abusive experiences of the women gets faded and the exact reasons for her actions gets lost .

 

4. Sexual offences and the concerned laws
Looking at the figures, one can find from the British Crime Survey 2003, 190,000 women were reported to be the victims of sexual assault out of which 47,000 were cases of rape and only 0.2% men were reported to be victim subjects of sexual assault . Despite such large numbers of sexual assaults to women, out of 750 cases of rape reported in 2005 one third was tagged ‘no crimes’. To surprise further only one fifth of reported cases could go to trial and only half of the defendants were convicted.
Coming to existing modern laws on sexual offences, the Sexual Offences Act 2003 lays emphasis on the intercourse in case of rape: “....sexual intercourse with a person..”. This law itself poses serious concerns for feminists and they don’t hesitate to tag it to characterized by many masculine characteristics. First, it portrays a male fetish as being related with ‘orifice’ and ‘instrument’. Not only this part but even ‘the consent’ shows a shortcoming for women and inclination towards masculinity. This is so because ‘consent premise’ being solely based on ‘the autonomy’ makes it tough to account for coercion of the women.
The sexual offences in marital cases are even more complex. The exemption on marital rape gives an unjustified leverage to the males. For example, in R v R [1992] the defendant was reported to rape his estranged wife whereby the defendant broke into her parent’s house and ‘sexual intercourse’ against her will. However, the trial was dismissed in the name of re-marital immunity. This case clearly shows the inability of criminal law in being a good tool to deal with ‘family matters’ and at the end reinforces the masculine construction of dominance in family. This is so because the proof of the offence remains difficult to produce and also the time lag between the instance of alleged rape and its report tends to, quite often, exacerbate the decision whether to prosecute.
The subject of consent has ample examples of fraud as it focus more on the women’s role of agreeing rather than that of man to persuade by blackmailing or otherwise. In R v Olugboja , there were lots of hues and cries till sorting out the difference between the premises “every consent involves submission” or “every submission involves consent”. The defendant had persuaded a young actress to get involved in the intercourse with him as an exchange of her part in the film. Although the case went against the defendant but the moral distinction between threats and offers seems to favour males better unless in case the women couldn’t prove her situation well. Another fraud consent which is even more complicated is R v Clarence , where the man did not inform his wife about the fact that he possessed a sexually transmitted disease. To a surprise, the case was closed with no rape or offences. This is an extreme example of masculine dominance which is a result of a too much attention on consent and least on other peripheral issues that encompass some cases.
Despite revisions to the consentual laws, its poor correlation with capacity has several visible shortcomings. In R v Dougal , the defendant took the victim who was heavily drunk, safely to her room and he had sex with her in the corridor. The judge suspended the case by saying, “..drunken consent is still consent” and the defendant achieve an acquittal. In R v Bree , the victim was brought by Bree in vomiting and sick condition at her room. After she collapsed, Bree undressed her into the bed and performed various sexual acts while she was moving in and out of consciousness. The judge quashed his conviction for rape. To a surprise, neither a retrial was ordered nor was the minister’s proposal to redefine the statutory definition of capacity followed. Both of these cases reveal the exploitation of women by ignorance of their capacity to consent. Particularly, looking at the university settings where these cases happened, even a new statutory definition of rape needs not only to be interpreted but also constructed.
Other evidences and cases which affirm the masculinity-dominated law and its failure to disturb and renovate the social construction of masculinity is dealt by many. For instance, Patullo presented a case where the judge of a trial of a rape in hitch hiking stated: “...It is the height of the imprudence for any girl to hitch hike at night. That is plain, it isn’t really worth stating. She is in the true sense asking for it..”. No surprise drew public criticism from many feminists and liberal press.
Consent and pleasure is another issue that males have been using and which has been reflecting the maleness of the law at many occasions. In a trial at the Old bailey , the defendant tried to prove his point by using pleasure: “...the enjoyment wiped out her initial resistance – is that what you were saying..”. Along similar lines, Carol Smart reviews and states that in rape trials, submissions are brought out cunningly from non-consent and are treated as consent. Alternatively, ‘no means yes’. That apart, the vulgarity of rape trials do shames the women throughout the trial. Carol Smart again argues that rape trial is almost like a ‘pornographic vignette’: “if the victim’s story as resonances with genre, the event is less likely to be shaped as rape”.
5. Conclusion
Summarily, the laws and trials portray as much masculine dominance in sexual offences as in domestic violence. However, the degree to which they reinforce the social construction of masculinity differs. This for sure draws attention to re-interpret the law, situation and bring out some reforms that are necessary to liberate the women and bring masculine to a more pious setting. To achieve the same, the law needs to change the current societal and legal attitudes towards the sexual offences as well as male violence in the home in or outside . Although, the quest for the revolutionary reform is so urgent but it seems belittled at the moment as the masculine perspectives of the lawmakers and figures of legal authority are so embedded in them. Marie Fox proposes plausible option which is an adoption of Californian legislation perspective to provide a specific statutes formed to deal separately with domestic abuse and sexual offences.

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