Examinations of equality are, therefore, often framed by particular substantive issues. For example, much feminist jurisprudence regarding equality is framed in terms of concerns about work.
If women are equal, then how will this be expressed in workplace law and policy? One of the key issues in this field has been how to treat pregnancy in the workplace: Is it fair for women to have extended or paid leave for pregnancy and birthing? Under what circumstances, or limitations? Are women being given "special" rights if they have a right to such leave? The struggle over the proper understanding of pregnancy and work raises questions about whether women should be treated in such law as individuals or as a class.
As individuals, it has seemed relatively easy for workplaces to claim that not all employees are given such leave, and thus that women who do not are being treated "equally". One feminist strategy has been to attempt to revise such law to recognize the particular difference of women as a class.
Herma Hill Kay, for example, argues that pregnancy can be seen as an episode which affects women's ability to take advantage of opportunities in the workplace, and that pregnant workers must be protected against loss of equal opportunity during episodes of pregnancy. Kay, The sameness position suggests difference should be erased to the greatest extent possible, because it has been used as a basis for discrimination. Difference proponents argue that pregnancy involves significant differences which should be seen as a linchpin of legal understanding. Does equality mean that women should wish to be treated exactly the same as men, or does it mean that women should wish to be treated differently, because their differences are such that same treatment cannot provide equity?
Feminists who argue that equality requires creating for women the same opportunities and rights which are currently available to men of the ruling class are bringing the reformist or sameness approach to bear. Approaches to rights and equality which focus on women's individuality, emphasizing it in the way that law has done for men and requiring women to show that they are like men and thus may be treated like men, tend then to be reformist or sameness oriented. Because these approaches are seen as requiring that women become as much like men as possible, and that law treat women as it does men, they are often referred to as assimilationist.
Christine Littleton Littleton, offers a further set of terms for approaches to understanding equality: symmetrical paralleling reformist and sameness approaches and asymmetrical paralleling radical and difference approaches. This classification refers to how women and men are "located in society" with regard to issues, norms and rules.
If a theorist sees men and women as sharing a location regarding an issue, then that theorist has a symmetrical approach; if not, then the approach is asymmetrical. Littleton classifies assimilationist approaches as symmetrical, along with what she calls the androgyny approach. The androgyny approach argues that men and women are very much alike, but that equality will require social institutions to pick a "mean" between the two, and apply that standard to all persons. This model is less frequently argued than the assimilation model. There are also many radical and difference approaches to equality.
Thus many radical approaches although not all - MacKinnon, below, is an example of one which is not emphasize similar questions and problems as difference approaches. How to recognize relevant difference, and what kind of difference law must be responsive to, is a crucial part of these feminist examinations of equality. We must learn to see how equality has formally been tied in to domination through the liberal framework. In her view, a certain kind of inequality needs to be recognized and worked with, rather than ignored or assimilated.
Scales, Littleton, The special rights model suggests that justice requires our recognizing that equality is too easily understood as "sameness", where men and women are not the same. Rights should be based on needs, and if women have needs that men do not, that should not limit their rights. The accommodation model asserts that differences which are not fundamental or biologically based should be treated under a symmetrical or assimilation model. 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.
Feminist perspectives on criminal law
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.
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.
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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. 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? 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.
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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. 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.
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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.