Have you ever wondered how the legal system might be different if women wrote the laws? Certainly, there are women in legislative positions today to enact and revise the laws. However, that development is relatively recent. At least in the area of criminal law, most laws are based upon common law precedent, which was a strictly male affair. The closest that women got to influencing the law was when Queen Victoria demanded that her House of Lords draft an insanity defense standard in response to the infamous M’Naghten case. M’Naghten’s Case, House of Lords, 10 Cl. & F. 200, 8 Eng. Rep. 718 (1843).
Throughout criminal law, one can find examples of legal doctrines that would likely have been different if women wrote the laws. Consider, first, the basic rule that there is no duty to help your fellow person, even if you can do so without harm to yourself. America does not have a general Good Samaritan law. A person can walk down the street, see another person being mugged, and have no responsibility to help or seek help on the victim’s behalf. Similarly, a person can be crossing a bridge, see another person drowning in the river, and have no responsibility to throw a life preserver to the victim. In fact, in some states, such as California, Good Samaritans can be sued if they interfere and harm the persons they seek to rescue.
By-Standers Had No Responsibility
The absence of a Good Samaritan rule has led to several troubling cases. Consider the case of Kitty Genovese, a New York woman, who was stabbed to death in front of her apartment building as neighbors safely watched from their apartments. Although they could have called for help, none of them did, at least not in a timely manner. The attack lasted so long that the defendant stabbed Kitty, left in his car, returned, and stabbed her again and sexually assaulted her as she lay dying. While the attacker certainly had criminal responsibility, the neighbors bore none. American laws did not require them to be Good Samaritans.
Similarly, in 1983, a woman was gang raped in Big Dan's tavern in New Bedford, Massachusetts. The 21-year-old mother of two was raped by a half-dozen men over the course of two hours, while the bar's 15 other patrons cheered. None of the spectators were prosecuted, although they could have stopped the terrible assault. Under American law, they had no legal responsibility to interfere.
Finally, in 1997, Jeremy Strohmeyer sexually assaulted and murdered a 7-year-old girl in a bathroom of a Las Vegas casino as his friend, David Cash, peered over the
toilet stall. Strohmeyer was convicted of murder; David Cash walked free. Again, the law did not require that he make any attempt to stop his friend or report his conduct.
While these horrendous cases have led some jurisdictions to change their laws and add limited duties to report criminal behavior, the standard rule remains the same. So long as one does not affirmatively harm another, he or she need not prevent the other person’s harm.
What if women had written the laws? Given the historical role of women as caregivers, it seems unlikely that the criminal law would favor autonomy over the safety of another person. Women have long had the responsibility of caring for others. In fact, one of the exceptions to the general rule that a failure to help is not a criminal act, is when one, such as a mother, has a duty to help a child or spouse. This duty reflected societal expectations for women. The rule has been applied even when the women is herself an abused spouse, but nonetheless must protect her children from abuse. Women have long embraced a duty to help others that is not reflected in our general criminal laws.
Eleanor Roosevelt once remarked, “So much attention is paid to the aggressive sins, such as violence and cruelty and greed with all their tragic effects, that too little attention is paid to the passive sins, such as apathy and laziness, which in the long run can have a more devastating effect.” This is a perspective often lacking in the law.
Justification No Excuse
It is also unlikely that our general common law of voluntary manslaughter would be constructed as it is if women had been the primary drafters of the laws. Under common law, a defendant who kills “in the heat of passion” is only guilty of manslaughter, not murder. The classic common law voluntary manslaughter would involve a man who discovers his wife in an act of adultery. He then kills her or her lover. Although the killing is intentional, the man is only guilty of voluntary manslaughter, not murder.
The classic explanations for this doctrine are that it recognizes the “frailties of human nature,” (i.e., men are hotheads) and that the killing was partially justified by the lover’s encroachment on the defendant’s marriage. Not surprisingly, it is a doctrine that has been used much more frequently by men than women. In fact, many feminists have called for the abolition of the doctrine.
Would women have carved an exception to the murder laws for hot-headed husbands? Likely not. The doctrine was created when men dominated the legal system. Women may be labeled as emotional, but even those women who kill abusive husbands, find themselves unaided by the traditional doctrine. Instead of just claiming they acted in “the heat of passion,” they must often demonstrate that as a result of their abuse, they suffered from a syndrome that lessened their culpability for the crime. For men, no syndrome is necessary. It is enough if they acted like a red-blooded, jealous, American husband.
Rape and Sexual Assault
One of the traditionally chauvinistic areas of law has been rape and sexual assault. Under the traditional definition, a defendant is not guilty of rape unless he knowingly forced a woman (not his wife) to have sexual intercourse against her will by threat of force or violence and, in some jurisdictions, she resisted his efforts. Thus, contrary to many persons’ beliefs, the definition of rape was never “sexual intercourse without consent.” Rather, in order to protect men from unfounded accusations, rape law traditionally required that the women’s accusations be accompanied by evidence of forcible assault.
Sadly, many women who have been the victims of sexual assault know that nonconsensual sex can occur in a variety of ways. There need not be a gun or knife at a woman’s throat for sex to be nonconsensual. Moreover, women are not always in a position to protest the defendant’s sexual advances. Some are frozen with fear, others feel helpless given their overall circumstances. The traditional definition of rape viewed the crime from the perspective of men, not that of the women who are the ordinary victims of such a crime.
Proof that women might have written this area of law differently comes from recent revisions of the law by heterogeneous legislatures that have done just that. When women’s voices were finally heard, there were many proposals to change the traditional rape law. Some of these reforms have included: eliminating the resistance requirement, making spousal rape a separate crime, enacting rape shield laws, and requiring a defendant’s claim that he mistakenly believed the woman consented to be both honest and reasonable.
While there are many more examples, let’s consider one other situation where it has concretely made a difference to have women involved in the law-making process. This has occurred in the arena of international law. Until relatively recently, women have been considered the “booty” of war. Rape was not a war crime and international tribunals did not seek to rectify the horrors that have been committed against women. Whether it be systematic rape for genocidal purposes (as occurred in the rape camps of Yugoslavia) or the campaign of rape in Rwanda and Darfur, women were considered fair game under the laws of war.
But, that too is changing. And, it took a woman in a decision-making position to make the change. It wasn’t until Judge Florence Mumbia of Nambia proclaimed that war was a rape crime was it recognized under international law. Judge Mumba shattered the gender barrier for international war crimes by proclaiming rape is an “instrument of terror” and that “[i]n time of peace as much as in time of war, men of substance do not abuse women.''
To promote stability, there is a certain inertia built into the law. Our legal system, although now statutorily-based, has its origin in the common law which was the sole province of men. One can look at many other areas of the law to see in the influence of gender on our criminal and civil laws. The “reasonable man” standard dominated tort law for generations. Family law was based upon male-dominated scenarios of the family. Even the basic procedural rights in our court system – such as the right to serve as a juror – were constructed only thirty years ago, women in some states could not serve on juries unless their husbands signed an affidavit stating that they were not needed at home.