GENDER AND THE LAW
feminists that the personal experiences of women are
Keywords:
▪ Cult of Domesticity – also called the Cult of True Womanhood, is actually a set of
beliefs about gender roles in 19th-century America. The middle and upperclass men
and women who ascribed to this set of values believed that since men were busy
working, women should focus on cultivating a home that is supportive, warm, and
virtuous.
▪ Unities Doctrine – an old common law rule that held that a wife had no separate
existence from her husband; “husband and wife are one and the one is the
husband”
▪ Ubuntu Justice – “I am because we are and because we are, I am”
1. U.S. Exceptionalism and States of Captivity
▪ Two important legal ramifications haunting the American republic: one – as
presence, the other – as an absence
o The presence of one underexamined legal fact: the 13th
amendment to the US Constitution.
- captures the paradoxical nature of American Democracy:
enslaved, indentured people are set free, but only if they
don't commit a crime.
- the end of the U.S. Civil War in 1865 did not free enslaved
Black people but instead ushered in state-sanctioned
enslavement.
- Black women have been alarmingly overincarcerated, even
more so than Black men, and Black girls are overpoliced in
the pre-kindergarten-to prison pipeline
- The upshot of the 13th amendment is that the U.S. is the
only state in the world that legalizes slavery.
o The second legal effect is absence – the U.S. constitution and
Bill of Rights still have no dignity clause nor a positive clause that
"men and women are equal
- An Equal Rights Amendment was defeated by the vigorous
activism of a conservative white woman and antifeminist,
Phyllis Schlafly, who supported the (white) woman’s right to
stay an unpaid homemaker.
- Her fear mongering regarding ERA was that an equal
protection clause on the basis of gender rights would in
slippery slope kind of way also extend rights to sexual
minorities, and then they could marry, join the military and
other ghastly practices.
2. Unpacking a Critique of the Cult of Domesticity
▪ The personal is political
- the defining motto for the second wave of feminism
- political slogan expressing a common belief among
rooted in their political situation and gender inequality.
- engendered a giant leap for woman-kind since in almost all
countries, women have exited the private sphere and now
are expected to participate in the labor force (paid labor
signaled an end to the Cult of Domesticity)
- related to the aspect of criminalizing those who have
become deviant in any patriarchal and racist society – the
upper class women protested, demanding to be also treated
like “reasonable persons” who deserve equal prosecution
under the law; liberal feminist call for formal equality began
with a shocking demand: the equal right to be
criminalizable; (today, the feminist legal focus has turned to
a demand of equal protection)
▪ The Unities Doctrine
- reformulated as "husband and wife are one and the one is
the husband."
- matrimony entails the loss of economic, social and civic
economy of the wife
- a wife is reduced to the status of a minor and the unities
doctrine also guarantees that she is deemed “civilly dead”
▪ Elizabeth Stanton (elite white woman) penned the Declaration of
Sentiments, claiming that women are not prosecuted in a court of law, as
long as they committed a crime in the presence of their husband
- Nagel, however, claimed that women were actually
criminalized for a variety of offenses, like the Black sisters
who were brutalized and raped for daring to resist.
- Throughout the 1 9th Century, women's reformatories
sprang up, sentencing women to do time for which men
wouldn't have been incriminated.
- Therefore, there are multiple legal realities at stake that are
dependent on what racialized and economic social group
one belongs to.
Two cases that cast doubt into the “personal is public”
A. Prosecuting Domestic Violence
o Cathy Marston, a white unemployed woman with a PhD was
abused by her boyfriend. During a chokehold, she was able to
wrestle free by biting her boyfriend’s arm which caused him to
take her out the street, throwing her face down into the pavement
which ripped up her face. A neighbor was able to call the police
in the middle of the beating, only to arrest her instead. She spent
6 months in jail only to be beaten again by her ex-boyfriend and
his friends upon her release in front of the police who instead
 chose to arrest her again, resulting to her spending 9 years in large - the publicly sanctioned practice of enslavement, which also
prison. means that parentage is not a human right.
- Liberal and radical feminists have demanded mandatory
arrests in domestic violence cases, which the police
previously consider as domestic affairs. 3. The Way Forward: Ubuntu Justice
- Once police departments got sued successfully by families o Ubuntu ethics is guided by the (Zulu) proverb and recognition that I am
whose daughters got killed by (former) spouses, mandatory only human by recognizing you as human.
arrest laws were passed to eliminate police discretion in o The Ubuntu spiral model exemplifies this transgression or transformation
arresting disputing parties. However, instead of punishing from ego-based primitive justice (the current criminal injustice crisis) to a
the abusers, women get psychiatrized by prosecutors and we-based transformative justice model, where even "justice" as a concept
wardens and face forced injections of drugs while trying to is no longer needed.
defend themselves from malevolent charges. - Justice is about transforming oneself and in relation to
o Criminologists report that arrests of male batterers have mostly others.
helped middle class white women. No "benefit" of arrests has
Whatever legal reforms we pursue, we ought to evaluate carefully the unintended or runaway
been noted for poor whites nor for Latino and Black families,
effects of such law, ensuring that it does not ensnare cisgirls, ciswomen, trans persons while it
prompting the authors to demand a repeal of mandatory arrest
ostentatiously liberates us from heteropatriarchal justice systems.
laws.
o The manual Escalation (2016) points out that legal recourse such
as an Order of Protection may actually escalate violence instead
of stopping the abuse. In other words, feminist or other
advocates have learned to be skeptical of the beneficial effects of
using the protective arm of the state to curb relationship
violence.
B. Family Law and the Creation of the Overprotected Child
o The United States is the number one in placing children into foster
care.
o Legal kidnapping of children: Hundreds of thousands of kids get
placements each year, and often Child Protective Services
immediately start the process to terminate the biological parent's right
by coercing the foster carers into adopting the foster child. The state
continues to pay the adoptive parent.
o The new ruse is "protecting the child" at all cost, even if it means
breaking up a family that goes through the typical challenges of the
21st Century: chronic unemployment, multiple addiction and mental
health diagnoses indicating that parents are unstable, and with a
special focus on poor mothers who are mad or bad.
o Foster placement of children was supposed to be done in extreme
cases where "imminent harm" is present.
o The "protected child" may rotate through several placements.
Statistics clearly show that the generational cycle of imprisonment
continues. The grieving child becomes angry and joins the well-
documented foster placement-to-prisons pipeline.
o Adoption and Safe Families Act of 1997 – proscribes rights of a
biological parent to their children if they have not made an effort to
see the kids within 15 months - again, the 13th Amendment looms