Original sin: How the law makes a crime of being female

“The justice system is the core of patriarchy,” Gudrun Jonsdottir told me. Jonsdottir has been part of the Icelandic women’s movement since the 1970s, a movement that initially drew attention to the prevalence of incest in Iceland – fathers raping daughters – before setting up refuge shelters. Through those shelters, women discovered the extent and abuses of prostitution: as more and more women came through the shelters to escape the sex trade, the women’s movement began fighting to abolish it. That goal was partly achieved when feminists saw the criminalisation of pimps and punters in 2010 after over a decade of activism. After this, though, Icelandic police had to be compelled to enforce the law. After all this work, when Jonsdottir says that the justice system is the core of patriarchy, she knows what she is talking about.

The justice system maintains male dominance in a variety of ways, notably in its endorsement and formalisation of industries like prostitution, its legitimisation of roles like that of the pimp and the punter. But even without such legislation, our very legal codes originated to protect the private property of men – with women constituting the most important form of property. This historic designation of women as property, never undone, means that courts still penalise women in contradictory ways: for not resisting assault with enough force, and also for self defense; for compliance to feminine norms, and for non-conformity; for having children or becoming pregnant, and for abortion. What is held in place by this inconsistency – or rather, this consistent penalisation of women for men’s actions – is men’s power to name, to define and to determine the course of the relationships or circumstances they share with women or girls.

Femininity: A norm, a provocation to assault

The legal system does not only force women to fit into a small box, it places us in a no-win situation where any move can incriminate. One of the texts that has brought this home to me is Naomi Wolf’s The Beauty Myth, in which Wolf lists a number of sexual harrassment cases in the United States, the outcomes of which undermine one another. “United States law,” writes Wolf, “developed to protect the interests of the power structure by setting up a legal maze in which the beauty myth blocks each path so that no woman can “look right” and win.”

Put in other words, the law will defend a male employer who insists on “feminine” workplace standards and dress codes, and also defend that employer if he claims that a woman’s feminine dress in the workplace provoked him to sexually harrass or assault her. “With these rulings,” Wolf summarises, “a woman’s beauty became at once her job and her fault.”

Wolf offers ample illustrations to make her point. She describes how in a Hopkins v Price-Waterhouse case, Hopkins was denied a partnership despite bringing in the most business of any employee. She was told she “needed to learn to ‘walk more femininely, talk more femininely, dress more femininely,’ and ‘wear makeup’.” In another case, a woman by the name of St. Cross lost her job because she was too “old” and too “ugly” – Craft lost hers because she was too “old”, too “ugly”, “unfeminine,” and didn’t dress right. The case Tamini v Howard Johnson Company, Inc, proved that “you can lose your job if you don’t wear make-up.”

So, do these cases prove that the law will treat a woman fairly in employment disputes if she looks the part? We know that they don’t. Wolf mentions Policewoman Nancy Fahdl, who was fired because she looked ‘too much like a lady’; and Michelle Vinson, who took a sex discrimination case against Meritor Savings Bank in 1986. “Vinson was young and ‘beautiful’ and carefully dressed. The district court ruled that her appearance counted against her…. “provocative” dress could… decide whether her harrassment was ‘welcome’… Her beauty in her clothes was admitted as evidence to prove that she welcomed rape from her employer.”

In the ultimate expression of this contradictory standard, the Diaz v Coleman case, “a dress code of short skirts was set by an employer who allegedly sexually harrassed his female employees because they complied with it,” writes Wolf. What is at stake in each case like this is not only a set of misogynist rules that women alone are expected to comply with – but male power and capacity to dictate and redefine the rules at will.

Self defense: Forbidden act, but necessary evidence

The court cases that Wolf discusses around workplace dress codes and sexual harrassment demonstrate how women are penalised both for compliance and for resistance to sexist norms. What is at stake in each case is rape culture: men’s power to rape with impunity, since women are guilty at the outset.

When rape cases are taken to court, women are expected to provide evidence of resistance. In the film Consent, which documents the court hearings following Louise Nicholas’ well-known complaints of gang rape committed by policemen, a defense lawyer challenges Nicholas. “You didn’t try, Mrs. Nicholas – you didn’t try,” he says. “You didn’t shout, you didn’t walk out, you didn’t push them off. You said, “Guys, I’m not into this.” That’s what you are telling us.” Nicholas replies in her own defense, “That’s all I could do.”

The British organisation Justice for Women is set up to advocate for women whose circumstances meant they could do more than say No – and killed their attackers in self defense, only to be treated as murderers. In the United States, campaigns continue both for Cyntoia Brown and Bresha Meadows, two black teenage girls who were each incarcerated for acting in self defense against rapists – Brown killed the pimp who had been prostituting her, and Meadows her father, who had been abusing her mother and family.

It has been long understood that women and men kill for different reasons. New Zealand’s Family Violence Death Review Committee reports that in the seven years from 2009 – 2015, there were 92 deaths caused by intimate partner violence in New Zealand. 63 women and 29 men were killed, and 70 offenders were male compared to 22 female. But the gendered nature of this data does not end at those numbers: 83 of these deaths followed a recorded history of abuse, and in 82 of those cases, women were the primary victim. In 67 cases those women were killed, and in 16 cases they killed in self defense.

Despite this situation, it remains difficult for women to exit abusive relationships: at least in part because the legal system keeps women inside. Out of 500 women surveyed by the Backbone Collective about the New Zealand Family Courts, 83% reported that the Family Court treated their abuser as “safe”, with 155 women also reporting that the Family Court had forced their child/ren to spend time with the abuser. This situation means that the legal system is pushing women who suffer long term abuse toward last resort scenarios.

Yet in their 1997 report Women in the Criminal Justice System, Kerr et al explain how women who resort to killing are left to prove their claims of self defense are “reasonable” within the very court system that generally fails to hold perpetrators of sexual violence or violence against women to account. For self defense to be proven, this report explains, “First there must be an identifiable provocative act which occurs immediately before the killing. Secondly, the killing must occur while the offender is in the heat of passion.” The problem though, is that “in the case of battered women who kill their abusers, there will normally not be one sufficiently provocative “act”.” The legal system does not recognise the severity of rape, nor women’s vulnerable position relative to men, and does not see long term abuse as “cumulative provocation” that can lead a women to fear for her life and kill in self defense when she is least at risk.

The creation of patriarchy

This “reasonable person” test that Kerr et al refer to is central to the legal system’s operation, and it is distinctly gendered. The test has its origins in English common law, which dictated that the law should serve the common man – the “bald-headed man at the back of the omnibus.” Critics of the test acknowledge that despite the name of his test having been neutered in recent years, it is still, in effect, a reasonable man test.

The reasonable man test – used, for instance, to determine whether force used in self defense was justified – could be considered effectively circular, if you consider that the law legitimises behaviour and thus fosters culture, and so itself creates the standard for what can be seen as “reasonable”. To explain: if a state legalises prostitution, for instance, it creates a culture in which women are advertised for sexual use and routinely objectified. Those women will also be routinely harrassed and raped by men relaxed in the knowledge that their behaviour as sanctioned. In that culture, a man who defends himself by saying that he interpreted a women’s feminine dress as an invitation to assault will no doubt be considered “reasonable” by other men. At the same time, legitimised objectification will influence the dress codes considered to be “reasonable” to impose on women in every workplace from airline companies to hospitality and media. In this way, the law creates its own conception of the “reasonable man” who in turn respects the law, since it protects him.

Of course, the roots of this androcentrism go much further back than English common law – the original function of the law itself was to protect the property of men and define women as such. Three texts that examine this poingnantly are Gerda Lerner’s Creation of Patriarchy, the first volume of Marilyn French’s History of Women series, and Andrea Dworkin’s essay The Rape Atrocity and the Boy Next Door. All of these texts discuss how the earliest legal codes regulated men’s trade, sale and ownership of women and girls as wives and daughters.

The word “rape” itself, Dworkin points out, comes from the Latin rapere – which means “to steal, seize, or carry away.” Lerner, writing about the early Mesopotamian law from which our own legal codes originate, shows how the crime of rape was a crime of theft, of abduction, of taking another man’s property outside of any agreed arrangement or transaction. This is what made adultery only possible on the side of the wife; divorce difficult for her to initiate; and forceful resistance to rape both punishable, and necessary to evidence. Ultimately, “Rape was a crime against the man who owned the woman,” writes Dworkin. “Women belonged to men; the laws of marriage sanctified that ownership; rape was the theft of a woman from her owner. These biblical laws are the basis of the social order as we know it.”

What this means is that today, still, “rape is not committed by psychopaths or deviants from our social norms,” writes Dworkin – “rape is committed by exemplars of our social norms.”

Motherhood: An illegitimate responsibility

The prevalence of rape and sexual objectification in our culture does not mean that there is any sympathy for the woman who becomes pregnant, no fault of her own – whether she aborts or carries her pregnancy to term. From the beginning, our legal system has always granted that if a woman becomes pregnant, then the father and the zygote have rights that supersede her own.

In New Zealand, abortion is still listed in the Crimes Act – but if a woman has children, she must face raising them in a climate where male violence is prevalent; Family Courts punitive; wages low for women especially, even if they are mothers; benefits low and punitive and living costs high. It is no surprise then, that women are most often incarcerated for crimes of poverty, such as benefit fraud; and that 87 per cent of female inmates in New Zealand are mothers, the majority primary or sole caregivers. Motherhood is a crime: if women cannot afford to raise children (and alone, we normally can’t) we should not have children.

Dorothy Roberts’ book Killing the Black Body discusses the punitive measures taken against black women in the United States who live in poverty and fall pregnant. It is not unusual for ultimatums to be delivered by judges that force women to accept high-risk and hard to remove injectable contraceptives, or else face jail time. At the same time, MaryLou Singleton’s talk How the Gender Identity Movement is Hijacking the Fight for Reproductive Sovereignty offers examples of how women are punished when they cannot access safe abortion. Singleton mentions the cases of Anna Yocca and Bei Bei Shuai, who were both incarcerated in the United States for attempting abortion themselves – Yocca for attempted and Shuai for capital murder.

Janice Raymond points out in Women as Wombs that this demonisation of motherhood and pregnancy has lead to a bizarre situation, especially when it comes to disputes relating to the surrgoacy trade. Since the rights of sperm providers and fetuses have become paramount, she says, and women’s pregnancy is legally insignificant, women are in the predicament of having to prove that our eggs are equivalent to sperm. “If men become legal fathers by virtue of sperm, women become legal mothers by virtue of eggs. The measure of equality for women is being like men. In order to achieve rights, women must no longer prove that they are different from… but that they are the same as men.” That’s because men have the power to define – so if women want a share of that, under a patriarchal order that will not recognise women as human in our own right, the only thing left to do is to try to prove we are just like men.


Rape culture is the culture that results from this legal system that legitimises male dominance over women, who are dehumanised into property – into sex objects and reproductive chattel. In this context, political resistance is as obligatory and as criminal as resistance against rape, harrassment or dress codes. That is because while a lack of collective resistance will be used as proof that women consent collectively to rape culture and feminine norms, activism will still see us penalised. Consider that while this culture is absolutely saturated in sexist advertising that we all know is to the detriment of women, Merseyside police in the U.K. Have launched an investigation into the actions of #stickerwoman – a woman who simply places removeable stickers in public that read “women don’t have penises”. If women don’t object to the takeover of female-only spaces, it serves as proof that we do not mind; if we do object, The Man is always on stand by.

One of the most criminal – truly criminal – consequences of all of this is that women grow up anticipating blame, watching our step, second guessing ourselves, and feeling guilty because that is how we are perceived. This system hijacks women’s minds, agency and capacity to judge and assess for ourselves, and the ultimate, insulting consequence is to make us complicit in our own dehumanisation. That’s why, regardless of how the world may respond, feminists from Dworkin to Mary Daly to Julia Long have long urged: “For women… one fundamental revolutionary act is to reclaim the power of naming, to define for ourselves what our experience is and has been.”

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