A Law of Her Own: The Reasonable Woman as a Measure of Man by Caroline A. Forell and Donna M. Matthews aspires to provide a solution for an enigmatic jurisprudential problem - the systemic failure of the legal order to recognize and to redress the injuries that women experience. Feminist scholars have agreed that, for women, the legal separation of public and private spheres often insulates from legal review behavior that harms women. But even in the so-called public sphere, women suffer harms that remain invisible and unnamed. The authors identify four legal arenas in which the "spectrum of violence and disregard of women is most evident and problematic" (p. xviii): the areas of sexual harassment, stalking, domestic homicide, and rape. To make the legal system responsive to women's experiences the authors propose applying a "'reasonable woman' standard to the conduct of men in certain legal settings - where men's and women's life experiences and views on sex and aggression diverge and women are overwhelmingly the injured parties" (p. xvii). The authors argue that by applying the standard of a reasonable woman in each of these areas - that is by making woman the measure of man - the legal system will be forced to recognize women's perspectives. They define the reasonable woman as one who wants and demands "respect, personal autonomy, agency, and bodily integrity" (p. xix), and they elaborate that "behavior violating these aspects of woman's humanity is legally unacceptable" (p. xix). The idea of recognizing the harms women suffer and eliciting regard, respect, and empathy for women in these situations is an important and appealing goal. The use of a reasonable woman standard will not be as effective a means of achieving this goal as actually naming the harms that women suffer and revealing the patriarchal system that maintains the invisibility of those harms. Furthermore, Forell and Matthews' proposal to use a reasonable woman standard implicates two fundamental problems that have plagued feminist thinkers: the "sameness/difference" equality problem and the essentialism problem. Although Forell and Matthews acknowledge these issues, their solution - looking to a reasonable woman standard - does not adequately address them because it fails to name the power dynamic that initially creates the problems. Using a reasonable woman standard implicitly accepts the fundamental notion of legal liberalism that all members of society are equally-situated, autonomous actors, albeit with different perspectives. By failing to address the systems of privilege that maintain the sex-based, gendered status quo, the reasonable woman standard cannot go far enough to ensure that the legal system will recognize women's harms.
Stephanie M. Wildman,
Ending Male Privilege: Beyond the Reasonable Woman,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol98/iss6/18