Women’s Law Caucus Hosts “Reasonable Woman” Author
"Despite the apparent progress in women's legal status, the law remains profoundly male, and as such, contributes to the pervasive violence and injustice against women," according to Caroline Forell, University of Oregon law professor and co-author of A Law of Her Own: The Reasonable Woman as a Measure of Man (New York Press, 2000). On Monday, March 1, 2004, Willamette University College of Law's Women's Law Caucus hosted Forell in a lunchtime presentation on using the reasonable person standard versus reasonable woman standard in tort law.
Forell told a packed audience of students, faculty and staff that, for hundreds of years, the law used the "reasonable man" as the standard. The question was always, "Is this what a reasonable man would do in similar circumstances?"
It wasn't until the 1970s that feminists forced the change in the standard to "reasonable person." However, Forell and her co-author, Donna M. Matthews, contend that the reasonable person standard is sexist and tantamount to the old reasonable man standard.
She points to cases of sexual harassment, rape, stalking and spousal murder, in which "most victims are women and most perpetrators are men." In these types of cases, she insists, how men and women view the situations are much different and juries should be instructed to judge the cases from a reasonable woman's point of view. In a stalking case where a woman is receiving unwanted gifts and phone calls, for instance, a man might see the activity as "irritating." A woman, in contrast, might view the activity as terrifying and very threatening. Applying a reasonable woman standard and giving juries the instruction to see the case from that point of view, she says, would help eliminate much of the injustice found in the courts today.
She offered the killing of partners/spouses as another example of the injustice perpetrated by the current standard. "Men usually kill in the heat of passion," she said. "They kill the woman because she wants to leave him or she's slept with another man. Nearly all women who kill their partners are battered women. They kill in self-defense. Yet both are convicted of manslaughter."
Applying a reasonable woman standard in partner/spouse killings would result in more murder verdicts for men and more self-defense verdicts for women. Forell noted that the 9th Circuit Court is currently applying a reasonable woman's standard with good success to a limited group of cases, but she'd like to see the standard more widely adopted.
Forell said that the reasonable woman standard is needed now more than ever given the current macho 9-11/war-on-terrorism climate. She pointed to Arnold Schwarzenegger's acknowledged groping of women that he says was "just kidding around." Under the reasonable woman standard, such behavior would be seen as sexual harassment. "Women don't see that kind of behavior as kidding," she said. "They see it as intimidating."
Professor Forell's talk brought plenty of discussion and questions from the audience. Some asked about how the standard would impact gays and lesbians. Others asked if the standard would impact race, ethnicity or handicap. Still others cautioned that the changes could have unanticipated negative consequences.