How Is The Social Context of Masculinity Reinforced By Law?
How Is The Social Context of Masculinity Reinforced By Law
?
On understanding a question as to how the social construction of masculinity is reinforced by law, it is imperative that one has an idea about how masculinity is socially constructed. The foundations of masculinity can be found in ancient texts from civilizations of up to three thousands years ago. Implicit ideas exist in stories that make up mythologies of cultures and admissions that have become entrenched in religious ideas have all made their impact on the view of masculinity and what the term has meant throughout history. There are also explicit documents as to a man's duty in law and what was expected of him in everyday life. Expressing masculinity is seen to be actively encouraged in society, this creates problems for individuals who don't express it outwardly, those individuals who express sub-normal behaviour can be seen as homosexual and thus marginalised. Even today, in western cultures greater masculinity often occurs concomitantly with greater social status.
Focussing on more current definitions, there has been countless sociological and psychological research into what defines masculinity as a term, whether it is purely an existential idea that has evolved through time, or if it exists in a more tangible, physical form. Since masculinity has its roots in genetics, there will be differences from culture to culture, but common aspects exist which researchers will refer to as "hegemonic masculinity"[1] to describe the dominant characteristics which some men will possess where others do not. Chafetz[2] describes seven areas of masculinity, (see Appendix I) in which she lists traits that when combined create a cross-section of it. Traits such as; stoicism, aggressiveness, virility, rationality and heterosexuality are all contained in the sub-categories of her theory. It is with these seven ideas that one arrives at the the social construction that can be seen to be reinforced in law. The laws which mainly demonstrate such a gender gap are those of sexual offences, rape and domestic violence. In these crimes a woman must adhere to roles that the courts have allowed her to play, normally fulfilling the role of the depressed and despairing victim,[3] whether actual victim or killer. Thus there is such a limited scope for comprehending femininity in court.
The heterosexual and dominant aspects of masculinity are reinforced wholeheartedly by what became known as the Homosexual Panic Defence, this is an extremely rare but high profile defence in which an offender will claim temporary insanity due to a little known psychiatric condition known as homosexual panic. This is defined as a condition where a heterosexual man claims he is the subject of sexual or romantic advances which frighten or offend them to the point of the onset of temporary insanity characterised by violent behaviour. If this defence is ever allowed to stand, it reinforces the psycho-sexual traits of masculinity and infuriates the gay community at the same time, as it is seen as "blaming the victim." The CPS states: "The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take." This indicates that although there is a defence if the mental condition is proven, without it there is none. This reasoning has been introduced as homosexuality is becoming more accepted and any attempt to use it may result in accusations of homophobia in the courts. In masculine males non-standard acts, can be interpreted as homosexual and create a sense of fear in males, as many psychoanalysts have put forward masculinity fears femininity.[4]
A further example of where the gender role of masculinity is reinforced by law emerges in the case of Bedder (1954)[5] in which a man of eighteen visited a prostitute to reassure himself of his masculinity. After unsuccessfully trying to commit the act, she jeered at him, she tried to escape but he grabbed hold of her, and in her defence kicked him in his genitals. In his anger he killed her with a pocket knife. Bedder's defence of provocation failed on the grounds that the "reasonable man is not impotent." Here, the reasonable man becomes a gender assumption, possessing qualities of masculinity that some may not have, but to invoke rules of socialisation and to classify and document masculinity, it must be assumed. The reasonable man argument is shown to be masculine in nature as Bedder could not rely on virility in defence. According to Chafetz's seven areas of masculinity, a man's virility and physical well-being is important. Hence Bedder can be seen a case of a man put under gender role stress by the prostitute, and in trying to regain his masculinity after it being called under fire, could have been a direct contributor to his act of murder. Unfortunately since the courts viewed that a reasonable man wouldn't be impotent; therefore Bedder's problem was irrelevant.
A woman's perspective on her experience of rape is exclusory. She is only entitled to offer the facts that are relevant in law; this may be dismissive of her accounts as to what she feels as should be included. In legal method, a woman's sexual history, although she is likely to not be willing to share, is relevant to the question (compared with a man's which isn't.) Therefore anything that falls outside of this, i.e. her story of the event, is rendered ineffective. This gives more weight to the impression of masculinity dominating in legal discourse. Proof of consent is incredibly difficult in rape cases so in alarming regularity rape is categorised using the sex/violence dyad. Violence and non-violence are often used to distinguish between consent and non-consent It will follow to a conclusion that non-consensual sex becomes an issue of violence and more dangerously, examples of non-violent sex are seen as consensual. This shows rape at common law level as a crime of violence, which angers feminist scholars such as O' Donovan that this will inevitably skew and obscure the existence of coercion and pressure which separates consent and submission. These feminist scholars would much prefer to class rape as an exercise in power over sexuality, as it normally returns to pre-existing ideas of strong ruling over weak. Displaying power over someone in this way is undeniably a masculine trait.
It is widely accepted that in cases of rape, the issue of consent falls to the complainant to prove she wasn't consenting. In s.74 a person consents if he/she agrees by choice, and has the freedom and capacity to make that choice. In cases of rape the element of choice and capacity to make it are very often lost. Thus the element of consent, is based on presumption in court, so if evidential presumptions are rebutted in court, the court must resort to using common law definitions. If the case reveals elements of submission due to outside influences, i.e. violence, fear of losing a job etc, this falls in a legal context under consent. Although clearly it is not, contravening with s.74 SOA 2003. Consent must be assumed and therefore the accused cleared if there is no real defining factor which the complainant can state that proves her non-consent. The legal definition of rape is engineered to be so narrow; it is hardly ever as simple as the legal terms would have us believe. Due to the narrowing dichotomy of guilt vs. innocence, leads to dangerous grounds that if non-consent cannot be proven in trial, the accused will be acquitted and the woman will be deemed a liar. Therefore all rape cases that fail to lead to convictions reinforce masculinity as a dominant force in law.[6]
The case of Dougal (2005) in Aberystwyth University, is widely understood to have reached a erroneous decision when the Judge Mr. Evans J agreed with the prosecution and informed the jury that "drunken consent is still consent," when a security guard charged with taking a drunken student back to her flat and engaged in intercourse in the corridor of her hall as she slipped in and out of consciousness. The trial was abandoned, and Dougal walked free. This lead to a controversy that implied in cases of binge drinking, a woman's right to complain of rape is diminished. The SOA 2003 added provisions that women who are asleep or unconscious will not be taken as having given consent. There is no such provision when inebriation is concerned. "Drug-assisted rape" as it is known, does not constitute legal terminology, or a crime in itself, just as an individual concept of rape. This reiterates the issue of the narrow definition of rape. Even drug-assisted rape is too narrowly bound. We consider drug-assisted rape to be synonymous with date-rape, and disregard the possible intoxication of binge drinking. In the case of Dougal, although there was no insinuation that he had plied the victim with the alcohol, she had drank it willingly herself, only meeting him when he agreed to take her home. Munro and Finch[7] agree that the effects of alcohol in mass consumption can match that of drugs such as Rohypnol and GHB, but there is no mention of intoxication in UK statutes, the closest mentioning to a having a lack of freedom of choice being the aforementioned s.74 SOA 2003.
In taking even the slightest bit of pleasure during rape, the consent issue becomes irrelevant. Thus, if a defendant offers in his testimony any occurrence that suggests the woman enjoyed it, and then any issue of the force used beforehand becomes pointless, due to what is deemed as man's trustworthiness (Chafetz). Although no woman would necessarily enjoy rape, the legal understanding of a woman's response to pleasure is woefully inaccurate. When considering that an offender will offer a testimony of "they (the victim) must have consented (and/or enjoyed it) because they became sexually aroused and even had an orgasm." A woman being raped may react in exactly the same ways that she would if she were having sex consensually, she may become aroused, and in some cases may orgasm against her will. It is possible that there will be genital reactions to non-consensual sex even if there is a level of mental disgust. The factor that it would hinge on is how much a victim is likely to react to sexual stimuli.[8] This may lead to conflicting emotional responses if feelings of pleasure become associated with the trauma of rape. Even if there were moments of pleasure, isn't there still an issue of rape? (See Sexual Offences Act 2003) The testimony of the accused, portraying the behaviour of the complainant can be pivotal in whether the jury decides. If the accused makes the complainant out to have been acting in such a way, it can taint the jury's opinion of her, leading them to believe that consent was already given, thus there cannot be a conviction for rape. It is also apparent that when reviewing a rape case, that the sexual history of the accused male cannot be used to prove his bad character, but a female victim's sexual history can be used to prove or insinuate promiscuity. This can be damning for a woman, especially as repeated experiments have proved that a shockingly high number of people will still contend that rape victims are in some way responsible for their fate.[9] This is another example of how masculinity is reinforced by law; the male offender is given a great advantage in trial; therefore the male retains dominance and the female victim returns to a state of subservience and has very little chance of being understood in court.
In some relationships one party has a need to obtain and keep power and control over the other. This can appear in either direction (male over female, female over male, etc). Various reasons like: misogyny, misandry, esteem issues, stress, and personality defects have all been attributed to the cause of domestic abuse and attempts to understand it have been made. It is with Bancroft's causalist "cost-benefit" theory[10] that has become a work prevalent in understanding this phenomenon. This theory indicates that dominance in a relationship is more beneficial to the perpetrator than just exercising power. If a man feels powerless in his own life, his masculine tendencies would encourage him to need to have power over something, hence his partner/spouse becomes a target for his needs. This however, fails to fulfill masculine lust for dominance and it will lead to a prolonged cyclical series of abuses. Other theories which have been developed operate in regard to external influences of the offender and his background and situation. Goode's resource theory,[11] offers that one partner will be more likely influenced by the other who has the most resources, i.e. money, which doesn't necessarily, but can possibly lead to an exertion of negative influence, when the advantaged partner withdraws money etc from the weaker. The financial burden in place, make it difficult for a victim to leave. Dependency on the other partner leaves them with little option to help alter their behaviour. Historically this would indicate the male as the perpetrator, and would fit comfortably with Chafetz's idea of masculinity.
Battered Woman Syndrome[12] is the closest that a British court can get to understanding a woman who kills a violent partner. However since it's inception it has been flawed. Evolving through states of learned helplessness, through explaining why an abused woman stays with her partner, to presently post-traumatic stress disorder. Used in court it can perform multiple functions; it can prove the existence of a battered woman, explain her actions, bolster her credibility in the court's eyes or help to reduce a sentence if she ends up on trial. Unfortunately as previously discussed, narrowing and documenting such experiences as each individual woman faces, it is impossible to encapsulate the true picture and build up a single profile of all abused women. The concept itself is notably stubborn and implies that all women are "battered women"[13] in the same way forming a stereotypical battered woman. As we know, there are many ways a woman can be abused; they vary in as many degrees as her emotional responses. It could also be argued that the defence of BWS could be seen as an excuse to seek a lighter sentence in view of murder, since the legal definition could be interpreted as nothing more than pathology from the norm, and therefore quite reproducible. The difficulty that is raised from this, leads to further complexity, due to the overwhelming support for masculinity, without this phrase inside a woman's testimony, the courts will act very harshly towards her. A woman who commits a crime is seen as mad or bad, and categorises the violent female offender through medical and psychological discourse asserting that these women must be mentally unstable, irrational or evil.[14] Once again the courts will take a biased view towards masculinity, in that male propensity to crime is expected and treated as capable of rehabilitation, whereas women are not.
Reinforcing male dominance in relationships appears in law on multiple occasions. Cases such as Steadman (1995) and Singh (1992) had their convictions reduced from murder to manslaughter. Steadman who assaulted his wife thirteen times with a hammer to the face, served only three years, after he pleaded diminshed responsibility on the grounds of her constant "nagging." Singh received an 18 month suspended sentence after successfully pleading a defence of provocation, for much the same idea. Dennison J, residing commented: "You have suffered through no fault of your own your wife was a domineering lady with a sharp and persistent tongue." Masculinity requires sexual dominance and independence, and requires that the male is the disciplinarian, going against these steadfast rules, introduces "masculine gender role stress."[15] A group of four mechanisms that men must portray in order to feel like they are exhibiting masculinity, since it's lack can be seen among men as bringing on this gender role stress, here a man feels he is acting "unmanly" and threatening his self-esteem. Traits of masculinity are self-validating in men, and can lead to greater social validation and in some cases competitive advantage, this is true along the whole male population, therefore courts ruled over by male judges are more likely to feel sympathetic towards men such as Steadman and Singh.
It is far less likely that males will admit to being abused in a relationship as it can lead to embarrassment on their own behalf. This undermines the aspects of masculinity of leadership and independence, and gives rise to such reaction that would be demeaning to them. The state of being an abused man is misunderstood by courts, the idea of the masculine man and the feminine female is turned upside down. Aside from the obvious trivialisation of the male victim, if the man attempts to divorce, it is very difficult for him to gain custody of his children. For a man to gain custody, he must prove the mother's incompetence, and in open conflict between parents makes victims of the children, which is something no competent parent would abide. The gross misunderstanding of male domestic abuse is shown by the lack of awareness in such forms as counseling groups or advice-centres. In the UK there is only one helpline for men who think they are being abused.[16] All easily obtainable material implies that females are the only victims of domestic abuse. The low statistics of men complaining of abuse at the hands of their spouses, less than 10% of calls to police concerning domestic violence are by men. A survey carried out by the Channel Four Documentary series "Dispatches," produced results that reflected the 100 respondent's (all male DV victims) experiences: if the police did respond then it was far more likely the victim would be arrested; of the 100, only 5 abusive women were ever arrested and one charged, the charges were later dropped. [17] This is not a promising development in ever hoping to stop domestic violence against males, undermining the social construction of masculinity and with similarities in the case of Bedder as the courts offered no support to any men who fail to outwardly express their masculinity inside their relationships, in this situation it is unlikely the cases will ever reach the courts.
In conclusion, the law has always and continues to reinforce masculinity as a primary force. In as far as criminal law as a whole can be seen to encapsulate almost all of the traits found in the aforementioned socially constructed ideas of masculinity. Even in crimes built and instilled to protect the female, the inherent flaws can produce results which do not constitute justice. Women are still confused and pensive about reporting being raped due to the low conviction rates and high stress and pressure that the victim is put under. Punishing femininity and enhancing masculinity in the process. It has been seen that gender assumptions of masculinity have entered the reasonable man model with virility and heterosexuality both accepted features. This only further entrenches the masculine male appearing as the foundation of law. A cynical idea, but possibly rooted in truth when laws were entrenched in there original states, they were created and proposed by men for men, with the idea that women who served as a lesser presence in society, and thus were omitted from the statutes. The existence of these male-dominated laws have become so vital to the administration of justice that to enter the fairer sex who now play a much larger role in society can only exist as stereotypical ideas that can be recognised by the courts, after attempts to simplify the female mind and pigeon hole each case instead of treating each woman as an individual, and recognising feminity instead as opposed to simply categorising it as a pathology. Both rape and domestic violence are good examples of how the social construction of masculinity is treated in court, the gender bias that exists here can be interpreted as providing problems with applying femininity onto legal statutes, even when legal precedence aims to protect it.
Bibliography
Chafetz, J. S, 1974, Sex and Advantage: A Comparative, Macro-Structural Theory of Sex Stratification.Rowman & Littlefield Publishers
Connell, R. W.,2005.Masculinities. Second Edition, Cambridge: Polity Press
Dutton, M. A., "Critique of the "Battered Woman Syndrome" Model" American Academy of Experts in Traumatic Stress [Online]
Eisenstat, S. Bancroft, L, 1999, "Domestic Violence" The New England Journal of Medicine, September 16 1999, Vol. 341(12), 886-892
Fathers For Life, "Domestic Violence Against Men" [Online]
Fincham, F. D, Bradbury, T,1990, The Psychology of Marriage: Basic Issues & Applications, New York: Guilford Press
Levin, R. J. & Van Berlo, W.,2004, Sexual arousal and orgasm in subjects who experience forced or non-consensual sexual stimulation a review Elsevier Ltd.
Munro, V & Finch, E., "Juror Stereotypes and Blame Attribution In Rape Cases Involving Intoxicants" British Journal of Criminology Advanced Access, 7th June 2004
O'Donovan, K., 1985. Sexual Divisions In Law Weidenfield & N.
Smart, C., 1989, Feminism and the Power of Law. Routledge.
Walker, L. E., 2000, The Battered Woman Syndrome, 2nd edition. Springer.
Whiteley- De Graafe, "Women as Victims and Offenders: The Status of Long Term Violent Female Offenders in Australia"Paper presented at the annual meeting of the American Society of Criminology (ASC), Los Angeles Convention Center, Los Angeles, CA, Oct 31, 2006.
Williams, G., 1978, Textbook of Criminal Law, Stevens & Sons: London
Unger, R, 2004. Handbook of the Psychology of Women & Gender. Wiley, John & Sons, Incorporated
Appendix
Appendix I
Janet Saltzman Chafetz describes seven areas of masculinity
Physical virile, athletic, strong, brave.
Functional breadwinner; provider for family
Sexual sexually aggressive, experienced, heterosexual. Single status acceptable;
Emotional unemotional,stoic for example, the proverb "boys don't cry";
Intellectual logical, intellectual, rational,practical,
Interpersonal leader, dominating;disciplinarian independent, free, individualistic; demanding;
Other Personal Characteristics success-oriented,ambitious,aggressive, proud,egotistical, moral, trustworthy, decisive, competitive, uninhibited, adventurous.
[1] Connell, R. W., 2005.Masculinities. Second Edition, Cambridge: Polity Press
[2] Chafetz, J. S, 1974, Sex and Advantage: A Comparative, Macro-Structural Theory of Sex Stratification Rowman & Littlefield Publishers.
[3] O'Donovan, K., 1985. Sexual Divisions In Law Weidenfield & N.
[4] Horney, 1932, Neumann 1954, O' Neil et al, 1986, Blazina, 1997
[5] Williams, G., 1978, Textbook of Criminal Law, Stevens & Sons: London
[6] Smart, C., 1989, Feminism and the Power of Law. Routledge.
[7] Munro, V & Finch, E., "Juror Stereotypes and Blame Attribution In Rape Cases Involving Intoxicants" British Journal of Criminology Advanced Access, 7th June 2004
[8] Levin, R. J. & Van Berlo, W., 2004, Sexual arousal and orgasm in subjects who experience forced or non-consensual sexual stimulation a review. Elsevier Ltd.
[9] Dietz & Byrnes, 1981; Kanekar & Kolsawalla, 1980; Muehlenhard, 1988 Ryan , 1971.
[10] Eisenstat, S. Bancroft, L, 1999, "Domestic Violence" The New England Journal of Medicine, September 16 1999, Vol. 341(12), 886-892
[11] Fincham, F. D, Bradbury, T,1990, The Psychology of Marriage: Basic Issues & Applications, New York: Guilford Press.
[12] Walker, L. E., 2000, The Battered Woman Syndrome, 2nd edition, Springer
[13] Dutton, M. A., "Critique of the "Battered Woman Syndrome" Model" American Academy of Experts in Traumatic Stress [Online] [Accessed 27 December 2008]
[14] Whiteley- De Graafe, "Women as Victims and Offenders: The Status of Long Term Violent Female Offenders in Australia"Paper presented at the annual meeting of the American Society of Criminology (ASC), Los Angeles Convention Center, Los Angeles, CA, Oct 31, 2006.
[15] MGRS, Eisler & Skidmore, 1987 cited from: Unger, R, 2004. Handbook of the Psychology of Women & Gender. Wiley, John & Sons, Incorporated.
[16] Male & Advice Enquiry Line.
[17] Episode aired 7th January 1999. Cited from: http://fathersforlife.org/fv/fv_against_men_UK_ch4tv.htm
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