PS 514 4-6-2010 Early Treatment of Women What is Gender? What is the difference between sex and gender. Sex is male or female characteristics biologically. Gender is an assumed identity or a social construction. Different culture varies and men and women have different roles varying on religious history, regional culture and characteristics. Courts haven’t always made that distinction. Societal views are linked with law. This is important because a lot of the rules that make a distinction are based on gender stereotypes. Why are women treated differently? Aristotle said uterus was where man planted seed and women provided a 9 month rented room. We have a notion that women are second rate citizens and that their only role was to provide reproductive possibilities. Catholic church went as far to call them impure and that their only purpose was reproduction. Saint Thomas Aquinas declared women misbegotten men. Female itself is femina (faith) and minus (meaning less). Women were thought to be too weak to hold and preserve the faith. We have a notion that women are inferior to men, they convinced Adam to break the rules. All these things stack the deck against women from a western civilization point of view. Patriarchy started where men are dominant and women are subordinate. We don’t have a firm date when it began, but sometime between 3100 and 600 B.C. Religion helped to reinforce male dominance. Common law developed in a way the subordinated women. Lawmakers internalized these views and accessed them when making public policy or judging court cases. Doctrine of Coverture developed, and is a legal fiction, it is some sort of simplification made up as a matter of law. We perceive a situation to be something other than what it physically is in the real world. The legal fiction was in regard to institution of marriage. In common law tradition, when a man and woman became married they were perceived to be one flesh. The marriage made them one person. We had negative views of women, as impure and having a main function of reproducing but man had the upper hand. Man had the legal right and was considered the one person out of the relationship. Blackstone on Coverture Blackstone was English legal philosopher and scholar. His greatest impact was on American law, even though he was a British legal scholar. A lot of Americans picked up on his writings because he published a lot in very compact book. It was easy to take his writings on the road. Blackstone talks about the Doctrine of Coverture. He didn’t invent the doctrine but is observing it. A wife is limited under the Doctrine. A man and woman get married and the man is responsible for all debts. If a woman has property, when she gets married, everything gets transferred to the husband. Being able to testify against husband is not allowed because they are the same person and you cannot legally testify against yourself. Were women better off single back then? The doctrine is still around to some extent. For example, a husband and wife are subject to spousal immunity/privilege. It is leftover from the common law doctrine. We consider conversations between husband and wife to be confidential. They can’t be compelled to talk about private conversations in testimony. If husband or wife wants to testify against their partner, that is allowed however state/federal government does not have the power to compel them to testify. Whenever you argue any spousal abuse or syndrome where you claim you were beaten and snapped mentally. That is something called an affirmative defense. The defendant says you broke the law, but you did it because you have a reason for breaking the law. You think your reason is so good, you shouldn’t be convicted. The burden of proof is on the prosecutor and they have to prove the defendant committed the crime. In affirmative defense, the burden shifts. The prosecution has made their case, and the burden is on the defendant to show why they had a good reason to break the law. Defense counsels aren’t always used to presenting cases in this fashion. Remember the Ladies Letters from Abigail and John Adams during the Second Constitutional Convention. Abigail Adams was influential to John Adams. John was very important to drafting the Declaration of Independence. Why not provide freedom for all Americans, including women. No one at the continental congress would have any part of this. It was possible that it would have damaged John Adam’s credibility. Extending freedom to women would open up the floodgates to more rebellion. He felt it was the last thing he needed. This was an influence for female suffrage and was influential on generations to come even though it didn’t matter at the time it was written. Many people valued the input and knew the history. She set the groundwork for women’s rights movement. Cult of Womanhood “If anyone male or female dared to tamper with the complex of virtues which made up True Womanhood he was damned immediately as an enemy of god civilization and the republic.” This shows the lengths people in the 1800’s sought to compartmentalize the role of women in society. It wasn’t that they just placed them into a specific sphere. They noted the virtues for what a good woman would do. They raised family and took care of household duties. If anyone tampered with the virtues and expectations they were really rocking the boat. You would be condemned for considering women to have any other role. There were four virtues that were instilled during this time. This is basically what was expected in the 1800’s and what women were up against to securing their own rights and privileges. Piety – good church going folks and spiritual. Purity – obstaining from premarital sex and alcohol. The view at the time was that you were a ruined women for having sex before marriage. Submissiveness – placing man as highest ranking person in family unit. Domesticity – you assume domestic duties (cooking cleaning and raising kinds). These virtues were instilled in women at a very young age. Declaration of Sentiments Abigail Adams sent a forceful letter to John Adams and others tried to influence Congress. A watershed moment was the declaration of sentiments. Drafted at the first women’s rights convention, Seneca falls, NY. 1848. The purpose is to make women equal to men. This document resembles the declaration of independence and takes out “man” making the language gender neutral. This got the ball rolling for women’s suffrage. Women were primarily seeking three main rights. Own property in their own name, choose professions and vote. Owning Property was the first big shift in women’s rights. Married Women’s Property Act was passed in Mississippi in 1839. It was easier to secure economic rights at first and then work on political rights. Once you secure rights little by little, it is easier to obtain larger rights. These were very important pieces of legislation. They would allow women to secure property in their own name, even after they became married. These acts were passed throughout the United states at the time, but the motivations and ways the laws are worded tend to be a little different in the north and the south. If you brought anything else to the marriage relationship that wouldn’t have been protected. In the north, the laws would be a little bit more expansive. It took longer because the motivation for passing them was different. It was to give women more rights. In the north, they are basically acknowledging more rights for women. In the south that is not neccesarily the case. There is very different motivation and reasoning for having these laws on the books. These laws overturned or at least chipped away at the doctrine of coverture. The property no longer went right to the husband through marriage. Women are slowly having more rights when they get married.