Vol. 9 No. 7 (July 1999) pp. 288-290.
GENDER PERCEPTIONS AND THE LAW by Christine R. Barker, Elizabeth A. Kirk and Monica Sah (Eds.). Aldershot, England: Ashgate/Dartmouth Publishing Company Ltd., 1998. 147 pp.
Reviewed by Cynthia G. Hawkins-León, College of Law, Syracuse University.
This collection of essays seeks "to bring contemporary issues of law and legal policy out into wider debate" (p. vii). The self-expressed issues of focus are "the influence of gender on legal relationships and [the influence] of the law on gender relationships" (vii). The essays discuss the effects of society’s gender roles upon the legal rights of individuals in the subject-matter areas of family law, criminal law and equal rights. The papers were originally presented as part of a Lecture Series titled "Gender and the Law" at the Department of Law, University of Dundee during the 1995-1996 academic session; thus the contextual loci of the papers are the law and policy of the United Kingdom (U.K.) rather than the United States. Understandably, the individual authors are primarily professors of sociology, law and gender relations at educational institutions within the UK.
With a general subject-matter organizational theme in mind, the essays consist of relatively brief discussions (averaging 25 pages each) of various topics: namely, there are two essays relating to family law (parenting and custody issues); two relating to criminal law (sentencing and violent behavior); and three essays relating to gender relations (sex equality laws, pornography and "[homo]Sexual Citizenship").
The Essays – Content, Scope and Comments
The first family law essay elucidates how the "Children Act of 1989" - enacted in England and Wales in 1992 - affects parents’ relationships vis-a-vis parenting post-separation and post-divorce. The mode of inquiry is empirical research conducted by the author in which sixty (60) parents who were either divorced or separated after the act’s implementation were interviewed (it is unclear how the author chose the subject group). In relation to separation and divorce proceedings, the main objectives of the Act were to: (1) decrease hostility between the parties; (2) pursue a policy of non-intervention by the courts; (3) encourage joint parenting after divorce; and, of paramount importance, (4) promote the welfare of the child. The author found that parents who sought to co-parent after divorce "felt that the new legislation supported their goals" (p. 11). Even more consequentially, despite the stated goals of the Act, the essay noted "statistical indications" that there is more conflict amongst divorced and separated parents after the Act’s implementation than prior to its passage (pp. 14, 22-23), thus, bringing the core purposes and tenets of the Act into question.
The second family law essay considers how "changing demographics and social trends can effect the married woman" (p. 31). First, the author reviews the impact of the "Children Act of 1989" and the concomitant Act introduced in Scotland in 1995 on custody disputes -- in particular, the often unwarranted and often disproportionately negative effect on working mothers. Second, the essay discusses the adverse results of social change upon women and issues of succession. Prophetically, the author concludes with this admonition: "if women are to be encouraged to work the same long hours as men to achieve success, should they not be warned of the risks that they run if their marriage breaks down and a custody dispute ensues" (p. 38).
The two criminal law essays generally outline gender differences in: (1) society’s views and treatment of persons exhibiting violent behavior and committing violent crimes; and (2) sentencing patterns. Unsurprisingly, the authors detail a deeply ingrained gender bias or attitudinal difference in both areas. The first article chronicles the history of disparate treatment of women when viewed through the criminal law's male-orientated lens of acceptable levels of aggression and violent behavior. The author points out that this sex-related differential is based upon: (1) biomedical data; (2) essentialist perspectives, such as psychoanalytic theory and practice; and (3) application within common social processes and cultural environments. The author concludes that, while historically women have committed fewer violent crimes than men, whether the differential between the sexes is lessening remains disputed due to the varying explanations provided from the data, perspectives, and applications reviewed. Within the same discursive genre, the second article details differentials in sentencing based upon the sex of the defendant – both in theory and as illustrated through empirical research. The author contends that the allowance of discretion within the sentencing process (no matter how slight) following the enactment of the Federal Sentencing Act of 1984 allows "traces of the pre-guideline paternalistic approach to some women offenders to persist" (p. 84). Thus, sex-related bias will continue until all traces of discretion are expunged from the sentencing process.
The essays relating to gender relations covered various sub-topics -- from European sex discrimination and sex equality laws to pornography and sexual citizenship. The essay titled "The Influence of European Law on Sex Equality Laws" details the emergence and development of equal pay and sex equality laws in Scotland since the UK joined the Common Market in 1972. In doing so, the country "surrender[ed] … sovereignty in those areas which were the concern of Europe … [and acknowledged] … [t]he supremacy of European Law [as] confirmed by the European Court of Justice … and by [Scottish and U.K.] courts" (p. 89). The author, a legal development officer for the Scottish Equal Opportunities Commission (EOC), criticized relevant Scottish and other U.K. case law and statutes for their failure to keep pace with the developments in European Law in the areas of equal pay, sex discrimination, and sex equality. The author, did, however, praise the contributions and improvements made by the EOC to the laws of sex discrimination in an attempt to balance the scales of justice.
The second to last essay offers a brief rejoinder to Catherine MacKinnon’s book titled "Only Words." The author posits that the theory central to MacKinnon’s work is that "pornography should be seen as a type of speech act" (p. 103). The purpose of the riposte as explained by the author is to explain "why that is a brilliant idea, how that brilliant idea goes dramatically wrong, and yet why something if it is worth salvaging" (103). Although the author discusses radical feminist arguments about pornography, and characterizes MacKinnon’s book as the "trajectory" of these arguments and finely parses the text, without having read the subject piece, the depth and tautology of the rejoinder are difficult to interpolate and characterize.
The final essay (1) provides a historical background discussion of the topic of "(homo)Sexual Citizenship;" (2) cites the parameters of this newly-coined topic or entity; and (3) encapsulates the debate as currently focussed. The enigmatic term "(homo)Sexual Citizenship" is defined by the author as "consist[ing] of the dynamic development of a particular constellation of rights and responsibilities which grant a specific sexual population permission to enter … a sub-culture of exploited consumers …" (pp. 126-127). Further, it is posited that "citizenship machineries are constructed around notions of the naturalness of conventional socio-sexual morality, the unnaturalness of difference" (p. 142). In sum, the article charts the maturation of the societal construction of homosexuality and the political movement towards integration.
Overall, I found the compilation informative and instructive -- although not necessarily covering previously
uncharted territory. Its relatively short length served to whet one’s appetite and peak one’s interest. The book
will be particularly beneficial to the comparative and/or international law scholar within the applicable subject
matter areas of family law, criminal law and equal rights.