FEMINISM

Introduction and History of Feminism

The word ‘Feminist’ was first used in France and the Netherlands in 1872. However, women and
men much before this had expressed their personal opinion demanding fair rights for women.

Some of these people included Greek philosopher Plato, French writer Christine de Pizan, and
Margaret Cavendish, Duchess of Newcastle-upon-Tyne, Martineau and Cobbe in Britain, and
Margaret Fuller in America. In the 18th and the 19th century; the age of enlightenment bought the
works on women’s rights and their plight in the society were published for the general public, by
philosophers, poets and writers like Nicolas de Condorcet, a French Revolutionary, and Mary
Wollstonecraft, writer; amongst others.

In 1913, Feminism became a widely used term in the United States and in the coming years, issues
like suffrage gained widespread attention. In 1920, the Nineteenth Amendment to the United States
Constitution finally granted women the right to vote.

During World War I and II, while most men were out, women were left back home to take care of
the house and the household. During these times, women stepped out for the first time, taking on
jobs that had been off limits previously.

The 1960’s brought the second wave of feminism. With issues like suffrage championed in most
modern countries, the conversation now moved on to the sexism in the cultural society. This later
changed the conversation to the involvement of women in politics, sociology, history, and literature.

The third wave of Feminism started in the 1990’s, which focused on subject like homosexuality and
non-white women. It also focused on abolishing gender role expectations and stereotypes.

Feminist Jurisprudence

Feminist jurisprudence is a legal theory and practice that focuses on areas where the law supports
the oppression of or discrimination against women, and attempts to correct these inequalities and
perhaps, change the social attitude towards women.

The area of feminist studies has been known by various names; ‘women and the law’, ‘gender and
the law’, ‘feminist legal theory’, and lastly as ‘feminist jurisprudence’.

Varieties of Feminism

A variety of movements of feminist ideology have developed over the years. They vary in goals,
strategies, and affiliations. They often overlap, and some feminists identify themselves with several
branches of feminist thought.

1. Liberal Feminism

Liberal Feminists believe that if a 'sameness approach’ is taken, equality for women can be achieved
substantially within the current legal framework. Liberal feminism as a theory and work that
concentrates more on issues such as equality in the workplace, in education, and in political rights.

Liberal feminism also focuses on how private life impedes or enhances public equality.

Thus, liberal feminists tend to support marriage as an equal partnership, and more male
involvement in childcare. Support for abortion and other reproductive rights have to do with control
of one's life and autonomy.
Ending domestic violence and sexual harassment remove obstacles to women achieving on an equal
level with men.

Liberal feminism's primary goal is gender equality in the public sphere, such as equal access to
education, equal pay, ending job sex segregation, and better working conditions.

2. Socialist Feminism

Like Marxism, socialist feminism recognized the oppressive structure of a capitalist society. Like
radical feminism, socialist feminism recognized the fundamental oppression of women, particularly
in a patriarchal society. However, socialist feminists did not recognize gender and only gender as
the exclusive basis of all oppression. Rather, they held and continue to hold that class and gender
are symbiotic, at least to some degree, and one cannot be addressed without taking the other into
consideration.

Socialist feminists wanted to integrate the recognition of sex discrimination within their work to
achieve justice and equality for women, for working classes, for the poor and all humanity.

3. Cultural Feminism

Cultural feminism refers to a philosophy that men and women have different approaches to the
world around them, and that greater value should be placed on the way women approach the
world. In some cases, cultural feminism argues that a woman's way of looking at the world is
superior to men. This perspective aims to unite all women, regardless of ethnicity, race, class, or
age. The essence of being a woman is what makes women special and different compared to men,
according to this view. This female essence includes a greater emphasis on cooperation,
relationships, and peace, also referred to as an ethic of care.

Cultural feminists can either believe that being more nurturing is biologically determined, or they
might believe that this trait was taught to them by society, or some combination of both.

4. Radical Feminism

Radical feminism is a philosophy emphasizing the patriarchal roots of inequality between men and
women, or, more specifically, the social domination of women by men. Radical feminism views
patriarchy as dividing societal rights, privileges, and power primarily along the lines of sex, and as a
result, oppressing women and privileging men.

Radical feminism opposes existing political and social organization in general because it is inherently
tied to the patriarchy. Thus, radical feminists tend to be sceptical of political action within the
current system and instead tend to focus on culture change that undermines patriarchy and
associated hierarchical structures.

Radical feminists suggest changes, such as finding technology that will allow babies to be grown
outside of a woman's body to promote more equality between men and women. This will allow
women to avoid missing work for maternity leave, which radical feminists argue is one reason
women aren't promoted as quickly as men. In fact, radical feminists would argue that the entire
traditional family system is sexist.

There are many other varieties of feminism like black feminism, eco-feminism, lesbian feminism,
French feminism etc. however, the above 4 are the main groups of feminism.
Discriminatory Laws and Feminist Jurisprudence

This analysis consists of 2 aspects.

I. Laws discriminates against women (denying political and fundamental rights like right to vote or
enjoyment of equal treatment before the law)

II. Laws that seems neutral on the surface but actually discriminate against women (laws on family
relationship, rape and employment)

Public law - Private law: Public law is about relationship between individual and state (administrative
law, criminal law) and private law is about relationship between individuals (contract law, tort law).

This separation was of concern to feminists who found that many issues relating to their studies are
treated as private matters until recent times. However, feminists continuing to struggle have led to
criminalizing acts like domestic violence, sexual harassment, and marital rape.

DSD and NBV V The Commissioner for Metropolitan Police (Black Cab Rapist Case)

John Worboys, a cab driver committed over 100 acts of rape and sexual assaults by intoxicating
young women found outside pubs in the night. Despite numerous complaints, the police failed to
arrest the cab driver.

However, due to media publicity given to the stories of the victims, the police eventually instituted
charges against the man, in respect of the offences committed against just two of the victims only.

The driver was convicted and sentenced to life imprisonment.

The two victims identified as DSD and NBV, sued the Metropolitan Police Service on behalf of
themselves and other victims seeking a remedy for the alleged failure on the part of the
defendants, to conduct an effective investigation into their respective complaints of serious sexual
assault.

The claim was for damages for the failure on the part of the police to take timely and effective
action against the offender. Under common law, an action of this nature would have been treated
as a tort case as there was no complicity the part of the police in the commission of the crimes. It
has been held previously that the police did not owe a duty in negligence, in relation to the
investigation of a crime.

The judge Mr. Justice Green, however, viewed the case from a different perspective. To him the key
to the resolution of the dispute lay, not in tort law but in Public law, as it involved the fundamental
rights of citizens vis a vis the state. His reasoning backed by Human Rights Act 1998 which stated
that it was unlawful for a public authority to ‘act in a way which was incompatible with a Convention
right’, section 7; that a person who claimed that a public authority had acted in such a way could
bring proceedings before the appropriate court or tribunal, and section 8; conferred upon the courts
the power to grant appropriate relief, including damages.

In the evidence presented he found a series of systemic failings on the part of the Metropolitan
Police Service to apprehend the offender in time, the failure to train relevant officers in dealing with
cases of sexual assaults, especially ones involving drugs and alcohol, failures to adhere to
investigation procedure, serious failures to interview vital witnesses, failure to collect key evidence,
failure follow up on CCTV footage and failure to prepare properly for interviews with the suspects.
He also found that the effects of the assaults had caused the victims depression, feelings of guilt,
anxiety, and an inability to sustain relationships, including sexual relationships. That trauma had to
be multiplied one hundred-fold and more, to begin to have a sense of the pain and suffering that
Worboys' serial predatory behaviour exerted upon his many victims. But their feelings were not the
end of this circle of misery because...the effects rippled throughout the victims' families and their
respective circles of friends.

Law on Rape

Feminists believe that law on rape is discriminatory against women as many jurisdictions make
available defenses such as consent, lack of resistance or face or lack of an intention to commit rape.

The patriarchal thinking has given a wider meaning to the term ‘consent’, such as absence of refusal
or resistance. It assumed the victims prior relationship with the offender, or her appearance or attire
as an invitation to sexual intercourse.

Elizabeth Sheehy begins her discussion on the law of rape with the observation of Judge David Child.
“Women who say ‘no’ do not always mean ‘no’. It is not a question of saying no, it is a question of
how she says it, how she shows and makes it clear. If she does not want it, she has only to keep her
legs shut and she would not get it without force and there would be marks of force being used.”

The Sri Lankan cases, Inoka Gallage V Kamal Addaraarachchi and Karunasena V Republic of Sri Lanka,
discussed about the concept of consent relating to law of rape.

In the first case Kamal Addaraarachchi was prosecuted for raping a teenage girl who was attracted to
him, and he was convicted by a female judge at the trial who is famous as a strong feminist but later
quashed the decision of trial by two male judges in the appeal.

In the second case victim was raped by accused when she went to the house of accused to borrow
the newspaper on her way back to home from church. And the court released the charge on accused
on the defense of consent.

In 1999, Italy appeal court reversed conviction of rapist on the ground that victim wore jeans and
without her consent, he could not take it off. In 2008 another appeal court reversed its earlier
decision and held that wearing tight jeans is not barrier to commit rape.

Feminists fought years to change this judicial attitude. However, today some jurisdictions have
introduced offences like date rape where a sexual intercourse takes place without female’s consent
in their voluntary social engagement (E.g., Mike Tyson case) and marital rape where husband engage
in sexual intercourse with wife without her consent. But still there are many countries men still have
the ‘conjugal right’.

Domestic Violence

Kiranjit Ahluwalia case

The appellant (Kiranjit) poured petrol and caustic soda on to her sleeping husband and then set fire
to him. He died six days later from his injuries. The couple had an arranged marriage and the
husband had been violent and abusive throughout the marriage. He was also having an affair. On the
night of the killing, he had threatened to hit her with an iron rod and told her that he would beat her
the next day if she did not provide him with money.
At her trial she admitted killing her husband but raised the defense of provocation however, the jury
convicted her of murder. She appealed on the grounds that the judge's direction to the jury relating
to provocation was wrong and she also raised the defense of diminished responsibility.

At the appeal she was convicted for manslaughter and released as she had already served 5 years in
prison. In this case it changed the definition of ‘provocation’ in abused women cases and new
psychological condition was recognized as ‘battered woman syndrome’.