It is an issue with a history. “At the NOW Legal Defense Fund, we’ve been talking about gender bias in the courts for 25 years,” said Lynn Hecht Schafran, director of the gender-equity program of the National Organization for Women Legal Defense and Education Fund.
Yet the horror stories still keep coming – the latest, about the Maryland judge who sentenced a man to 18 months in jail for killing his wife after finding her in bed with another man.
Redbook magazine recently printed a list of what it called the nation’s most sexist judges. So many readers made additional nominations that the magazine ran a second installment.
The legal system is infused with a pervasive bias against women, feminist critics say, affecting everything from the way women are treated in courts to women’s progress in the legal profession.
And the horror stories have come up in such numbers and over such a length of time, says Linda Hirshman, law professor at Chicago-Kent College of Law and director of its Women’s Legal Studies Institute, that they cannot be mere aberrations.
“It’s one aberration after another,” she said drily.
In the last five years, 40 states have established task forces on gender bias in the courts, Schafran told a conference on gender bias and the law held recently at the University of Chicago. There are nine more task forces on gender bias in the federal courts.
“Everything is just one recapitulation after another,” she said. “Gender bias is a very severe problem.”
It is a problem throughout society, but particularly painful when it surfaces in the law, said Jane Larson, associate professor at Northwestern University School of Law.
“The law is one of the most important tools of social change,” she said. “Claims made on the law are going to be the places where we have the greatest victories and the greatest defeats.”
For now, Hirshman said, women are suffering an unfair number of defeats.
“The legal system intentionally or simply neglectfully is biased against the interests of women,” she said.
One example, she said, is that people who kill their spouses are often charged with manslaughter, not murder, because it is classified as a crime of passion.
Manslaughter convictions carry far less severe penalties than the murder of a stranger.
“Seventy percent of all spousal murders in the U.S. are men killing their wives,” she said, while the victims of stranger murders are more likely to be male.
“A crime that affects mostly men is punished more severely than a crime that affects mostly women.”
Inequities are inevitable in a legal system designed and dominated by men, says Laurel Bellows, chairman of the American Bar Association’s Committee on Women in the Profession.
“The very law we’re applying that looks so fair was drafted by male legislators and is derived from the Common Law of England, which came into being when women were property,” she said.
“We end up with a set of rules that work much better for a man’s needs,” agreed University of Chicago law professor Mary Becker.
But a subtler and more pervasive problem, Becker added, is “the fact that we generally live in a society where women are (considered) less credible than men.”
Juries tend to disbelieve everyone from women crime victims to women expert witnesses, feminist lawyers say.
Women’s lack of credibility even affects their ability to assert a right to die, Schafran told conference participants.
The testimony by a man’s family that he had expressed a wish to be allowed to die if terminally ill and suffering is more likely to be believed than that of a woman’s family, she said. As a result, most of the major right-to-die court battles have involved women.
Schafran doesn’t think the law itself is the primary problem.
“The law, as written, is in pretty good shape,” she said. “The whole issue is the application of the law.”
Even in states where the law establishes, for example, that a man who batters his wife or children is presumed to be unfit for child custody or unsupervised visits, she said, some judges simply disregard the law.
“Women bring a different perspective, certainly and most obviously, to discrimination and harassment cases,” Judge Ilana Rovner, the only woman of the 11 active judges on the 7th Circuit U.S. Court of Appeals, said at the gender bias conference.
“But more broadly, we are more likely to see cases pragmatically, having been outsiders. And not having had the benefit of certain advantages, we are keenly aware of the human side of many of the cases that come before us.”
Fewer than 14 percent of federal judges are women, as tallied before President Clinton took office and made his own appointments. In state courts in the early 1990s about 10 percent of judges were women, according to the American Bar Association’s Commission of Women in the Profession.
An opposing viewpoint at the gender bias conference came from U. of C. law professor Richard Epstein, a challenger of feminist orthodoxy, who suggested that some tales of outrageously biased judges recounted in magazines may not be so simple.
“When you get these testimonials, in which one side tells its side and not the other, it’s a recipe for distortion,” he said after the conference.
Indeed, Judge Edward Quinnell, a circuit court judge in Marquette County, Michigan, was criticized in Redbook and several newspapers in the case of a 13-year-old girl molested by her stepfather.
During a sentencing hearing, he had said that having a finger inserted into the vagina was “no worse than being in a doctor’s office.”
It was not reported that he immediately went on to say that this act, unremarkable in a medical setting, was a crime and a betrayal in this context, and to express, at length, his concern for the girl’s emotional recovery.
Epstein attributed some of the charges of biased judicial behavior to generational misunderstandings that are growing rarer as the judiciary is growing younger.
“There’s maybe a tendency to take horror stories and treat them as representative examples,” he said. “There probably are a few dinosaurs out there. But I don’t think there is any official support for what takes place.
“There are women for whom all questions are reducible to gender questions. A lot of times the arguments are wrong. There are certain female strategies that turn out to be very successful in the world; there are certain male strategies that turn out to be very unsuccessful.”
Feminist lawyers contend that merely being female has turned out to be a highly unsuccessful strategy in the legal profession.
Of Chicago’s largest law firms, Bellows said, only one has a female managing partner, and there are less than a handful of female managing partners in the nation’s largest firms.
The Illinois Supreme Court recently appointed 31 judges to vacancies in the circuit and appellate courts; all were men.
“Women have comprised 48 percent of law school classes for more than 10 years,” Bellows said. “They have been coming out of law school in large numbers beginning in about 1975. . . . You should be seeing women in major positions of responsibility in large law firms and as general counsels of firms.
“The failure to promote women to the highest levels of our profession is outright, blatant discrimination.”
Feminist lawyers suggest that the entire system, from the way law firms work to the law itself, would work differently if women designed it.
“There is not a body of American legal doctrine that would not change if it were looked at with women’s interests,” Hirshman said.
For instance, she said, “Crimes of passion might be categorized as first degree murder because they are (examples of) a larger, stronger, less vulnerable person taking advantage of a smaller, weaker, more vulnerable person.”
Larson has proposed the creation of a “sexual fraud” personal injury lawsuit, through which women who had entered sexual relationships under false pretenses could sue their partners for any resulting injuries.
Being a woman, however, can be an advantage for a criminal defendant.
“In most situations, the woman sentenced for a crime will get a lower sentence than a man who has committed the same crime and has a similar background,” said U. of C. law professor Stephen Schulhofer. “The stereotypes play themselves out in a sort of protective, paternalistic attitude.”
But the decisions to sentence women leniently are often fair, he said, because the women may have preschool children who would suffer if their mother received a longer sentence.
“And there are some case where a woman is treated more harshly than a man,” he added. “If a woman robs a 7-11 at gunpoint, she will probably be treated more harshly than a teenage boy because her so conduct seems so aberrant to a judge who is inured to seeing dozens of kids come through who have committed the same crime.”
At the gender bias conference, Schulhofer urged an emphasis on finding solutions that work for women rather than rhetorical attacks on gender bias.
Some well-intentioned measures backed by women’s advocates have backfired, he said. Mandatory arrest of accused batterers, for example, has been found to prompt more battering from the enraged man once he is released, he said.
“We need, not cultural criticism, but clear analysis of the actual workings of institutions and procedures,” he said.
Whatever path they take, feminist lawyers say, they cannot simply wait for younger, more egalitarian lawyers to replace attitudinal dinosaurs.
The Task Force on Gender Bias in the Courts in the 9th Circuit (West Coast) found that men under 40 were as unlikely as men over 40 to perceive the problems women lawyers reported, Schafran told conference participants.
But in her speech at the conference, Rovner said there are times she feels particularly hopeful for the future.
One was when she found herself presiding over a particularly difficult case in federal district court and looking up to see four women litigators representing the four parties.
“I remember pausing, taking in the scene and saying to a full courtroom, `I cannot tell you how wonderful it is to see the four of you standing where you are, doing what you are doing and representing who you are representing. I cannot explain what it means to me for this day to have arrived.’ ” she said.
“And one of the lawyers looked up and said, `Well, Judge, it looks pretty good from where we are standing too.’ “
