Lecture 16: Law & Gender Flashcards
social reproduction
- The process by which social systems sustain and reproduce themselves over time
- Involves networks of social processes and human relations under capitalism
- Produces the conditions necessary for people to exist and participate in society
Key elements of social reproduction
- Organization of care
- Gender roles
- Sexuality
- Influenced by institutions such as family, market, community, and the state
Gender essentialism vs. social construction
- Mid-20th century feminist theories challenged the belief that gender is natural or biologically determined
- Argued that gender is socially constructed, while sex is biological
poststructural influence
- Feminists influenced by post-structuralism deconstructed the sex/gender binary
- Judith Butler was a key figure in this shift
- Emphasis on how social meaning is attached to bodies and identities
Judith Butler
- In Gender Trouble (1990), Butler argued that both sex and gender are performative
- Gender is not something we are, but something we do—a repeated performance shaped by discourse and power
- This challenges the idea that sex is a stable biological foundation
sexuality and gender as not fixed
- Social gender differences are not simply caused by bodily (biological) differences
- Sexuality is not a direct expression of gender
- This view allows recognition of variation within male and female sexualities
poststructuralism and the sociology of law
Poststructuralism in the sociology of law challenges the idea that law is a stable, objective, or universal system. Instead, it sees law as shaped by power, language, and discourse, and as something that is always being constructed and contested
traditional (structuralist) view of law
- Law reflects a stable structure in society
- Law is seen as neutral, rational, and objective
- Legal rules come from a consistent logic or system (e.g., natural law, legal positivism)
- Law is a mirror of society’s norms and values
poststructuralist view of law
- Law is not fixed; it is fluid, constructed, and contextual
- Law operates through discourse — the way we talk about and interpret things
- Power is not just top-down (e.g., government), but embedded in everyday practices, institutions, language, and norms
- There is no single truth — instead, multiple, competing meanings
- Law helps construct social categories like “deviant,” “criminal,” “citizen,” “woman,” “minority,” etc
gender norms & the criminal justice system
- The law is not gender-neutral
- Gendered expectations shape how people are perceived, policed, prosecuted, and punished
three key theories that explain how gendered expectations work in the criminal justice system
- Chivalry hypothesis
- Evil woman hypothesis
- Familial paternalism
chivalry hypothesis
- Claims that women are treated more leniently by the criminal justice system because of paternalistic, protective attitudes.
- Rooted in traditional gender norms that view women as less dangerous, more emotional, or in need of protection.
key source for the chivary hypothesis
- Otto Pollak The Criminality of Women (1950)
- Argued women commit as much crime as men but are hidden and shielded by the system
- Claimed male police, judges, and juries treat women with chivalry and leniency
legal examples of the chivalry hypothesis
- Shorter sentences for similar crimes
- Diversion from prison to treatment programs
- Reluctance to arrest or prosecute mothers
viewing the chivalry hypothesis under a sociological lens
- Symbolic interactionism: Gendered perceptions shape legal decision-making
- Feminist theory: This “leniency” reinforces gender roles, not justice
critiques of the chivalry hypothesis
- Overgeneralizes – not all women are treated leniently
- Intersectionality matters: Black, Indigenous, poor, and queer women often do not receive leniency
- Often applied only to women who conform to ideal femininity: white, cisgender, heterosexual, nurturing, passive
sociology of law’s insight into the chivalry hypothesis
- Law does not just apply norms — it reproduces dominant gender ideologies
- Reinforces the myth of neutral justice by masking systemic biases
evil woman hypothesis
- Suggests that when women violate gender norms (e.g., commit violent or sexual crimes), they are treated more harshly than men
- Women are punished not only for breaking the law but for defying femininity
key source for the evil woman hypothesis
Chesney-Lind & Pasko (2004) – The Female Offender: Double deviance: women punished for both the crime and gender deviance
legal examples of the evil woman hypothesis
- Violent women framed as “monsters” in media/courts
- Harsh sentencing in infanticide, assault, or sexual abuse by women
- Female sex offenders often depicted as uniquely predatory
viewing the evil woman under a sociological lens
- Labelling theory: Deviance is socially constructed — women who deviate from norms are labeled as “doubly deviant”
- Tied to Durkheimian views on social cohesion: punishment as a reaction to norm violation
familial paternalism
- Legal actors treat women in terms of their family roles — as mothers, daughters, or wives
- Decisions often made “in the best interest of the family,” not the individual
key sources for familial paternalism
- Carol Smart (1989) – Feminism and the Power of Law
- Law maintains patriarchal structures by reducing women to familial identities
- Also informed by Critical Legal Studies and Feminist Legal Theory
legal examples of legal paternalism
- Sentencing mitigated for women with caregiving roles
- Child custody often assumes women are natural caregivers — unless they defy gender norms
- Victims of domestic abuse blamed for “not protecting their children”
sociological lens of legal paternalism
- Functionalism: Preserves social order by reinforcing family roles
- Conflict theory: Law protects patriarchal control of the family and women’s bodies
Karla Homolka & Paul Bernardo
- Paul Bernardo: Canadian serial rapist and murderer
- Karla Homolka: His wife and accomplice in multiple rapes and murders.
Karla Homolka & Paul Bernardo case timeline
- Late 1980s – Early 1990s: Bernardo sexually assaults multiple women in the Toronto area, earning the nickname The Scarborough Rapist.
- 1990: Karla and Paul become engaged, then married.
- 1990–1992: The couple kidnaps, sexually assaults, and murders three young women, including Karla’s own sister, Tammy Homolka, who died after Karla drugged her as a “gift” to Paul.
Karla Homolka & Paul Bernardo case outcome
- In 1993, Karla struck a plea deal with prosecutors:
- In exchange for testifying against Bernardo, she received 12 years in prison for manslaughter.
- The public accepted this deal until video tapes surfaced, showing that Karla was not just a passive victim, but an active and willing participant in the assaults and killings.
public reaction to the Karla Homolka & Paul Bernardo case outcome
- The case became known as the “Deal with the Devil.”
- Many felt she manipulated the justice system and escaped accountability.
- Her portrayal shifted: from battered woman to a cold-blooded killer — a textbook case of how gendered narratives influence legal treatment.
Marxist feminism
- Combines Marxist analysis of class and capitalism with feminist analysis of gender and patriarchy
- Argues that women’s oppression is rooted in the capitalist economic system, where both class exploitation and gender subordination work together to maintain male dominance and capitalist interests
Silvia Federici
- Caliban and the Witch
- Shows how the rise of capitalism involved violence against women, especially through the control of reproduction and sexuality
- Legal systems were used to criminalize women’s autonomy (e.g., witch hunts, abortion laws)
Christine Delphy
- Argued that patriarchy is a system of economic exploitation, not just culture or ideology
- Marriage and family law reflect how women’s unpaid labor is extracted for capitalist gain
Mariarosa Della Costa
- Exposed how housework is essential to capitalism, yet unpaid and unrecognized by law
- Law treats domestic labor as natural and outside of economic value
feminist Marxist critique of family law
Reinforces unpaid domestic labor; marriage as economic dependency
feminist Marxist critique of employment law
Protects exploitative wage gaps and ignores reproductive labor
feminist Marxist critique of reproductive rights
Legal limits on abortion and contraception control women’s bodies for capitalist productivity
feminist Marxist critique of property law
Property rights historically denied to women; women’s contributions to family wealth unrecognized
