The Gable Tostee case is part of a broader problem of the law reflecting male standards

The Gable Tostee acquittal exposes a fundamental problem with Australia’s legal system: that its standards are built on a male view of the world.

Tostee could be found guilty of murder if Warriena Wright was so in fear of her life that she felt she had no choice but to climb over the balcony. This question is referenced in the context of what a “reasonable person” would do. However, references in the legal system to “reasonable person” are acutally references to a “reasonable man”. Most of them were actually labelled “reasonable man” originally, such as the “reasonable man on the Clapham omnibus” in tort law. They were set up decades – in some instances hundreds of years – ago when men controlled all facets of public life. The change to “reasonable person” was a nod to equality, but it was nothing more than altering the label; it did not actually address the standard itself by taking into account a female perspective.

This is not a vent against a male dominated society. The motivations and circumstances around men controlling society is a broader discussion. But that they did means it is simply reality that the construct of society references their viewpoint at the exclusion of women, if only because they did not know that women are different, much less how to incorporate that.

The context in which women exist in society is very different to men. This is particularly pertinent when it comes to feeling fearful and threatened. The reasonable person standard exists on a premise of imminent threat in a male way: the idea that two people are directly interacting and likely in physical proximity to each other. But women can be afraid and feel threatened or intimidated in a much more indirect sense. If I am walking down a street when it is getting dark and the only other person on that street is a man walking 20 metres behind me, I am immediately nervous and conscious of the risks. I will quicken my pace, start looking for places I can run for help if need be, perhaps alter my walking route.

Of course not every man who walks down a street is a potential attacker. But women have to be conscious of those risks because the reality is that there are those attacks, and much more frequently than is properly acknowledged. Moreover, women are told by society that we must be conscious of those risks, that a part of the burden of being attacked falls upon us for placing ourselves in a vulnerable position. In a rape case, a woman’s behaviour will be questioned as much as the man’s. This is yet another example of how the legal system is built around a male view of the world.

It also demonstrates how women are between a rock and a hard place: if we react to a potential threat, as we have been taught to do, the reasonable man standard will see our behaviour as irrational; but if we don’t react, the male standard will also blame us for not taking greater precautions to protect ourselves.

I have no doubt that Wright was terrified on that balcony. As a woman I would have been thinking, “He is going to come out here and attack me and what am I going to do?” He had made references to it earlier, he had refused to let her leave, and he was aggressive, and he was much bigger. I would have had no chance of defending myself. In that moment of terror I may well have reacted as Wright did. If it is the case – and it is – that this is a normal female reaction, then any reasonable person standard must take this into account.

What the societal and legal construct fail to account for in the male-female dynamic is how disempowering the physical advantage is for women, and the vulnerability that creates. Rather, it actually reinforces this. If a woman is in a one on one situation with a man and things get difficult, there is very little we can do to protect ourselves. Women spend a great deal of time managing awkward situations to prevent them from escalating (which is also another element of disempowerment), and if things start to look like they are getting out of hand, our best – and only realistic – options are to flee or submit. If I am alone with a man and he starts standing over me or making threats, no matter how innocuous they may seem to him, I will either run or try to placate him. There is nothing irrational about this. In fact, it is an entirely logical and rational course of action in the circumstances.

What society also fails to grasp is that we are conscious of this threat long before it gets imminent in most men’s – and the law’s – eyes. Feeling threatened for us involves risk factors of which men are generally not aware. As a sex worker who spends a lot of intimate time with men, I have experienced this lack of awareness on a frequent basis. Putting aside the men who actually get off on trying to assert their power, there are still plenty of men who persist in trying to push the boundaries, not understanding that I am becoming concerned. When I have pointed this out they react with surprise – “But I was only asking!” – not comprehending on any level that their greater physical size means I have been asking myself right from the get go how likely they are to force the issue, how to avoid that happening and what I will do if it does unfortunately come to that.

Beyond an unwillingness to do so, there is no reason why society cannot take this into account. Going back to the example of a woman walking down a street alone, it would be easy for the man to take measures to indicate he was not a threat. Cross the street, slow down so he’s not gaining pace, walk a different way. Before putting forward the argument that this is unfair on men because they are not all attackers, consider that the burden for managing these situations has always fallen to women. I am not suggesting that men now take on all the burden, but that responsibility is shared, that men have a bit of awareness of the situation. And direct any annoyance at the inconvenience towards the male attackers who have created this situation in the first place.

The law can also be changed so that standards are an accurate reflection of society as a whole, taking into account the female perspective. Indeed, that it was merely the label that changed, from reasonable man to reasonable person, is a disservice because it has obfuscated the maleness of the standard behind a veneer of equality, making it harder to address. The law must recognise that males and females perceive situations differently, and acknowledge that if it is to be a proper representation of community standards it must incorporate both points of view.

The idea that the existing standard is objective because it is based on a male perspective is a fallacy. Men are no more objective in situations than women. There are equal gender stereotypes in their make-up that prevent them from being so. A male perspective is simply the dominant paradigm, and the basis around which all of society is constructed. It influences every facet of our (male and female) thinking, often subconsciously, having been ingrained from the beginning of our lives, and it is very difficult to separate it out. The only way to reach a true level of objectivity would be to remove the male influence from society and start again with input from both genders.

At that point we would probably find that there is no truly objective viewpoint. Issues like vulnerability and risk cannot possibily be equal where there are two people who are inherently physically unequal. Instead, we need to accept that there are distinctions between the genders (and between two people of same gender in some instances) so society and the law must be mindful of both.

In the case of Gable Tostee, what should have been asked was whether Warriena Wright was in fear for her life as a woman and acted reasonably on that basis. Whether or not Tostee was reasonable in placing her on the balcony should not have been viewed in isolation as a form of restraint but in the context of an intimidating and aggressive figure having made references to throwing her off the balcony earlier in the night.

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The Gable Tostee case is part of a broader problem of the law reflecting male standards

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