It’s sometimes not that easy to write laws that can be applied equally to all people. A law that’s equal on its face may not be equal when applied.
Let’s look at a commonplace example of an “equal” law: the law against murder. But it’s not enough to just outlaw murder: we have to define murder, and define what are the legal defenses to being charged with murder. What kind of model we imagine our laws applying to will affect whether or not they’re actually equal when applied to real people.
So our laws say that killing in self-defense can be legal, and define “self-defense” as legitimate when a “reasonable person,” looking at the situation, would have felt that “imminent threat or a confrontational circumstance involving an overt act by an aggressor” was taking place. (The language I’m quoting comes from the Kansas Supreme Court, by the way, but the law is pretty similar to this nationwide).
In other words, once Brad pulls a knife and begins advancing on Bill, it’s legal self-defense for Bill to pull a gun and shoot Brad. But before Brad pulled that knife – committing an “overt act” that made him an “imminent” threat – it would have been murder for Bill to suddenly shoot Brad.
Is that self-defense law equal? Well, it’s certainly equal in the sense of being possible to hold women and men to the same standard. It’s very unequal, however, in terms of what threats to life women and men are most likely to face.
The most likely murderer of a man is a male stranger or acquaintance, and if a man defends himself, it’s likely to be an instance of “mutual combat” – Bob pulls a knife on Bill, Bill shoots Bob. The laws on self-defense are written for a model of what kind of situations are likely to happen to men.
In contrast, the most likely murderer of a woman is an abusive husband or boyfriend. Does the “mutual combat” model make much sense in this case?
It’s interesting to note what this requires of a battered woman who, though years of intimate knowledge of her boyfriend or husband, has excellent reason to believe her life is in danger: in order to defend her life, she must wait until her abuser is awake, alert and attacking before it is permissible to defend herself.
In effect, the defendant must act in a way that puts her life at profound risk to defend herself without being convicted of murder. That this is all judged against a “reasonable person” standard is extremely ironic, since no reasonable person would choose to put their life at such extreme risk if a less risky alternative is available. To meet a reasonable person standard, defendants must act irrationally, and fail to protect their own lives effectively. Isn’t that bizarre?
Would a reasonable hostage, if he knows he is no physical match for a terrorist captor, choose to wait for the man-to-man confrontation? No, of course not; a reasonable hostage would attack while his captor was asleep or had his back turned, if at all possible. But a reasonable battered woman cannot legally act to protect herself until her life is about to end – when it’s least likely that she’ll be able to defend herself.
This is what happens when laws are designed to be enforced equally according to a male model. The truth is, “equal enforcement” isn’t the same as “equality.” If the laws aren’t written to account for the real circumstances of people’s lives (not just men’s lives), then they will be unequal in application – no matter how equally enforced they are.
Now, to solve for this, we don’t have to have one set of self-defense rules for women, and another for men. We do have to have rules for self-defense that are molded around the kinds of situations in which women are most likely to have to defend themselves, as well as the kinds of situations in which men are most likely to have to defend themselves. The “reasonable person” standard has to become just that; what reasonable people, of both genders, do, instead of just what reasonable men do.