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LAW OPINION

On law, language and gender
A gendered interpretation of any legal norm will not only help inquire into the inherited masculine bias and ideas of law but also identify how such bias, if any, could lead to the silencing and alienation of gender diversity.
ARIFUR RAHMAN
The interrelationship between law and language is manifestly powerful. Once it touches the sacrosanct body of law, even an ordinary word used by a lay person may have the potential of offering varied legal interpretations, and at times, legal dictations. Being a powerful tool, the language of law is expected to give voice to the oppressed and marginalised. Along with empowerment, the language of law, is, therefore, also a matter of universality, neutrality and objectivity. However, law – both as a discipline and as a device regulating societal relations – has been subject to the question of bias and prejudice for the expressions it uses to communicate with its subjects. Claiming to be neutral, law has, in fact, been accused of a discourse infused with expressions that are full of masculine bias and partiality.
The dominance of male perceptions in the language of law can be observed, for instance, in the most famous “reasonable man” concept. An imaginary person employed for setting a standard of care mostly in negligence law, “reasonable man”, as it suggests, actually necessitates the male standards and measures for the assessment. The concept that clearly possesses a gender identity determines what amounts to the ordinary or reasonable act of a person through the way a “man” would act. Masculine views and ideas are consequently the yardsticks to examine if the act in question would possibly pass the “reasonableness test”.
In Commonwealth v Welosky, the court, in this regard, affirmed the masculine nature of “reasonable man” by deciding that the meaning of the concept is only limited to men. Although in United States v Ciammitti , “reasonable woman” emerged as a plausible concept in the dissenting opinion, the majority marked “reasonable woman” as “an unnatural construction of legal writing” (Mary Ellen, 1988). As a consequence, what women experience and how women perceive has not had a place in the construction of “reasonable man” standard which tends to uphold what is stereotypically masculine.
Equally, the pronoun of law is masculine, despite its gender-neutral appearance. Resorting to masculine pronouns, that is, he , to refer to women in any legal instrument is a complacent practice. Generally, it is accepted that the pronoun he is inclusive of both men and women. A good example of the propensity of generic he in the language of law might be the Constitution of Bangladesh. The Constitution, while refraining itself from the use of feminine pronouns such as she , makes he a salient semantic feature that should be utilised as an accessory to include women.
In the same vein, the Penal Code 1860 (section 8) asks for a non-specific gender use of he to interpret the provisions of the Code. Another particular aspect of law is that it uses lexical items that are conspicuously gendered specially in the area of rape and sexual harassment. This involves inhabiting legal language with stereotypes and often patriarchal psyche. For example, section 354 of the Penal Code while proscribing sexual assault strikingly focuses on the modesty of a woman instead of the nature of the crime itself. The provision criminalises sexual assault as long as the perpetrator does such an act with the intention (or knowledge) to outrage the modesty of a woman. As elusive as phrases like “outraging modesty” are, embodying such within a law specially to define a gender-based crime reveals the ulterior motive of a law in relying on stereotypes and upholding the patriarchal belief that the modesty of a woman matters more than her bodily autonomy or security.
Also, what the wording of the law suggests is that to get legal redress for the violation of her bodily integrity, it is pertinent that the victim must have a lifestyle that would not make her a “bad victim” in the eyes of law so as to construe that she is a modest woman, and therefore, deserves legal protection. As a result, to prove the “modesty”, the law can go on questioning, say, for instance, the dress sense of the victim; and whether or not it is too provocative. Conversely, making “modesty” the epicenter of proving an act of sexual assault in a way also implies that the victims who are “immodest” would be deprived of a legal remedy, even if they suffer harm.
The world of law is complex and so is the language it nurtures. Engendering legal norms might appear as somewhat of an addition to the complexity that the language already possesses. But a gendered interpretation of any legal norm will not only help inquire into the inherited masculine bias and ideas of law but also identify how such bias, if any, could lead to the silencing and alienation of gender diversity.
The Writer is an Official Contributor at Law Desk, The Daily Star.
PHOTO COURTESY: epthinktank.eu