Feminism and the Power of Law (Sociology of Law and Crime) by Carol Smart

By Carol Smart

During this now confirmed textual content the writer offers her research of the ability of legislations and argues for a feminist post-structuralist technique. She reviews on pornography, in addition to discussing fresh learn on rape trials and abortion laws.

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THE POWER OF THE LAW not only would it be a bold and brave judge…who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would be a really foolish judge… (Paton v British Pregnancy Advisory Service Trustees (1979) QB 276:282) In this case we see law deferring to medical knowledge/power. In Foucault’s terms we can see the ‘principle of right’, giving way to the ‘mechanisms of discipline’. Unlike the adoption cases, questions of the viability of foetuses have remained within the medical sphere, subject to scientific criteria, whilst questions of the interests of children have been historically formulated in a much wider fashion.

Hence taking the sex out of rape has been seen as a way to improve the treatment of raped women by the criminal justice system. Yet such strategies are bound to fail as you cannot, by fiat, take the sex out of a sexual act, it will creep back in at every point. However, there is a difference between saying that we should not call rape violence because this means we fail to face the larger and more difficult problem of phallocentric sex, and saying that we should not call rape violence because all (hetero)sex is violence.

So this sexuality of which they have charge is construed as an essence which can by-pass consciousness or which has a will of its own. This in turn allows for the construction of women’s consciousness simply as a one-dimensional prudery, an inappropriate moral standard imposed by mothers on daughters. It is not regarded as an expression of a woman’s will but rather the mouthing of a convention which defeats the woman’s own potential for sexual satisfaction. In other words if women say ‘no’ they do not really mean it.

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