Long legal walk to freedom for women across the world

Equality of the sexes or gender is one right that many people other than closet chauvinists claim to support and agree with.

Yet, we still see misogyny in various aspects of life in most countries in the world.

Within the law, women have come a long way and, in some instances, still have a long way to go. This is with regard to the declared or assumed attitude of the law towards women.

I saw this when in the course of some work, my attention focused on the breast Milk Substitutes (Regulation and Control) Act.

This legislation passed in 2012 and its aim is to provide for appropriate marketing and distribution of breast milk substitutes and to provide for safe and adequate nutrition for infants through promotion of breastfeeding and proper use of breast milk substitutes.

Simply put, this is a law whose intention is noble one, to try and promote breastfeeding of infants by their mothers.

It seeks to do this by controlling the manner in which breast milk substitutes may be marketed and distributed in Kenya.

RAPE

The need and importance of promoting breastfeeding for infants may not be one which any rational person may dispute, but to establish a law that seeks to control the manner of access to nutrition, that is breast milk, is in my view an intrusion upon the right of the mother to decide for herself and the child the best method of nourishment to her child.

But, that legislation just shows how long history of the law and legal thinking pervades the lives of women and has done so for centuries and millennia.

One area in which paternalistic thinking influenced laws on women was the offence of rape.

Whereas it may appear that rape law on the face of it is meant to protect women, this is not necessarily the case.

Professor Susan Estrich of Harvard University revealed in her research of rape in the 17th century that the laws of rape under English Common Law were designed to protect men from false charges by vindictive women.

This thinking was best expressed by then-Chief Justice of England Matthew Hale, who infamously said that rape is a charge that is easy to make on the part of the woman, hard to prove for the prosecution and even harder to defend by the accused.

This distrust got elevated to a clear set of attitudes against women that have persisted to date.

VICTIMISATION

This attitude retained flavour and acceptance of Judge James Troianano in the state of New Jersey in the United States.

When the prosecutor applied to try the boy who had raped a 16-year-old girl as an adult, the Judge thought more of the accused than his victim.

He declined the request on the ground that the young man came from a good family and had excellent scores in school and therefore he did not deserve to be tried for the crime.

Instead, the blame was shifted to the victim and the judge said that the girl should have been told that pressing charges for the rape would destroy the accused’s life.

In the 19th century, judges took this notion that women were prone to making false accusations of rape to find men innocent unless it is shown that the woman accusing the man of rape had manifested utmost resistance.

The absurdity of this thinking about women is not over. Two weeks ago, a court in Ottawa, Canada, acquitted a man of rape charges on the ground that one of the complainants was unreliable because she had been too combative while answering questions during the trial.

MANSLAUGHTER

In the view of Ontario Superior Court Justice Robert Beaudoin, the fact that the woman victim was a combative and argumentative witness made her testimony that she had been raped difficult to believe. The judge then acquitted the accused person.

This streak of women victims being treated as responsible for the crimes committed against them when they are victims continued into this week when a woman in Alabama was charged with manslaughter of her unborn baby.

The surprise is that the woman lost the baby when she was shot five times in the stomach by an assailant in December last year.

The woman, named Marshae Jones, was indicted by a grand jury in Alabama on a manslaughter charge.

The reasoning of the prosecutor in bringing this charge was that Ms Jones had lost the child because she started the fight which resulted in the shooting and the death of her unborn baby.

In the prosecutor’s legal reasoning, the pregnant woman had negligently endangered and caused the death of her baby, hence the charge of manslaughter for her own baby. Even more surprising was that Ms Jones shooter was never charged.

DISCRIMINATION

This was seen as part of the fight against abortion in Alabama, where the Governor has signed a controversial law in May 2019 that prohibited abortion under any circumstances whatsoever, even rape or incest.

As at the time of writing, the prosecutor had indicated that the charges would be withdrawn.

These laws do not just go against women’s private lives as mentioned above. Misogyny has also been used to curtail women’s rights to pursue an education, to earn a living or to undertake entrepreneurial pursuits.

In 1873, the United states Supreme Court upheld a decision by the Illinois Supreme Court which denied a woman the right to practice law on account of her being female.

In so doing, the State court justified the decision by invoking divine authority in this atrocious line of reasoning: that God had designed the different sexes to occupy different spheres of action and that the duty of making, applying and executing laws was reserved for males as an axiomatic truth!

UNIVERSAL SUFFRAGE

Just before that, a women’s rights advocate Susan Anthony had been charged for the offence of voting in the presidential elections of 1872.

Women in the USA would not get the right to suffrage until the 19th amendment to the US Constitution passed in 1920.

Even women’s right to worship is curtailed on account of their gender.

In August 2018, the Supreme Court of India considered and made a decision outlawing prohibition in a case about women’s right to access and worship in a temple in the state of Kerala where access was restricted for women between menarche and menopause on the belief that the temple was dedicated to a celibate deity.

In Kenya, although the right to vote for women was granted at independence, within a decade, a religious court which sought to force a wife to return to her matrimonial home was filed.

There is no escaping the fact that women still struggle to get the right to administer their husband’s, brothers or parents’ estates as opposed to their male relatives.

Probably the most famous or infamous court decision of Kenya’s post-independence history is one where a woman disputed, and lost, a claim to bury her deceased husband at the site of her choice.

DYING WISH

The courts are overflowing with cases where brothers deny ,and sometimes with active and passive support from the courts, their sisters’ right to inherit their parents’ property, especially ancestral land.

Despite being given the short shrift by law, women generally comply with the law.

Josie Birds, 93, was arrested last week in Greater Manchester in the United Kingdom. The police were fully aware that she had committed no crime.

The reason for this was that her granddaughter had made a request to the police to arrest and handcuff her grandmother to grant the grandmother her dying wish to experience the feeling of being arrested, handcuffed and incarcerated.

The police were only too glad to oblige this request and confirmed that this was not the first time they had done this.

The prisoner in this case is said to have enjoyed her experience with the officers of the law.

BE ADVOCATES

The same police division also reported that another centenarian woman had made a similar request to be arrested a few years prior to Ms Birds’ request.

It does appear therefore that although laws would appear to be misogynist and impact women more harshly, the main offenders of the laws made to favour them, still end up being the majority of the offenders.

These results show plainly that equality for women from a legal perspective is an issue that we must retain in public eye.

We should be on the lookout for those countries in Africa still support misogyny, either overtly or by default.