Academic journal article Northwestern Journal of Law and Social Policy

The Intersection of Dominance Feminism and Stalking Laws

Academic journal article Northwestern Journal of Law and Social Policy

The Intersection of Dominance Feminism and Stalking Laws

Article excerpt

Introduction

Stalking often brings to mind obsessive love:1 the ex-boyfriend who will not let go or the fan whose admiration of a celebrity has gone too far. Others think of obsessive hate, like an ex-employee terrorizing his former boss. Common to these characterizations is the motif of control through fear. The ex-boyfriend tries to control the ex-girlfriend by coercing her through fear back into a relationship or at least preventing her from moving on unscathed. The fan tries to control the celebrity through fear by making her love or simply acknowledge him. The ex- employee tries to control the former boss through fear by making her share in his pain.

A dominance feminist is very familiar with this pattern of behavior when it includes a male-to-female gender dynamic. To a dominance feminist, female subordination is defined by a man's physical, sexual, and social control over a woman, whether it is through rape, sexual harassment, or sexual assault. Stalking comports well with the dominance theory of feminism because perpetrators often attempt to control a victim through social manipulation or the threat of physical or sexual coercion. A perpetrator's control of a victim through fear is compounded by the perpetrator's preexisting societal position of power, whereby the perpetrator is likely to regard his behavior as acceptable, and the victim is unlikely to recognize his behavior as unacceptable.

Before 1990, implicit threats and persistent pursuit alone never constituted a crime. Feminists had reason to celebrate when the first state stalking laws swept through the United States, giving women legal agency against their stalkers.1 2 However, these laws represented only a partial victory.

This Note first will define dominance feminism and explain why stalking laws must remain a key concern for the feminist activist. It then will explain why stalking is a gendered crime and why the behavior of perpetrators and victims appropriately is analyzed from within the theoretical framework provided by dominance feminism.

This Note then will describe the myriad of ways in which states apply stalking laws. First, it will describe statutory language and statutory application that merits a dominance feminist's approval. Such language and application protects women from social, physical, and sexual subordination. For example, some states assess whether a victim's fear was reasonable through the perspective of the particular victim, allowing jurors, at least implicitly, to consider gender dynamics. Some states have refused to require an explicit threat in the conduct element of the crime, allowing a victim to seek relief when a perpetrator attempts to control her by evoking fear through vague words or loaded, non-violent actions. Some states have enumerated behaviors that may be implicitly threatening to a woman, making it more likely that a law enforcement officer or judge will recognize a conduct element to be satisfied through varied types of implicit threats.

This Note then will address the ways in which the dominance feminist's legislative victory fell short. Specifically, this Note will examine legislative constructions that limit effective responses to stalking. For example, some states require specific intent, prioritizing that the perpetrator not only knew but also intended for his conduct to be criminal. Some states classify stalking as only a misdemeanor, preventing law enforcement officers from arresting a stalking perpetrator unless the officers see the stalking conduct first-hand. Some states require an explicit threat or assault for the conduct element of the crime. Even more, some states require a threat to be "credible" to be actionable. Such stalking laws fail to protect stalking victims effectively. This Note will demonstrate that these laws are not written to prevent men from stalking women but instead, are written to prevent men from being convicted of stalking.

I. Dominance Feminism

"Dominance feminism" is a feminist theory that rejects the approaches of equality feminism and difference feminism. …

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