reasonable woman standard

Kelley Kelley513
Sun Apr 23 15:16:50 CDT 2000

alright so lavigne gave me a hard time for not publicly responding to his arguments about the standard since it was my last aff and is now my master's thesis, so i'm going to let him goad me...warning though--this is rather long, so hit delete unless you're really interested.

arg #1: the reasonable woman standard (rws) entrenches difference theory/stereotypes.

--depends on what you consider difference theory.  the rationale behind the rws is that women and men are *socialized* to react differently to sexual advances.  this doesn't mean that the differnece is biological in any way, so it doesn't entrench an essentialist notion of difference.  

--the women who are using the standard are filing *SEX* discrimination suits and already proclaiming there is a difference in how they were treated.  they're already stereotyped.  the rws doesn't entrench this anymore. 

--additionally, women are already subject to an imbalance of power in the workplace.  they are underrepresented and lack seniority, and the prevalence of data suggests that when women experience sexual harassment in the workplace, they do it in the context of this general lack of prominence.  combined with women's increased chance of being raped, this does cause a "different" perspective to emerge--that's what the rws is about.  recognizing that unique perspective.

arg #2: the rws essentializes women's experiences as the same.

--nope, it places a heavier emphasis on listening to the woman's individual story, which means that she can talk about the different parts of her identity.

--sexual harassment is based on harassment that occured because of a group identification.  the rws recognizes the general characteristic that is the basis for the harassment in the first place.  if we don't look at that, there is no basis for a claim.  

arg #3: the Cahn article

--specifically, Cahn has a problem with the reasonableness doctrine generally and does not support the continued use of the reasonable person either.  

--additionally, Cahn argues that it entrenches difference, which is answered above.  She also makes the argument that the rws isn't any more effective as a standard.  this has been proven untrue.  in the only empirical study i've seen on the effectiveness of the standard, the standard was found to have turned out negatively for a claimant once, and positive results were seen in all the other cases.

arg #4: the term is meaningless.

--this is only true if we believe that the term person has no preconceived notions attached to it by the courts.  yet when examining supreme court usage of the term reasonable person, it becomes apparent that the reasonable person is rhetorically constructed as a regular guy who rolls up his shirt sleeves while relaxing and having a beer after mowing the lawn.  and in a system so heavily dependent on precedent, how courts rheotically construct things in opinions has effects that go beyond the particular decision.  

--additionally, most judges are male and when asked to view something from the reasonable person's point of view, they will use their point of reference, which is the male point of reference.  the rws highlights women's experiences and socialization, and allows women to tell their stories.

arg #5: judges are male and can't ever understand/it doesn't lead to change

--cross apply the argument that the empirical evidence proves otherwise.

--the courts have tried to remedy this by allowing experts to come in and testify on the different ways men and women often perceive sexual harassment.  this allows the judges a basis for understanding.

--this assumes that people can't ever understand another person's point of view which is untrue.

arg #6: difference theory may be applied to abortion rights.

--see args about why it doesn't link in the first place.  cross apply.

--pregnancy discrimination act

--already does apply to abortion rights.  that's why the father doesn't have any say usually.  it's not his body--it's different.

arg #7:  portrays women as weak/victims

--no more than filing a sexual harassment suit does.

--allows women to tell their stories and stop feeling like they're victims--it's a positive action that allows many women the chance to fight back.

--argument ignores the fact that these women are already victims of sexual harassment and allows the harms to continue.

arg #8: rws precludes recognition/claims of males being harassed

--men have filed claims under the rws and been more successful than they were with the rps because they were allowed to tell their particular story and bring in experts that could talk about the effects of harassment on men.  

baylor debate
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