Christianity, Feminism, and the Law


CHRISTIANITY, FEMINISM, AND THE LAW
Angela L. Padilla* and Jennifer J. Winrich**

I. INTRODUCTION: THE CONNECTION BETWEEN
CHRISTIANITY, FEMINISM, AND THE LAW

Man enjoys the great advantage of having a god endorse the code
he writes; and since man exercises a sovereign authority over wom-
en, it is especially fortunate that this authority has been vested in
him by the Supreme Being. For the Jews, Mohammedans, and
Christians, among others, man is master of divine right; the fear of
God, therefore, will repress any impulse towards revolt in the
downtrodden female.'

-Simone de Beauvoir, The Second Sex.

Feminists who study women and the law confront a system which re-
flects the values and interests of patriarchy. Carol Smart, in discussing the
power of law to disqualify women's experience and concerns, argues that
there is a "congruence between law and what might be called a 'masculine
culture,' and that in taking on law, feminism is taking on a great deal more
as well."2 Since a whole constellation of forces is at work in the establish-
ment and reinforcement of patriarchy, feminists must look beyond the letter
of the law and examine the cultural, social, religious, and economic forces

* Angela L. Padilla, J.D., Columbia University School of Law, 1991. B.A., Harvard
and Radcliffe Colleges, 1987. Associate with Morrison & Foerster. I would like to thank
Lisa Martinez, Sara Krusenstjerna, and Jennifer White for useful comments on earlier
drafts of this article. I would also like to thank Tina Connely, who made it possible for
me to attend law school. Finally, I thank the members of the Gay and Lesbian Law
Students Association for sharing their courage and support so generously with me.

- Jennifer J. Winrich, J.D., Columbia University School of Law, 1991. B.A., Uni-
versity of Georgia, 1988. Associate with Cleary, Gottlieb, Steen, and Hamilton. I would
like to thank my mother and father who encouraged me to hear and follow my own
voice and enabled me to find the God within. I would also like to thank Mae Hanson,
Laura Williams, and Charles Higgins for their support and encouragement. This
article is dedicated to Cynthia who survived, and is in memory of Olger Hanson
through whom the words became real.

Both authors would like to thank Subha Narasimhan for her supervision.
I S. de Beauvoir, The Second Sex 621 (1949).
2 C. Smart, Feminism and the Power of Law 2 (1989).



Columbia Journal of Gender and Law

behind women's oppression.3 To this end, we will consider the role of reli-
gion as one of these forces, because we cannot ignore religion and still hope
to understand the patriarchal legal framework in which women and men
operate.

4

The patriarchal components of most historic religions5 have largely been
revealed. The result, at first glance, seems to be a clash between religion and
feminism. The feminist must ask, whose purpose and goals does patriarchal
religion serve?6 Why participate in a religion whose symbols only amplify
what is already destructive for women and men?7 As a result, many femi-
nists reject their religious traditions, concluding that they are beyond de-
construction, reconstruction, and transformation.8 But many women, whose
backgrounds represent a variety of religious heritages, have instead struggled
to reconcile their identities as feminists and as members of a particular
religious group.9

There are several reasons why we as a group cannot simply ignore soci-
ety's traditional religious systems. Society, through the promulgation of a
set of religious beliefs, addresses the questions that anthropologists say are

3Harrison & Heyward, Pain and Pleasure: Avoiding the Confusions of Chris-
tian Tradition in Feminist Theory, in Christianity, Patriarchy, and Abuse: A Femi-
nist Critique 148 (J. Brown & C. Bohn eds. 1989).

4 A. Wilson Schaef, Women's Reality. An Emerging Female System in a White
Male Society 161 (1981).

' For theories on patriarchal invasions of prehistoric matriarchal societies and
matrilocal religions see R. Eisler, The Chalice & The Blade (1987); M. Stone, When
God Was a Woman (1976); Rich, Prepatriarchal Female/Goddess Images, in The
Politics of Women's Spirituality 32 (C. Spretnak ed. 1982). Because these prehistoric
societies were not typically based on inequality or hierarchical power, the authors
often prefer the terms "gynocentric" or "pre-patriarchal" to describe them.

6 Spretnak, Introduction, in The Politics of Women's Spirituality, supra note 5,
at xi.

Parvey, Re-membering: A Global Perspective on Women, in Christian Femi-
nism: Visions of a New Humanity 158, at 177 (J. Weidman ed. 1984).

8 Many of these women reconstruct their own history from their own feminist
myths, and often return to a Goddess-centered religion. See, e.g., Starhawk, Dreaming
the Dark: Magic, Sex, & Politics (1982); Starhawk, The Spiral Dance: A Rebirth of the
Ancient Religion of the Great Goddess (1979); M. Stone, Ancient Mirrors of Wom-
anhood: Our Goddess & Heroine Heritage (1979); M. Stone, supra note 5.

' The problem of reconciling feminism and patriarchal religion is one shared
by most feminist women who identify themselves as members of a traditional reli-
gious group. Although we will examine only Christianity and feminism, the same
issue arises, for example, in Islam, Judaism, and Hinduism.

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Christianity, Feminism, and the Law

necessary for a culture to answer. the individual's relationship to self, to
others, and to the universe.10

First, on an individual level, religion often shapes how we define our-
selves and aids in the formation of our worldview. Women's self-definition
often involves dual identification with women and with members of a reli-
gious group. This internalization of a religious identity is often so deeply
imbedded in the psyche that it is difficult for women to challenge or aban-
don it, even if they are consciously aware of it. As feminist theologian Mary
Daly suggests, "[Wlomen have been divided from each other by pseudo-
identification with groupings which are androcentric and male-dominated.
Among these are the various religions whose ideologies degrade and mys-
tify women to such an extent that even the fact of this degradation is not
perceived by its victims.""

Regardless of the individual woman's particular awareness, we cannot,
and perhaps should not, make religious women choose between feminism
and their personal religious beliefs if we want to include all women in the
feminist movement. We cannot effectively advocate legal, economic, or any
other type of reform in ways that dismiss a woman's religious heritage. An
example of this argument is found in Farida Shaheed's study of the extent to
which Islam as an ideology has legitimized the patriarchal system in Paki-
stan. Although acknowledging a strong causal connection, she argues that
feminists must operate within the religious belief system of Islam if they are
to be effective. She warns, "a women's movement needs to be perceived as

For a feminist look at Islam see, e.g., N. el-Saadawi, The Hidden Face of Eve
(1982); F. Mernissi, Beyond the Veil: Male-Female Dynamics in Modem Muslim So-
ciety (1987); Shaheed, The Cultural Articulation of Patriarchy: Legal Systems, Islam
and Women, S. Asia Bull. (1986).

For a feminist look at Judaism see, e.g., J. Plaskow, Standing Again at Sinai:
Judaism from a Feminist Perspective (1990); On Being a Jewish Feminist: A Reader
(S. Heschel ed. 1983); Plaskow, Jewish Memory from a Feminist Perspective, in
Weaving the Visions: New Patterns in Feminist Spirituality 39 (J. Plaskow & C. Christ
eds. 1989).

For a feminist look at Hinduism see, e.g., M.N. Srinivas, The Changing Position
of Indian Women, T.H. Huxley Memorial Lecture delivered at London School of
Economics (1978); Wadley, Women and the Hindu Tradition, in Women in India:
Two Perspectives (1977); How, Mar. 1983 (issue of this New Delhi publication is
devoted to the question of dowry in India).

10 Weaver, Images and Models--in Process, in The Politics of Women's Spiritu-
ality, supra note 5, at 249, 250.

u M. Daly, Beyond God the Father: Toward a Philosophy of Women's Libera-
tion 132-33 (1973).

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Columbia Journal of Gender and Law

rooted in the cultural reality of the society in which it operates ...
[D]iscriminatory laws sanctified through Islam cannot be effectively coun-
tered with arguments which deny or discard Islam." 2 So, even if we as in-
dividuals reject our culture's religion along with its patriarchal worldview,
we must interact with those individuals who do not-they are our victims,
police officers, judges, juries, and lawyers. In the United States, Professor R.
Kent Greenawalt reminds us, we must "live in a country in which a large
number of people are seriously religious .... ,,13

Second, on a larger scale, religion shapes societal values and norms and
in turn is shaped by societal beliefs and goals. The historical consequence of
this interaction is that religion plays a role in "being shaped by and in sacral-
izing the social patterns of sexism. Religion makes sexism appear the nor-
mative nature of human relations, the order of creation, and the relation of
God to humanity and history."14 Although religion is sometimes used ex-
plicitly to socialize, more often it is only one element present in the process
of socialization, and therefore enters through a dynamic that is largely im-
plicit, uncalculated, and unconscious, but which operates to reinforce all of
the harmful attitudes and stereotypes of patriarchal society."5

The effect of this process of socialization on the law cannot be over-
looked. The law recognizes those acts that are socially acceptable by sanc-
tioning and/or ignoring them, while it defines those that are unacceptable
by penalizing them.16 The result is that the law tends to legitimize and pre-
serve the status quo while continuing to reflect the ideology and power
structure of the socially dominant group.17

In the United States, this power structure and dominant ideology have
been strongly influenced by the Judeo-Christian tradition." In this article, we

12 Shaheed, supra note 9, at 38, 43.
13 Greenawalt, Religious Convictions and Lawmaking, 84 Mich. L. Rev. 352, 356

(1985).
" Radford Ruether, Feminist Theology and Spirituality, in Christian Feminism:

Visions of a New Humanity, supra note 7, at 9, 10 (emphasis added).
1s M. Daly, supra note 11, at 2.
16 Shaheed, supra note 9, at 38.

17 Id.
18 By "Judeo-Christian" tradition we are referring to the tradition derived from

both the Old Testament (Judaism) and the New Testament (after Christ). For Chris-
tians, both the Old and the New Testaments are authoritative in shaping theology
and religious practice. Because only the texts of the Old Testament, not the New
Testament, are authoritative in Judaism, the Old Testament is referred to as the He-
brew Bible in Judaism.

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Christianity, Feminism, and the Law

limit our discussion of the influence of this tradition to an examination of
Christianity.1 Many of our laws can be traced to their biblical roots." But

For a history of Christianity in America, see R. Handy, A Christian America:
Protestant Hopes and Historical Realities (2d ed. 1984); W. Hudson, Religion in
America (1981); Religion and America: Spirituality in a Secular Age (M. Douglas & S.
Tipton eds. 1982).

This work also reflects our own personal experiences as feminists brought up in
the Christian tradition. In speaking of Christianity, we recognize that we are speak-
ing within the confines of our own subjective experiences as a Latina/white, lesbian,
middle-class American woman and a white, heterosexual, middle-class American
woman.

Women's experiences of both Christianity and feminism are shaped by their
race, ethnicity, class, and sexual orientation. For an understanding of African-Ameri-
can, Latina, Asian, and other women of color's experiences of Christianity and
feminism, see J. Cone, A Black Theology of Liberation (1970); J. Cone, God of the
Oppressed (1975); J. Grant, White Women's Christ and Black Women's Jesus: Femi-
nist Christology and Womanist Response (1989); S. Thistlethwaite, Sex, Race, and
God: Christian Feminism in Black and White (1989); A. Thiam, Black Sisters, Speak
Out: Feminism and Oppression in Black Africa (1986); Against Machismo (E. Tamez
ed. 1987); Home Girls: A Black Feminist Anthology (B. Smith ed. 1983); Through Her
Eyes: Women's Theology From Latin America (E. Tamez ed. 1989); With Passion and
Compassion: Third World Women Doing Theology (V. Fabella & M. Oduyoye eds.
1988).

For an understanding of lesbian women's experiences of Christianity and femi-
nism, see J. Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People
in Western Europe from the Beginning of the Christian Era to the Fourteenth Cen-
tury (1980); C. Heyward, Our Passion For Justice: Images of Power, Sexuality, and
Liberation (1984); C. Heyward, Speaking of Christ: A Lesbian Feminist Voice (E.
Davis ed. 1989); A. Ide, Loving Women: A Study of Lesbianism To 500 C.E. (1985); J.
McNeil, Taking a Chance on God: Liberating Theology for Gays, Lesbians, and Their
Lovers, Families, and Friends (1988); S. Pennington, Good News For Modern Ways:
A Pro-Gay Biblical Approach (1985); R. Scroggs, The New Testament and Homo-
sexuality: Contextual Background For Contemporary Debate (1983).

19 By limiting this article's focus to Christianity, we do not seek to imply that

Christian feminism fulfills the struggles of feminist women of all religious affiliations.
We especially do not intend to affirm Christian feminism at the expense of feminism
within other traditions. Just as the traditional religious worldviews of other groups
may operate differently from the traditional Christian worldview, so also the solu-
tions offered by feminists within each group may differ. We seek to write from within
our own Christian tradition, and our identification of its misogynist patterns and of
its feminist potential is rooted in an analysis of Christianity itself, and not in a con-
trast with any other tradition.

2o For a discussion of the biblical underpinnings of rape laws in Massachusetts
as an example of this tendency, see Note, Rape Law in Massachusetts: Our Puritan
Forbearers and Other Cultural Remnants, 22 N. Eng. L. Rev. 89 (1987).

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Columbia Journal of Gender and Law

perhaps more importantly, when we consider our laws and legal outcomes
as they affect women, we see many values strongly reflected whose origins
are found in the traditional Christian religion. It is for this reason that we as
feminists cannot dismiss America's Christian heritage.

Analysts in both the first and second waves of feminism have ex-
posed the sexism behind Judeo-Christian symbolism, ideology,
structure, and ministry, but such revelations have often been dis-
missed by the feminist movement at large as wastes of energy that
would better be spent on real political work. The message... is not
that patriarchal religion is merely "unfair" in itself: The lies about
the nature and function of woman that are intrinsic to patriarchal
religion have informed the legal, educational, political, economic,
and medical/psychiatric systems of our society and are accepted as
"natural truths" by even the most modem and/or atheistic citizens.21

Professor Greenawalt, who goes so far as to argue that members of a
liberal democracy can and should rely on their religious convictions when
rational secular morality fails to provide answers to their questions, similarly
acknowledges the often unnoticed role of religion in socialization in the
United States.

[Ilt certainly is true that our country has a rich religious tradition
and traces its cultural roots to a civilization in which religion has
been a major element. Even positions that are not consciously religious
are often deeply influenced by religion .... [and elven when the
religious believer consciously relies mainly on naturalistic arguments,
important religious premises may lurk in the background.23

This religious influence is evident in legal opinions. Justice Bradley,
writing in 1872, stated that "the paramount destiny and mission of woman
are to fulfil the noble and benign offices of wife and mother. This is the law of
the Creator."24 More recently, Chief Justice Burger, concurring in Bowers v.
Hardwick,2 explicitly referred to Christian religious tradition to reinforce his
view that sodomy laws should be upheld: "[Tihe proscriptions against

21 Spretnak, Introduction, supra note 5, at xi.

2 See Greenawalt, supra note 13, at 371-88.
Id. at 379 (emphasis added).

24 Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring)
(emphasis added).

I Bowers v. Hardwick, 478 U.S. 186 (1986).

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19911 Christianity, Feminism, and the Law 73

sodomy have very 'ancient roots.' Decisions of individuals relating to homo-
sexual conduct have been subject to state intervention throughout the histo-
ry of Western civilization. Condemnation of those practices is firmly rooted
in the Judeao-Christian moral and ethical standards."2

It is our thesis that Christian legitimization of patriarchal law is without
justification. We will demonstrate that Christianity, as traditionally defined,
infiltrates our legal process to the detriment of women. In the first part of
this article, we will examine the traditional Christian worldview and the
subsequent model of "woman" it presents. By then focusing on the legal
outcomes of this model as they affect female victims of violence, we will
suggest ways in which Christian patriarchy is replicated in the law to harm
women. The second part of our article will set forth an alternative model of
women espoused by Christian feminism and will propose how this view
might result in improved legal outcomes for women.

II. THE TRADITIONAL CHRISTIAN WORLDVIEW:
"WOMAN" IN THE BIBLE

The Bible defines woman in relation to man: she is subordinate to man
and she is his property. Male power over women is rooted in the Bible's
construction of woman as guilty for the introduction of sin into the world,
deserving of pain and suffering, seductive, wily, and sexualized. This con-
cept of female inferiority has pervaded Western religion and law throughout
the ages. It results in a set of normative assumptions about male authority to
own, use, exchange, and have sexual access to women. While the biblical
construction of men gives them power and rights, women are given few
rights as individuals. Male violence against women is rooted in and may be
the logical consequence of these basic patriarchal assumptions of women's
status." Traditional patriarchal law, like the Bible as traditionally interpret-
ed, has constructed girls and women as subordinate to and owned by men.
The law, in much the same way as the Bible, has enjoined women to be
silent, submissive, and nonresistant to male violence. Both the law and the
Bible-based as they are on the same view of woman as subordinate, guilty,
and seductive-conspire in the perpetuation of women's inferior status, es-
pecially as this status is maintained by the fear of male violence both in the
home and in the world at large.

26 Bowers, 478 US. at 196 (Burger, CJ., concurring).
v Radford Ruether, The Western Religious Tradition and Violence Against

Women in the Home, in Christianity, Patriarchy, and Abuse: A Feminist Critique,
supra note 3, at 31.



Columbia Journal of Gender and Law

A. The Authority of Scripture

In order to understand how "woman" is defined in the traditional
Christian worldview, s the worldview on which our normative assumptions
about men and women in the legal system are based, we need to understand
how the Bible is interpreted by traditionalists. For traditionalists, the author-
ity of scripture is based on an understanding of scripture as the Word of
God. Scripture is viewed not as a historical document that one studies crit-
ically but as perfect revelation from God. The Bible, in this understanding,
"not only communicates the Word of God but is the Word of God .... [It] is
not simply a record of revelation but revelation itself."29

This identification of revelation with scripture results from the belief
that scripture is "wholly miraculous, the product of an inspiration which
suspended the ordinary processes of human thought and guaranteed iner-
rancy."as In this understanding the authority of scripture is grounded in its
"inspired" and "apostolic" origin from God.31 As "inspired" in origin,
scripture is the product of the Holy Spirit working through human authors,
and this divine source acts as proof that the scriptural text reveals God's
truths.3 As "apostolic" in origin, scripture is understood to be the Word of
God as it was received and recorded by the apostles, men who were em-
powered to exercise Christ's authority. Thus the role that humans played in
the recording and transmission of scripture is not believed to have contam-
inated the authority of the texts, for the apostles were empowered to speak
with Christ's authority.'

This approach to scripture rejects the claims of liberal theologians that
the Bible is a historically and culturally conditioned document that can be

2s By "traditional Christian worldview" we are referring not to any one Chris-
tian sect but to the underlying attitude of theological patriarchy shared by most
Christian denominations.

29 E. Schussler Fiorenza, Bread Not Stone: The Challenge of Feminist Biblical
Interpretation 25 (1984). Schussler Fiorenza is a Christian feminist scholar who, in
this passage, describes the traditionalist approach to scripture.

-0 H. Niebuhr, The Meaning of Revelation 55 (1941). Niebuhr was a liberal theo-
logian who embraced a historical-critical reading of scripture.

31 S. Clark, Man and Woman in Christ 330 (1980). Clark is a fundamentalist
scholar.

32 "Human beings actually wrote the scriptures, and the scriptures bear many
marks of the human personalities of their authors," this model concedes, "but these
works were nonetheless written under the inspiration of the Holy Spirit, and this
inspiration guarantees their truthfulness." Id.

33 See id. at 331.

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Christianity, Feminism, and the Law

read critically. If the traditional approach accepted such an understanding
of revelation as relative to time and culture, then feminist demands for liber-
ation through transformation of the social roles of men and women could
not be condemned, as they are by traditionalist theology, as violations of
scripture's mandate for female submissiveness. In the words of one woman
who adheres to the traditionalist interpretation of scripture:

I am convinced that the guidelines of the Bible with regard to
womanhood... cannot be dismissed as the product of long past
cultures with built-in biases and inequalities. Rather, I see them as
transcending human culture, based on God's total knowledge of
woman, and designed to give her the fullest and happiest life pos-
sible.34

This model of biblical interpretation results in a conception of the au-
thority of scripture as absolute. The truths which the Bible reveals are re-
garded as meaningful ways of shaping faith and practice throughout history
and across cultures. Consequently, this model resists the assertion that social
and ecclesiastical relationships and structures should change in response to
new social and historical circumstances.

B. "Woman" Defined

The traditional Christian worldview ascribes to men and women sepa-
rate, specific, and immutable social roles. In both the private realm of the
home and the public realm of cultural, legal, political, and religious institu-
tions, men and women are enjoined to fill distinctly different roles. The sub-
ordination of female to male is required both in the partnership of husband
and wife in the home and in the relationship between men and women in
the larger community. Both in the Bible and, as we are to see later, in the
law, female subordination is based on a concept of women (and children,
specifically female children) as the property of men. Implicit in this concept
of male ownership of female is the image of woman as guilty for causing the
"fall from grace" of humankind. Women's subordinate status is understood
to be a just punishment for this guilt.3' These basic patriarchal assumptions
of women's subordinate status, rooted in the Bible and replicated in law,
result in injunctions to women to be submissive and nonresistant to male

M. Hancock, Love, Honor, and Be Free 10-11 (1975).
3 Radford Reuther, The Western Religious Tradition and Violence Against

Women in the Home, in Christianity, Patriarchy, and Abuse: A Feminist Critique,
supra note 3, at 32.

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Columbia Journal of Gender and Law

violence and in the reallocation of blame from male perpetrator to female
victim. We will look at how "woman" is defined in a traditionalist interpre-
tation of scripture to see how these normative assumptions of female sub-
missiveness are developed.

1. Woman as Guilty and Deserving of Punishment

Then the Lord God said, "It is not good that the man should be
alone; I will make him a helper fit for him." ... So the Lord God
caused a deep sleep to fall upon the man, and while he slept took
one of his ribs and closed up its place with flesh; and the rib which
the Lord God had taken from the man he made into a woman and
brought her to the man.

Then the man said, "This at last is bone of my bones and flesh of my
flesh; she shall be called Woman, because she was taken out of Man."

Therefore a man leaves his father and his mother and cleaves to his
wife, and they become one flesh.

-Genesis 2:18,21-243s

To the woman, [God] said, I will greatly multiply your pain in
childbearing; in pain you shall bring forth children, yet your desire
shall be for your husband, and he shall rule over you."

-- Genesis 3:16

These passages from Genesis ascribe to God woman's subordination to
man. These and the biblical selections that follow are those most frequently
cited to define and justify the role of women in family and society. The
indications of subordination in this text are threefold.3 First, man is the
center of the creation story. Woman is created from and for him: "God pro-
vides [the man] with all that he needs for life: an occupation, land and wealth,
and a wife."3s The role of woman exists only in relation to man: the man has
the power to name her, and once created and named, the woman is to make
the man the center of her concern. Created to be a "helper" to man, a woman's
life is "oriented towards his in such a way that direction for her life comes
through him."" A second indication of subordination lies in the text's

s We are using the Revised Standard Version of the Bible.
S. Clark, supra note 31, at 24.

3SId.

3 Id. at 24-25.

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Christianity, Feminism, and the Law

language: the word "Adam," from the Hebrew ha-adam, means "the man" or
"the human" so that Adam "bears the name which is the designation of the
whole race.., and he keeps that name even after woman is formed and he
is no longer the only human."40 Thus, the male is understood to be the em-
bodiment of the human race and the female is his wife or "helper." Finally,
as the "first-born," Adam is empowered with a special precedence, and
therefore power, to name and govern not only the natural world around
him but his wife as well.41

Eve, however, rebelled against her submissive role when, against God's
command, she accepted the Serpent's offer of fruit from the Tree of Knowl-
edge. Eve's sin in accepting the fruit is that of thwarting her husband Adam's
rule over her actions. This female rejection of male authority is understood
to be the cause of evil in human existence. Before Eve took this independent
action, she was to respond to Adam with voluntary submission in recogni-
tion of his special nature as the first and generic human. But because she
disobeyed him, all women were thereupon assigned by God to forced sub-
jection instead of voluntary submission to men. As God stated the curse:

"[H]e shall rule over you."

-Genesis 3:16

Female suffering as an acceptable norm is a central aspect of this sub-
ordination of female to male. Thus, by God's design, women are to submit
to male authority and power, and women's pain and suffering are appropri-
ate punishments for female insubordination. This image of woman lays the
groundwork for legal and social acceptance of male violence against women
and, as we shall see later, is replicated in the legal system's treatment of
domestic violence, incest, and rape.

2. Woman as the Property of Man

God said:

"You shall not covet your neighbor's house; you shall not covet your
neighbor's wife, or his manservant, or his maidservant, or his ox, or
his ass, or anything that is your neighbor's."

-Exodus 20:17

40 Id. at 11, 25.
41 Id. at 25-26.

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The Lord said to Moses:

"You shall not uncover the nakedness of your father's wife; it is
your nakedness .... You shall not uncover the nakedness of your
brother's wife; she is your brother's nakedness."

-Leviticus 18:8,16

"If a man meets a virgin who is not betrothed, and seizes her and
lies with her, and they are found, then the man who lay with her
shall give to the father of the young woman fifty shekels of silver,
and she shall be his wife, because he has violated her."

-Deuteronomy 22:28-29

The power dynamic between men and women is reinforced by the bib-
lical construction of women as the property of men. In the Exodus passage,
God forbids men from coveting three forms of other men's property: things,
servants, and wives. Woman as property is further established by the rule
in the Deuteronomy passage which requires a man who "seizes and lies
with" (rapes?) a virgin to pay the virgin's father a certain amount of money
and to marry the young woman. This rule may seem to protect a non-virgin
from becoming destitute and outcast due to the loss of her virginity, which
constituted her value to a man in a patriarchal society. However, this rule
also functions to reinforce the male right to ownership and exchange of
females. It is the virgin young woman who suffers the loss in this situation,
yet she is not the one who is made whole by the money payment, because
she does not exist as an individual. Instead, the money is paid to her father.
The harm done to the female is imputed to her father because he "owns"
her and has the right to trade her for money.

The biblical incest taboo in the Leviticus passage further adds to this
ownership dynamic. Incest between male and female relatives is forbidden
not because the female herself is violated but because she "belongs" to another
man. Her violation functions as an offense against the man who owns her.
Again, it is the male relative's right of ownership, use, and exchange of the
female that is protected by the taboo. It is important to note that there is no
explicit ban on father-daughter incest in the biblical texts. All the female
relatives of potential male abusers who are protected by the taboo are pro-
tected because the property rights of another man-their husband, broth-
er-would be violated if the woman were incestuously abused. A man's
daughter, however, goes unprotected by the taboo because she "belongs" to

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Christianity, Feminism, and the Law

him alone. As a result, a biblical taboo on father-daughter incest must be
extrapolated from the text by analogy to the other forms of incestuous rela-
tions which are forbidden.

3. Woman as Seductive and Wily

The first-born of Lot's daughters said to the other:

"Come, let us make our father drink wine, and we will lie with him,
that we may preserve offspring through our father." So they made
their father drink wine that night; and the first-born went in, and lay
with her father; he did not know when she lay down or when she
arose. And on the next day, the first-born said to the younger, "Be-
hold I lay last night with my father; let us make him drink wine
tonight also; then you go in and lie with him, that we may preserve
offspring through our father." So they made their father drink wine
that night also; and the younger one arose, and lay with him; and he
did not know when she lay down nor when she arose. Thus both the
daughters of Lot were with child by their father.

-Genesis 19:32-36

This story of how Lot's daughters preserved their father's "seed" by
violating the incest taboo adds female seductiveness to the biblical construct
of woman in three ways. First, the story implies that daughters "want" to
have sex with their fathers, despite the fact that such sexual relations are
contrary to divine law as extrapolated from the Leviticus text by analogy.
Second, the story transfers the act of seduction, the act of violating the incest
taboo, from Lot to his daughters. This highly unlikely scenario sets the stage
for a "blame the victim" attitude about female victims of sexual offenses,
and it allows the true aggressor to escape guilt. Third, the story makes it
clear that the preservation of the father's "seed" is more important than
observing the taboo against father-daughter incest, a taboo which in the
modern day provides justification of protection from parental abuse of au-
thority and power.

4. Woman as Submissive Wife

In the New Testament, the hierarchy of male over female is further de-
veloped through images of the proper roles of husbands and wives in family
life.

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Be subject to one another out of reverence for Christ. Wives, be sub-
ject to your husbands, as to the Lord. For the husband is the head of
the wife as Christ is the head of the church, his body, and is himself
its Savior. As the church is subject to Christ, so let wives also be
subject in everything to their husbands. Husbands, love your wives,
as Christ loved the church.. . let each one of you love his wife as
himself, and let the wife see that she respects her husband.

-Ephesians 5:21-25,33

This text calls for the wife's subordination to the husband "in everything"
and for the husband to love his wife. The imbalance here is clear: women
are to respond to men with submission and respect, while men, not bound
by equivalent commands, are to act towards women with love.

Not only are women to be subordinate to men in this worldview, but
men and women are also assigned immutably separate roles in life. The
woman performs the role of procreating and nurturing in the private sphere
of the home and family, while the man fills the role of governing and bear-
ing authority, not only in the family but in the public world as well. The
description of a woman's role in the New Testament limits her to household
duties.

So I would have younger widows marry, bear children, rule their
households, and give the enemy no occasion to revile us.

-1 Timothy 5:14

Bid the older women likewise to be reverent in behavior, not to be
slanderers or slaves to drink; they are to teach what is good, and so
train the young women to love their husbands and children, to be
sensible, chaste, domestic, kind, and submissive to their husbands,
that the word of God may not be discredited.

-Titus 2:3-5

A woman's main concern, as described by these passages, lies in the home.
She is to remain at home, to be "domestic" or "keeper at home" so that she
can properly fulfill her roles as wife and mother. Note that an integral part
of this domesticity is chastity, which seems to function as a part of submis-
siveness to male authority.

Other gender-specific roles and attitudes outlined in the New Testament
reinforce this division between the separate worlds of men and women.

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Differences in dress and hairstyle, for example, are mandated to preserve
the distinct character of both sexes (1 Corinthians 11:2-16). In the churches,
men and women are assigned different roles: men are empowered to speak
while women are to remain silent and speak only at home (1 Corinthians
14:33-35).42 Women are compelled in 1 Peter 3:3-4 and 1 Timothy 2:11 to act
with chaste, modest, and reverent behavior to express their submission to
the men to whom they are subordinate.

C. Eve and Mary as Biblical Female Archetypes

We have seen through our preliminary examination of biblical text how
scripture, at least as traditionally interpreted, presents a model of woman as
one who is generally subordinate to man and submissive, silent, and chaste
in her role as wife and mother. If we further consider the images of two
individual women in the Christian tradition-Eve and "The Virgin" Mary-
we are presented with a reinforced patriarchal view of the nature of woman:
bad in the image of Eve and good in the image of Mary.

Eve's place in the creation story has already been addressed: she is born
out of man, is a helper of man, subsumed by man, and named by man. Still,
Eve's role in the story of the Fall cannot be overemphasized. Although many
Christians view the account as a nonliteral attempt by the religious leaders
of the time to explain the origins of human pain and suffering,3 "the fact is
that the myth has projected a malignant image of the male-female relation-
ship and of the 'nature' of women that is still deeply imbedded in the modern
psyche."" Thus, the patriarchal view of the bad woman as symbolized by
Eve cannot be dismissed lightly as myth.

Most Christians understand the story of the Fall of Adam and Eve to
represent original sin.' When Adam and Eve rebel against God in the Gar-
den, they are consequently expelled from Godly Paradise into a world of
pain and toil. Although both Adam and Eve will now suffer in a world
tarnished by human sin, Eve is seen as primarily responsible and thus be-
comes the scapegoat for "man's" earthly woes.

4 But see Talbert, Biblical Criticism's Role: The Pauline View of Women as a
Case in Point, in The Unfettered Word 62-71 (R. James ed. 1987) (interpreting Paul's
letter to the Corinthians as expressing outrage, not approval, of female silence in the
church).

But see S. Clark, supra note 31, for a literal view of the Fall.
M. Daly, supra note 11, at 45.

s For the story of the Fall, see generally Genesis 3.

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The story begins with God's command to Adam and Eve not to eat of
the tree of (carnal) knowledge. The Serpent then enters the Garden and
convinces Eve to eat of it. After Eve has disobeyed God and eaten the fruit,
she gives some to Adam and he eats it too. Suddenly, Adam and Eve be-
come aware and ashamed of their nakedness. When God appears to ques-
tion Adam about his disobedience, Adam admits that he has eaten of the
tree (i.e., sinned), but blames it on Eve:

The Lord God asked:

"Have you eaten of the tree of which I commanded you not to eat?"

The man said, "The woman whom thou gavest to be with me, she
gave me fruit of the tree, and I ate."

-- Genesis 3:11-12

Then God looks at Eve and also comes close to blaming her:

Then the Lord God said to the woman, "What is this that you have
done?"

-- Genesis 3:13

After Eve blames the Serpent, God curses the Serpent, the woman, and the
man.

To the woman he said, "I will greatly multiply your pain in child-
bearing; in pain you shall bring forth children, yet your desire shall
be for your husband, and he shall rule over you."

-Genesis 3:16

And to Adam he said, "Because you have listened to the voice of
your wife, and have eaten of the tree, of which I commanded you,
'you shall not eat of it,' cursed is the ground because of you; in toil
you shall eat of it all the days of your life."

-Genesis 3:17

Thereafter, Adam and Eve were banished from the Garden forever, after
which Adam had intercourse with Eve who conceived and gave birth to a
son..

From the myth of the Fall comes an image of woman as associated with
bodily evil. She is carnal, rebellious, and guilty. She is responsible for the
Fall. She is a femme fatale, a temptress and seducer of man who remains

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powerless against sin and temptation in her spell. Furthermore, she is to be
justly punished by God for her sexuality, rebellion, and tarnishment of "man."
She is cursed to bear children and to be ruled over by man. She will quite
deservedly suffer pain."6

Lest we assume that this image of woman had no impact and was seen
solely as a myth to explain human alienation from God, we are reminded by
Tertullian, speaking for the early Church, of just how guilt-ridden woman
was in the image of Eve.

Do you not realize, Eve, that it is you? The curse God pronounced
on your sex weighs still on the world. Guilty, you must bear its
hardships. You are the devil's gateway, you desecrated the fatal tree,
you first betrayed the law of God, you softened up with your cajoling
words the man against whom the devil could not prevail by force.
The image of God, Adam, you broke him as if he were a plaything.
You deserved death, [but] it was the son of God who had to die!47

For the church "fathers" after Augustine, woman was "the cause of the
Fall, the wicked temptress, the accomplice of Satan, and the destroyer of
mankind." 48 Moreover, women's penalty for being so fleshy and culpable
was provided by God through the pains of childbirth, which further identi-
fied them with the evils of sex.49

The implications inherent in this view of the nature of woman-a nature
thrust upon her by the biblical story of Eve-are truly dangerous. Mary
Daly, suggesting that few realize the significant connection between sexual
injustice and the creation myth,s° proposes several effects; these include in-
ternalization of the oppressor, internalization of blame and guilt, anxiety
over social disapproval, feminine anti-feminism, emotional dependence, self-
hatred as directed from the male outward against the woman and as direct-
ed from the woman inward against herself, and continued victimization of
women by both women and men.51

"Although it will not be a focus of this paper, this text has also been used to
justify the sexual division of labor. See M. Warner, Alone of All Her Sex: The Myth
and The Cult of the Virgin Mary 52-53 (1976).

11 M. Warner, supra note 46, at 58 (quoting Tertullian, Disciplinary, Moral and
Ascetical Works (1959)) (first emphasis added, second in original).

4M. Warner, supra note 46, at 58.
49 Id. at 57.
1 M. Daly, supra note 11, at 46.
s See id. at 44-68 for a general discussion of the internalization and socializa-

tion effects of the myth and image of Eve on women and men.

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Not only has the myth contributed to men's and women's internal psy-
chological and emotional dysfunctioning, it has infiltrated our society at large.

The myth has in fact affected doctrines and laws that concern wom-
en's status in society and it has contributed to the mind-set of those
who continue to grind out biased, male-centered ethical theories ....
The myth undergirds destructive patterns in the fabric of our cul-
ture. Literature and the mass media repeat the "temptress Eve" motif
in deadly earnest, as do the rationalizations for social customs and
civil laws, such as abortion legislation, which incorporate punitive
attitudes towards women's sexual function. 2

The Christian "cure" for woman's Eve nature is presented by the patri-
archal church through the image of the Virgin Mary, the "good" woman
exalted in the Christian tradition. This leads to the "Eve/Mary split":M

[The woman] is warned that she is, by nature, Eve-that by being a
woman she inherits insidious power allied with the evil one, which,
if not subdued by submission and obedience to her father or hus-
band, could contaminate and finally destroy humanity. However, if
she renounces her fundamental Eve-like nature and embraces a life
either of obedient virginity or submissive motherhood, she can save
not only herself but also the fathers, husbands, and sons she serves.
She becomes like Mary, immaculately conceived and safely sexless."

For both men who judge women5 and women who judge themselves,
the polarities are clear. "[Woman's] 'Eve nature' justifies punishment... she
can be raped, battered, dominated, exiled. When she is seen as 'Mary,' she is
honored and patronized, protected but excluded from decision making, seen
as pure but without passion."- Either way women are victims of patriarchal
morality. And, in practice, they can never really be "good" because the inim-
itability of the virgin-mother model (literally understood) has left all women
essentially identified with Eve.7

s2 Id. at 45. Daly refers to L. Lader, Abortion II: Making the Revolution (1973) for
"striking examples of this punitive attitude as implied in abortion legislation."

s C. Lore Weber, WomanChrist: A New Vision of Feminist Spirituality 87 (1987).
s4 Id.
s This Eve/Mary split may affect men by allowing them to think that they can

be "good" men and rape women because there are two kinds of women, "good" and
"bad"; that raping "bad" women is not "bad"; and that often for them, most women,
being associated with Eve, are "bad."

16 C. Lore Weber, supra note 53, at 87.
s7 M. Daly, supra note 11, at 82.

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Christianity, Feminism, and the Law

The image of Mary has its origins in Luke and Matthew's account of
Jesus' conception and birth.s Matthew tells us:

Now the birth of Jesus Christ took place this way. When his mother
Mary had been betrothed to Joseph, before they came together she
was found to be with child of the Holy Spirit; and her husband
Joseph, being a just man and unwilling to put her to shame, re-
solved to divorce her quietly. But as he considered this, behold, an
angel of the Lord appeared to him in a dream, saying, "Joseph, son
of David, do not fear to take Mary your wife, for that which is
conceived in her is of the Holy Spirit; she will bear a son, and you
shall call his name Jesus, for he will save his people from their sins."
All this took place to fulfill what the Lord had spoken by the proph-
et: "Behold, a Virgin shall conceive and bear a son, and his name
shall be called Emmanuel."

-Matthew 1:18-25

Whereas Matthew's sole intent seems to be to connect Jesus' birth to the
Old Testament prophesy, Luke adds drama and poetry and enlarges Mary's
role through accounts of the Annunciation, the Visitation, the Nativity, and
the Purification." Although Mary's special status as the mother of the God-
Son has roots in the New Testament Gospels, it was primarily the Roman
Catholic Church that was responsible for extolling her qualities of silence, 6

0

modesty, and self-effacement as a model for the female sex.61

When we consider the characteristics of the "good" woman as symbol-
ized by the Virgin Mary, we find an enigma which has given rise to complex
and confusing lines of religious doctrine, although most stress her glory as
Mother of the Divine and her abstinence from normal sexual relations. For
purposes of this paper, we will concentrate on those characteristics for which
she is valued and ultimately exalted as a woman.

First, Mary is untainted by original sin (i.e., human sexual intercourse).
According to some doctrines, she herself was conceived immaculately,

" John, Mark, and Paul do not mention Jesus' virgin birth. The Roman Catholic
Church later, adopted an official doctrine of the Immaculate Conception (i.e., not
only was Jesus conceived without human intercourse, Mary herself was so conceived
in order to be worthy of being the Mother of Christ; that is, she was unstained by
original sin). Moreover, Mary, in the Roman Catholic tradition, remained a virgin
after the birth of Jesus.

" See M. Warner, supra note 46, at 3-24 for an account of Mary's role in the
Gospels.

I Mary speaks only four times in Luke and is silent in Matthew.
61 M. Warner, supra note 46, at 179.

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presumably in order to be worthy of carrying the Son of God. Her/Giod's
son Jesus was then also conceived without the sin of sexual intercourse.
Finally, Mary continued to live a life untainted by sexual relations; although
married to Joseph, she supposedly always remained a virgin. The result is a
model of a woman exalted because of her remoteness from physical passion
and normal sexual relations.6

Second, Mary is Mother, submissive Mother at that, for she conceives
not through an affirmative choice or act of her own but by an act of the Holy
Spirit in relationship to whom she is simply a receptacle. Moreover, the ex-
altation of Mary as Jesus' mother suggests that she is "good" and valuable
only through her relationship to a man (as his mother),' further promoting
the goal for women of vicarious attainment of worth through men.

In sum, Mary is a representation of what patriarchy has traditionally
exalted most in women. She is at once the obedient virgin and submissive
mother, albeit only miraculously so. Finally, Mary does indeed stand alone
amidst her sex, for she is an impossible model."

The problem for most Christian women is not necessarily whether Mary
was in fact a "Virgin" and conceived Jesus without "sin." 65 The problem, as
Marina Warner articulates, is that:.

[Uinlike the myth of the incarnate God, the myth of the Virgin Mother
is translated into moral exhortation. Mary establishes the child as
the destiny of woman, but escapes the sexual intercourse necessary
for all other women to fulfill this destiny. Thus, the very purpose of
women established by the myth with one hand is slighted with the
other. The Catholic religion therefore binds its female followers in
particular on a double wheel, to be pulled one way and then the
other .... By setting up an impossible ideal, the cult of the Virgin
does drive the adherent into a position of acknowledged and hopeless
yearning and inferiority ....

'2R. Hosmer, Gender and God: Love and Desire in Christian Spirituality 46
(1986).

'M. Daly, supra note 11, at 82.
"See id.
6' Although it is the Catholic Church which is responsible for Mary's venera-

tion, many Christians, Catholic and Protestant alike, accept the supernatural virgin
birth of Jesus without much question. As Warner suggests, "[mietaphysical myster-
ies must defy reason, for if the human mind could compass them, they would lose
their sacred character. So Christ the God-Man and Mary the Virgin-Mother blot out
antimony, absolve contradiction, and manifest that the impossible is possible with
God." M. Warner, supra note 46, at 336.

"Id. at 336-37. Warner also adds that: "Mary's virginity underlines the pollu-
tion of intercourse; her freedom from the pangs of birth focuses exaggerated attention

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Although Christian (particularly Catholic) women would likely be the ones
most deeply affected by the Virgin Mother "good" woman image, it is certain
that all women suffer in a patriarchal society where remnants of the Eve/Mary
split are still visible; where virginity "as innocence" is still prized67 and seen as
an indication of a superior moral status; where women's sexuality remains sus-
pect; where motherhood is still seen as a woman's highest honor and duty;
where motherhood and sexuality are often viewed as incompatible traits;
where women are still protected and raised on pedestals; and, finally, where
women still find primary achievement vicariously through their relations to
men, as mother or wife. We have seen the connection between biblical legends
and ethics, "revealed" myths and society's morals. Unfortunately, society and
its legal processes do not escape this interplay.

III. REPLICATION OF CHRISTIAN PATRIARCHY IN
THE LAW: INCEST, DOMESTIC VIOLENCE, AND RAPE"

The biblical representation of woman as subordinate to man operates to
the detriment of women, both religious and non-religious, because it is
replicated in the legal system. Our laws and the attitudes of the lawyers,
judges, juries, and police who develop and enforce these laws, recreate a
particular ideological view of relationships between men and women which
embodies patriarchy." Legal institutions define and reinforce gender roles
by allocating to men and women different rights, responsibilities, and liabil-
ities based on gender classifications that impute a subordinate role to
women.0 The law's treatment of violence against women and girls, especial-
ly when it occurs within the family, clearly illustrates this phenomenon. The
extent to which the law upholds patriakchy and reinforces female inferiority
can also be seen, for example, in the treatment of women in the areas of

on them. In addition, the Church's teachings on contraception and abortion, which
stem directly from the same misogynist ideas about women's role contained in the
myth of the Virgin, exacerbate the terrors of sex and childbirth by maintaining preg-
nancy as a constant and very real danger." Id. at 338.

6Interestingly enough the Virgin Mary's virginity is often seen as a source of
her power. Is it any wonder then that men's sexual fantasies (including rape) often
involve "disempowering" women by attempting to take away this virginity?

" We realize that these are arbitrary names given to acts of violence against
women. But for purposes of this paper, we will concentrate primarily on rape as it
takes place outside the home and domestic violence and incest as they occur within
the home.

69 Freeman, Violence Against Women: Does the Legal System Provide Solutions
or Itself Constitute the Problem?, 3 Can. J. Fam. L. 377, 378 (1980).

70See id. at 389.

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employment and reproductive rights.' Because violence against women
functions in a patriarchal society as a form of social control, the legal system,
by failing to take violence against women seriously, aids and abets the con-
tinued existence of patriarchy. By blaming, disbelieving, and allowing the
female victim of domestic violence, incest, and rape to blame herself for her
victimization, the legal system reproduces and legitimizes women's inferior
status as constructed in the traditional Christian worldview. In turn, the
religious system "sacralizes" women's subordinate legal position and ele-
vates social norms into divinely mandated moral paradigms." Thus, reli-
gion and law, each in turn, legitimizes the other's patriarchal construction of
woman.

Before examining how and why the legal system replicates the tradi-
tional Christian worldview's construct of woman by allowing violence against
women to go essentially unchallenged, we must note briefly that the connec-
tion between patriarchy in religion and patriarchy in law forms the basis of
the political agenda of today's New Religious Right. This agenda centers on
the defense and advocacy of specifically patriarchal social relationships be-
tween men and women within both the family and society at large. It advo-
cates the return to a "biblical morality" where women were wives and
,mothers, without access to careers and reproductive rights, and where men
ruled both their homes and the world. 3 Thus, one way that the traditional
worldview affects legal outcomes is its use by the religious/political Right
to advance an anti-woman agenda. The restrictive laws enacted as a result of
this movement affect all women, religious and non-religious alike.

A. Male Violence Within the Family: Incest and Domestic
Violence 4

The patriarchal relationship between men and women mandated by the
biblical texts we examined above is reflected in the law's historic denial of

" See M. Daly, supra note 11, at 106-14; Fischer, Liberating Work, in Christian
Feminism: Visions of a New Humanity, supra note 7, at 117, 125-40.

7 See Radford Reuther, Feminist Theology and Spirituality, in Christian Femi-
nism: Visions of a New Humanity, supra note 7, at 10.

" For an understanding of this religious/legal agenda, see A. Crawford, Thun-
der on the Right: The New Right and the Politics of Resentment (1980); J. Falwell,
Listen America! (1981); R. Viguerie, The New Right: We're Ready to Lead (1981); R.
Zwier, Born-Again Politics: The New Christian Right in America (1982).

For feminist analyses of the movement, see A. Dworkin, Right Wing Women (1983);
P. Johnston Conover & V. Gray, Feminism and the New Right: Conflict Over the
American Family (1983); K Luker, Abortion and the Politics of Motherhood (1984).

7 Our focus on these two kinds of male violence within the family is not meant
to suggest that other forms of male violence within the family do not exist. Women

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Christianity, Feminism, and the Law

independent civil status to adult women. s As permanent dependents of fa-
thers and husbands, women had few rights of their own at common law.
Their right to inherit and transmit property, to sue and be sued, to testify in
court and serve as jurors, and to participate in the political process, were all
severely curtailed. 6 Likewise, the biblical view of the family, with its asym-
metrical allocation of power and authority between husband and wife, has
historically been recreated by laws which keep women confined to and
subordinate within the family home." By limiting women's access to em-
ployment outside the home, undervaluing and undercompensating their work
done outside the home, not compensating the work done inside the home,
and preventing access to contraceptives and abortion, the law has histori-
cally carried out the biblical ideal of separate spheres for men and women.
This results in a family structure of male breadwinner and female home-
maker. Thus, the ideology of both the biblical injunctions and the legal rules
is the same: women are to be nonproductive, economically dependent, con-
fined within the home, and kept outside of society."

Connected to this replication of biblical family norms in the law is the
religious and legal view of the family as sacrosanct and the basic building
block of society. Until recently, family life has been construed as private and
not the proper subject of legal regulation, so long as it conformed to patriar-
chal norms. The biblical concept of male ownership of female is replicated in
the law to the extent that husbands have been given complete authority to
control their wives and children. An integral part of this authority has been
the right, legitimated by law, to use violence against one's wife as a means of
controlling her and the right to use one's daughters sexually without serious
fear of legal ramifications. American and English common law, for example,
gave husbands the legal right to physically discipline their wives.' The ex-
pression "rule of thumb" derives from the rule that a husband had a legal
right to beat his wife so long as he used a stick no thicker than his thumb'W
Blackstone put it this way:

face many forms of violence within the family, including rape, psychological and
emotional abuse, economic coercion and theft, and coerced loss of autonomy and
potential for self-fulfillment.

's Radford Ruether, The Western Religious Tradition and Violence Against
Women in the Home, in Christianity, Patriarchy, and Abuse: A Feminist Critique,
supra note 3, at 31.

76 See id.
7Freeman, supra note 69, at 389.
7' See id. at 385.
" Brady, The Illinois Domestic Violence Act of 1986: A Selective Critique, 19

Loy. U. Chi. L.J. 797, 798 (1988).
" See id. at 799.

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The husband also (by the old law) might give his wife moderate
correction. For, as he is to answer for her misbehavior, the law
thought it reasonable to entrust him with this power of restraining
her, by domestic chastisement, in the same moderation that a man is
allowed to correct his apprentice or his children, for whom the mas-
ter or parent is also liable in some cases to answer.81

An excerpt from a late nineteenth-century opinion of the Supreme Court of
North Carolina makes clear that the law was reluctant to regulate this vio-
lence because it took place in the private sphere of the home. "If no perma-
nent injury has been inflicted, nor malice, cruelty, nor dangerous violence
shown by the husband, it is better to draw the curtain, shut out the public
gaze, and leave the parties to forgive and forget."2

In the present day, statutes which prohibit domestic violence and incest
exist,s but go largely unenforced for two reasons. First, the lawyers, police,
judges, and juries charged with carrying out the law are impaired by patri-
archal attitudes about a woman's subordinate status in society. Second, the
female victims themselves, having internalized this debilitating definition of
their role, often do not seek legal remedies for their injuries. Patriarchal as-
sumptions, as created by religion and law, thus strip women of the power to
name their oppression, to challenge the construction of female subordination
as morally and legally normative, and to create alternative ways of being.

1. Incest

Father-daughter incest often goes unreported, unprosecuted, or un-
punished"M because the legal system replicates the biblical view of female

81 Freeman, supra note 69, at 399 (quoting I W. Blackstone, Commentaries 444).

8' Brady, supra note 79, at 799 (citing Thurman v. City of Torrington, 595 F.Supp.
1521 (D. Conn. 1984)).

'3 For a comprehensive state-by-state list of incest statutes and parallel statutory
rape statutes, see J. Herman, Father-Daughter Incest 221-59 (1981). For a state-by-
state analysis of the civil protection order statutes, see Finn, Statutory Authority in
the Use and Enforcement of Civil Protection Orders Against Domestic Abuse, 23
Fam. L.Q. 43, 60-67 (1989).

" While difficult to estimate, the percentage of incest cases which reach the stage
of a formal complaint range from 3% to 17%. See J. Herman, supra note 83, at 164.
The likelihood that arrest, prosecution, conviction, and imprisonment will result from
filing a complaint is very low. In a study of 250 police reports of sexual abuse of
children in New York City, the majority of cases (75%) did not lead to arrest, or the
accused was arraigned but never brought to trial (44%). Reasons for dismissing the
cases included lack of corroborating evidence or the prosecutor's judgment that the
child would not make a good witness. In this study, 38 men pleaded guilty to lesser

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submission and ownership by males. It does this by disbelieving the fe-
male victim's account of abuse and reallocating blame for it from the male
perpetrator to either the female victim herself or to her mother. The reli-
gious, legal, and psychiatric views of incest are marked by a belief in the
"Seductive Daughter" and the "Collusive Mother."85 Like Eve and Lot's
daughters, the female victim of incestuous assault is construed as the
temptress and blamed for her father's sexual abuse. Medical literature on
incest, following Freud's theory that father-daughter incest was either a
sexual fantasy of young girls or an acting out of this fantasy,86 has as-
cribed initiative for sexual incidents almost entirely to the daughter. D.
James Henderson, an authority on incest, thus describes the daughter's
role in a major psychiatry textbook:

The daughters collude in the incestuous liaison and play an active
and even initiating role in establishing the pattern. The girls ...
welcome their fathers' advances as expression of parental love ....
[Tihe incestuous daughter is unlikely to report the liaison at first or
to protest about it. If she eventually does, it is as much precipitated
by anger at her father for something else or jealousy of his relation-
ship with another woman, as a real objection to his incestuous
behavior.8"

charges, and 15 were found guilty after trial. Of these 53 men (21% of original pool),
over half (30) were given fines or suspended sentences. Only 23 men (9%) were
sentenced to prison, a majority for one year or less. Id. at 167 (citing V. DeFrancis,
Protecting the Child Victim of Sex Crimes Committed by Adults, 181-94 (1968)).

Is Id. at 36. The "Collusive Mother" is based on the theory that father-daughter
incest can be blamed, if not on the daughter's seductive ways, then on her mother's
refusal to be a "good wife" and have sexual relations with her husband, thus "driv-
ing" him to sexually use his daughter.

16 Id. at 9-10.
17 Id. at 40 (quoting Henderson, Incest in Comprehensive Textbook of Psychia-

try (A.M. Freedman, H.I. Kaplan, B.J. Sadock eds. 2d ed. 1975)). A similar view was
put forth by Dr. Lauretta Bender, a leading child therapist:

These children undoubtedly do not deserve completely the cloak of inno-
cence with which they have been endowed.... The history of the relation-
ship in our cases usually suggested at least some cooperation of the child in
the activity, and in some cases the child assumed an active role in initiating
.... [A] most striking feature was that these children were distinguished as
unusually charming and attractive .... Thus it is not remarkable that fre-
quently we considered the possibility that the child might have been the
actual seducer rather than the one innocently seduced.

Id. at 39.

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Columbia Journal of Gender and Law

It should not surprise us, therefore, that the legal system apportions
blame to the daughter instead of the father." Attempts by the incest survivor
to disclose the abuse or to expose the perpetrator usually end up exposing
the girl's alleged sexual motives and guilt. The experience of one survivor at
the police station where she reported an incestuous assault exemplifies this
underlying attitude:

[We] went to the police. They asked if I hadn't imagined the whole
thing, if I hated my uncle [the abuser], what I was wearing, and they
acted like I tried to tempt him. I was only ten years old.8'

Construing the daughter as seductive and therefore guilty for causing
her own abuse inappropriately apportions the blame for incest. No matter
what the child's fantasies or behavior, the adult should be legally responsi-
ble if sexual interactions occur. Because no other adult crimes are attributed
to the reason that "the child wanted me to do it,"90 it is clear that something
else is operating here: patriarchal assumptions about male ownership of
women and a father's right to use female members of his family, especially
his daughters, as he sees fit.91

In addition to blaming the victim, the legal system replicates biblical
norms of female subordination by disbelieving the incest victim's report of
her abuse. Wigmore's Treatise on Evidence sets forth a doctrine impeaching
the credibility of any female, especially a child, who complains of a sex of-
fense n Suggesting that these complaints are based in the victim's imagina-
tion rather than in fact, Wigmore recommended that a psychiatrist examine

The image of the "Seductive Daughter" and its guilt reversal is prevalent in
male-oriented pornography. This excerpt is illustrative:

Our sexual encounter began innocently enough. I was explaining the facts
of life to her. If you could have seen her at 13-her young body in the bloom
of womanhood, her soft blond hair cascading in ringlet curls down to her
shoulders, her face as sweet and pretty as could be-you would understand
how it happened. I couldn't help but get aroused as I explained sexual in-
tercourse to her, and I suddenly realized that a visible erection was bulging
inside my pants. As I was explaining to her how a man's penis enters a
woman's vagina, she glanced at my pants and said teasingly, "Why don't
you show me, Daddy?"

Id. at 38.
F. Rush, The Best Kept Secret: Sexual Abuse of Children 148 (1980).
Coleman, Incest: A Proper Definition Reveals the Need for a Different Legal

Response, 49 Mo. L. Rev. 251, 267 (1984) (quoting L. Sanford, The Silent Children
162-64 (1980)).

91 J. Herman, supra note 83, at 49.
91 3A Wigmore, Evidence § 924a (Chadbourn rev. 1970).

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Christianity, Feminism, and the Law

any female complainant to determine her credibility." Many states require
that a child's accusation of incest be corroborated by testimony of a third
party." However, sexual abuse of girls rarely takes place in the presence of
witnesses, so this requirement effectively makes prosecution of these cases
impossible. Again, as in the "blame the victim" phenomenon, the disbelief
of a victim's uncorroborated report of abuse is based upon patriarchal as-
sumptions about a female's sexual guilt and seductiveness. Our legal system
allows a robbery victim's uncorroborated testimony to support a complaint
and conviction, but in cases such as incest where the victim is most often
female and where a male's right to use his "property" is challenged, this rule
is not valid and a higher standard of proof must be met.

The survivors of incest often internalize these religious and legal as-
sumptions about their guilt for the abuse. In addition to the well-document-
ed psychological harm that incest and guilt reversal causes, these internalized
assumptions also prevent many girls and women from reporting the incest.
As one survivor explained:

I was raised to think that men can't help it if they are aroused by
women and it's our responsibility. We are sexy, fleshy things to tease
poor men who are out of control. I just feel fleshy and dirty."

As long as a survivor feels "responsible" for her father's sexual offenses, and
as long as this is reinforced by religion and the legal system, it is unlikely
that incest will be reported and prosecuted to the appropriate extent.

2. Domestic Violence

The dynamics of the patriarchal power imbalance in the family, as set
out by the Bible and as supported by the legal system, have a similar effect
on the treatment of domestic violence."' Traditionally, the criminal justice

93 J. Herman, supra note 83, at 11.
The need for corroboration has been upheld in United States v. Ashe, 427 F.2d

626, 628-29 (D.C. Cir. 1970); Wilson v. U.S., 271 F.2d 492, 493 (D.C. Cir. 1959).
The Texas Court of Criminal Appeals has repeatedly overturned incest convic-

tions by characterizing the daughter as an accomplice when the convictions rest
solely on the uncorroborated testimony of the victim. The accomplice testimony
rule requires that the daughter's testimony be corroborated to sustain the conviction.
See Bolin v. State, 505 S.W.2d 912,913 (1974); Note, Characterization of the Daughter
as an Accomplice in Incest Prosecutions: Does Texas Immunize the Father?, 20 Hous.
L. Rev. 1129 (1983).

9s As quoted in F. Rush, supra note 89, at 146.
9' For the purposes of this paper, domestic violence is defined as "a malevolent

act by one family member against another with the intent of causing physical, sexual,

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Columbia Journal of Gender and Law

system has treated domestic violence as a private family matter: police fail
to arrest the batterer, prosecutors fail to prosecute, and judges and juries are
lenient toward those batterers who are tried in court. The legal system ordi-
narily does not recognize the moral equivalence of violence between hus-
band and wife and violence between strangers. It was not until 1984, in
Thurman v. City of Torringtonl9 that these two kinds of violence were equat-
ed. In Thurman, the plaintiff, an abused wife for many years, successfully
sued the local police department for violation of her right to equal protection
of the laws on the ground that the police gave less attention and protection
to battered women than to victims of violence by strangers. A battered
woman's chance of receiving help from the legal system is seriously impaired
because those charged with carrying out the laws function under the patri-
archal assumptions of female submission to male. Police departments gen-
erally operate under the assumption that domestic violence is a private
matter to be resolved in the home and not a serious criminal problem, be-
cause the male is the head of his household and has the ultimate authority
there. Police give abuse calls low-response status, fail to arrest the abuser or
to remove him from the home at the victim's request, and often fail to
notify the victim of all her legal rights." Police departments usually use a
"mediation" technique to deal with domestic abuse cases, very often taking
the abuser on a "walk around the block."' Some state laws permit arrest in
domestic violence cases only when the police officer has probable cause to
believe that a felony has been committed or when the officer actually has
witnessed a misdemeanor; other laws allow warrantless arrests not only in
case of a felony or witnessed misdemeanor, but when an officer has proba-
ble cause to believe that a misdemeanor has been committed, that a restrain-
ing order has been violated, or both. Only a small minority of states have
mandatory arrest laws.'00 The officer's decision concerning the arrest of a
batterer is affected by patriarchal assumptions about women's role both in

or psychological damage." L. Karp & C. Karp, Domestic Torts: Family Violence, Con-
flict, and Sexual Abuse 1 (1989). This paper focuses on male violence toward female
family members. Incest and rape, though analyzed separately, are forms of domestic
violence as well.

595 F. Supp. 1521 (D.Conn. 1984).
"Note, The Minnesota Domestic Abuse Act: Family Court Jurisdiction Over

Family Violence, 9 Hamline L. Rev. 525,537 n.63 (1986) (citing U.S. Comm'n on Civil
Rights, The Federal Response to Domestic Violence 23-27 (1982)).

See id. at 537.
'" Note, Mandatory Arrest for Domestic Violence, 11 Hare. Women's L.J. 213,

214 (1988).

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Christianity, Feminism, and the Law

the family and as victims of violence. Thus, leaving arrest in domestic vio-
lence situations to the officer's discretion, as is the case in most states, often
results in a failure to arrest the batterer. One New York City police officer
relates this anecdote:

I had a call and this guy was beating his wife up. My partner took
me outside and said, "ILlook, son. I'm going to tell you something.
I've been married probably longer than how old you are." He said,
"[Mly wife feels as though I don't love her anymore, so t least
once a month, I start an argument, I slap her around a little bit, and
we have a perfect marriage. I've been married thirty-five years."''

This attitude not only prevents arrests when they might be appropriate, but
also is communicated to the victim and reinforces her victimization by allo-
cating blame for the violence to her and by refusing to acknowledge her
actual situation. As one victim stated:

Each time they [the police] come they said, "Okay, be a good wife,
you can fix it, why are you trying to break up the family. He'll just
go find himself another wife."' 12

If the batterer is arrested, prosecutors often do not charge the abuser
with the most serious offense possible and often do not prosecute at all.13

Should the case go to trial, it is likely that the judge and jury will not take the
charges seriously. For example, Pamela Nigro Dunn, a victim of prolonged
domestic abuse who was eventually kidnapped, shot, stabbed, strangled,
and left dead in the town dump by her husband, was rebuffed by the judge
in the District Court, in Somerville, Massachusetts, where she sought a pro-
tective order. The judge "scolded her for seeking judicial intervention and
for wasting his time in court, and although he granted a restraining order,
he denied her request for increased protection.""'4 Often, judges will ask
defendants in domestic violence cases to "tell their whole story," inviting
the batterer to justify his violence by explaining how the female victim caused
him to beat her."'5 This suggests that the batterer's "explanation" for his vi-
olence is a legally sufficient reason for the court to condone it and therefore
to allow the batterer to escape conviction or to receive a light punishment.

101 Note, Protecting Battered Women: A Proposal For Comprehensive Domestic
Violence Legislation in New York, 15 Fordham Urb. L.J. 999, 1021 n.139 (1987) (no
citation included).

i See id. at 1021 n.140.
"' Note, supra note 98, at 538 n.72.
"'i Note, Judging Domestic Violence, 10 Harv. Women's L.J. 275 (1987).
'0 Id. at 283.

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Columbia Journal of Gender and Law

Finally, the fact that the victim often stays in the abusive situation pro-
vides a useful rationalization for the legal system's inadequate handling of
the problem. However, this type of response ignores the fact that it is the
patriarchal system itself that perpetuates both male violence in the home
and female inability to leave the home and flee the violence. Many women
cannot leave because they are economically dependent on the male bread-
winner; many of them, because they have been fulfilling their biblically
sanctioned role as wife, mother, and homemaker, lack the financial resourc-
es and marketable skills that would make them self-sufficient. Even women
who are financially independent of their husbands share an inability to flee
male violence in the home due to "Battered Woman Syndrome" which af-
fects women of all economic backgrounds." For these reasons, women
compel themselves and are compelled by others to stay in abusive situations.
The use of male violence as a source of social control, supported as it is by
religion and the law, succeeds in keeping women in their place.

B. Male Violence Outside the Family: The Case of Rape 07

In this section, we turn to an examination of rape as an expression of
male violence against women outside of the home." We consider how the
legal process of addressing rape reflects deeply internalized religious beliefs
which result in detrimental legal outcomes for women. The effect is two-
fold. On the one hand, we see religiously derived attitudes operate on an
explicit level in the so-called marital exemption for rape .'0 9 On the other hand,

11 L. Karp & C. Karp, supra note 96, at 25.
107 This is not to suggest that other forms of violence do not exist outside the

home. There are many, including pornography, sexual harassment in public and in
the workplace, violence against women in advertising, gender stratification in the
labor market, and violence against women in popular culture (e.g., television, motion
pictures, etc.).

10 Although we will concentrate on rape primarily as it occurs outside of the
home, we do not intend to discount the seriousness of rape, either broadly or nar-
rowly defined, within the home.

'0* Like incest and domestic violence, the law's treatment of marital rape reflects

the traditional Christian view of woman as the property of her husband. Historically,
the marital rape exemption has provided that a husband could not ordinarily be
charged with raping his wife. In language that reflects the biblical construct of a
man's dominion over woman in marriage, Lord Hale explains that the husband and
wife are one, and that the wife is the property of the husband: "The husband cannot
be guilty of a rape committed by himself upon his lawful wife, for by their mutual
contract the wife hath given up herself in this kind unto her husband, which she
cannot retract." M. Hale, The History of the Pleas of the Crown 629 (1780).

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Christianity, Feminism, and the Law

and perhaps more importantly, Christian attitudes infiltrate the legal pro-
cess in a more subtle way-through the internalization of religious beliefs
about the nature and role of woman and her relationship to man. The im-
plications of the metaphysical ground rules set forth in Genesis extend be-
yond the letter of specific laws that regulate the when and how of intercourse
and deeply underlie the attitudes and operation of our legal system."' Thus,
we will consider the extent to which religious socialization infiltrates and
goes beyond the letter of the law to affect the way victims, police, prosecu-
tors, defendants, judges, juries, and legislators view and react to rape. We
will address several problematic areas that arise in the legal process: 1) the
focus on a woman's consent; 2) the tendency to blame the victim and attack
her credibility; and 3) the reluctance of victims to report or prosecute rape,
as well as the system's failure to pursue complaints fully.

Rape is generally understood as sexual intercourse engaged in by force,
against the will and without the consent of the victim."' The problems in-
volved in defining consent and in proving the victim's nonconsent are unique
to rape law. Historically, a woman was required actively and physically to
resist the rape in order to prove her lack of consent. This harsh requirement
focused on the act of the victim, not the offender, and unduly endangered the
woman whose life was threatened by the rapist. Consequently, many states
revised their rape statutes and now claim to focus on the element of force."2

This harsh view of woman as the property of man may seem to have softened
somewhat since the seventeenth century. In the modem view, it might be seen as
ownership through consensual transfer. However, this philosophy of irrevocable
consent to the husband's dominion is tantamount to ownership. It allows men who
rape their wives to be protected by laws conditioned by the biblical view of female
subordination to male in marriage. Although some progress has been made to the
extent that rape in marriage under certain circumstances is a criminal act, at least
forty states still have some form of marital exemption for rape. See J. Kaplan & R.
Weisberg, Criminal Law: Cases and Materials 1064 n.11 (1986). See also People v.
Liberta, 64 N.Y.2d 152 (1984) (husband can be liable for raping his wife when they
are apart); Model Penal Code § 213.1(1) (1962) ("male who has sexual intercourse
with a female not his wife is guilty of rape if... [conditions]" (emphasis added)). The
biblically sanctioned model of male dominance over women still stands as an im-
pediment to legal reform in the area of marital rape. Our legislative process does not
escape this influence, as evidenced by the comment of California state senator, Bob
Wilson, "But if you can't rape your wife, who can you rape?" A. Dworkin, Inter-
course 166 (1987) (citing D. Russell, Rape in Marriage 18 (1982)).

UO A. Dworkin, supra note 109, at 164.
,1 This article concentrates on male-female rape although we acknowledge that

male-male rape occurs.
"I See S. Estrich, Real Rape 57-71 (1987).

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Columbia Journal of Gender and Law

Nonetheless, the issue of nonconsent continues to underlie the definition of
rape 13 and plays a critical role in the determination of whether sufficient
evidence of force exists to charge or convict. As Susan Estrich explains:

For many courts, force is the key to making a simple rape criminal,
but force-even force that goes far beyond the physical contact nec-
essary to accomplish penetration-is not itself prohibited. What is
required, and prohibited, is force used to overcome female non-
consent. The prohibition of "force" or "forcible compulsion" ends up
being defined in terms of a woman's resistance." 4

This ever-present element of nonconsent or resistance presents a partic-
ularly difficult problem for women (and men) socialized by traditional
Christian religious beliefs. According to the traditional view, it is not a
woman's moral prerogative to resist. Rather, as previously illustrated, wom-
en are to be submissive and nonresistant, deferring to men in light of their
divinely sanctioned subordinate position.

These scriptural directives have obvious implications for the married
woman who is raped by her husband; the married woman is explicitly di-
rected to submit to her husband who is head of the household. But the effect
of scriptural directives extends further to all women as they are socialized to
be "feminine." They are trained to be kind, chaste, submissive, deferential,
modestly dressed, non-confrontational, and nonresistant. As they internal-
ize and externalize these qualities in their developmental process, their
subordinate position is reinforced. First told that they are supposed to sub-
mit, in the end, they are left equipped to do little else but submit:

Force, or the threat of force is the method used against her, and a
show of force is the prime requisite of masculine behavior that she,
as a woman, has been trained from childhood to abjure. She is unfit
for the contest. Femininity has trained her to lose. According to the
odds, she is three inches shorter and 24 pounds lighter than her
male assailant. This works to her disadvantage psychologically as
well as physically, but worse than the difference in size is the life-
long difference in mental attitude toward strength. He has been en-
couraged from childhood to build his muscles and toughen his fists.

"1 The Model Penal Code, although focusing on the male act of force, contains
the underlying assumption that the woman does not consent. Rape is found where
the man "compels her to submit by force .... ." Model Penal Code § 213.1(1) (1962)
(emphasis added). The woman submits (consents) involuntarily-because of force.

114 S. Estrich, supra note 112, at 60 (emphasis added).

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Christianity, Feminism, and the Law

She has been encouraged to value soft skin, her slender wrist, her
smooth, unmuscled thigh and leg. His clothing gives him maximum
mobility. His shoes are sturdy; thick heels give him power. Her
clothing hampers free movement by design, and fragile materials
add to her vulnerability. One yank and her blouse is ripped. One
stumble and her stockings are torn. Her skirt allows for easy access.
One gesture, one motion and she is humiliatingly exposed. Her flimsy
shoes have straps that break and heels that come loose. She cannot
run.

li5

The frequent result is supported by statistics: women/victims who face
threats to their life and well-being are often unwilling to fight or resist.116

Often women believe that they are merely following the rules set up for them
by society." 7 A rape victim testified:

I was raped when I was 17 by my fianc6 the night before he was due
to ship out with the Navy. Up to then I had tried to be everything he
wanted according to the religious, social and moral codes by which
both of us had been raised. I played the expected role throughout
our engagement, deferring to him in judgment, in conversation, even
in the way I dressed. I was sedate, demure, humble, submissive-
and a virgin. He kept begging me to have intercourse and I kept
saying, "No, not yet. It's not right." On our last date he pushed me
in the back of his car and held me. I just gave up. After all, wasn't I
supposed to defer to him in everything?"'

We have seen that women have been taught to be submissive and defer-
ential and consequently are often ill-equipped to resist. Yet the law requires
them to resist when they are being raped. It requires evidence that the wom-
an did resist, at least to the extent necessary to show that the rapist used
force against her. Thus, although the legal inquiry may have moved to
"force" from "consent," the issue is still one of women's resistance. The law
fails to take account of the many forces acting against women's ability to
resist, in particular the forces of Christian-influenced socialization. Thus, it
is critical to consider whose understanding and definition of force should
apply.119 Historically, it is clear that it has been the man's.

11- S. Brownmiller, Against Our Will: Men, Women and Rape 402-03 (1975).
11 Id. at 403 (citing M. Amir, Patterns in Forcible Rape 169 (1971)).
,M See id.
ue Id. at 393 (no citation included).
"' S. Estrich, supra note 112, at 60.

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Columbia Journal of Gender and Law

The problems of blaming the victim, attacking her credibility, and gen-
eral underreporting of the crime were noted in the previous discussion of
domestic violence and incest cases. For many of the same reasons and re-
flecting the same biblical underpinnings, these patterns appear in rape.

The "blame the victim" phenomenon operates in rape cases in much the
same way as in domestic violence and incest cases-the victim blames her-
self, while other legal operators scrutinize her clothing, behavior, attitude,
and demeanor to assess her innocence. The biblical themes of female guilt,
carnality, and temptation reappear in the law in juxtaposition to injunctions
on chaste behavior and dress. The result is clearly illustrated by one victim's
testimony:

For years afterward I felt it was my fault. I tried to figure out what
had made him follow me. Was it the clothes I was wearing or was it
my walk? It had to be my fault, you see? I was only a child-an in-
nocent child, but I was ashamed for a long time.2 0

Judges, in turn, often reinforce and validate the woman's sense of guilt
through opinions reflecting how their own beliefs about women's proper
behavior justify blaming the victim when she acts improperly: "It is the height
of imprudence for any girl to hitch-hike at night. That is plain, it isn't really
worth stating. She is in the true sense asking for it." 2 '

Under the common law, a woman's prior sexual history was often used
against her to discredit her and to show how her "unchastity" somehow
warranted the act. (Recall that Eve as a sexual or "unchaste" woman was
deserving of God's punishment.) Although modem enactments of rape shield
statutes in many states act formally to prevent this means of blaming the vic-
tim, the woman's status (her physical appearance, occupation, class, race)
and her behavior prior to the rape can contribute to labeling her a "bad"
woman who is either lying or deserving of rape. This process of judgment
and condemnation begins with the police and continues with judges and
juries.

A 1978 Philadelphia study illustrates how certain types of rape victims
are likely to have their complaints dismissed. These include women who go
willingly somewhere with the rapist, women who know or have dated the
offender, poor women, women of color, prostitutes, those dependent on al-
cohol or drugs, and those who have had psychiatric treatment. Women who
are runaways or who have had previous trouble with the police are also less

11 S. Brownmiller, supra note 115, at 404 (no citation included).
121 C. Smart, supra note 2, at 35 (citing P. Patullo, Judging Women 18-21 (1983)

(quoting statement by Judge Bertrand Richards, 1982)).

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Christianity, Feminism, and the Law

likely to be taken seriously, as are those who report the rape themselves
instead of having a friend or family member do so. Finally, two out of three
obese women have their complaints dismissed.'2

The tendency to blame victims is closely linked to the legal community's
general distrust of women's testimonies. Because a woman is so blamewor-
thy and naturally seductive (recall Eve tricking Adam in the Garden), the
community tends to believe that she has somehow precipitated the event
even if it believes the rape did occur. The goal of laws designed to corrob-
orate the victim's testimony is to protect the man falsely accused of rape by
the evil woman.

The connection between religion and law in this area could not be clos-
er. The major rape story in the Bible is that of Potiphar's wife (Genesis 39:6-
20). She made sexual advances to her slave and falsely accused him of rape
after he rejected her. This story reflects the historical and primary concern of
the "rapacious man"-that a vengeful woman might lie and create havoc for
a fine, exemplary man.12 The almost identical message was repeated by Sir
Matthew Hale who, like Wigmore, cautioned against the danger of false
accusations: "[rape] is an accusation easily to be made and hard to be proved,
and harder to be defended by the party accused, tho ever so innocent." 24

Although this attitude is less explicitly expressed in modern times, it contin-
ues to play a part in the prosecution of rape cases, beginning with the police,
who often disbelieve a victim's story. One woman recounts her experience:

I went to the police station and said, "I want to report a rape." They
said, "Whose?" and I said, "Mine." The cop looked at me and said,
"Aw, who'd want to rape you?"'2

The disbelief continues during the rape trial-if a trial ensues-as the pros-
ecution tries to prove that the woman is telling the truth. Often the woman
feels as if she is on trial. One woman testified:

I don't understand it. It was like I was the defendant and he was the
plaintiff. I wasn't on trial. I don't see where I did anything wrong. I

'n Taylor, Rape and Women's Credibility: Problems of Recantations and False
Accusations Echoed in the Case of Cathleen Cromwell Webb and Gary Dotson, 10
Harv. Women's L.J. 59, 92-94 (1987) (citing T. McCahill, L. Meyer & A. Fischman,
The Aftermath of Rape 105-108 (1979)).

12 S. Brownmiller, supra note 115, at 13.
1 M. Hale, supra note 109, at 635.
' S. Brownmiller, supra note 115, at 408 (no citation included). This comment

also reflects the policeman's confusion about what rape is. Rather than an act of
violence against a woman, he sees it as a "normal" sexual act precipitated by the
woman's physical attractiveness.

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Columbia Journal of Gender and Law

screamed. I struggled. How could they have decided that he was
innocent, that I didn't resist?"~

A conservative estimate indicates that in 1973 four out of five rapes went
unreported.12 A mid-1970s study confirmed that among the reasons women
don't report rape or prosecute claims are their dread of the courtroom trauma
and their fear that the man's denial would be believed.2'2

Thus, it is clear that the legal system's treatment of incest, domestic vio-
lence, and rape replicates the biblical model of "woman" as defined by tra-
ditional patriarchal Christianity, resulting in grave consequences to the female
victim/survivor. We now turn to examine the alternative.

IV. THE CHRISTIAN FEMINIST WORLDVIEW:
"WOMAN" IN THE BIBLE

Recently these patriarchal assumptions have been unmasked and chal-
lenged by the rise of both feminist liberation theology and the women's
liberation movement. The insights of feminism and its demands for liberation
and societal change have opened new patterns of organizing family and
public life which threaten the long accepted tradition of male-dominant pat-
terns of authority.'2 The feminist demand that women be viewed as indi-
viduals with rights both in the home and in the public world threatens the
traditional conception of the family in Western religious and legal thought:
a conception which defines men as leaders of their family whose primary
rights and responsibilities lie in the public sphere and women as wives'and
mothers acting within the family."'1 The increase in accepted American fam-
ily structures from the ideal of a traditional family (male breadwinner, fe-
male wife-mother, and several children) to include families in which both
parents are employed outside the home, one parent families (headed most
often by women), and gay and lesbian families (often including adopted or

121 Id. at 418.
127 Id. at 190. More recently, Rebecca Haggerty, rape counselor at the Brooklyn

Women's Anti-Rape Exchange stated that "fewer than 10% of women who are the
victims of rape actually report it." Melodie Bahan, spokeswoman of the New York
Chapter of the National Organization for Women, claimed that "rape is the most
underreported crime in the country." N.Y. Daily News, April 17, 1991, at 3.

'28 Taylor, supra note 122, at 93 (citing L. Hostrom & A. Burgess, The Victim of
Rape: Institutional Reactions 58 (1978)).

129 R. Quebedeaux, By What Authority: The Rise of Personality Cults in Ameri-
can Christianity 159 (1982). (The Moral Majority believes that the restoration of
traditional patterns of authority in the home will cure the present crisis of authority.)

I" P. Johnston Conover & V. Gray, supra note 73, at 3.

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Christianity, Feminism, and the Law

biological children) has made this threat very visible in recent years.131 When
options multiply and traditional ways of ordering family life are no longer
the only available ones, a crisis of individual and social identity ensues. 2

Christian fundamentalism and its right-wing politics have emerged in re-
sponse to the intense conflicts in worldviews created by feminist demands
and by the changes they engender. Christian fundamentalism champions
the restoration of both the male minister's authority in the church and the
husband's authority in the home.

The fundamentalist drive to make the male-female power relationship
embodied in the traditional Christian family normative for American society
should not shock us. It merely articulates historical male and female roles in
religion and society, roles which went largely unquestioned until feminism
challenged destructive hierarchies of relationship based on gender.

A Christian feminist response to the traditional image of woman includes
several elements: 1) a view of scripture as historically and culturally condi-
tioned; 2) a focus on the principal figure of Christianity-Jesus of Naz-
areth-and his association with and treatment of women; 3) a reconstruction
of women's spiritual heritage and use of extra-canonical literature; and 4)
attention to woman-empowering language and symbol through the inclu-
sion of feminine god-language and divine imagery." The starting point for
Christian feminism is the affirmation that God embraces, dignifies, and el-
evates the personhood of woman as much as that of man; woman is equal as
imago dei (image of God) and not beneath or subordinate.'3' The result of
Christian feminism is a new model of woman who is a subject defining
herself instead of an object of man's patriarchal definition. Misconceptions
derived from traditional religious beliefs about woman's "proper" or "God-
given" role are revealed as patriarchal constructs and therefore can no long-
er be used to justify the present system. This effort in feminist hermeneutics

131 See David, Moral and Maternal: The Family in the Right, in The Ideology of
the New Right 136, 137 (R. Levitas ed. 1986).

132 Heinz, The Struggle to Define America, in The New Christian Right: Mobili-
zation and Legitimation 133, 142 (R. Liebman & R. Wuthnow eds. 1983).

11 "Christian feminism" is a general term signifying an attempt to reconcile
Christianity and feminism. Other more broadly used terms are "womanist theology"
and "feminist liberation theology." Consequently, it encompasses many individual
experiences and approaches, and as used in this article is not intended to reflect any
one particular method. The elements we have listed are common components of
most reconciliation attempts. They are not exclusive, exhaustive, nor are all of them
always essential. We will focus on the first two elements.

'" Radford Ruether, Feminist Theology and Spirituality, in Christian Feminism:
Visions of a New Humanity, supra note 7, at 11.

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Columbia Journal of Gender and Law

is significant not only for historical scholarship or to women in the Christian
biblical tradition, but also for all women in Western societies, since the Bible
continues to underlie and influence the perceptions and attitudes of secular
society'35 and persists in functioning as a religious/ideological justification for
patriarchy."'

A. The Authority of Scripture

The Christian feminist view of biblical text is that it is "inspired revela-
tion" inasmuch as it may contain the divinely communicated word of God,
but that it is not itself the revealed, infallible word of God. The difference in
this approach to scriptural interpretation is that exegesis (what is read out of
the text) requires consideration of a number of factors.

First, the Bible contains a diversity of literary forms including stories,
parables, chronicles, legal codes, prayers, sermons, poetry, myth, personal
prophesies, and recollections.'- The scriptural materials were first preserved
by oral tradition after which they were recorded and edited at different times
by different people. The authors each had their individual styles, interests,
and goals.'3 8What we read as biblical scriptures today are revised and re-
revised records of oral tradition translated from Hebrew to Greek to Latin
and finally to the vernacular.139 Feminist theologians conclude, then, that the
text cannot be read without due consideration of the human influence-that
humans are susceptible to error, personal motivations, cultural and theological
biases, and that they write in a particular literary form for a particular au-
dience with certain objectives in mind. As Rachel Hosmer states, the Bible is
a "record of how the people of God understood their own experience." 1'0
Thus, Christian feminists see scripture as culturally and historically condi-
tioned, and in light of the time, as often reflective of patriarchal values, un-
derstandings, and goals instead of the word of God.

Another factor in feminist interpretation requires attention to the differing
levels of authority placed on certain texts. 4 ' The order is, from most to least

m E. Schussler Fiorenza, supra note 29, at xi-xii.

'31 See id.
'37 R. Hosmer, supra note 62, at 14.
'm See id. at 15.
13 See id.
141 Id. at 27 (emphasis added).
4 Although most Christians share this hierarchical view of the authority of

different texts, it is particularly important for Christian feminists since the most
liberating messages for them-those of Jesus-are found in the most authoritative
texts.

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Christianity, Feminism, and the Law

authoritative: 1) the Gospels of the New Testament; 2) the remaining epis-
tles and letters of the New Testament; and 3) the Old Testament.H2 This or-
der of authority is based on the fact that the old covenant in the Old Testament
has, for Christians, been replaced by the new covenant as recorded in the
New Testament, and that the most complete record of this new covenant is
reflected in Jesus' words, which are presumed to have been recalled by the
Gospel writers.'43 It should be noted at this point that the most authoritative
texts-the Gospels--are not histories or biographies of Jesus as we define
those terms today.'" Nor are there any official texts left to us written by
Jesus himself.

An additional consideration in feminist interpretation is the context of
a given scriptural passage. The reader should pay attention to who is speak-
ing, who the audience is, what the speaker's purpose is (i.e., is the speaker
dealing with a general theological issue or addressing a social or cultural
concern), and what the historical setting is." The reader should also evalu-
ate the passage in light of the entire chapter, the whole New Testament, or
the background of the Old Testament.1" Feminist interpretation also en-
courages reference to extra-biblical sources: commentary and interpretation
by scholars in biblical language, history, and theology to aid in the interpre-
tation of text.'4 7 Furthermore, feminists warn against what is called proof-
texting, lifting texts out of their context and applying them literally to
"prove" a modern-day argument.'"

Finally, the Bible is for Christian feminists a collection of works written
by men and subsequently translated and interpreted by them. 9 Since all
theological interpretation passes through the mind and experience of the
interpreter, historic Christian interpretation reflects a definite male bias."s

14 See 0. Eldred, Women Pastors: If God Calls, Why Not the Church? 46-47
(1981).

'4 See id. at 47.
I" E. Pagels, Adam, Eve, and the Serpent 5 (1988).
"4 0. Eldred, supra note 142, at 47.
- See id.
147 See id.
4 See id. at 46.
14" Theological scholarship by women is a relatively new phenomenon. In the

past, several translations of the Bible were made by women or with the considerable
assistance of women, but were essentially ignored. See id. at 47-48. For an example
of extra-canonical scripture as recorded by women, see the discussion of the Gospel
of Mary in E. Pagels, The Gnostic Gospels 13-26 (1979).

1s 0. Eldred, supra note 142, at 48.

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Moreover, these male writers were responding to societal concerns as well
as to questions of theological belief. "The studies of the social world of early
Christianity underline that Christian faith and revelation are always inter-
twined with the cultural, political, and social contexts, and we can no longer
neatly separate biblical revelation from its cultural expression."'' It is for this
reason that Christian feminists look at biblical texts critically and use all the
interpretive tools available to them. Although we may find a core message
or threads of God's revealed "truth" within the text, we are careful to recog-
nize what the messenger's inherent bias is as it appears in the process of
recorded "revelation."

B. Women In the Life of Jesus

An examination of the actual life of Jesus, of what the historical record
tells us about how he actually lived his life, with whom he chose to associ-
ate, and whom he condemned, reveals an image of the role of woman in
religion and in society different from the traditional view. Jesus the Libera-
tor,152 through the example of his words and acts, did not provide justifica-
tions for oppression and inequality. Rather, the historical Jesus lived his life
by breaking through false distinctions between people, by joining men and
women in a community of coequal disciples, and by inverting set patterns of
destructive human relationships based on hierarchies that included gender.

The central exhortation for the life of Christians is to love God and
neighbor."" In every aspect of his life, Jesus gave a radically new and com-
pletely inclusive definition of the neighbor whom we are to love. Jesus'
neighbor, as we can see from all his actions and from his parables, included
the sinner, the leper, the prostitute, the foreigner, and most importantly for
purposes of this paper, the woman. Jesus' example of Christian relationship
was set when he embraced, ministered to, and loved unconditionally the
outcasts, including women, of his world. He did not choose the safety of
custom and say, "I'd better stand aside and criticize them [the outcasts], and
people will see how religiously correct I am."'5 ' Rather, Jesus reached out with
compassion to the oppressed and offered them justice, love, and salvation.

Jesus' main goal may not have been the liberation of women per se or the
advancement of feminism, even though some scholars have asserted that he

151 E. Schussler Fiorenza, supra note 29, at 34.
152 See J. Pelikan, Jesus Through the Centuries 206-19 (1985).

's See, e.g., Matthew 5-7.
's4 Guinan, Homosexuals: A Christian Pastoral Response Now, in A Challenge

to Love: Gay and Lesbian Catholics in the Church 67, 75 (R. Nugent ed. 1986).

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Christianity, Feminism, and the Law

was indeed a feminist.'-" Rather, Jesus' focus seemed to be on the transfor-
mation of the inner spirit and on proclaiming a new "Kingdom of God" with
such urgency that he could not be silenced even in the face of death.15' But
Jesus' treatment of and association with women is an important starting
point for Christian feminists because it stands in sharp contrast to the reli-
gious messages about women promulgated both before and after his life. In
light of the fact that Jesus was himself a product of an androcentric culture,
and that it was to this culture that he preached, his reaction to women was
strikingly revolutionary and even heretical. 57 He ministered to women, in-
cluded them in his public ministry, associated openly with them, spoke of
their spiritual equality, and rejected the subservient and subordinate position
that his culture had assigned to them."58

The status of women in first-century society was quite low. A woman
was viewed as the property of her father or husband and was valued prima-
rily as a wife or mother. Legally, a woman could not stand as a witness in a
court of law.' s9 Against this background of patriarchal culture, we will con-
sider Gospel accounts of Jesus' interactions with women in order to present
an overall picture of Jesus' radically different view, a view that may be re-
claimed today by women who oppose the Christian legitimization of
patriarchy.16

'ss R. Eisler, supra note 5, at 177-83 (citing Swidler, Jesus Was a Feminist, in the
Catholic World, Jan. 1971). Contra R. Eisler, supra note 5, at 120-21 (because feminism
has as its primary aim the liberation of women, it would not be historically accurate
to call Jesus a feminist, since this was not his primary goal. Rather, it would be more
accurate to describe Jesus' teachings as reflecting a "gylanic view of human rela-
tions").

156 E. Pagels, supra note 144, at 7.
1s7 R. Eisler, supra note 5, at 120-22. Jesus' equal treatment of women in light of

his cultural context has even been used as an argument by those who doubt his
actual human existence in history. See id. at 122.

158 See id. at 121-24.

's' V. Mollenkott, Women, Men and the Bible 10 (1988). Mollenkott writes from
an evangelical perspective and her religious roots in fundamentalism are evident.
Yet she attempts to reconcile Christianity and equality for women. Moreover, her
chapter, "The Christian Way of Relating," provides a helpful overview of the Gospel
stories of Jesus' encounters with women. It also includes illustrations of first-century
Hebrew laws affecting women. Id. at 1-22.

"" In addition to the Bible, various sources were consulted for this section which
reviews the Gospel accounts of Jesus' interactions with women. Considerable over-
lap in commentary occurred since the authors all draw primarily on the Gospel texts
as their source. See id. at 1-22; 0. Eldred, supra note 142, at 51-54; R. Hosmer, supra
note 62, at 39-44; P. Jewett, The Ordination of Women 61-62 (1980).

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108 Columbia Journal of Gender and Law [Vol. 1:1

To begin, Jesus breaks through the social taboos of his time and shatters
stereotypes by interacting with women in essentially the same manner as he
does with men. Women are among those who recognized him as a prophet
(Luke 1:36-38) and among those whom he calls to follow him as disciples
(Luke 8:1-3, Mark 15:41). They are his friends and companions (Luke 10:38-
42), and they often hold meetings of his early "church" in their homes (Co-
lossians 4:15, 1 Corinthians 1:11, Acts 15:14, 15 and 40). He heals them
(Matthew 8:1, 4-15, 9:23-25; Luke 13:10-13; Matthew 15:21-28) and teaches
them (John 4:21-24, 11:25-26). But in addition to these general indications,
there are several key incidents that illustrate his disdain of the traditional
view of women.

It is significant that Jesus speaks openly to women in public and fre-
quently to those who are most despised and rejected by first-century stan-
dards. His encounter with the Samaritan woman at the well is a good example.
Although Jesus is prohibited from talking to any woman in public, this
woman is doubly cursed; she is not only a woman, but she has false beliefs
(a Samaritan) and is "unclean" (living with a man in the absence of mar-
riage). Instead of chastising her, Jesus discusses theological truths with her.
She in turn returns home to proclaim Jesus' message and to bear witness to
many in her town (John 4).

Similarly, Jesus is approached by a group of Sadducees who attempt to
trap Jesus through a theological trick which involves the question of a
"barren" woman's place in heaven. The woman has been married to five or
six brothers in an attempt to provide them with a child. The Sadducees now
ask whose wife she will be in heaven. Jesus ignores the question of whose
wife she will be and "rescues" the woman from her societal worthlessness
by answering that there are no sexual differences in heaven--only angels. It
appears that Jesus does not define and judge her according to her sexuality
and inability to reproduce, but rather he invites her to share in his spiritual
kingdom'' (Mark 12:18-27).

Women were essentially treated as objects in Jesus' day, but time after
time he disparages this view. Luke recounts the story of Jesus healing a
woman on the Sabbath. When the religious leaders criticize him for violat-
ing Jewish law, Jesus recognizes the way women are treated and counters by
reminding the leaders that they take care of even their livestock's needs on
this day (Luke 13:15-16). Jesus also heals an "unclean" woman who has
been bleeding for twelve years. Jesus does not, however, see her as a dirty
object and direct her to segregate herself according to Hebrew custom; he

161 R. Hosmer, supra note 62, at 40.



Christianity, Feminism, and the Law

instead tells her that her faith has healed her (Matthew 9:19-21). Mollenkott
suggests that it is "especially significant that Jesus took pains to locate the
healing within the poor despised woman's faith rather than in himself or in
the male establishment or even in God the Father."162

Jesus consistently rejects the double standard which objectifies women
as sexual/biological beings. When Jesus is presented with the adulteress
(whose punishment by Jewish law was death), he recognizes that the male
adulterer has been set free. He refuses to condemn her, but leaves it up to
those in the crowd "who have not sinned." Since there are of course none,
the woman is set free (John 8:4).

Men, who could traditionally divorce women for any reason, questioned
Jesus about the grounds for divorce. Again rejecting the double standard
and realizing the worthless position women were thrust into upon divorce,
Jesus forbids divorce altogether. He further charges that any man who di-
vorces his wife-absent fornication-commits adultery. It is likely that Jesus
had the protection of women in mind (Matthew 19:3). Jesus' single standard
of morality 63 is repeated in his Sermon on the Mount when he warns that a
man who looks at a woman with lust has committed adultery in his heart.
Although this passage undoubtedly reflects Jesus' typical focus on internal
attitudes as opposed to external laws, it may also be a condemnation of the
sexual objectification of women' 64 (Matthew 5:27-28).

Moreover, Jesus responds to women's relegation to domestic tasks and
childbearing. Without devaluing these roles, Jesus suggests that there are
alternative callings. When a woman praises Jesus' mother as the womb from
whom he came and the breasts of whom he sucked, she echoes her culture's
patriarchal value placed on woman's reproductive parts. But Jesus does not
praise these female body functions; rather he transcends categories of male/
female by praising a person's spiritual relationship to God 16' (Luke 11:27-28).
Similarly, while in the home of Martha and Mary; Martha criticizes Mary for
listening to Jesus' teachings instead of tending to the dinner. Jesus responds
by telling Martha that Mary's interest in learning about the Kingdom of God
is more important than the details of dinner (Luke 10:38-42).

Jesus also has a message about the meaning of family. When he is told
by a messenger that his family wants to see him, Jesus looks around to the
people surrounding him and names them as his family. He redefines family

162 V. Molenkott, supra note 159, at 5.
63 See id. at 6.
164 See id. at 7.
".. 0. Eldred, supra note 142, at 53-54.

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as a spiritual relationship not a biological one. Moreover, he includes wom-
en on an equal ground in this new family; all members share the same and
sole attribute, a commitment to the will of God.'"

Finally, although women had been present at Jesus' birth, throughout
his life, and at his death, it was a woman whom Jesus made present for
perhaps the most significant event of his "life," his resurrection. Jesus first
appeared to Mary Magdalene after his death and then to other women, telling
them to act as witnesses to the event. It is ironic not only that he appeared to
women, who could not in law act as witnesses, but that he appeared first to
Mary Magdalene, a prostitute of the lowest social status at the time (Mat-
thew 28). Despite the significance of this act by Jesus, the male disciples
were so influenced by their culture that they did not at first believe these
women (Luke 24:11).167 There is evidence that even Paul ignored Jesus' ap-
pearance to women in his first letter to the Corinthians (1 Corinthians 15:5).'6

Traditional Christian thought often misinterprets, underemphasizes, or
altogether dismisses the "new" status of women as expressed in the life and
ministry of Jesus. Jesus preached a radical message of liberation and equal-
ity for all people, including women. He never spoke in terms of dominance
and submission or subordination. He did not blame women, nor did he
relegate them to certain spheres of duty. But despite this message by one of
patriarchy's officially recognized divine messengers, the Christian religion
became androcentric like most other religions,169 influenced by the patriar-
chal social structures that remained. Christian feminists, and all women re-
sisting patriarchal legitimization based on "Christian values," can reclaim
Jesus from his androcentric environment in order to confront systems wrongly
justified in his name.

C. Another Look at Patriarchal Myths: Creation and Paul

Traditionalist use of especially "troubling" scriptural passages defining
woman's nature or role challenges the feminist reconstruction of the woman-
empowering aspects of Jesus' life."' In response, feminists follow the
guidelines for interpretation already articulated;1' in other words, they ask

11 Id. at 53.

167 P. Jewett, supra note 160, at 61.

'" See id.
'6 R. Eisler, supra note 5, at 124.
170 See supra text at notes 27-67 on traditional worldview for examples of key

passages.
' See supra text at notes 129-169 on feminist approach to interpretation of the

Bible.

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Christianity, Feminism, and the Law

who is speaking and for what purpose? What problem is being addressed?
What literary form is being employed? Is it properly situated within its
context? Moreover, feminists look at these passages in light of the Gospel
record and message of Jesus.

However, as we saw before, there are several key passages that are used
frequently to perpetuate patriarchal myths and justify stereotyped roles. We
will address two of these now: the Genesis Creation/Fall stories and Paul's
Household Codes.

Although much has been written about Eve's place in Creation and the
Fall, Christian feminists generally agree that Genesis' attribution of patriar-
chal tendencies to God's will was a way of preserving what was an already
existing model of social thought.' 2 Moreover, the use of the patriarchal
Genesis story (Genesis 2 and 3) to justify female subordination represents
selectivity and proof-texting. Genesis, itself, offers another version of cre-
ation (Genesis 1) in which male and female are simultaneously created, both
in God's image. The Genesis accounts reflect two different oral traditions.'73

Similarly, scriptural passages directing women to be silent, submissive,
chaste, and subordinate in their role as wife and mother also involve issues
of problematic interpretation. These directives are usually attributed to Jesus'
Apostle Paul. But Paul's radical vision of an equality of all persons in Christ
is incompatible with subordination directives ascribed to him.Y' As he stat-
ed:

'There is neither Jew nor Greek, there is neither slave nor free, there
is neither male nor female: for you are all one in Christ Jesus."

-- Galatians 3:28

It is likely that this revolutionary attitude was unacceptable to the patriar-
chal minds of later writers,"5 and thus many scholars agree that Paul's fol-
lowers proceeded to write letters attributed to Paul in which they corrected
these dangerous views."6 Generally, it is believed that Paul wrote eight of
the thirteen "Pauline" letters: Romans, 1 and 2 Corinthians, Galatians,
Philippians, 1 Thessalonians, and Philemon. There is near consensus that

"1 Bohn, Dominion to Rule: The Roots and Consequences of a Theology of
Ownership, in Christianity, Patriarchy, and Abuse: A Feminist Critique, supra note
3, at 105, 106.

17 R. Hosmer, supra note 62, at 16-20.
' See id. at 36.
17" See id.
176 E. Pagels, supra note 144, at 23.

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Columbia Journal of Gender and Law

Paul did not write 1 or 2 Timothy or Titus, since they differ so in style and
viewpoint from the others. Debate continues with regard to Ephesians, Co-
lossians, and 2 Thessalonians, but they may also be "deutero-Pauline" (sec-
ondary) letters.17 Regardless of the actual authorship of each letter, it is clear
that Paul contains tremendous inconsistency, with some passages reflecting
the new spirit of equality and others reflecting the old ways of patriarchy. It
is likely that some of the passages can be explained as interpolations. It is
also possible that Paul, a Christian convert in adulthood, was heavily influ-
enced by his own patriarchal background and thus confused by parts of
Jesus' new message. Whatever the answers are to these questions, it is obvi-
ous that the hierarchical subordination/separation model conflicts with Jesus'
teachings. Therefore, Paul's passages cannot be lifted out of context to legit-
imize further the patriarchal view of woman's place in the name of
Christianity.

V. PATRIARCHAL LAW STRIPPED OF
RELIGIOUS JUSTIFICATION: LEGAL

OUTCOMES OF CHRISTIAN FEMINISM

We have demonstrated that the patriarchal Christian model of woman
has infiltrated the legal system to the detriment of women. We have also
shown how Christian feminism unmasks the historical and theological defects
of this model and offers an alternative. Because religion and law, each in
turn, have "sacralized" and legitimized the other's patriarchal construction
of woman, we propose that changing one will inevitably affect the other.
Thus, if freed from the traditional view, women and the legal system can
move beyond some of the normative patriarchal assumptions which have
shaped and justified the system to the detriment of women.

When women are the victims of male violence, the legal system legiti-
mizes their victimization by disbelieving their accounts of abuse, by blam-
ing the victim rather than the perpetrator, and by failing to protect the
victim from further abuse or to punish the perpetrator. This response is root-
ed in a cultural definition of woman as subordinate to male authority and
power, a piece of male property, and an appropriate victim of violence. As
we have already seen, Christianity is one of a constellation of forces which
reinforces this view of woman. We propose that by changing the view en-
gendered by traditional Christianity of woman as subordinate and deserv-
ing of pain to a view espoused by Christian feminism of woman as equally
human and deserving of integrity and respect, the legitimization of violence

7 See id.

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Christianity, Feminism, and the Law

against women will lose a major source of its "sacralization," and thus be
weakened. We will consider this proposal, taking as our examples the legal
system's treatment of incest and domestic violence.

The religiously sanctioned image of woman as subordinate and deserv-
ing of pain and punishment provides a context within which incest and
domestic violence are defined not as "public" or socially threatening crimes,
but as acceptable assertions of male prerogative within the family.17'8 This
normative assumption about how male power can be exercised within the
home, rooted in the Bible and adopted by the legal system, devalues the
harm to female victims. In most cases, the victims internalize this devalua-
tion, thereby reinforcing their sense of helplessness. To prevent and respond
adequately to incest and domestic violence, we must transform the view of
woman from appropriate victim to valued human being, capable of true
testimony about abuse experiences and deserving of belief and attention
from the legal system.

In incest cases, for example, transforming the model of the daughter
from the seductive and wily sexual property of the father to a child deserving
of bodily integrity and capable of being a truthful witness to her own expe-
rience necessarily leads to a more serious and effective treatment of these
cases by the legal system. The following are six reforms which can result
from this new perspective on gender in the context of incest.

First, mandatory disclosure laws for teachers and others who discover
sexual abuse would lead to increased reporting of abuse and early inter-
vention.'" Second, a broader statutory definition of coercion and consent, to
include the compelling authority of the father, is necessary to recognize the
power dynamics of the incestuous relationship.18 Third, several legislative
reforms can be made to better allow the admission into evidence at trial of a
child victim's account of abuse.181 These are: permitting a special hearsay
exception for a child victim's out-of-court statement of abuse; videotaping of
depositions of a child victim's testimony; closed-circuit televising of a child
victim's trial testimony; and revising of the testimonial competency stan-
dard for child witnesses.182 Fourth, the requirement for corroborated testi-
mony by some states should be abolished. As discussed above, this

178 N. Hahn Rafter & E. Stanko, Judge Lawyer Victim Thief 8 (1982).
J. Herman, supra note 83, at 135.

'8 See id. at 175.
181 R. Eatman & J. Bulkley, Protecting Child Victim/Witnesses: Sample Laws

and Materials 1 (National Legal Resource Center for Child Advocacy and Protec-
tion, 1986).

" See id.

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Columbia Journal of Gender and Law

requirement is rooted in a gender-biased suspicion of female testimony re-
garding sex crimes and a male fear of false accusations in such cases. This
requirement makes the laws essentially unenforceable since incest is rarely
committed in the presence of corroborating witnesses. Fifth, rape shield stat-
utes, which limit the admission into evidence of specific instances of the
victim's prior sexual conduct, should be extended to incest victims."

In the case of adult survivors of incest who seek legal redress through
civil claims long after the statute of limitations for criminal provisions has
run, the "discovery rule" exception to the accrual of the statute of limitations
in tort claims should be extended to incest cases.'" In traditional tort theory,
the intentional tort victim's cause of action accrues, and the statute of limi-
tations starts to run, when the tortfeasor completes the tortious act. The
"discovery rule" delays a cause of action's accrual and tolls the statute of
limitations if the victim did not know and could not reasonably have known
of the tortious injury.'" It is only applied in cases of negligent torts. Because
of the severe emotional harm often caused by incest, many victims suppress
memory of their abuse and do not recall it until they are adults.1" Justice
would require, therefore, that a special exception be carved out within the
"discovery rule" for incest cases in order to preserve the survivor's claim.

All of these reforms reflect a recognition both of the harm done to the
victims of incest and of their right to seek legal remedy for this harm. This
recognition flows logically from the transformation of the "rule of the fa-
ther" in the family home to a new view of all family members, female and
male, as deserving of physical and emotional integrity and safety.

Similarly, in domestic violence cases, a feminist interpretation of the
biblical model of woman "de-sacralizes" the traditional view of woman as
the appropriate victim of male violence and strips it of a key source of sup-
port. If religious justifications for treating family violence as a "private" matter
and as a natural component of the husband's role as head of the household
were transformed, the legal system, which, as we have already seen is heavi-
ly shaped by these norms, could respond to this violence more effectively.

Case Comment, 21 Suffolk U.L. Rev. 335 (1987). This Comment describes the
Massachusetts Supreme Judicial Court's refusal to extend the rape shield statute to
victims of incest in Commonwealth v. Domaingue, 397 Mass. 693 (1986).

'" Note, The Discovery Rule and Father-Daughter Incest: A Legislative Response,
29 B.C.L. Rev. 941, 942 (1988). See also Note, Statutes of Limitations in Civil Incest
Suits: Preserving the Victim's Remedy, 7 Harv. Women's L.J. 189 (1984); Note, Adult
Incest Survivors and the Statute of Limitations: The Delayed Discovery Rule and
Long-Term Damages, 25 Santa Clara L. Rev. 191 (1985).

'"- Note, The Discovery Rule and Father-Daughter Incest: A Legislative Response,
supra note 185, at 942.

11 Id. at 949-50.

[Vol. 1:1



Christianity, Feminism, and the Law

Transforming the model of woman, therefore, could result in the follow-
ing legal reforms. First, police response to domestic violence calls must be
improved. As we saw earlier, inadequate police attention to domestic vio-
lence is rooted largely in a belief that women provoke beatings and thus
deserve to be beaten, that the beatings are valid expressions of the husband's
authority, that the women who stay in such situations must like the violence,
and that family violence is not a serious public crime. If these religiously
supported myths about gender relationships within the family were replaced
by a view of woman as deserving of protection and safety within the home,
the police response to domestic violence could be reformed. Mandatory ar-
rest is one needed reform which could result from this transformation.
Mandatory arrest concretely reflects a belief that society values the female
victim and punishes violence against her, even when her husband is the
perpetrator.187 Second, the statutory definition of domestic violence could be
broadened to include sexual abuse in addition to physical abuse. As in the
case of incest, such a reform would send a clear message that a woman is not
the property of her husband or boyfriend and cannot be sexually abused by
him.

Finally, for both religious and non-religious women who are socialized
into powerlessness and subordination by a patriarchal culture that is sup-
ported by religious norms, changing the model of woman would result in
women's self-empowerment. Stronger laws and a more responsive legal
system can help women victimized by male violence only if the women
themselves believe that they deserve protection and safety. If women inter-
nalized the unequivocal rejection of a man's right to use violence against his
wife or girlfriend and of the view of women as the blameworthy, appropri-
ate victims of violence, they would be able to seek the help they need. They
would no longer view themselves as guilty, deserving of violence or re-
quired to submit to male power.'8s

In sum, we are seeking distributive justice for girls and women. Our
proposal for transformation of both the religious construct of woman and of

18? Note, supra note 100, at 223.
This is especially important for women who consciously refer to the tradi-

tional interpretation of the Bible to rationalize their husbands' use of violence. When
such women telephone battered women's shelters, their calls often begin, "I'm a
Bible-believing Christian, but. ... " A feminist interpretation of the biblical texts is
crucial to these women for whom the Bible is equally a source of faith and oppres-
sion. The success of feminist interpretation here is outlined by Thistlethwaite, Every
Two Minutes: Battered Women and Feminist Interpretation, in Weaving the Visions:
New Patterns in Feminist Spirituality, supra note 9, at 302, 303.

1991]



116 Columbia Journal of Gender and Law [Vol. 1:1

the legal system's treatment of her, is based on a desire to give a stronger
voice to the disenfranchised in the struggle against powerful patriarchal
culture. By unmasking the weak scriptural basis for traditional Christian
patriarchy, and by revealing the grounds for affirmation of women in the
biblical materials, we remove one of the key justifications for bias in the
legal system and open up the system to positive reform for women.