Trapped within the Ideological Power of Law: Women’s Experience

Seeking Justice

Noryamin Aini

1,a

, Muhammad Helmy Hakim

2,b

, Khoiruddin Nasution

3,c

Department of Legal Sciences, Syarif Hidayatullah State Islamic University, Indonesia

Faculty of Sharia, Antasari State Islamic University, Indonesia

Islmic Family Law, Sunan Kalijaga State Islamic University, Indonesia

Keywords: Violance, objectivity, value-free, impartiality, feminists, justice

Abstract: The legal positivism epistemologically argues that law is objectively constructed, non partisant, and

impartially implemented. Even, it is widely claimed that everyone is equal befor the law. Hens Kelsen further

obsessed theorizing the pure theory of law. The Kelsen’s Pure Theory of Law aims to describe law as a

hierarchy of norms which are also binding norms while at the same time refusing, itself, to evaluate those

norms. In this legal sense, legal sciences are to be separated from legal politics in order to keep laws

independent, free from any kinds of intervention. The objectivity, impartiality, and the innocence of law have

been epistemologically and practically challenged by legal feminist. This paper utilizing legal feminist

perspectives illuminates empirically that law suffers a variety of gender bias. Firstly, the verbal construction

of law is prevalently masculine reflecting male experience-awareness, and male standard-norms of social

interpretation. Secondly, more importantly, at the practical domain, within legal profession, law has been

mystified to surve the male interests. Finally, women’s struggles seeking justice in the formal legal path have

been often trapped in a difficult situations, between hoping on the innocence of the law, or begging at the

mercy of patriarchal reasoning of legal professionals.

1 WOMEN’S LIFE WITHIN THE

GENDERED WORLD: AN

INTRODUCTION

The match of the US Tennis Open final always

presents a remarkable memory of tennis professional.

Aaudiences are willing to pay for expensive tickets

just to watch a sensational match. However, this year

match turned into a bad record for the world of female

players who demanded fair treatment without gender

discrimination in tennis. The final match was led by a

Spaniard referee, Carlos Ramos who is one of the

most experienced and respected umpires in

professional tennis. The match was held on

September, 15, 2018 at New York’s Flushing

Meadows, and watched by more than a million

audiences through television all over the world.

The final game performed two finalists different

generations between a fans (Noami Osaka, 20-year-

old) and her role model (Serena Williams, 35-year-

old). Since her childhood, Noami Osaka has strongly

idolized Serena Williams, even, she dreamed to play

against her one day in a prestigious tournament.

Finally, her dream come true at the first round of the

2018 Miami Open, and at the 2018 US Open Final, in

which Osaka played for her first Grand Slam Trophy.

The result was unexpectedly that Japan’s Osaka beat

Williams by a straight set in a Grand Slam showdown

ending in tears for both players – for different

reasons.

The match of the 2018 US Open Final shed a very

traumatic moment for Serena Williams, and for

women sport activists as well. (BBC, 2018) Serena

Williams cried out her frustration at the referee for a

couple of things. Sadly, she has been penalized with

fines totalling US $17,000 for 3 violations. She got a

point penalty of $ 3,000 for smashing-breaking her

racket, followed by a game penalty ($ 10,000) for

verbal abuse confronting the chair umpire, and

finally, by a code violation warning ($ 4,000) for

coaching after the referee ruled that her coach gave

her hand signals from the stands.

Mr Ramos’ decisions made Serena Williams

raged, emotional, cried, reacted harshly and

uncontrolled. She cruelly criticized the referee for

being sexist and applied a double standard on her, and

she accused him stole her very critical points for her

1002

Aini, N., Hakim, M. and Nasution, K.

Trapped within the Ideological Power of Law: Women’s Experience Seeking Justice.

DOI: 10.5220/0009922010021011

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1002-1011

ISBN: 978-989-758-458-9

 2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reser ved

dream to uphold the 24

Grand Slam trophy. Serena

Williams had curiously questioned the logic and the

motivation behind the penalties, specifically on her

verbal expression to the umpire. She argued saying to

the referee, “there are men out here that do a lot worse

(things). He’s (a referee) never taken a game from a

man because they said ‘thief’.” She continued arguing

that “because I’m a woman, you’re going to take this

away from me?” “That is not right.” She shut loudly.

Serena Williams‘ heated dispute with the umpire

during the US Open final is recently the latest

controversy involving the tennis superstar. Polemics

emerged in responding the traumatic session of the

match. The International Tennis Federation released

this statement on September, 17, 2018 defending Mr

Ramos by saying:

Carlos Ramos is one of the most experienced and

respected umpires in tennis. Mr. Ramos’ decisions

were in accordance with the relevant rules and were

reaffirmed by the US Open’s decision to fine Serena

Williams for the three offenses. It is understandable

that this high profile and regrettable incident should

provoke debate. At the same time, it is important to

remember that Mr. Ramos undertook his duties as an

official according to the relevant rule book and acted

at all times with professionalism and integrity.

(Guardian, 2018)

Serena Williams’s points regarding her verbal

abuse confronting the referee have been bestowed,

blessed and reaffirmed by many people. In fact, male

tennis players more frequently called other umpires

“several things”, and behaved badly such as smashing

and throwing their rackets, kicking the drink

container, and pointing by their fingers rudely to

referees and umpires. Christine Brennan, a senior

sport analyst, said in her report to CNN “we know that

there’s quite a history to it. Think of John McEnroe,

think of Ilie Nastase, Jimmy Connors, (and) Andre

Agassi. These men all berated chair umpires,

famously so, (however) none of them received a

game penalty”. (Chavez, 2018). In addition, a retired

US tennis star, the 2003 US Open champion, Andy

Roddick, tweeted in other occasion, that he have

regrettably said even worse, and he have never gotten

a game penalty. This is a very clear double standard

applied in William’s experience.

Furthermore, many famous professional tennis

players regardless their gender identity also seriously

commented on Williams’s tragic fate, however, they

were treated differently. Billie J. King, a tennis legend

and an equal rights advocate in tennis, agreed with

Williams, and she supported strongly what Serena has

fought for. King tweeted clearly in her short message:

“when a woman is emotional, she’s ‘hysterical’ and

she’s penalized for it. When a man does the same,

he’s ‘outspoken’ and there are no repercussions.

Thank you, Serena Williams for calling out this

double standard”. (Mackintosh, 2018) She

reempesized that more voices are needed to do the

same”.

Christine Brennan, an another sport journalist

spotted Willmiam’s case more seriously. For her, the

clashes between Williams and the referee show that

women are not being treated equally in the tennis

world. Miss Brennan contended that “Would he

(umpire) have done that with a man? History has said

‘No’. He would not have done that with a man.”

Supporting Brennan’s point, Katrina Adams, the head

of the US Tennis Association, when being

interviewed by the BBC contended that male players

did behave worse than their female counterparts all

the time. She proclaimed that “there’s no equality

when it comes to what the men are doing to the chair

umpires and what the women are doing, and I think

there has to be some consistency across the board.”

(Dickson, 2018)

What Serena Williams has done is very crucial,

and inspiring remembrances for this paper focussing

gender lines in women’s life. (Levviit, 1998)

Williams’ fate is indeed concerned with gender bias,

such a discrimination in law and social life. Hence it

is understandable why Billie J. King thank and

proudly applaused Serena Williams, because she has

done something advocating a very valuable project

for the world of professional tennis in the context

gender equality and equity. For this point, Serena

Williams said “I’m here fighting for women’s rights

and for women’s equality and for all kinds of stuff.

For me to say ‘thief’ and ‘for him to take a game’, it

made me feel like it was a sexist remark”. (AP, 2018)

Serena Williams is not the only female tennis

player to find herself at the center of a gender-focused

controversy and bias. Alize Cornet, a French player,

is also penalized for fixing her top (dress). She

received a code violation, also in the 2018 US Open,

for briefly taking off her shirt on the court. The case

is follow. During a 10-minute break from the

blistering heat at Flushing Meadows, Miss Cornet

rushed off-court to change her shirt, and she

mistakenly put her top on back-to-front. (Chavez,

2018) When she returned, she realized that she was

wearing it the wrong way and fixed her top at the

public arena, an open sphare, on August, 28, 2018.

Fortunately, the US Open Committee apologized

for this incidence. Iin a statement, an US Open officer

on behalf the committee, said it regretted the way

Cornet was treated. The US Open committe added

that all players are allowed to change their shirts

Trapped within the Ideological Power of Law: Women’s Experience Seeking Justice

1003

while sitting in their chairs, however, female players

have the option to change shirts in a more private

location close to the court, when available, and of

course not in a open space. Hence, why was she

penalized? It is about controlling women’s body from

male perspective.

To date in this case, many male tennis players

have changed shirts many times on court without a

problem. For instance, September, 12, 2018, John

Isner changed his shirt 11 times throughout his three-

plus hour match against Juan del Potro at the US

Open. A day later, the Wimbledon champion, Novak

Djokovic sat shirtless for several minutes while his

opponent, John Millman, stepped away to change his

shirt during a quarter-finals match, also in the US

Open. Neither of them was penalized. From this point

of view, there is clearly a double standard applied to

female tennis players.

Beyond the whole heated controversy emerging

from the Williams’ case is a very classical issue for

which feminists fight, namely, gender equality and

equity. They fight to eleminate gender discrimination

in everyday life. By and large, prejoratively, a

hypermasculine woman is often labelled as being like

a man. This stereotype makes women uncomfortable,

and biasedly controlled. For instance, imagine that

you have to contend with critiques of your body that

perpetuate racist and sexist notions such as pointed to

Williams sisters (Venus and Serena) in an

embarassing occasion. Such a verbal abuse shocking

the world of professional tennis appeared from the

mouth of the president of the Russian Tennis

Federation, Tarpischev when he was requested to

comment on Venus and Serene Williams’ body. He

has described Serena and her sister as ‘brothers’ who

are ‘scary’ to look at. More ironically, the stereotype

against women’s body is blessed by other female

players such as Anna Kournikova on a moment who

reportedly said, “I’m not Venus Williams. I’m not

Serena Williams. I’m feminine. I don’t want to look

like they do. I’m not masculine like they are.” (North,

2018)

Apart from the heated controversy discussed

above, women within more broader scopes and

contexts are often treated unfair and biased. Are these

stereoptypes and discriminatory treatment as well

experienced by women gender-based-victims who

seek for justice through judiciary process in

Indonesian criminal courts? How did legal

professionals interpret legal norms when they were

exposed to deal with very male dominanced coercion,

such a rape? Does the legal discourse promote equal

treatment fairly to women?

This paper discusses more precisely issues

relating to the judicial stereotyping in response to

women who fight for justice. The term judicial

stereotyping in this paper is used to refer to the

practice of legal professionals, judges and prosecutors

ascribing to an individual specific attributes,

characteristics or roles by reason only of her or his

membership in a particular social group (such as

women). It is used, also, to refer to the practice of

legal professionals, judges and prosecutors

perpetuating harmful stereotypes through their failure

to challenge stereotyping, for example by lower

courts or parties to legal proceedings, during verdict

process in the court room.

2 MATERIALS AND METHODS

This research is a sociolegal study which aimed at

evaluating the application of law in the case of

gender-based crimes in Indonesian criminal courts.

Since this study attempted to analyze and criticize

empirically strategies by which legal professionals

(prosecutor, judge, and lawyer) interpreted legal

norms, hence such a legal hermeneutical method was

employed in this study. The data supporting this study

sourced from various documents issued mostly by

two Public Courts, namely, Public Court of Padang

and Public Court of Balikpapan.

3 THE NEUTRALITY AND

VALUE-FREE OF LAW:

ADVOCATING WOMEN

BEYOND GENDER

DISCRIMINATION

To begin with, legal feminists criticized strongly the

maleness of law and legal sciences (jurisprudence).

(Down, 2008; Down, 2002) For them, it is not only

the legal norms which are constructed genderedly

biased, but more importantly, male legal practioners

quite commonly interpreted law based on their own

experiences. Inspite of the gender neutral and the

maleness of law, judges and other legal practioners

could actually play a decisive role to apply

affirmatively law for interests of women or for

interest’s disadvantaged people. Howerver, because

of the strong patriarchal dominace in legal doctrine,

the law in its application is often unfair to women.

Gender stereotype is a case in this point.

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1004

In this context, judges are not the only actors in

the justice system who stereotype and interpret law

from male awareness and patriachal frame. Other law

enforcement officials, prosecutors, even lay

witnesses in hearing session and of course legal

professional, have, for example, been criticised for

allowing stereotypes to influence investigations into

reports of such violence especially in cases which

intersect with gender-based coercions or with men’s

world and their private life

(CEDAW/C/52/D/32/2011, 2012), (Rights, 2009).

Even so, gender stereotyping, and gender bias by

legal professionals and judges, definitely, can have

pernicious effects, especially because their unique

position of power means they can give stereotypes the

full weight and authority of the law, and judicial

decisions. (Rebecca J. Cook, 2010) To borrow the

words of Justice Kriegler of the Constitutional Court

of South Africa, judges can imbue stereotypes with

legal authority and added legitimacy by virtue of the

fact that they ‘put the stamp of approval of the …

state’ on them. (South Africa, 1997) This is certainly

correct in addition to any effect on the victim’s ability

to access justice and the deficiency of judiciary

process to serve marginal people, more exclusively

women.

It is widely observed in legal sphere that social-

legal discrimination may be directed against women

on the basis of their sex and gender, in including the

judiciary process. The very evident cases are boltly

demonstrated in several instances mentioned

previously and in coming cases discussed below

which are cited from several court’s decision. These

discriminations are inter alia as partially what Serene

Williams fight for; not only for herself, but for all

women. Serena proclaims that “I’m here fighting for

women’s rights and for women’s equality”.

Gender is a term used to articulate social and

cultural roles, and relation between men and women.

It refers to socially constructed identities. It is

concerned with attributes and roles for women and

men and the cultural meaning imposed by society on

biological differences, which are constantly

reproduced amongst the justice system and its

institutions, and rigidly fixed by legal formula.

Discrimination against women in legal context, based

on gender stereotypes, stigma, harmful and

patriarchal cultural norms, which affect women, has

an adverse impact on the ability of women to gain

access to justice on an equal basis with men especially

in the context of gender-based harm.

To add in a more empirical and critical context,

gender discrimination is pervasively compounded by

intersecting factors that affect some women to a

different degree or in different ways than men and

other women. Grounds for intersectional, multilayer,

or compounded discrimination may include ethnicity,

race, indigenous or minority status, colour, socio-

economic status, and/or caste, language, religion or

belief, political opinion, national origin, marital

and/or maternal status, age, urban/rural location,

health status, disability, and being lesbian, bisexual,

transgender women or intersex persons. These

intersecting factors make it more difficult for women

from those groups to gain access to equality, justice,

and equity, such as what Serena Williams has

experienced as a woman and a black.

Women, in fact, face many difficulties in gaining

access to justice as a by-product of direct and indirect

discrimination which results in inequality and unjust

treatment. Such inequality is not only apparent in the

discriminatory normative content and/or impact of

laws, regulations, procedures, customs, practices and

other policy, but also in the lack of capacity and

awareness of judicial and quasi-judicial institutions

and their officials to address and deal with violations

of women’s rights adequately, and gender sensitivity

which are mystified by patriarchal ideology and legal

science. To break the myth of gender neutrality, and

initiate a legal channel to help women access justice,

Simone Cusack acting as a committee of Eliminating

Judical Stereotyping, (Cusack, 2014) notes that

judicial institutions must apply the principle of

substantive or de facto equality as embodied in the

Convention on the Elimination of All Forms of

Discrimination against Women and interpret laws,

including national, religious and customary laws, in

line with that obligation. Article 15 of the Convention

encompasses obligations for States parties to ensure

that women enjoy substantive equality with men in all

areas of the law.

Democracy, puts theoretically huge hopes on the

rule of law to ensure equilty and equality for all

citizens. The legal maxims of equality before the law

and the rule of law are the backbone to assure the

expectation. However these legal maxims are not

without deficiency. Jíří Příbàň argues that the rule of

law as the basis of the discourse of neutrality of law

in many cases fails to depoliticize legal conflict,

dispute, and inequality in modern society (Př

íbàň,

1997).

Legal feminists go further in speculating that law

and jurisprudence suffer gender neutrality. In this

point, Catherine MacKinnon, for instance, said that

law defines and treats women according to the ways

and logic of men to view and address women both

socially, culturally, politically and religiously

(MacKinnon, 1983). For her, and other radical

Trapped within the Ideological Power of Law: Women’s Experience Seeking Justice

1005

feminists, the law is often used as an ideological

medium by men to define and more interestingly to

control women’s social behavior and life. (Patricia

Yancey Martin, 2002)

In more assertive points, Martha A Fineman more

contentiously argues that law as an institution (its

procedures, structures, dominant concepts and

norms) was constructed at a time when women were

systematically excluded from participation. Insofar as

women’s lives and experiences became the subjects

of law, and ruled by law, they were of necessity

translated into law by men. Even, social and cultural

institutions that women occupy exclusively, such as

motherhood, were as legally significant categories

initially what she calls colonized categories that are

defined, controlled, and given legal content by men.

Male awareness and male understandings structure

legal definitions of what constitute a family, who had

claims and access to jobs and education, and,

ultimately, how legal institutions function to give or

deny redress for alleged and defined harms.

(Fineman, 1994) (Daicoff, 1997) The following

discussion proves how law and judicial process

widely disadvantage women’s life.

4 THE MYTH OF OBJECTIVITY

AND GENDER NEUTRALITY OF

LAW: EVIDENCX FROM

VERDICT SESSION

Stereotyping and gender bias in the judicial system

have far-reaching consequences on women’s full

enjoyment of their human rights. They impede

women’s access to justice in all areas of law through

a variety of ways and stages. For instance, gender

stereotyping distorts perceptions and results in

decisions based on preconceived beliefs and myths

rather than relevant facts. Judges often adopt rigid

standards about what they consider to be appropriate

behavior for women and penalize those who do not

conform to these stereotypes. Stereotyping as well

affects the credibility given to women’s voices,

arguments and testimonies, as parties and witnesses

in the verdict process. Such stereotyping can cause

judges and other legal professionals to misinterpret or

misapply, even in more traumatic cases to manipulate

and abuse laws.

Judges as discussed in this paper are not the only

actors in the justice system who apply, reinforce and

perpetuate stereotype against women in judiary

process. Prosecutors, lawyers, legal professionals,

and other law enforcement officials as well, often

initiate and cultivate gender stereotypes to influence

investigations and trials, especially in cases of

gender-based violence. From this point of view,

stereotyping, therefore, permeates both the

investigation and trial phases and finally shapes the

judgment at the judicial process.

There are opportunaties in which legal

professional may apply law genderly biased. In this

case, procedural demands for obtaining strong legal

evidence compel law enforcement officials to be

critical, which in turn results in inconvenience to

victims. In fact, to pursue the target objectivity, inter

alia, prosecutors, judges and lawyers with detailed

request must ask the legal facts of the case being

proceeded. Even their actions, in many cases and

occasions felt ridiculous and embarassing to be

judged by moral standards. In addition, the highly

positivistic formalism has made legal professionals

lose touch on their human dignity as seen clearly in a

brief dialogue during the judicial process.

The following are fragmented narrations of the

parties involved in the gender-based-coercion trial.

From the minutes (notes) of the trial session of sexual

abuse against a poor girl (16 years old), the following

series of fragments of dialogue were recorded. This

naration spoke out with a shameful expression from

the victim’s mouth when she was asked by a judge of

Balikpapan District Court to explain the first sexual

coercion (of the three cases) that she had badly

experienced.

“I (the victim) had a chat in his room (the defendant);

then the defendant took the mandau (a traditional

Dayak’s sword, long like a samurai) under the study

table in his room. Then the mandau was opened from

the sheath, and sharpened to my neck; so that I felt so

scared. Then the mandau was saved again by the

defendant. ... I was told to lie down on bed. ... I was

forced to undress the bottom ... get to my knees. ...

After that the defendant squatted to see my genitals

and then the defendant put his finger into my vagina

for about 5 (five) minutes while licking it. After that,

I used my pants again and I cried sitting on the bed,

then I was taken home by the defendant”.

(Balikpapan, 2000)

Meanwhile, from the news of the gang rape

session in the court involving eight perpetrators, the

following fragmented dialogue was recorded.

“Witness I, (victim, 18 year-old) were you pleased to

raped by these people?” The prosecutor asked the

victims. “According to the witness I, how did the rape

happen?” The prosecutor asked later. “There were

those who raped me standing, whereas others held my

hands and feet”, answer the victim. “... Were you glad

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1006

to be touched [grabbed)... treated like that? asked a

judge to the victim. (Balikpapan, 1998).

Questions

with a tone of at least four times were asked to the

same victim. The standard question model like this is

also commonly asked to every witness who is a

reporting victim of sexual crimes experienced by

women. For instance, A prosecutor asked the victim

witness : “When he (perpetuator) penaterated his

penis to your vagina, how did you feel at that time?”

(Balikpapan, 2000).

In other bad news of the trial of sexual abuse by a

step father against his daughter, (14 year old),

Padang, July 25, 2002, the following dialogue was

recorded. “Did the witness see the bird (penis) (the

defendant), and how big was the bird?” asked a judge

to the victim’s witness. “I saw the bird; it was so big,

as big as the hammer in your hand” victim witness

replied. Meanwhile, in the minutes of other sexual

abuse cases, the following dialogue was recorded. A

judge asked the victim’s witness : “During the second

incidents, the witness said ‘when the defendant

wanted to insert his penis (to the victim’s vagina), and

the witness closed the witness’s genitals by hand,

could the witness estimate the length of the

defendant’s penis?”. A prosecutor asked the witness

victim “Did the witness hold the defendant’s penis?”

(Padang, 1998)

A variety of the above fragmented dialogues are

very rediculous. However, they seem to be a legal

must resulted from the traditional principle of legal

objectivity. In a procedural stand, the principle of

legal objectivity requires judges, prosecutors, as well

as lawyers to ask and to comprehend in detail and

surely all the events that occurred as exemplified

above. This situation makes the legal apparatus

forcedly ask witness victims and other witnesses to

obtain legal facts that can be used as a basis for the

court decision.

The series of questions and dialogues above are

funny impacts, as well as ridiculous from the

demands of the doctrine of legal objectivity.

Questions concerning the feelings of victims of

sexual coercion for instance normatively according to

procedural law, become important to the judge as a

basis for conclusions whether such a sexual

intercourse was carried out on the basis of coercion or

liking by consent. According to criminal law, an act

is called rape, if sexual intercourse is imposed

unilaterally by one party, but denied by another. In

this point, one main indicator of coercion and non

consent is the feeling of victims who do not enjoy the

intercourse.

Another issue of the effort to prove the accusion

of rape is an attempt to explore the fact of penile

penetration into the vagina. For example, a very

crucial point of definition of rape in heterosexual

orientation is the penetration of the penis into the

vagina. For the effort of proving penile-vaginal

penetration with the minimum standard definition

above, a judge in the Balikpapan District Court asked

the victim witness for the attempted rape, reportedly

: “Was the defendant’s penis erecting?” Even, the

spirit of procedural-adversarial law which slices the

heart of the victim (perhaps this is a special strategy

of the apparatus to uncover the facts), was commonly

expressed, when the judge in a gang rape case very

frequently asked about the feeling of the victim when

she was raped. In fact, in quite common sense,

precisely conscience, and politeness, this modelled

question is not necessary, and does not deserve to be

thrown out. Is it possible that the bitter experience of

rape will be enjoyed by a victim? This phenomenon

seems to be an incarnation of the doctrine of gender-

neutral law, gender incensitivity, and as the

incarnation of patriarchal ideology and stereotypes

with sarcasm that blaspheme and condem rape

victims.

The previous logical reasoning developed by

judges, prosecutors and lawyers was very similar to

the way a lawyer in the USA defended his client who

was accused of raping. In a rape case trial, a famous

lawyer began his client’s defense speech by spinning

an open Coca-Cola bottle on the table. When the

bottle spun wildly, the lawyer, then, demonstrated his

difficulty of inserting a ball-point he held into the

mouth of the spinned Coca-Cola bottle. The

illustration was stereotypically chosen to explain to

the public, especially the jury and the judge, that his

client was not one hundred percent responsible for the

alleged rape incident, since he could not inserted his

penis into victim’s vagina if she attempted to fight

against him.

In short, this lawyer asserted that rape was

actually approved, as well as expected and enjoyed by

victims; a rape occurred partly in the victim’s consent

and expectition. This is an ideological perception that

forces gender-based victims into a very dillematic

situation. This model of questions, attractions and

defense has made victims become disgusted,

humiliated, and of course psychologically being

revictimized several times during the verdict sessions.

As a result, they finally prefer to be silent, silent in

acute and everlasting pain, rather than taking their

case into the formal-public path through litigation.

The logic of the defense of American lawyers

above was selectively duplicated by a lawyer in

Balikpapan District Court for defense of his client

who was accussed with attempting rape. A

Trapped within the Ideological Power of Law: Women’s Experience Seeking Justice

1007

defendant’s lawyer asked the witness-victim “did the

defendant’s breath run wild while he attempted

raping?” ... “Has she ever came out from the

bathroom with only a towel, with no other cloth and

the defendant saw her with minor dress?”. “In home,

did she (victim) always wear shorts dress?” At a

follow-up hearing session, the defendant’s lawyer

asked politely his client “What are the victim’s

behaviors made you sexually aroused?” The

defendant replied “The victim sat on a dining chair

facing me and her legs were lifted and her clothes

were sexy, so that her cleavage was visible, so I was

sexually aroused”. Ideological logic of this argument

is absolutely pejorative and misogynic, based on the

mischievous assumption that rape is actually

triggered, initiated by victim’s behaviors. A

traditional joke alleges that “at first, a woman victim

felt raped, but after the rape have been taking place,

she herself enjoyed it”.

It should be noted that in the later case, all

victim’s behaviors occured in a very personal space,

namely, at the private home and kitchen of the

victim’s dining room, while the perpetrator is a

foreigner who does not have freely personal access to

enter it. In other words, the atmosphere of stimulation

is only more as a result of the perpetrator’s world of

hallucinations, imagination, objectivication against

victim’s body, or the sexual fantasies of the accused.

Indeed, the question of legal counsel seems to be

more trying to deflect the case of attempted rape into

the realm of ideological stereotypes which

intentionally may shift the coercion into victim’s fate

and responsibility.

The above question models, furthermore, often

overlap, as they are deflected from their main

function to explore evidence. In many cases, the

modelled questions are only misused as an

ideological medium for lawyers to neutralize the

errors that are claimed by their clients. The direction

of deflection of this question is very evidently

observed from the following quotations. The case was

about a girl who was burned lively by the accused. He

said (the defendant) “Let it be (she was burned and

died, because) she was a bad woman” because she

was a wild, unrespected girl. At the gang rape trial, a

judge in the Balikpapan District Court asked the

defendant “In your point of view, what is she?

Naughty?” (Balikpapan, 1998)

Data presented previously demonstrate that law in

judiciary process often disadvantages women,

especially those who are victims of gender-based

coercion. The jurisprudential discourses of gender

neutrality, legal certainity, objectivity, and

impartiality force legal professionals into very

critical, difficult situation; that is, the difficulty

relating to be consistently complying, and following

the backbone of legal principles mentioned above, or

attempting to innitiate reconstructing legal

adversarial which is critical and genderly sensitive.

The free-value and objectivity principles of legal

doctrine invite polemics, especially when observed in

relation to such crime based on gender inequality

relations. David Lyons, for example, considers that

the value-free principle is as a discourse that has

many weaknesses, especially when it is applied in the

process of making decisions. According to him, the

logic of this principle is wrong, and leads to injustice.

The pure objectivity, however, accordingly, never

exists, and will never exist. (Lyons, 2000) In fact,

everyone in making decisions always bases their

choices on certain considerations, and ideally they are

moral values. Lyons gives an example of

constitutional provision that private property can

legally be used for the public interest without

compensation, even if without the consent of the

owner. According to him, although there are no clear

and standard criteria as stated in the law, a judge in an

attempt to decide on a dispute case, must consider a

specific moral aspect as the basis for his interpretation

of the general principles of law above. In a

constructionist framework, individuals act always

within a certain framework, be it cultural, social,

religious, political, or other ideological traits and

personal orientations. In other words, there has never

been what is called objective, value-free, especially at

the level of practice. That is, every decision must have

a normative standard footing.

Hannah Arendt (d. 1975), an influential German

social-political philosopher, concerned about critical

interpretations of neutrality or value-free. Arendt

really dismissed the notion of objectivity and

impartiality and rational neutrality in moral and legal

judgment, as proposed and carried out by modern

legal theory. He rejected the notion of impartiality in

the universal sense, crossing the boundaries of

consciousness and certain interests. According to

him, such a judgment in the sense of making legal

judgment considerations, is originally subjective.

Judgment is limited to an agreement-based verdict,

arbitrary, driving opinions with logic that is able to

convince others. It only concerns the principle of

choosing a standard of preference.

Here, to obtain such objectivity, there is a certain

preference with criteria for majority, dominant,

sometimes formal criteria in accordance with legal

construction. However, there are also preferences

with minority standards, outside formal legal

standards, such as moral and scientific standards.

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When making a decision by referring to certain

preferences, someone is actually trying to persuade,

lead others smoothly and persuasively to agree with

the arguments and messages that they fight for

(Smart, 1989) So, what is referred to as objective, it

is actually subjective, at least reflected and trapped in

the framework of the subjectivity of the majority,

precisely the general criteria used.

From this point of view, the decision, with all

claims of objectivity, still refers to a certain footing.

Referring to the basic idea of Arendt above,

Nedelsky, a legal feminist, emphasized that

something (logic, evidence, narration, assumption)

that allows us to make impartial decisions in handling

lawlessness cases in a genuine manner, is the ability

to get out of the trap and confines of idiosyncrasy and

narrow-partisant preferences.

This step and strategy is human capability to

achieve the widening and enrichment of reason in

decision making considerations. We do that by

referring to a series of references that are noble and

moral. The more sublime and strong references, the

greater the likelihood that our decision results will be

impartial, and he will be closer to the values of justice

that are more proportional and elegant. Imparsiality is

not a supra entity on the subjectivity of subjectivity,

but it is limited to the characteristics of judgment

formed by considering the objective context of the

case being criticized, disputed, and the perspective of

others in making moral-communal decisions.

(Nedelsky, 1997)

The principles of traditional legal discourses

which are highly positivistic, namely innocence —

value free-neutrality-impartiality, are very thick in the

collective memory and awareness of law enforcement

officers in legal practices in the case of handling

sexual violences. In fact legal professionals especially

judges, lawyers and prosecutors, often abused,

misused, and at least applied them recklessly,

sometimes even childishly. Related to this problem,

for example, Syamsir, a prosecutor who were

interviewed for this study, and served in the Padang

District Attorney, said that “if we look at the law, men

and women are the same, and in practice, they are the

same”. (Syamsir, 2003) According to him, men and

women must be treated equally before the law,

regardless the fact that it is very obvious that

patriarchal ideology, socio-cultural attitudes and

behavior of people, treat men and women very

differently, and benefit men more. (Smart, 1995) On

the hand, huge legal professionals ignored the

existing contexts of power relation domination

between a male perpetrator and a female victim.

It is importantly to note that it really feels unfair

when the law is neutral and gender-blind to be applied

to handle such a case of gender-based crime that are

ideologically produced and reproduced by the

imbalance of gender relations. Women are

normatively equal before the law, but in fact, they fall

into a circle of gender inequality. This is a mystical

form of defense of legal innocence, and it is a general

portrait of the ideology of legal gender neutrality

among the legal apparatus, more precisely gender

blindness. Morally, the judicial process of handling

injustice originating from gender inequality, must not

ignore the specific context of inbalance, and injustice

itself which facilitates and reproduces violence.

Neglecting the context is precisely another form of

injustice. Finally, the notion of law that is gender-

blind is unethical to be applied in resolving cases of

gender-based crime that are a by-product of the

imbalanced gender relations.

The basis of neutrality and free of legal value

relates to other legal adverserial logic, namely the

principle of objectivity and detachment. Referring to

normative standards and the principle of the principle

of presumption of innocence, formal law, as well as

substantive law, has regulated the problem of proving

the gender-based crime case very tightly. The statute

and legal norms have laid the foundations of evidence

that are very rigid and sometimes difficult to

understand with specific reasoning. In this regard, the

principle of legal objectivity requires prosecutors and

judges to objectively place each legal case, as it is.

While the principle of detachment teaches us that in

the process of law enforcement, law enforcement

officers must remove or stay away from the

attractiveness of the problems they handle. The legal

apparatus, in the process of law enforcement, should

not be involved emotionally, ideologically and

politically either in the form of sympathy, let alone

empathy, which can lead them to be not objective in

making decisions.

In general, the two above principles of traditional

legal discourse are very clear, and thick in the logic

of prosecutors, judges, lawyers and legal advisors in

the law enforcement process, not least in the case of

gender-based crime. The principles of neutrality and

legal objectivity were maintained very strongly

among judges as told by a judge in Jakarta. According

to him, “judges must not take sides, either for women,

victims, or for perpetrators” (Putu, 2003) Masrimal,

another female judge from the Padang District Court,

further emphasized that “We consider the defendants

and victims to be neutral. We can (accept) the

information of the defendant or the information of the

perpetrator with reference to the Criminal Code and

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Criminal Procedure Code”. (Marimal, 2003)

However, Marsimal’s point maybe inappropriate

when it is applied to handle such as a case of by-

product of unneutrality, that is, the unbalanced

relation between a male perpetrator and a female

victim.

5 CONCLUSION

The massive and articulating illustrations discussed

above must be admitted in comprehending the basic

notion of law from feminist standpoint theory. It is

indeed a dilemma concerning legal enforcement. Law

enforcement officials are faced with very formal-

traditional procedural demands. However, the law

cannot be understood only as a standard of formal

procedures, by ignoring moral values-humanity, and

the socio-cultural and ideological contexts that

govern these crimes.

Based on this phenomenon, a USA supreme

judge, honorable Oliver Wendell Holmes (d.1935)

concluded that the law was not only limited to formal

logic, but rather a form of complex expression of

global human life experience. Hence, the legal

enforcement has to be just in considering and taking

specific factors in dealing with very sensitive cases,

such as sexual violence. Indeed, the exact law must

be based on a specific experience context. Holme

firmly rejects the discourse of absolute legal

certainty, traditional notion of legal objectivity, and

tradional legal adversarials to apply law. Adversarial

role and reasoning can actually choose alternative

legal logic that is more polite, humane, moral and

elegant to explore legal facts in the trial in dealing

with gender-based coercions. Moral and local

wisdoms which intersect with religion and ethics, and

the demands of the standard of humanity can really

help prosecutors, judges and lawyers to divert

tendentious questions as proposed by the judge and

prosecutors such as “whether the victim likes and

enjoys being raped” and “at that time the witness

(victim) felt what?”

However, the traditional practice of the trial

process, and traditional legal adversarial to explore

and cultivate legal facts, seems to make the dialogue

dirty, sexist, ridiculous, and easily distorted, as can be

seen clearly in the quote above. Androgenic dialogue

has become an integral, core and routine part of the

trial process. So it is not surprising if there is a judge,

to ensure his conviction in making a decision, he had

shockingly requested a redemonstration,

reconstruction of the rape case he handled. According

to information obtained during this flied research, a

Padang District Court judge had once requested the

reconstruction of rape cases involving a victim.

Common sense really needs to reflect on whether this

request is a demand for a proof process or an

ideological slap in the name of law. However, one

thing is certain that the formal process will greatly

torment the feeling of the victim. In other words, the

reckless application of the principle of neutrality,

objectivity and the principle of presumption of

innocence has made the law enforcement process,

especially sexual violence, become the arena of

publication of oblique stories of the victims’ sad fate.

Therefore, it is safe to state that the victims of gender-

based coercion have fallen down the stairs again; they

experienced serial revictimization; they are trapped

tragically within the patriarchal ideology of law.

Victims will experience a continuation of violence

when they seek justice. In this sense, the search for

legal justice through litigation cannot be separated

from the publication of victims’ traumatic feelings.

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