Women’s Privilege to Ignore Women’s Privilege

Writing Prompt: “Give an example where a person would owe a duty of care to another person, and an example of where a person would not owe a duty of care to another person.”

(Note: A “duty of care” is an affirmative legal requirement to act, where a failure to act can result in either or both a civil and legal penalty.)

Russ’s Answer:
I. A duty of care: a man who sees a woman being beaten by a woman or man.
II. No duty of care: a woman who sees a man being beaten by a woman or man.

Ms. Professor’s Feedback:
Hi Russ,
Thank you for your post. Actually, gender is not a factor in determining a legal duty of care. Please review the rule and determine whether the facts meet the rule and if there is or is not a special circumstance or exception.
Professor [name omitted]

Russ’s Response:
Hi Prof. [name omitted],
Thanks for the correction. In forming my answer, I looked past a lifetime of anecdotes to base my answer instead on two data—the first from the textbook for my current Legal Analysis class, and the second from the textbook for a past Criminal Evidence class:

(1) Even when there is gender disparity, courts have “consistently regarded the comparative sizes of the parties as more important for establishing intimidation than gender alone;” Helene Shapo, et al., Writing and analysis in the law (7), 137 (Foundation Press, 2018) (emphasis added) (indicating that courts do factor gender into the extent of someone’s duty of care to avoid intimidating others, and, by logical extension, that those same courts would factor gender into an analysis of a party being intimidated—i.e. “reasonable fear”—as a defense against an affirmative duty to act); and

(2) The most common sex crimes are those which involve the sexual exploitation of an underage male by an adult woman, but those crimes are generally not taken very seriously, and are far less likely to result in arrest and prosecution than when a man sexually exploits an underage male or female. See Rick Michelson, Introduction to criminal investigation: Concepts and applications (6) (LawTech Publishing, 2015) (describing women’s de facto lower duty of care—”to do no harm”—in refraining from the sexual abuse of children).

Although both data come from Criminal Law, I figured that the underlying principle would apply also to Torts, since each datum suggests a cultural double-standard generally in favor of absolving women sooner than men of legal responsibility.


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