PRECEDENT AND GENDER

Exploring Changes to Legal Precedent and Gender

Taylor S. Hypes
College of DuPage

Precedent and gender 2

Abstract
Gender inequality is usually a really passionate topic, and one often heavily debated.
Whenever there is a way to display these inequalities factually, a huge contribution to this debate
is made, as these facts can be free of opinion and undeniable. By studying the gender inequalities
within law, it can be shown that even in a place intended to be free of bias, sexism can still have
its roots. The best way to change these inequalities and stop them from happening in the future is
to realize their existence and understand why they exist. After analysis of the cases used for this
essay, it was found that extreme examples of these inequalities do exist. By studying how the
conclusions of these cases were reached, it is possible to find the source of the sexism within the
legal system.
This discrimination can affect everyone, not just those it obviously affects. The fact that
there is sexism towards women within the law, especially in cases that have a sexual nature, can
overshadow men who are the victims of sexual crimes. Sexism in the law can also help highlight
inequalities not involving gender, as it is often speculated that there is racism within the law. The
recent events involving the law and racism can be particularly impacted by proof that the law can
be sexist.
By exploring the concept of inequality within the law, it can be strengthened, and true
justice can be found.

Precedent and gender 3

Exploring Changes to Legal Precedent and Gender
Precedent
Inequality has been a prominent issue all around the globe, arguably forever. This
inequality has reached all parts of humanitys social world, from wage gaps to basic social
treatment. The one place inequality should never have a home is the law, but even within our
American legal system people have made claims that discrimination has slipped its way in. To
explore this concept, this essay will look into the following of precedent within our legal system,
to decipher the differences between case results and gender specifically.
"Webster's Ninth New Collegiate Dictionary defines precedent as "something done or
said that may serve as an example or rule to authorize or justify a subsequent act of the same or
an analogous kind." Stare decisis refers to adjudicating particular cases by means of precedent,
that is, by trying to show an analogy with previously decided cases." (Heiner, 1986, p.
228) Precedent is, simply put, following by past example. Making connections between cases
and then following those case rulings allows the law to be relatively consistent. (Heiner, 1986)
This concept requires impartiality, and a focus on basic fact as opposed to opinion. This concept
is important when studying the possibility of inequality, as discriminating would mean
abandoning impartiality, and everything American law stands for.
As not every case is the same, there will undoubtedly be differences within case results.
These differences themselves are not discrimination necessarily. The small differences within
similar court cases are catalysts for the evolution of precedent. These shifts allow small aspects
of cases to gain importance and lead to change. (Heiner, 1986) These changes are often for the
better, and lead to more justified rulings and an improved legal system. Law that is so closely

Precedent and gender 4

tied to cultural beliefs and norms is often affected by changes to these beliefs and
norms. (Eisenberg, 1999)

Precedent and gender 5

Assault and Battery
For the purposes of this essay, the focus is on cases involving assault and battery. Assault
is the threat of physical harm while battery is the intended physical harm of another. (Assault,
Battery, and Related) This crime was chosen, as it is a very specific injury, and one that can

Precedent and gender 6

display clear sexism, as there is usually a difference when it comes to physical interactions.

This chart displays how specific of crimes assault and battery are. It is a type of injury to
the person, so it is a perfect case of when gender can matter in a crime.

Precedent and gender 7

The other part of assault and battery worth exploring is that done by police. Usually this
involves the use of force, but in the cases studied it also included the use of pepper spray.
The intended usage of pepper spray is never to harm or punish. Its purpose is, in a way, to
put down the arrestee as humanely as possible for the sake of good. ("Civil Liability for the Use
of Pepper," 2014) That said, there are many guidelines for when pepper spray can be used, all of
which require relatively extreme circumstances. An individual is almost always warned in
advance when pepper spray will be used. ("Civil Liability for the Use of Pepper," 2014) Unless
the person is a real threat, pepper spray is unnecessary.
The use of force has a bit more lenient guidelines. The guidelines for using force and how
much force is acceptable are somewhat fluid. It is subjective to the case to be decided by the
courts, as there is no objective ruling for it. It is one of the laws that are different from case to
case. ("Police Use of Force," 2015)

Precedent and gender 8

Female Court Cases

To begin, in a case from the 60s, a military officer broke into a home while
stationed in Hawaii while intoxicated. While inside the home, he assaulted and tried to rape a
young woman, who was able to escape. The officer was quickly apprehended. (Parker,
1969) The defendant was convicted of all his charges, which included rape, housebreaking, and
assault. There was no leniency granted whatsoever, and his position in the army did not give him
special treatment, merely process through the military courts instead of basic
courts. (O'Callahan v. Parker, 1969)
Heading into the 80s, the plaintiff: A waitress, accused the defendant: her employer, of
sexually harassing her, physically holding her body against her will, and then firing her for not
accepting the defendants advances. All the incidences of sexual misconduct in the work place
were unwelcomed by the plaintiff. The physical enclosure of Ms. Priest is a form of assault and
batterment and the sexual manner of it makes it worse. (Priest v. Rotary, 1986) Although all the
sexual interactions between Ms. Priest and her employer were unwelcome, even if they had been
returned or accepted they would have been inappropriate for the work environment. This sexual
nature makes the assault and batterment sexual assault and sexual harassment. The defendant
was found guilty of the main charges of sexual assault and battery, as well as the unlawful

Precedent and gender 9

termination of the plaintiffs employment. He was, however, not believed to have the intent to
cause the plaintiff the emotional distress and other consequences of his actions. (Priest v. Rotary,
1986) This lead to a lesser conviction, as intent is a central part of determining the severity of the
situation.
In the 90s, there was a case in which a woman, (Andrews) accused a police officer,
(Fowler) of rape, and the police of failing to properly handle the situation. (Andrews v. Fowler,
1996) The defendant was found guilty of second-degree rape of the plaintiff in
question. Unfortunately, this conviction did not come until after he had already raped and
assaulted another woman, which he was also convicted of. The plaintiffs accusations against the
department did not lead to a conviction, and were found to lack evidence. (Andrews v. Fowler,
1996) This lack of evidence is strange, though, as other victims of Fowler made the same
complaint. These complaints seemed to have gone unheard.
Leading into the 2000s, the plaintiffs are accusing the defendant (a police officer) of
using excessive force. They are attempting to use past cases in which the defendant was said to
have used excessive use of force, which there are three of. These cases were dismissed from
being used in this case, as the courts say that an officers intent is irrelevant to whether he or she
used excessive force. (Tanberg v. Sholtis, 2005) The defendant was found innocent, after
evidence was deemed excludable due to irrelevance. (Tanberg v. Sholtis, 2005) It is very strange
that evidence that a police officer has a track record of using excessive force is considered
irrelevant. It seems very odd that the officers intentions were considered irrelevant, as intent is a
central part of the definition of a crime, and intent can display reasoning.

Precedent and gender 10

Male Court Cases

In a 60s case, the defendant was accused of tearing the plaintiff from his car with
unnecessary force and then proceeding to beat him. The officer did not inform him why he was
being arrested in the first place, and lacked evidence for pulling him over at all. (Stringer vs.
Dilger, 1963) Clearly this case involves policy brutality, and was not instigated. The defendant
was in fact found guilty in this situation. The officer's negligence of policy was not overlooked
and each of his shortcomings were acknowledged in the jury's decision. (Stringer v. Dilger,
1963)
In an 80s case, the plaintiff accused the defendants (again police officers) of assault and
battery, as well as infringement on his constitutional rights. He was allegedly unlawfully arrested
and beaten by police after this arrest. (Owens v. Okure, 1989) The debate in this case was mostly
surrounding statutes of limitations, but regardless, the defendants were found guilty. The police
were convicted of the assault and battery of the plaintiff. (Owens v. Okure, 1989)
In the 90s, a citizen was allegedly beaten by a police officer, and then by multiple police.
Based on eyewitness testimony, the defendant did not try to fight back against police. (Posr v.
Doherty, 1991) Excessive force in this case can be comparable to assault and battery. Both
Officers in this case were held liable for these actions that were clearly unnecessary due to the

Precedent and gender 11

plaintiff's original charges being dropped. (Posr v. Doherty, 1991)
In a case from just the last decade, without provocation, the defendant (Officer Saad)
sprayed the plaintiff with pepper spray; Not out of self defense or defense of others. There was
no warning given that the pepper spray would be used, nor was the plaintiff ever informed that
he was under arrest. This series of events can be confirmed by eyewitness testimony. (Grawey v.
Drury, 2009) It was clearly established that procedure was not followed, specifically the
batterment involving the pepper spray. The court did find the defendants guilty based off of this
evidence, upholding the law despite police involvement. (Grawey v. Drury, 2009)

Precedent and gender 12

Inequalities
After analyzing the data, there are very clear inequality trends. The most
noticeable were the ones between genders, as opposed to the decades.
4.5
4
3.5
3
2.5
2
1.5
1
0.5
0
Male
Female

For this essay, there was a focus on four categories: Whether the defendants were found
guilty, partially guilty or completely innocent, whether the crimes were of a sexual nature, and
whether the crimes involved police. There are obvious differences here, much larger than
expected.

Precedent and gender 13

The female factor that cannot be ignored is the difference in the sexual presence within
crimes against females. This is not to say that there should be more sexual crimes against males,
merely that there is such an extremely high rate of sexual offenses against females that the
relatively few that males experience are highly overshadowed. Not a single male case involved
sexual harassment, and when choosing cases without bias, there was no way to choose cases that
did. This inequality may have been obvious, but that does not make it any less important.
Seeing as women were far more likely to be involved in sexual crimes with a lower full
conviction rate, the differences between the decades and their case results were then further
analyzed. Starting with the 60s where a speedy full conviction took place, there were gradually
fewer convictions involved as time went on, ending in the 00s with no conviction taking place.
Comparing this to the male cases, where things stayed relatively steady in the conviction and
content departments, there is definitely some sort of inequality.

Precedent and gender 14

Differences in Precedent
While it is clear that a kind of precedent was still followed in all these cases, it is
the different results that are so interesting. When analyzing a case, usually the prior cases that are
used for precedent purposes are listed or even described and explained. For this study, the goal
was to choose cases that could technically be compared for precedent, and while the different
results themselves are not necessarily proof of inequality, the way the conclusions were reached
can be.
A case of particular interest was the female case from the 80s. There was still a
conviction, but the defendant was not found to have the ill intentions that are often required for
a crime. The defendant had continuously ignored all the plaintiffs responses to his harassment,
in which she clearly displayed she did not return his feelings, so clearly there was a sort of ill
intention. Compared to the female cases of the 90s and 60s, this is particularly odd, as the
actual act of rape implies ill intent, but somehow acts of the same family that involve sexual
harassment do not imply intent.
The importance of intent is again prevalent in the female case of the 2000s, as the
intentions of an officer apparently do not matter when trying to prove excessive force. However,
in the comparable case of the 80s, intent was almost a requirement to prove a crime. Not only is

Precedent and gender 15

precedent clearly different when police are involved, but it seems that it is differently required
over time.
Comparing the female 2000s case to the male cases, the intent and police involvement
seem to have a strange relationship. Specifically the male case of the 2000s, in which the officer
had no tangible reason to pepper spray the plaintiff, other than a personal motive. This said, the
other cases in which police were proven to have used excessive force had very little reason to do
so except a personal motive as well. The fact that they can be fully convicted without intent, but
the female case of the 2000s was not displays something very fishy. This case had similar
amounts of evidence, with even more plaintiffs to argue their case, and yet they received no
conviction. This essay is not intended to explore the concept of intention and police brutality,
however, the fact that it is not supposed to play a role in court cases but inevitably does is an
issue that needs to be touched on.

Precedent and gender 16

Conclusion
Inequality will continue to be a problem around the world, whether it be racial, gender, or
age etc., unless something is consciously done to stop it. While it is difficult to prove the cause
and effect relationship between sexist actions and intentions, seeing cases that can display this
definitely help show its existence. There is no easy solution for discrimination, but every chance
to expose it makes a difference. After all, the first step to change is admitting there is a problem.
With proof that there is discrimination in the law, specifically within gender in this case, it can
open doors to proving discrimination within other groups, like race.

Precedent and gender 17

References
Andrews v. Fowler, 98 F.3d 1069 (8th Cir. 1996).
Assault, Battery, and Related Crimes. (n.d.). Retrieved May 13, 2015, from Illinois Courts
Batista v. Weir, 340 F.2d 74 (3d Cir. 1965).
Caldeira, G. (1985). The Transmission of Legal Precedent: A Study of State Supreme Courts.
American Political Science Review, 79(1), 178-194.
Civil Liability for the Use of Pepper Spray (OC), Tear Gas, and Chemical Agents. (2014). AELE
Monthly Law Journal, 101-109.
Dimensions of Tort Liability [Chart]. (2012, December 29).
Eisenberg, M. (1999). Corporate Law and Social Norms. Columbia Law Review, 99(5), 12531292. Retrieved from Google Scholar database.
Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009).
Heiner, R. (1986). Imperfect Decisions and the Law: On the Evolution of Legal Precedent and
Rules. The Journal of Legal Studies, 15(2), 227-261. Retrieved from Google Scholar
database.
O'Callahan v. Parker, 395 U.S. 258 (1969).
Owens v. Okure, 488 U.S. 235 (1989).

Precedent and gender 18

Police Use of Force. (2015, April 13). Retrieved May 4, 2015, from National Institute of Justice
Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991).
Priest v. Rotary, 634 F. Supp. 571 (1986).
Schwarz, T. (2007). Cases Time Forgot: Why Judges can Sometimes be Caught Ignoring
Precedent. Emory Law Journal, 56(5), 1475-1510.
Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963).
Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005).