Reasonable

Sophia Carey

Definition and Context

reasonable

/ˈriː.zən.ə.bəl/  ​

adj.based on or using good judgment and therefore fair and practical:

If you tell him what happened, I’m sure he’ll understand – he’s a reasonable man.

            He went free because the jury decided there was a reasonable doubt about his guilt.

(“Reasonable” 2019)

Multiple definitions of the word “reasonable,” embedded in a historical and contemporary colloquial context of sexism, racism, and marginalization have allowed for a standard of reasonable in the Western legal system that is contradictory and ultimately serves white patriarchal ideology even when under the guise of objectivity and open neutrality.Most familiar in the Fourth Amendment, the word reasonable has described searches and seizures, doubt, accommodation, and people (Kim 2017; Bizzack 2014; “Disability Statement” 2019). In investigating the history and significance of this standard, the central question arises, “Who gets to define reasonable?” John Gardner argues in his paper, “The Many Faces of the Reasonable Person,” that it is not the courts, but a set of extra-legal ideologies that have been imposed upon the reasonable person standard, that define what the phrase means in a legal context. However, “reasonable,” the word, exists in a colloquial context outside that of the law and therefore imposes its own societal context upon the standard it creates. While the distinction is subtle, it is crucial for glossing the word “reasonable” from a legal as well as extra-legal perspective to address the significance of the way it is defined by society before it is used in legal courts, the impacts of intersectionality in the way reasonable has been defined, and how these definitions work to support white patriarchy if considered selectively and apart, but destabilize it if considered together in their totality.

As is evident from the dictionary definition above, the word “reasonable” is embedded with both legal and colloquial meaning. One example sentence places reasonable in a legal context: that of a jury and reasonable doubt. The other refers to a reasonable man and his ability to understand (“Reasonable” 2019). Given the tendencies of Supreme Court Justices to use extra-legal, “plain-English” dictionaries, it is especially important to look at how social meaning and systems of definition and differentiation that are integral to everyday society have value in the allegedly “objective” legal system. According to Ellen Aprill, justices as high up as the Supreme Court, “had failed to read their Derrida or Foucault, but had ‘been spending their time reading (Noah) Webster, relying, both in fact and in articulated justification, on notions of plain meaning’” (Aprill 1998). The New York Times also commented on the use of dictionaries in the Supreme Court, quoting the editor of the Oxford English Dictionary as saying, “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them” (Liptak 2011).The Supreme Court’s assumption that standard or “civilian” dictionaries provide the same critical rigor as one written specifically for legal proceedings is therefore misguided. Such dictionaries neither limit nor specify their content and are especially negligent in addressing the connotations and implications of the words they define.Because the courts look to these dictionaries in creating their standards and not the other way around, any ambiguity or duality included in the definition of “reasonable” must perforce be translated into legal sentencing.  

Used since 1837 as a means of determining criminal liability, the “reasonable man standard” or the standard of “objective reasonableness” has come to be a place-holder in courts, understood as an idealized set of actions an average or typical person would consider justified.This standard is inherently ambiguous partially because its definition exists outside of a legal context.Manuel Resende Monteiro Protasio, writes of this legal-linguistic ambiguity that “[l]aw creates its own concepts to deal with it, as Law adapts to societal changes always from the same starting point; language” (Protasio 5).It is easy to assume that words used in codified law are chosen because they hold explicitly defined and unambiguous meaning. However, language defines both law and society, and thus the two are inextricably linked. When defining words like “reasonable,” Supreme Court justices rely on lexicons that were not written for the courts, but instead were written by individuals and organizations with specific agendas and ideologies they make unintentionally apparent in their definitions and society’s interpretation of them.The debate over the use of dictionaries in the Supreme Court is, at its center, a debate over what words used in their legal context should mean: should they mean what they are understood to represent by the public, or should they signify an ideal meaning that does not reflect what actually occurs in society?

Debate

 Standards of reason are disproportionately debated in relation to cases that involve the harassment of women and their self-defense, both physically and verbally.This is because questions of rationality, objectivity, and emotion under pressure—ideas all related to reasonableness—are also related to gender-essentialist stereotypes that brand women as emotional and sensitive (Peterson 145). The debate surrounding the legal use of the word “reasonable” and the reasonable officer standard has in recent years focused especially on the gendered dynamics of what constitutes a “reasonable man” and whether the newly introduced standard of the “reasonable woman” does or should exist. Does “reasonable” represent what is or what should be? Is reasonable average or typical, or does it represent a societal ideal? Despite general disagreement on whether a “reasonable woman standard” is a necessary addition to the legal vocabulary, contemporary legal scholars that choose to address this issue of sexism and discrimination generally agree that the application of the “reasonable man standard” often reflects the sexist cultural values of the white patriarchy that dominates American courtrooms.This appraisal of the role of “reasonable” in the court systems ignores the ways in which the reasonable person standard is fraught with sexist meaning simply because of its relation to the word reasonable alone.While it is undoubtedly true that the word reasonable has had sexist and discriminatory social meaning imposed upon it by the legal system, it is not solely reasonable has been manipulated to exclude the voices of women, but rather that the word “reasonable” has a definition that already comes charged with social context and meaning before it is inevitably integrated into law.

John Gardner, in his essay, “The Many Faces of the Reasonable Person,” frames the importance of extra-legal definitions and standards in relation to the legal conception of “reasonable.”He writes, “Because the reasonable person is used to set standards in so many corners of the law, it is natural to think that the standards he sets must be legal ones…The services of the reasonable person are in such heavy demand in the law, I will suggest, precisely because he sets extra-legal standards, and indeed extra-legal standards of a notably versatile kind” (Gardner 3). In other words, Gardner claims that sexist and marginalizing views held by society in general have been incorporated into law and imposed upon the “reasonable man standard” in a way that caters to whatever ideology the dominant power wants to propagate.  Gardner’s main critique of the reasonable standard is that the precedent does not specify—quite strategically, he argues—whether “reasonable” stands for what is average or typical in society (i.e. white patriarchy) or an ideal in which everyone, regardless of race, gender, or identity, holds the same views of what is right.This ideal is, of course, a paradox because it’s existence would render the reasonable standard and the courts themselves unnecessary and irrelevant. This text largely does not analyze the colloquial definition and context of the word “reasonable” independent of the standard it sets. To say, as Gardner does, that the “reasonable officer standard” accommodatesstereotype and bias is to ignore the larger point that the word reasonable is already attached to marginalizing social meaning.Paradox is always among the many factors that define reasonable; given the ideological forces behind its definition, it could not be otherwise.

Examples 

            As part of its versatility and ambiguity, any attempt to illustrate and analyze all legal uses of reasonable will fail. This gloss does not attempt to review all the complexities of its use, but instead to choose a few specific examples that will hopefully illuminate the complicated trends and ideologies behind its use that are especially impactful to society today.

In 1991 in the case Ellison v. Brady, Kerry Ellison pressed charges upon a coworker for sexual harassment in the form of a suggestive and vaguely threatening letter. The implications of this case involved determining what legally constituted sexual harassment and whether or not a “reasonable woman standard” was necessary for proper evaluation of the evidence. It was argued that the “traditional model” is male-biased and excludes or dismisses the voices of women, which led to the suggestion that the “reasonable woman” be used instead (Simon 1991).While this effort may be considered a step in the right direction, the onus is still on the woman—in this case, there is no expectation for the man to be any more “reasonable” than his nature. The fact that the reasonable woman is introduced because the reasonable man fails shows the court’s unwillingness to change the reasonable man to one that sees sexual harassment as unreasonable and therefore implies that, to the “reasonable” man, sexual harassment is justified.The very decision to use the reasonable woman standard as opposed to the reasonable man, though framed as a means of recognizing women’s voices, is therefore based in duplicitous and gendered social expectations, and, as we shall see, stereotypes.  

            Gender-essentialist stereotypes and ideologies are utilized in conjunction with reasonable in a way that is highly inconsistent and selective, but always serves a patriarchal agenda.The Equal Employment Opportunity Commission, specifically the Title VII of the Civil Rights Act, prohibits discrimination of any kind against employees of any organization. However, the EEOC claims “Title VII should not serve as a ‘vehicle for vindicating the petty slights suffered by the hypersensitive’” (Alder and Peirce 774).Obviously meant to refer to women’s actions and opinions, the words “petty” and “hypersensitive” illustrate to an almost incredible extent the ways in which sexist prejudices are incorporated into both the “reasonable person standard” and the word reasonable itself. To be “petty” and “hypersensitive” is to be unreasonable. The EEOC assumes that in order to be considered reasonable, women’s reactions to instances of sexual harassment must match those of men; otherwise, they are labeled as over-emotional and hypersensitive. In the framing of Robert Alder and Ellen Peirce, the meaning of “reasonable” is understood in an entirely different context when it is applied to the reasonable man as opposed to the reasonable woman. In the case of the reasonable man, reasonable means acting the way a “typical” man would, regardless of whether that action demonstrates a fundamental disregard for moral and ethical codes. “Reasonable” for women, as is made clear by the EEOC’s expectation that women’s “hypersensitivity” is not warranted by any standard, means putting up with sexual harassment or other behavior until a complaint would coincide with what a typical man would agree is inappropriate.The reasonable woman standard is fundamentally counterproductive, working to enforce the preexisting social standard of male identity through the subordination of female dissenting voices.

            The case Harris v. Forklift systems, debated in the Supreme Court in 1993, illustrates another aspect of the use of the reasonable standard and its debate, this time from a constitutional as well as civil rights perspective.Teresa Harris sued Forklift Systems Inc. with which she was employed, after experiencing extreme verbal sexual abuse from the president of the company (Harris v. Forklift Systems Inc. 1993). The main issue of this case was determining whether or not a defendant must prove psychological damage caused by sexual harassment in order for the complaint to be legally considered reasonable. The court ultimately determined that “a hostile work environment” under Title VII of the Civil Rights Act constitutes any environment in which the discriminatory or harassing actions of a member of the company interferes with another employee’s ability to work. In other words, an emotional breakdown is not necessary to prove that the complaint was reasonable.Jeffrey Rosen put this case into the context of the reasonable standard in an article for The New Republic, a magazine that in the last few decades has shifted from progressive humanitarianism to neoliberal and conservative political ideals (Steideman 1988). Rosen writes that “the justices [of Harris v. Forklift] will have the chance to repudiate the most serious threat to the First Amendment of the past decade: the notion that words that create an ‘intimidating, hostile or offensive working environment,’ without inflicting more tangible harms, can be punished as harassment.” Rosen argues that allowing the “reasonable woman standard” to hold legal value represents “a radical exception to the First Amendment axiom that speech cannot be punished merely because it is offensive” (Rosen 1993).By putting the doctrine of reasonable in conversation with the First Amendment, Rosen unintentionally invalidates his own claim: to say that the reasonable woman standard works to restrict men’s freedom of speech only draws attention to the hypocrisy of his own argument for the regulation of the “reasonable woman standard,” which has come to be seen by many as women’s legal freedom of speech as well as protection against civil rights violations. In order for Rosen’s argument to not be blatantly contradictory, he must hold and express the warrant that male voices are worthier of protection than female voices.This belief is clearly held, but not expressed and thus reflects the ways in which societal ideologies can be put in legal contexts without being expressed as such, making them more likely to be taken at face value as legal and thus assumed to be fair and unambiguous.

The Supreme Court’s deliberation over whether or not reasonable proof of psychological damage must be demonstrated in cases of sexual harassment shows the predisposition of legal courts to utilize gender-essentialist ideas that see women’s “sensitivity” and thus unreasonableness as something that needs to be regulated.Psychological damage is very difficult to prove; the requirement of proof indicates that courts believe that when women press charges for harassment, such complaints are almost always unreasonable. Thus, in the past, tangible evidence of abuse-caused psychological pathology must be submitted in order to prove in “gender-neutral” language that harm was committed. The underlying logic of the case Harris v. Forklift systems prior to the Supreme Court decision was that the reasonable woman does not exist, or is, at least, very rare. The typical woman, according to Forklift Systems Inc., may have the same complaints as Harris, but the “reasonable woman” would not, unless psychological damage was shown. Thus, this case reveals a double standard in the logic of the reasonable person.While women are only considered reasonable if they fit an idealized ideological form (one that is, significantly, defined by white patriarchy), the “reasonable man” is one that is typical or average in society, because it is believed men cannot be expected to fit a societal ideal woman apparently can.  

The disjunction between what is considered sexual harassment by men and women is framed in a way that allows male behavior that does not follow a female conception of reasonableness to be dismissed as a “misunderstanding” rather than a personal failure. According to Alder and Peirce, “The adoption of a ‘sex-specific’ standard raises a host of questions, not the least of which is the issue of whether it is fair to hold males to a standard that, because they are males, they may be unable to appreciate or understand fully” (Alder and Peirce 777).This frames the “reasonable woman” as an “other,” or the non-neutral perspective—it’s not that men disagree, but that they can’t understand. This calls into question the predominant ideology behind the use of the “reasonable” officer standard in determining criminal liability. The idea that “reasonableness” represents neutrality or a centered objectivity is dependent upon the ideas that, first, the definition of reasonable is not flexible, and second, that one version of reasonable can be more marginal than the other.Thus, the “reasonable officer standard” falls apart in the face of questions of gender and social marginality because the word reasonable itself, outside as well as inside a standardized context, has a meaning that is deeply insecure.

“Reasonable” and Intersectionality

            In attempting to understand the socio-linguistic context out of which the reasonable person standard emerged, it is crucial to address marginal intersectionality and the impact of colonial history on language and its application.In his analysis of South African law during apartheid, Patrick Lenta refers to the reasonable man as “the embodiment of colonial normativity” (Lenta 2004). Theories of rationality are based on discourse about the differences between Western society and that of the Global South. The ideology that a rational interpretation of the world could only be accessed through Western thought—and even more racist, by the apparently distinct Western physiology—has its roots in the colonialism of the eighteenth and nineteenth centuries (Kohn and Reddy 2017). The issue of intersectionality was interrogated quite famously in the case State of Washington v. Wanrow, in which Yvonne Wanrow, a Native American woman from the Confederated Tribes of the Colville Reservation was charged with manslaughter and second-degree-assault for killing William Wesler, a white man and known child molester, when he entered the house in which Wanrow and her children were residing. Wanrow and her lawyers argued that the potential bias of the all-white jury against Native American women should be considered in evaluating Wanrow’s actions, claiming that a “reasonable Native American woman standard” was necessary in conducting a fair trial. However, while the court agreed that male-bias was relevant to this case, it refused to consider the impacts of racism against native peoples. Thus, “[t]he courts presumed that the jury could meaningfully understand Wanrow’s experience ‘as a woman’ apart from her experience as a Native American woman, ‘as if the perspective of the defendant’s gender could be isolated from the perspective of her culture’ when, in fact, it could not” (Coker 255).It must be noted that, at this point, “unreasonable,” or the absence of white male reasonableness has been used in two different contexts. First, one that means having emotional or even physical weakness—Yvonne Wanrow was granted the use of the “reasonable woman standard” because her female sensitivity and “overreaction” is natural for one as small and physically unimposing as herself. Second, there is the definition that unreasonable means less intellectually advanced, or with less cognitive capacity—a definition developed from white settler colonialism. In light of the court’s decision in State of Washington v. Wanrow, this duality begs the question: Why are these two definitions of unreasonableness incompatible in the eye of the courts? Why can’t the reasonableness of Yvonne Wanrow be evaluated within the entire context of her actions, beliefs, and identities? These two definitions are incompatible because if the word reasonable means two different things and is dependent on two different ideological frameworks, it cannot be neutral. The word reasonable, when it is applied to law, cannot be potentially contradictory in the eyes of the dominant identity if the myth is to be upheld that the “ideal” person and the “typical” person are the same. Still the question remains: Why did the court in Washington v. Wanrow choose to only support Wanrow as a reasonable woman and not as a reasonable Native American?

The aspect or aspects of intersectionality that are invalidated are often those that cannot be reframed to support a white patriarchal dominant view.According to Angela Onwuachi-Willig in her article “What About #UsToo?: The Invisibility of Race in the #MeToo Movement,” for the Yale Law Journal, “Although many authors have argued for adopting a reasonable woman standard in harassment law, none have taken the further step of contending that the standard must also be rooted in an intersectional and multidimensional lens” (Onwuachi-Willig 2018).The court made this decision because using the standard of the “woman who is dedicated wholeheartedly to the support and care of her children and chose to defend them” follows the norms of white patriarchy while “Native American woman who killed a white man that acted against her beliefs” does not. Thus, we find the definition of the word reasonable is highly relative. A standard, by definition, is not and cannot be relative.Thus the reasonable person standard is fundamentally an oxymoron, defined in academic terms by extra-legal marginalizing ideologies, and in colloquial terms, by the power of the white supremacist patriarchy. 

Conclusion

            “Reasonable” is not alone in the dictionary of ambiguously defined words legal courts pull off the street to use in the formation of legal precedent, with “probable”, “legitimate,” “secure,” and “chicken” (see Schane 2002) serving as examples of the same phenomenon.Because of the complexity, versatility, and instability of these definitions, it is impossible to formulate a cohesive critique of the ideologies that uphold the various reasonable standards at play in American court systems. That being said, it is clear that the use of the reasonable person standard is fraught with contradiction that consistently reflects general societal power disparities by supporting white patriarchal ideology. Furthermore, one finds that use of the word reasonable in the standard for evaluating perceived criminal action allows for such evaluation to be strategically inconsistent in who’s ideologies and identities it supports when; it is the historical and current marginalizing implications of the word that themselves legitimate such implications in becoming legally codified as reasonable themselves.Ultimately, whether or not reasonable means typical and average or ideal, whether it defaults to a male or female generalized understanding of events, and whether intersectionality is considered admissible or considered at all depends on extra-legal societal standards that attempt to regulate who can think, feel, say, and do what, when, and why. 

Works Cited

Adler, Robert S., and Ellen R. Peirce. “The legal, ethical, and social implications of the reasonable woman standard in sexual harassment cases.”Fordham L. Rev, 1992, pp. 773.

Aprill, Ellen P. “The Law of the Word: Dictionary Shopping in the Supreme Court,” Arizona State Law Journalvol. 30, no. 2 (Summer 1998): p. 275-336. HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/arzjl30&i=285.

Bizzack, John W. “Search and Seizure Casebook,” Department of Criminal Justice Training, 2014. https://docjt.ky.gov/legal/documents/SearchSeizureCasebook2014forwebsite.pdf.

Coker, Donna. “The story of Wanrow: The reasonable woman and the law of self-defense,” Criminal Law Stories Foundation Press,2013.

“Disability Statement,” University of Washington, 2019.https://depts.washington.edu/thehub/sao/rso-policy-guide/disability-statement/. Accessed Feb. 10, 2019. 

Gardner, John. “The Many Faces of the Reasonable Person.” Law Quarterly Review131 (2015): 563-584.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).

Kim, Jonathan. “Fourth Amendment,” Legal Information Institute Cornell University, Jun. 2017. https://www.law.cornell.edu/wex/fourth_amendment. Accessed Feb. 10, 2019. 

Kohn, Margaret and Reddy, Kavita, “Colonialism”, The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/ archives/fall2017/entries/colonialism/>.

Lenta, Patrick. “The Tikoloshe and the Reasonable Man:Transgressing South African Legal Fictions,” Law and Literature Journal, 2004. 16:3, 353-379.

Liptak, Adam. “Justices Turning More Frequently to Dictionary, and Not Just for Big Words,” The New York Times, Jun. 13, 2011. https://www.nytimes.com/2011/06/14/us/14bar.html, Accessed Feb. 8, 2019. 

Onwuachi-Willig, Angela. “What About #UsToo?: The Invisibility of Race in the #MeToo Movement,” The Yale Law Journal, Jun. 18, 2018. https://www.yalelawjournal.org /forum/what-about-ustoo. 

Peterson, Linda L. “The Reasonableness of the Reasonable Woman Standard.” Public Affairs Quarterly 13.2 (1999): 141-158.

Protasio, Manuel Resende Monteiro. “The Reasonable Man in the 21st Century: Cognitive Experiences Under the Influence of Technologies & Legal Concepts,” Tilburg University, Aug. 2018, http://arno.uvt.nl/show.cgi?fid=146547, Accessed Jan. 30, 2019.  

“Reasonable,” Cambridge Dictionary, 2019, https://dictionary.cambridge.org/us/dictionary/english/reasonable, Accessed Feb. 1, 2019. 

Rosen, Jeffrey. “Reasonable Woman,” The New Republic, 1993. https://newrepublic.com/article/ 73898/reasonable-women, Accessed Feb. 8, 2019. 

Schane, Sanford. “Ambiguity and Misunderstanding in the Law,” Thomas Jefferson Law Review, vol. 26, No. 1. 2002. 

Seideman, David. “The New Republic: A Voice of Modern Liberalism,” 1988. 

Simon, Howard A. “Ellison v. Brady: a ‘reasonable woman’ standard for sexual harassment.” Employee Relations Law Journal, Summer 1991, pp. 71-80. LegalTrac, http://link.galegroup.com.offcampus.lib.washington.edu/apps/doc/A10767012/LT?u=wash_main&sid=LT&xid=cd38d494. Accessed Jan. 28 2019.