I am loving family law more and more because family law provides unique insight to all kind of aspects of the human condition. In its ideal form, family law does not bother with a recounting of sins- it wants to know how best to extricate people from a bad situation, another words – What should we do today, to get to a better tomorrow. The clock always starts running now. Of course, not everyone wants a family law, where the clock always starts at now, and many judges and attorneys would question whether is in fact the perversion of family law we have know. Below are two examples to illustrate my point. One example is from child custody and one example is from divorce law.

Child Custody:

Back in the day women would routinely get custody of young children (“tender years doctrine”). This law fell to the wayside, when at least on paper the law had to become gender blind. However, a remnant of the law continued – a remnant that was practically as good as the original. To make the law gender blind on paper, “tender years” was replaced with “primary caretaker” preference. Guess who turned out to be the primary caretaker? Mom. Thus a “breadwinner” dad, would always be at a disadvantage for custody, even if he seemed able and willing to the split responsibility with mom in the brave new world of divorce. That too is now gone, and replaced with the slippery “best interests standard” – this standard has the potential to start the count from now – aka the question it should be asking is what decision today, will create a better tomorrow for the children involved. However, courts have not really abandoned “primary caretaker” – it is still often used a factor in the “best interests” analysis. But potentially there is room for abandoning backwards looking factors all together. Such factors are automatically moralizing – aka, it a reckoning of the sins of our fathers and mothers. What did they do in the past that makes this more or less worthy? Regardless of the ambiguity that remains – “best interests” is surely the most forward looking standard thus far.

Divorce:

Back in the day, couples needed to have “fault” to divorce. Aka, the party asking for the divorce had to claim that the other party has wronged them in some way. The marital assets would be distributed accordingly. Today, while fault still plays some a role in some states (NY only state that has only fault), the majority of states have adapted “irreconcilable differences” and even in fault states like NY, the distribution of marital assets or custody will not depend on fault. That means that the unfaithful spouse will not be disadvantaged financially in the divorce, nor will she be disadvantaged in regards to custody. It does not matter who wronged who and how – the divorce is a “peace settlement” of sort, it’s away for the couples to extricate themselves from the situation that is not working without regard to who is at “fault” to begin with.

The “no fault” and “best interest” model can be a powerful tool for conflict resolution outside the realm of families. It speaks to a concept of justice that is about the now and about the dignity of people regardless of their sins. That is a concept of justice I can get behind – perhaps that is why I am so attracted to family law – at least it pretends to ask the following question. Starting from now – how do we do better?

Catherine MacKinnon, a rather famous feminist, got famous by claiming most basically, that men fucking women (and even women fucking women) is eroticizing the oppression of women. Women are being oppressed through their desires. While, MacKinnon may not have actually said “all sex is rape” there is a reason that quote is attributed to her.

Apparently the “all sex is rape” concept is mirrored in halacha, in the “moredet.” The moredet is a wife who refuses to have sex with her husband: this is a serious transgression. The presumption behind punishing a woman who does not want to have sex with her husband is a  belief that she has to do it, and is derelict in her duties if she does not (the wife owes the husband vaginal penetration).  Thus whenever she has sex with her husband, she is not free to do otherwise – according to this particular bit of halachic wisdom all sex-is-rape

Then why is it radical for MacKinnon to say so, but the “moredet” is an the oppression of women?

Because – it is not radical to claim that women’s pleasure – is somehow tainted, somehow unauthentic – be it because its enacting the patriarchy, or because women ought to be modest.Regardless of reasoning – women’s capacity to produce authentic pleasure in their lives through their bodies, their souls and their minds is beyond the capacity of common imagination. Women fuck to get a man, commit crimes because they are victims, become suicide bombers because they are depressed, become religious because they want to have a  tradition family…..the list goes on and on (details to come in forthcoming posts).

One of the most radical and feminist things a woman can do is to simple be – to do solely for  the pleasure of doing.

Last week I felt a lump in my breast – ran to a doctor, got a referral for an ultrasound – fortunately I have nothing to worry about; however I was seriously worried, even though I am only twenty -four and not single person in my family has had breast cancer as far as I know. The chances of the lump being cancerous were extremely low.

A few years ago I had a mole removed, because of its possibly cancerous properties. I was not even a bit worried or anxious about the whole process –when the doctor’s office called with the results, I did not even remember that the results were coming back on that day. Why did I experience these two fairly routine medical experiences in such a radically different fashion? If anything an ultrasound is a painless imaging test, while the removal of the mole is a procedure that results in stitches, follow-up appointments, and a visible scar on my upper arm.

Why the discrepancy? I blame the pink ribbon…and it all represents; breast cancer garners an enormous amount of public attention. It is perhaps one of the few cancers that has a genetic test of sorts – that has lead to the phenomena of women cutting off their yet-to-be cancerous breasts (it will be a cold day in hell before men preemptively remove their prostates!). There is also some research to suggest that women are having radical mastectomies when it fact they could just have the lump removed witha similar outcome, and this has been known for decades, and studies have also found that at least 29% of women who are eligible for the less invasive surgery are not told about their options. Recently research has also confirmed that mammography is dubious at best – and harmful at worst because of its high rate of false positives it may actually be causing cancer women to have their breasts removed.

However, there is one conversation that we are not having about breast cancer – breasts are not just for men (or women) to look at – their also a female sex organ at least for many women – and no reconstruction surgery can bring that back. While, surely I would agree that it is better to be alive without breasts, than vis-versa – the question of living without breasts, or having breasts and maybe getting cancer is a very different one.

So – what does the “pink ribbon” represent – you ask. To me it is just another way of owning the female body, through plastering the cancer that affects women’s breasts on the cans of tuna fish and frosted flakes, manufacturing anxiety to such a degree that women are cutting of their yet to be cancerous breasts, and praising the natural look of reconstructed breasts. Oh good – no big loss men can still enjoys the show – but the woman lost a sex organ.