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Actually, there already exists such an approach, which was employed by the German Constitutional Court in 1957 to develop its opinion in a homosexuality case. In this case, the complainant challenged the constitutionality of Arts. 175 and 175a No.3 of German Penal Code with Art. 3 of the Basic Law. He claimed that these provisions contravene the principle of equality mainly in its particular aspect concerning equality of the sexes ……because homosexual relations between men are punished, whereas those between women are not. The court, in considering the possibility that “biological differences justify different treatment of the sexes,” invited a number of “experts” to offer oral and written opinions about the nature of homosexuality and its implications to men and women, respectively. During this course, a lot of differences had been found out. An expert of criminology testified that the incidence of female homosexuality is far less widespread than that of male homosexuality, and its social impact is accordingly far less significant. The court recognized that the comparability of male and female homosexuality as a criminal offense couldn’t depend decisively on the frequency of cases. But it found that this quantitative difference had appeared to be a significant symptom of a qualitative difference as well in the light of another expert’s opinion. Dr. Giese, the Director of the Institute for Sexual Research in Frankfurt, explained that there exists a difference between two aspects of sexuality: one is the generative-vegetative aspect, which refers to the unconscious functioning of the body in connection with sexuality, and the other is a social aspect characterized by it. The physical formation of the sexual organs itself indicates that man has a more urging and demanding, woman a more accepting and submissive function. This difference between the physiological functions cannot be separated from the context of sexual life; it is one constituting element of man and woman as sexual beings. The decisive difference between man and woman as sexual beings—which implies basically all other differences—is one fact of the generative-vegetative aspect, namely that fatherhood is connected with the short progenitive act, whereas the social acts of motherhood are directly connected with the act of conception by the generative-vegetative acts of pregnancy, giving birth, and nursing, that is, a long-lasting natural process. Unlike man, woman is automatically reminded by her body that sex is connected with burdens. This difference brings out two further differences: first, for women, physical desire (sexuality) and tender sensitivity (eroticism) are almost always interconnected, whereas these two components remains for men, and in particular for homosexuals, often completely separated (this is approved by another expert, a professor of medicine); secondly, a lesbian woman has less difficulty in remaining sexually abstemious, whereas a homosexual man tends to fall victim to an unrestrained sexual desire. These differences are significant enough to justify the different treatment of different sex in the legal-judicial process.
This approach of judicial decision-making, which put emphasis on the biological and social differences between the two sexes and try to explore their implication to the ordering of human life, is attractive to me on three bases: first, it really makes a difference in the legal process by taking notice of the particularity of both sexes; secondly, it has a sensibility on the social implications of the above particularities; thirdly, it is constructive, rather than merely critical. I don’t know how the feminists evaluate this approach, but I deem it bearing the very merit of feminism: to respect the dignity of women, not because they possess the same quality of men, but because they have the characters men don’t have. And these characters constitute an indispensable part of human nature.
Through this example, I want to show a possible way to redress the polarized situations incurred by the activist movements. Following Kent’s instruction, we should do our best to find the different resources which are helpful for us to enrich and balance our understanding on victims’ rights and victims’ needs. I have suggested two of the resources: comparative law and the relevant scientific studies. Kent has set up the framework, the best way for us to appreciate his accomplishment is to enrich it with substantive content.
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