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Let's Talk Human Rights

Law Student Insights on Critical Race and Feminist Legal Theory Series (Part 3)

By Maria A. Mancha, UDSL 3L


In the Fall of 2022, law students were introduced to Critical Race Theory and Feminist Legal Theory taught by Dr. Satang Nabaneh. During the course of the semester, they learned about the concepts and critically reflected on how to utilize these critical lenses to effect social justice through legal institutions. This series captures some students' reflections on key legal and social issues. 

The unreasonableness of “the reasonable person standard”

What is a reasonable person? According to Merriam-Webster Dictionary, a reasonable person is “a fictional person with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact is used as an objective theory by which to measure or determine something.” In other words, a reasonable person is an idea of how a person should react to a specific situation based on a shared idea of what a common human response would be. This theory is disconnected from how society has changed. When the reasonable person standard was first applied in law, people of color had no rights and were even seen as property. Moreover, all women could not be lawyers and did not have equal rights. Yet, the reasonable person standard has not been altered or updated since it was first established. Thus, what might be considered “reasonable” in the use of this standard applied to how white men would consider a common human response. 

Not adapting this standard to today's circumstances ignores issues such as racism, police brutality, and other forms of hate crimes against people of color. Broadly speaking, individuals of color do not experience life like a white person experiences life; therefore, their actions will likely differ from how a "white reasonable person" would act in a similar circumstance. There have been several academic articles that point out the errors that the application of the reasonable person theory creates when applied to people of color. For example, many people of color do not feel comfortable with law enforcement officers; therefore, their reactions to law enforcement differ from those of white people. Many people of color feel as if they have to cooperate with law enforcement without question because if they do not, they would likely not survive the interaction. A striking example of police discrimination can be seen with the case of a white school shooter walking out peacefully versus the case of Trayvon Martin, a  black child shot for holding a bag of skittles. Although the white child had an actual weapon, and the black child was holding skittles, the officer chose to judge first by the color of the child’s skin versus what was in their hand. 

U.S. Supreme Court Justice Sonia Sotomayor has discussed how people of color are often the victims of the unreasonable reasonable person standard. Her dissent in Utah v. Strieff states, “the white defendant in this case shows that anyone’s dignity can be violated in this manner… but it is no secret that people of color are disproportionate victims of this type of scrutiny” sharing how many people of color experience the legal system differently than their white cohorts. She further highlights how unlike white people, many black and brown parents have to give their children "the talk." “The talk” consists of not talking back, always cooperating with the officer, and using words like yes sir/no sir. Even if it could be reasonable for a "white" person to say  no to an officer, it could be unreasonable for "person of color" to feel the same in light of the evidence that they would be treated differently. The reasonable person standard is outdated regarding people of color, and therefore the legal system should create a new standard for a reasonable person so that it could be used as a universal standard. 

It would be too complicated to create several standards for reasonableness. I, therefore, think that the reasonable person approach should use subjective and objective standards. An objective standard looks strictly at the evidence provided. It does not consider anything else except what is precisely there. In contrast, a subjective theory looks into beliefs, opinions, and outside circumstances. The subjective standard allows finders of fact to look into outside circumstances and look into social and policy interests, thus enabling fact-finders to understand better what made that person react in the way they reacted. The aim of an objective standard and subjective standard approach is to create a balance to ensure that the finder of fact does not skew too far away from the evidence that it would create an unfair bias. Due to the lack of subjective standards, many individuals of color are sentenced unfairly by judges who only look at the hard facts of the case and not why the individual committed those actions. Using a subjective standard, a judge could look into the defendant's background and, instead of a harsh sentence, sentence the individual to rehabilitation programs that could end many cycles of abuse. Looking at the entire background through a realistic lens of why an individual acted in certain ways is essential to ensure more just outcomes.

The outdated reasonable person standard has ignored qualities such as race for long enough. The objectively reasonable person theory has negatively affected people of color. Using subjective and objective standards to assess the reasonableness of a person’s response could allow minorities to have an equal playing field in the legal context which should be a reasonable outcome to all people.

Maria A. Mancha is a first generation citizen and law student from San Antonio, Texas. She graduated with a Bachelor's Degree in Political Science from St. Mary’s University San Antonio in 2020. She is a proud Hispanic woman with a passion in immigration law and human rights. Last summer she had the opportunity to be a legal advocacy intern for Free Speech For People, an organization with its primary focus on individuals first amendment right to vote. Maria has worked with a U.S. House of Representatives Congressional Office in San Antonio where she gained a passion for helping constituents in her community. Maria hopes to work as an immigration or human rights attorney and later  re-enter the political field where she may further advocate for her community.

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