Thursday, September 30, 2010
Puja Kapai (Faculty of Law, University of Hong Kong) has posted "Minority Women: A Struggle for Equal Protection Against Domestic Violence" (forthcoming Cambridge University Press) on SSRN. Here is the abstract:
Feminist legal scholars, long distraught over the failure of the law and its institutions to account for their impact on the realities that women experience, have fought hard against the masculinity and patriarchal representations of the law given its detrimental and discriminatory effects on women. As a result, society’s norms, systems, culture and practices have come under strict scrutiny to address the inequalities perpetuated through these systems.
With the feminist movement having gained pace over the last century, the world has united in condemning discrimination against, and the subjugation of, women, particularly as manifested in its most debilitating form, violence against women. Although family violence has been recognized as a growing social problem, domestic violence has been recognized as a distinct form of violence affecting women as a class. Given that violence against women has been noted as the single most pervasive form of human rights violation in addition to being the most costly to society, at least eighty--nine state parties have introduced legislation to address domestic violence against women in furtherance of their international obligations.
In some jurisdictions, the call for a more comprehensive system of protection has led to the development of specialized domestic violence courts and batterer-intervention programs to rehabilitate perpetrators of violence. Whilst these global and local efforts are commendable, there is much debate over their adequacy and effectiveness in light of increasing rates of violence against women, particularly in the domestic sphere, due to poor implementation, under-reporting, inadequacy of the laws or lack thereof. Given these failings, governments are required to reexamine their law and policy pertaining to domestic violence to provide an environment to enhance women’s safety, autonomy and participation in their public and private lives and to root out violence in all its manifestations, cultural, religious, political and otherwise.
Presently, there is a critical failure at the implementation level due to a lack of resources or commitment. Law enforcement officers, clinicians, psychologists, judges, lawyers and activists have also struggled to reconcile the notion of a victimized woman continuing to live with or love the batterer, often concluding that the victim must be fabricating the abuse, its prevalence, or seriousness. Work done by feminist and other scholars reveals the impact of social and judicial perceptions about women who fail to leave their batterers despite the assistance rendered on the likelihood of victimized women successfully obtaining justice. These problems are compounded by the lack of a holistic approach despite the existence of legislation and institutional provisions.
Aside from the deficit in implementation of such measures, a more critical discussion has emerged regarding the viability of the ‘one-size-fits-all’ approach. Research has revealed that women experience and respond to domestic violence differently depending on various factors. The reasons for this differential response are multifold. Research findings show that general laws fail to adequately protect the interests of all groups of women. Women belonging to minority groups are singled out as most unlikely to use existing systems of protection. Most domestic violence response measures depend on user-capacity, the willingness to report, and cultural response systems. In light of the recognition that minority, ethnic, indigenous, refugee, and migrant women are especially vulnerable to violence and discriminatory practices , the assumptions inherent in the laws and institutional mechanisms to assist victims in fact perpetuate power--dynamics in a patriarchal society. The measures are racialized and class- and culture-specific. Despite this fact, no equality-based challenge has been brought with respect to domestic violence laws and their inadequacies vis-à-vis minority women.
Intersectionality has gained extensive prominence in the writings of feminist scholars working in numerous fields because of its contribution towards a more comprehensive feminist discourse which seeks to locate knowledge within realities of women whose experiences are not singularly shaped by their gender, but rather, by a multiplicity of factors such as race, class, sexuality, identities, and other phenomena. These experiences help us better define our capacities for dominance or to be dominated as a woman (or man). This theory delineates sites of oppression horizontally as opposed to the paradigmatic depiction of oppression as hierarchical. Intersections analysis implores us to view multiple layers of experience as informative of an overall pattern of domination which requires deconstruction as a whole. It is argued that this deconstruction is all the more important in order to further the project of substantive equality to protect all women against domestic violence.
Crenshaw has argued that in order for dominant systems to be challenged, those resisting dominance are forced to categorize their demands in terms of the logic of the dominant system itself. Inability to do so results in exclusion from the discourse for change. It is here, she argues, that intersections analysis can prove groundbreaking in addressing the needs of the marginalized woman who is neither accommodated within the feminist discourse, nor within that of antiracism completely. Third World feminists have similarly posited that intersections analysis offers a new site for the production of knowledge arguing that “difference” constitutes a resource through which feminist knowledge can be reorganized.
Failure to integrate user--specific information into models of intervention and to account for culture--based beliefs and systems of information and worldviews will necessarily limit and undermine the effectiveness of the legal and social frameworks combating violence in the domestic sphere. Furthermore, they will remain inept at recognizing high--risk groups, providing appropriate intervention services, and meeting the needs of marginalized groups experiencing domestic violence.
To the extent that domestic violence legislation is in existence and implemented through a framework of multidisciplinary measures in a country, this chapter focuses on the extent to which such services are accessible to a routinely marginalized group of women who, despite advancements in the law relating to domestic violence, continue to fall through the gaps. By examining the assumptions underlying existing models of prevention and intervention against domestic violence, this chapter outlines the source of these gaps and investigates the reasons for the continued failure of domestic violence policies in some countries to safeguard the interests and rights of a neglected community of ethnic minority and immigrant women in countries where such laws and policies are relatively advanced in their development. Whilst ethnic groups have been residing in Western countries since the colonial era, migrant worker and sponsorship schemes have increasingly attracted such groups. Given the basic assumptions inherent in preventive and interventionist measures against domestic violence, this chapter seeks to critically examine these assumptions and question their validity, drawing on the cultural, racial and socio--economic attributes of these women to argue the need for a varied and systemic response to provide for ethnic and immigrant women specifically.
Immigrant and ethnic minority women both share certain common traits in their experience with law and social policies relating to domestic violence. The cultural and socio-economic attributes of ethnic minority and immigrant women make them less receptive to law and policy relating to domestic violence. Their capacities to play an active role in the preventive and legal mechanisms for protection are closely tied to their “cultural” equipment. This chapter highlights the different ways in which the “location” of ethnic minority and immigrant women within their cultural, racial, and socio--economic backgrounds affects their perceptions and actions particularly when recognizing and responding to domestic violence.
The Western liberal democratic society is selected as the context for analysis due to the rights-oriented framework of the law, which affords human rights and constitutional rights protection for all people. As such, it can be assumed that there is a degree of development of human rights and constitutional principles, such as equality and non-discrimination, which impose on a government the obligation to offer substantive and equal protection to all women.
The following sections of this chapter argue that ethnic minority and immigrant status are yet to be applied as relevant differentials in the context of developing effective strategies for addressing domestic violence within the ethnic minority community. Using intersections analysis, it is argued that ethnic minority and immigrant women face obstacles on various counts, including class, language, ethnicity, culture, and experiences.
This chapter argues first, that domestic violence response systems in many countries in the West are predicated upon basic assumptions about user-capacity and cultural attributes; second, these assumptions are flawed to the extent that they are based predominantly on the information and experience of the white woman; third, given the assumptions underlying such legislation and policy, their effectiveness in addressing domestic violence against minority women is questionable since a significant proportion of such women are excluded from equal protection against violence in the home; fourth and in conclusion, that equal protection demands standards exacted by the doctrine of substantive equality to apply here. In light of this, the lack of appropriate mechanisms to account for the impact that ethnicity and culture has on accessibility to law and social resources renders the law inept and discriminatory in that it fails to achieve substantive equality in its protection of all women against domestic violence. It is argued that new initiatives are required to ensure equal access to ethnic minority and immigrant women and a more holistic approach towards combating domestic violence through user--oriented, culturally informed legislative and policy measures designed to achieve substantive equality.
Wednesday, September 29, 2010
Prenups overall are on the rise: A whopping 73 percent of divorce attorneys say they’ve seen an increase in the pre-marital documents, according to a recent survey by the American Academy of Matrimonial Lawyers. What’s more, 52 percent of them said they’ve seen an increase in women initiating the requests.
"Prenuptial agreements are becoming more generally accepted as an effective way to protect assets. Interestingly, these requests are no longer just limited to a specific gender or age group," said Marlene Eskind Moses, president of the AAML.
Read more here.
An investigation of the television show "Sister Wives," which premiered Sunday on TLC, is underway:
The stars of TLC's new show "Sister Wives" are under police investigation in Utah for a possible charge of felony bigamy.
Police in Lehi, Utah, said Monday they began looking into salesman Kody Brown and his four wives before the show premiered Sunday.
"At the conclusion of the investigation, the evidence will be forwarded to the Utah County Attorney's Office for review and possible prosecution," says Lt. Darren Paul.
Brown and his wives Meri, Janelle, Christine and Robyn have 13 children and three stepchildren. They say they will lead a lifestyle that they want, even if it means breaking away from tradition.
Read more here.
Tuesday, September 28, 2010
A new book, Bringing Progress to Paradise: What I Got from Giving to a Mountain Village in Nepal, by lawyer and adventurer Jeff Rasley looks into the meaning of philanthropy in far-away locales. From the book’s description: “They had no running water, electricity, or anything that moves on wheels. Each family lived in a beautiful, hand-chiseled stone house with a flower garden. Beyond what they already had, it seemed all they wanted was education for the children. He helped them finish a school building already in progress, and then they asked for help getting electricity to their village.” Check out the book here.
Monday, September 27, 2010
John DeWitt Gregory (Hofstra University School of Law) has posted "Pet Custody: Distorting Language and the Law" (Family Law Quarterly, Vol. 44, No. 1, p. 35, 2010) on SSRN. Here is the abstract:
Pets or companion animals are the property of those who own them. In this article, I shall show that pets that are the subject of disputes between divorcing spouses or separating unmarried couples should continue to be characterized as property under a rational legal system. Proposals in the law review literature and halting, early attempts by some courts to place pets in some category other than property, which flirted with a standard derived from the prevailing best-interest-of-the-child doctrine in conventional child custody and visitation cases, are, at best, vanity. Such proposals do violence to both the language and the law of child custody, create uncertainty in a well-established area of divorce law, and offer no discernible prospect of improving the welfare of companion animals.
Sunday, September 26, 2010
Nice article highlighting a few flaws of the Hague convention on inter-country adoption:
Two years ago this month, the US and Vietnam let lapse the three-year bilateral agreement that allowed Americans to adopt Vietnamese children. The US embassy in Hanoi had concluded that "the overwhelming majority" of infant adoptions from Vietnam involved fraud: at best, falsified official documents; and at worst, defrauded, coerced or paid-off birth families who had not consented to sending their children abroad for adoption. All told, 2,200 Vietnamese-born children were adopted to the US during that period, according to the state department; approximately another 2,000 were adopted to France, 950 to Italy, 475 to Ireland, and 250 to Sweden.
The 2008 US-Vietnam closure was one in a long, stuttering series of crises in international adoption. In "Anatomy of an Adoption Crisis" in Foreign Policy Online, I analyse hundreds of pages of often shocking internal US state department documents (received under Freedom of Information Act requests) discussing that adoption crisis. These documents show how determined the US embassy in Hanoi was to block fraudulent or corrupt adoptions – and how little power it had to do so, both in Vietnam, and in other countries that have had similar crises, such as Cambodia, Guatemala, Nepal and Romania.
Why? Fifteen years after 66 countries negotiated the 1993 Hague convention on inter-country adoption, why couldn't the US state department screen out the "bad" adoptions and continue the "good" ones? The Hague adoption convention was supposed to streamline the adoption of children who legitimately needed new homes, and "prevent the abduction, the sale of, or traffic in children" for adoption by policing "improper financial gain".
But loopholes plague the Hague convention. The biggest one: technically, Hague protections need apply only to adoptions in which both countries have already ratified and implemented the convention. In the US, that means that adoption agencies must be screened and accredited by a national body before they may arrange adoptions from, or to, other Hague countries. But unaccredited agencies are still free to work in the "non-Hague" nations (presumably, the least prepared to police unsavoury practices). As a result, families adopting from such Hague signatories as China, Colombia or Thailand can rely on two different nations' governmental oversight. But that family has no such protections if it tries to adopt from such non-Hague countries as Ethiopia or Nepal, both rife with troubling allegations about their adoptions.
Read the full article here for identification of additional loopholes and suggestsions on how they might be fixed.
Saturday, September 25, 2010
The ownership of the Dodgers might hinge on a lawyer’s mistake in drafting a marital property agreement. According to AmericanLawyer.com, the lawyer drafting the agreement recently “took the stand and admitted he changed the document after it was signed--without consulting the McCourts--to list Frank McCourt's sole property as ‘inclusive’ rather than ‘exclusive’ of the Dodgers.” This was to correct an initial mistake in the agreement. On the stand, the lawyer said, “Sometimes I garble the language.” Read more here.
Friday, September 24, 2010
Newsweek published an article last week summarizing the latest developments in the ongoing discussion about sperm donation and its long-term effects on children and families.
Over the summer, two movies that both used sperm donors as plot devices sent the conservative “commentariat” into a conniption. After Jennifer Aniston, who plays a woman who uses a sperm donor to become pregnant in The Switch, advocated for a broad definition of family (“Love is love, and family is what is around you and who is in your immediate sphere”), Bill O’Reilly took to the airwaves to blast her attitude as “destructive to society.” And The Kids Are All Right (an indie confection about a lesbian couple, played by Annette Bening and Julianne Moore, raising two kids conceived with an anonymous sperm donor) drew the venom of New York Post columnist Andrea Peyser, who dubbed it a “Hollywood … end run around morality.”
But behind the heated rhetoric, a much more serious campaign is underway. The opening salvo on this latest front in the culture wars came in May when a study, “My Daddy’s Name Is Donor,” found that donor offspring are more likely to “struggle with serious, negative outcomes such as delinquency, substance abuse, and depression,” and “experience profound struggles with their origins and identities.” The study, funded by the Institute for American Values, offered a prescription: laws requiring sperm donors to reveal their identities to their offspring.
While that may seem wholly rational, dig a little deeper, and it’s clear there’s a broader agenda at work. The Institute for American Values has for the last 23 years sought to guard heterosexual marriages from the threats of homosexuality—and for lesbians looking to start a family, sperm donation is often involved. The IAV, though, does not stop there. “When we’re talking about sperm donation, I have real concerns about anybody using it,” says Elizabeth Marquardt, the vice president of family studies at IAV and a coauthor of the study. “If a married heterosexual couple came to me and said, ‘We’re thinking about this,’ I’d say I’m opposed. But definitely, the single-mom-by-choice offspring, based on our data, are hurting the most.” She adds: “It’s just a high-risk strategy, emotionally or otherwise, for creating a baby.”
In other words, IAV looks most askance on unmarried mothers—which, given their stance against gay marriage, includes lesbian mothers. It’s an attitude that’s becoming increasingly at odds with public opinion; a recent study by Indiana University sociologist Brian Powell found that 68 percent of his survey’s respondents view same-sex couples with children as a family, up from 54 percent in 2003.
Women who have used sperm donors bristle at the assertion that they’re damaging their children. “They’re trying to scare people in trying to say that these children will be tortured and miserable. It’s just not true,” says Jane Mattes, 67, a Manhattan-based psychotherapist who founded Single Mothers by Choice in 1981; her son is now 30. The IAV and others on the right, she says, are “getting smarter. Instead of saying the women shouldn’t do this, they’re saying the children will suffer, which is really sad. Children suffer for all sorts of reasons, often not having to do with conception.”
The need to equate donor conception with adoption is an important part of this strategy—and speaks to IAV’s ideological underpinnings. “Adoption is treated like an institution and donor conception is treated like a market,” Marquardt says. “That little insight explains a lot! What’s funny is that over the years, when I’ve talked to people about this issue, one of the common reactions is having a baby with a sperm donor—isn’t that just like adoption? But adoption is a good and vital pro-child institution that finds families for children who need them.” Adoption is also highly regulated, involving home screenings and background checks; why, they argue, should sperm or egg donation be any different? It’s a subtle way of arguing that life begins not just at conception, but preconception.
Read the full article here.
Heather Douglas (The University of Queensland - TC Beirne
School of Law) & Tamara Walsh (
This article explores the relationship between understandings of domestic violence and the child protection response drawing on material gathered in focus groups with workers who support mothers dealing with both domestic violence and child protection issues. The interviewees expressed concern that the dynamics of domestic violence are often misunderstood and inappropriately responded to by child protection workers.This article critically examines the interviewees’ concerns and concludes that to properly protect children, it is crucial that child protection workers have a clear understanding of the dynamics of and issues related to domestic violence.
Thursday, September 23, 2010
From the Local:
Mother-of-two Elin Andersson has
highlighted staffing shortage problems at a maternity ward in
Every time Andersson required medicine she had to call staff to remind them, she told local newspaper Sundsvalls Tidning. The new baby's father meanwhile was requested to aid in the care of his partner.
Two days after the operation, the recovering mum decided she was ready to go home.
“That was when the midwife said I had one final task to perform. Then she went and got a big white laundry bag and asked me to clean out the room and the bed where I had lain,” she told the newspaper.
Two midwives at the
Read more here.
Wednesday, September 22, 2010
USA Today reports on the shifting societal view of what constitutes a family:
How "family" is defined is a crucial question on many levels. Beyond the debate over same-sex marriage, it affects income tax filings, adoption and foster care practices, employee benefits, inheritance rights and countless other matters.
The new research on the topic is contained in a book-length study, "Counted Out: Same-Sex Relations and Americans' Definition of Family" and in a separate 2010 survey overseen by the book's lead author, Indiana University sociologist Brian Powell.
Between 2003 and 2010, three surveys conducted by Powell's team showed a significant shift toward counting same-sex couples with children as family — from 54% of respondents in 2003 to 68% in 2010. In all, more than 2,300 people were surveyed.
Powell linked the changing attitudes to a 10% rise between 2003 and 2010 in the share of survey respondents who reported having a gay friend or relative.
"This indicates a more open social environment in which individuals now feel more comfortable discussing and acknowledging sexuality," Powell said.
Only about one-third of those surveyed said they considered same-sex couples without children to be a family. And in 2006, when asked if gay couples and pets count as family, 30% said pets count but not gay couples.
"The sheer idea that gay couples are given less status than pets should give us pause," Powell said in an interview.
In the 2010 survey, 83% of the respondents said they perceived unmarried heterosexual couples with children as a family; only 40% extended that recognition to unmarried straight couples without children.
In line with several recent national opinion polls, Powell's 2010 survey showed a near-even split on same-sex marriage — with 52% supporting it and 48% opposed.
Read the full store here.
Tuesday, September 21, 2010
Michigan State University College of Law seeks a distinguished family law scholar for the John F. Schaefer Endowed Chair in Matrimonial Law. Applicants should have distinguished academic records, demonstrated teaching ability or relevant work experience, and an established record of scholarly achievement.
Michigan State University is the nation’s premier land-grant university, established in 1855. More information about the Law College can be found at
MSU is committed to achieving excellence through cultural diversity. The University actively encourages applications from and nominations of women, persons of color, veterans and persons with disabilities.
Nominations or application materials should be submitted to:
Professor Matthew Fletcher
Chair: Faculty Appointments Committee
405B Law College Building
MSU College of Law
East Lansing, Michigan 48824
MSU and MSU COLLEGE OF LAW ARE AFFIRMATIVE ACTION/EQUAL OPPORTUNITY EMPLOYERS
Angela Campbell (McGill University - Faculty of Law) has posted Bountiful’s Plural Marriages, International Journal of Law in Context (forthcoming) on SSRN. Here is the abstract:
Bountiful, British Columbia is Canada’s only openly polygamous community. Public discussions about Bountiful suggest that the only form of marriage practiced there is polygamous, and that this is usually harmful to women and children. This paper suggests that this monolithic representation of marriage in Bountiful misses the conjugal pluralism that exists in this community. Part I sets out the typical portrayal of marriage in Bountiful offered by Canadian public and political discussions. Part II contrasts this portrayal with five stories about marriage in Bountiful that the author observed or was told about while conducting field research. These stories indicate that conjugal heterogeneity is both existent and accepted in Bountiful. They also suggest that, in becoming and being a wife in Bountiful, women can experience varying degrees of choice and agency. All of this is relevant to exploring how a fuller recognition of the conjugal diversity and choices that may exist in a place like Bountiful might affect formal juridical approaches to polygamy.
Monday, September 20, 2010
Click the link below for details of Hofstra Law School & The Association of Family and Conciliation Courts' annual famiily law writing competition. Students must submit papers by March 15, 2011. There are cash and other prizes for winners.