Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, February 7, 2018

Carceral Feminism and MeToo

MeToo Must Avoid "Carceral Feminism"

“Carceral feminism” refers to a reliance on policing, prosecution, and imprisonment to resolve gendered or sexual violence. A very early manifestation of this approach came with the UK’s Criminal Law Amendment Act of 1885. The act responded to public concern over slim evidence of the entrapment of British girls into the sex trade by raising the age of consent and outlawing “gross indecency” — which, as it happens, also gave the government a more effective means to arrest suspected gay men. (Famously, this was the law under which Oscar Wilde was convicted.)

 

The carceral impulse has arisen in each of feminism’s three waves and is most visible among today’s so-called sex-work “abolitionists,” who argue against decriminalizing sex work and instead for the criminalizing the purchase of sex. While intended to aid sex workers, in practice this approach leads to the isolation of workers from their systems of support and prevents them from earning a living.

 

Elizabeth Bernstein, a professor of women’s studies and sociology at Barnard, was one of the first to use the phrase “carceral feminism.” It appears in her 2007 article “The Sexual Politics of the ‘New Abolitionism.’”

 

She describes carceral feminism as failing to address the underlying economic conditions that exacerbate gendered violence. Neoliberalism shaped “a carceral turn in feminist advocacy movements previously organized around struggles for economic justice and liberation,” she writes. Instead of pushing for the preconditions necessary for feminist liberation, the “carceral turn” restricts feminist horizons to the individual and the punitive, rather than the collective and redistributive.

 

What does carceral feminism look like in practice? In the 1970s, class-action lawsuits filedby women against police departments that either ignored domestic violence calls or provided inadequate services — however well intended — spawned an approach to the issue of domestic violence overly reliant on prisons and punishment. Such cases resulted in the 1994 Violence Against Women Act, or VAWA for short, which was included in the largest crime bill in US history. It was a $30 billion piece of legislation that, among other things, funded the hiring of 100,000 new police officers across the country.

 

What grew from carceral feminism’s efforts to combat domestic violence should concern us all. Another example: Today, nearly half of all states have a mandatory arrest law, which requires that if someone places a call to law enforcement about domestic violence, the police must arrest someone in response.

 

February 7, 2018 in Theory, Violence Against Women | Permalink | Comments (0)

Many Hurdles to Legal Remedies for Sexual Harassment

Legal Remedies for Sexual Harassment are Few and Far Between

Despite the torrent of attention being paid to sexual harassment and discrimination, the legal system in place to respond to related claims has not changed. Many have been inspired to seek legal action only to learn that it’s probably too late to file a lawsuit. Others are coming to attorneys seeking the swift consequences being dealt out to men in the public eye, and they are learning instead that in most cases, speaking up is just the first step in a difficult process that can last months or years — with no guarantee of a resolution.

 

“Attention to the issue always helps, but there is no silver bullet, no overnight change where suddenly this becomes easy,” says Emily Martin, general counsel for the National Women’s Law Center.

 

Her organization is administering the “Time’s Up” legal defense fund, an effort by celebrities and activists to connect those who have experienced workplace sexual misconduct with legal aid. Since the fund was announced on Jan. 1, more than 1,000 people have requested its assistance.

 

A spokeswoman for the Equal Employment Opportunity Commission (EEOC) says that agency, too, has been “inundated” with requests. At the San Francisco-based nonprofit Equal Rights Advocates, a new intake system is being installed to handle the increasing volume of harassment claims.***

 

But in many states, even if only a single year has passed, it’s too late. The federal deadline to file a written charge of discrimination with the EEOC — a required prerequisite for suing under federal anti-discrimination laws — is 180 days, sometimes extended to 300 days based on state law.

 

For those who find an attorney to take their case — something that’s far more difficult for low-wage and undocumented workers — the challenges ahead are significant, even if there’s documented proof, witnesses and other elements of a winnable lawsuit.

 

If victims are looking for new employment, Katz warns them that human resources departments are typically wary of people who have taken their former employers to court.

 

“Even if they have the most meritorious of claims, they will be perceived as unsuitable or not given real consideration,” Katz said.

 

It’s probably beneficial for victims to seek counseling or therapy — but first, their attorneys caution, they should know that what they say to a therapist can end up in the hands of their former employer and be used against them in court. When a person sues for emotional damages, the opposing counsel can request to examine their entire mental health history.

February 7, 2018 in Equal Employment | Permalink | Comments (0)

Tuesday, February 6, 2018

Appalachian Feminism

Feminism in the Coalfields: What Appalachians of the 1970s Can Teach Today's Feminists

Appalachian feminism, which is to say feminism of working-class white and Black women who lived in a place long dominated by corporate officials, has volumes to teach us about meaningful efforts to reach gender equality, but more importantly, justice. Above all, Appalachian feminism insists upon an understanding of class oppression, which operates within a capitalism that thrives on racist and sexist social structures. It requires listening to women whose feminism is rooted in their daily experiences and charting feminist movements that will transform society for all women, not just those in positions of relative power.

 

Appalachian feminists emerged out of welfare rights and labor movements. By the early 1970s, a few dozen welfare rights groups had organized across West Virginia, eastern Kentucky, and southwestern Virginia. White and Black women led the movement and made militant calls for the rights of poor and working-class women.***

 

In recent years, the most recognized feminists have focused on representation rather than the redistribution of power and wealth. Theirs is not a feminism of deep solidarity. What does standing together truly look like? With fresh assaults on the social safety net happening seemingly daily and renewed attention to working women’s lives, the history of Appalachian feminism is one that today’s feminists would do well to emulate. At the core of Appalachian feminist activism of the 1970s was an understanding that gender justice for all meant accounting for the ways in which capitalist enterprises exploited working people’s paid and unpaid labor and how the state denied them their rights as citizens. The advice that the Appalachian Women’s Rights Organization gave to middle-class white feminists in the 1970s still holds: “take up the genuine problems of the vast majority of women.”

February 6, 2018 in Poverty, Theory | Permalink | Comments (0)

When Women Could Vote Around the World

Voting Rights for Women: How Countries Stack Up

Tuesday marks 100 years since British women won the right to vote — sort of. 

 

The 1918 law set certain conditions for women to vote. They had to be over age 30 and own or occupy property — or be married to a man who did. The law allowed all men over 21 to vote. 

 

Ten years later those restrictions for women were finally lifted.

 

In the United States, some women were allowed to vote in 1920, after the 19th Amendment to the Constitution was ratified. Nearly a half-century later, the Voting Rights Act of 1965 guaranteed the right to vote regardless of race. 

 

Elsewhere around the world, New Zealand was the first country to grant women the right to vote, while Saudi Arabia waited until 2011 to allow it.

 

Here's a timeline of when counties allowed women to vote, compiled by the Nellie McClung Foundation, named for the Canadian suffragist.

Year    Country
1893    New Zealand
1902    Australia*
1906    Finland
1913    Norway
1915    Denmark
1917    Canada**
1918    Austria, Germany, Poland, Russia
1919    Netherlands
1920    United States
1921    Sweden
1928    Britain, Ireland
1931    Spain
1934    Turkey
1944    France
1945    Italy
1947    Argentina, Japan, Mexico, Pakistan
1949    China
1950    India
1954    Colombia
1957    Malaysia, Zimbabwe
1962    Algeria
1963    Iran, Morocco
1964    Libya
1967    Ecuador
1971    Switzerland
1972    Bangladesh
1974    Jordan
1976    Portugal
1988    Namibia
1990    Western Samoa
1993    Kazakhstan, Moldova
1994    South Africa
2005    Kuwait
2006    United Arab Emirates
2011    Saudi Arabia

*Aborigines, male and female, gained the right to vote in 1962.

**Canadian First Nation, male and female, did not win the vote until 196

February 6, 2018 in International | Permalink | Comments (0)

The 11th Circuit's Take on Workplace Bans Against Black Women's Natural Hair as Discrimination

D. Wendy Greene, Splitting Hairs: The 11th Circuit's Take on Workplace Bans Against Black Women's Natural Hair in EEOC v. Catastrophe, 71 Miami L. Rev. (2017)

What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women's natural hair has much to do with their ability to obtain and maintain employment as well as their enjoyment of dignity, equality, and agency in contemporary workplaces. When Black women wear natural hairstyles like afros, locks, twists, braids, they are often subjected to harassment, demotions, discipline, termination and denial of employment for which they are qualified. However, when Black women have challenged natural hairstyle bans as race discrimination violative of federal laws like Title VII of the 1964 Civil Rights Act, federal courts have issued hair splitting decisions that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Thus, generally, Black women subjected to discrimination because of their natural hair lack any form of legal redress. The 11th Circuit Court of Appeals recent decision in EEOC v. Catastrophe Management Solutions (2016) preserved this status quo by holding that an employer’s revocation of a job offer to an African American woman for refusing to cut off her dreadlocks did not violate Title VII because locks are not an “immutable” racial characteristic of African descendants presumably like an afro. 

Professor Greene explains that federal courts’ strict application of this “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law that triggers troubling, tangible consequences in the lives of Black women. Indeed, natural hairstyle bans effectively require Black women to wear straightened hairstyles, which Black women often achieve through costly, time-consuming, and physically damaging procedures like weaves, wigs, hair extensions, chemical relaxers and/or the application of extreme heat to their hair. Thus, workplace bans against natural hair are not a superficial matter; they can negatively impact Black women's physical, economic, and emotional well being. Moreover, Professor Greene argues that the 11th Circuit's recent dismissal of the EEOC’s case, which affirms the legality of straight hair mandates imposed upon Black women, exacerbates the “hyper-regulation of Black women’s bodies via their hair” in the 21st century workplace.

February 6, 2018 in Equal Employment, Race, Workplace | Permalink | Comments (0)

Monday, February 5, 2018

MeToo Defendants: Winning by Quitting

Judiciary Closes Kozinski Misconduct Probe, Saying it "Can't Do Anything More"

The Second Circuit Judicial Council on Monday said it will take no action on a sexual misconduct complaint against former federal appellate judge Alex Kozinski because his retirement deprived the panel of any authority to “do anything more.”

 

“Because Alex Kozinski has resigned the office of circuit judge, and can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the [Judicial Conduct and Disability] Act,” the council stated in an order published Monday. 

 

Kozinski, a former chief judge of the U.S. Court of Appeals for the Ninth Circuit, was accused of sexual misconduct in December by six former clerks or staffers, including former clerk Heidi Bond. The Washington Post, which first revealed the misconduct allegations, reported that Kozinski showed them pornographic images multiple times in his court chambers.

 

The complaint filed against Kozinski and subsequently referred to the Second Judicial Council by Chief Justice John Roberts Jr. was based on The Washington Post allegations.

Kozinski announced his retirement, effective immediately on Dec. 18.

 

Katherine Ku, Pressuring Harassers to Quit Can End Up Protecting Them

Although the #MeToo movement is rightly being celebrated for bringing down men who have abused their power, many of these men are not at the end of their careers. Already, the process of salvage has begun. Talent agent Adam Venit, accused of groping by actor Terry Crews, had to relinquish his position as head of WME’s motion picture division, but he was back at the agencyafter a 30-day unpaid suspension. New York Times star reporter Glenn Thrush, accused of inappropriate behavior by four female journalists, has been reassigned from the high-profile White House beat but is scheduled to return to the newsroom this month, after two months’ unpaid leave and training, counseling and substance abuse treatment.***

 

[I]t appears that Kozinski’s future in the legal profession almost certainly will be decided without the benefit of a robust investigation. At some point, a law school dean may have to weigh whether to place him in a position of trust over budding legal careers. Law firms may need to assess whether he’d be a fair mediator or arbitrator for their clients’ disputes. And the people making those decisions will have to do so without knowing the full scope of his misconduct.

February 5, 2018 in Judges, Workplace | Permalink | Comments (0)

Conference: Transnational Legal Feminisms

Cornell International Law Journal, Symposium: Transnational Legal Feminisms: Challenges and Opportunities

This symposium brings together feminist scholars from around the world to discuss, offer, critique or disseminate a vision of transnational legal feminisms and the challenges and opportunities it presents.


In particular, we seek to explore three contemporary developments. First, we are interested in the rise, paths, success and challenges of transnational feminism. The far and wide reach of different feminist legal ideas changed the world wherever they touched. 

 

A second development is the rise and maturation of critique within the feminist movement. Feminism has always been an introspective movement. Yet in recent years, some critical voices about feminist paths of power in the national and transnational sphere gained increased foothold within feminist thought.

 

A third contemporary development this symposium will explore, is the rise of right wing, populist, mostly conservative, politics, in many different parts of the globe, from center to periphery and back again. We are interested in exploring together the meaning of this political tidal wave to feminist politics, movement and national and transnational advocacy.

 

 

 

February 5, 2018 in Conferences, International, Theory | Permalink | Comments (0)

Catharine MacKinnon Weighs in on MeToo

I'd been waiting to hear from Catharine MacKinnon on the MeToo movement.  As one of the founders of the law of sexual harassment, I was quite interested in her view.  She is much more optimistic about the impact of MeToo than I had expected.

Catharine MacKinnon, NYT, #MeToo has Done What the Law Could Not

The #MeToo movement is accomplishing what sexual harassment law to date has not.

 

This mass mobilization against sexual abuse, through an unprecedented wave of speaking out in conventional and social media, is eroding the two biggest barriers to ending sexual harassment in law and in life: the disbelief and trivializing dehumanization of its victims.***

 

Many survivors realistically judged reporting pointless. Complaints were routinely passed off with some version of “she wasn’t credible” or “she wanted it.” I kept track of this in cases of campus sexual abuse over decades; it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one-fourth of a person.

 

Even when she was believed, nothing he did to her mattered as much as what would be done to him if his actions against her were taken seriously. His value outweighed her sexualized worthlessness. His career, reputation, mental and emotional serenity and assets counted. Hers didn’t.

 

It is widely thought that when something is legally prohibited, it more or less stops. This may be true for exceptional acts, but it is not true for pervasive practices like sexual harassment, including rape, that are built into structural social hierarchies. Equal pay has been the law for decades and still does not exist. Racial discrimination is nominally illegal in many forms but is still widely practiced against people of color. If the same cultural inequalities are permitted to operate in law as in the behavior the law prohibits, equalizing attempts — such as sexual harassment law — will be systemically resisted.

 

This logjam, which has long paralyzed effective legal recourse for sexual harassment, is finally being broken. Structural misogyny, along with sexualized racism and class inequalities, is being publicly and pervasively challenged by women’s voices. The difference is, power is paying attention.

And on what law reforms are needed:

Sexual harassment law can grow with #MeToo. Taking #MeToo’s changing norms into the law could — and predictably will — transform the law as well. Some practical steps could help capture this moment. Institutional or statutory changes could include prohibitions or limits on various forms of secrecy and nontransparency that hide the extent of sexual abuse and enforce survivor isolation, such as forced arbitration, silencing nondisclosure agreements even in cases of physical attacks and multiple perpetration, and confidential settlements. A realistic statute of limitations for all forms of discrimination, including sexual harassment, is essential. Being able to sue individual perpetrators and their enablers, jointly with institutions, could shift perceived incentives for this behavior. The only legal change that matches the scale of this moment is an Equal Rights Amendment, expanding the congressional power to legislate against sexual abuse and judicial interpretations of existing law, guaranteeing equality under the Constitution for all.

February 5, 2018 in Theory, Violence Against Women | Permalink | Comments (0)

Thursday, February 1, 2018

Being Mary Beard

Guardian, The Cult of Mary Beard

I've found myself a part of the cult of Mary Beard, impressed by her model of how to be a professor.  

Everyone who has met Beard seems to have a story about encountering her for the first time – usually involving her rigorous intellect, her total lack of formality, and her sense of mischief.

 

In public, in private and in her academic writing she is skeptical, wary of consensus, the kind of person who will turn any question back on itself and examine it from an unexpected angle. She is not afraid to take apart her own work:

 

The learned but approachable figure you see on TV translating Latin inscriptions, carving up a pizza to explain the division of the Roman empire, or arguing about public services on Question Time, is precisely the Beard you encounter in private, except that in real life, she swears magnificently and often.

 

Beard is a celebrity, a national treasure, and easily the world’s most famous classicist. Her latest book, Women and Power, about the long history of the silencing of female voices, was a Christmas bestseller on both sides of the Atlantic. In the eight years since her debut TV documentary, Pompeii, she has conquered the small screen. She is one of a trio of presenters who will, in March, front Civilisations – a new, big-budget version of Kenneth Clark’s 1969 series Civilisation, the most revered cultural TV series in the BBC’s history.

 

As recently as a decade ago, it would have seemed unlikely, even outlandish, that a middle-aged classics don, her appearance a million miles away from the groomed perfection expected of women in the public sphere, would end up so famous and, by and large, so loved.

 

Since then, Beard has become a standard-bearer for middle-aged women, and beloved by the young – indeed, by anyone who wants to be seen in terms of their ideas, not their looks; anyone who think it’s cool to be smart; and by those who relentlessly ask questions and never reject a contrary opinion out of hand. Beard’s intellectual style, which suffuses all her scholarship – a commitment to rigorous scepticism that refuses to be cynical – has made her a model for those who worry that the shouting and bullying of the digital world make reasoned political debate impossible.

 

Her career stands, in a way, as a corrective to the notion that life runs a smooth, logical path. “It’s a lesson to all of those guys – some of whom are my mates,” she said, remembering the colleagues who once whispered that she had squandered her talent. “I now think: ‘Up yours. Up yours, actually.’ Because people’s careers go in very different trajectories and at very different speeds. Some people get lapped after an early sprint.” She added softly, with a wicked grin: “I know who you are, boys.”

 

Beard describes herself as academically “flighty”. Instead of burrowing into one small area – a single Latin author, for example, or Roman religion in a given period – she has darted between topics; and, perhaps because of her gregarious nature, has preferred those topics not to be especially obscure. ...This eclecticism has given her the means to range widely through the ancient world in her public work. So has the fact that her scholarship has been relatively mainstream, rather than at the bleeding edge of academic fashion. 

Her full story is well worth the read.

February 1, 2018 in Education, Work/life | Permalink | Comments (0)

A Poor Mother's Right to Privacy

Danielle Keats Citron, A Poor Mother's Right to Privacy: A Review, 98 Boston J. L. Rev. (forthcoming)

Collecting personal data is a feature of daily life. Businesses, advertisers, agencies, and law enforcement amass massive reservoirs of our personal data. This state of affairs—what I am calling the “collection imperative”—is justified in the name of efficiency, convenience, and security. The unbridled collection of personal data, meanwhile, leads to abuses. Public and private entities have disproportionate power over individuals and groups whose information they have amassed. Nowhere is that power disparity more evident than for the state’s surveillance of the indigent. Poor mothers, in particular, have vanishingly little privacy. Whether or not poor mothers receive subsidized prenatal care, the existential state of poor mothers is persistent and indiscriminate state surveillance. 

Professor Khiara Bridges’s book, The Poverty of Privacy Rights, advances the project of securing privacy for the most vulnerable among us. It shows how the moral construction of poverty animates the state’s surveillance of poor mothers, rather than legitimate concerns about prenatal care. It argues that poor mothers have a constitutional right not to be known if the state’s data collection efforts demean and humiliate them for no good reason. The Poverty of Privacy Rights provides an important lens for rethinking the data collection imperative more generally. It supplies a theory not only on which a constitutional right to information privacy can be built but also on which positive law and norms can develop. Concepts of reciprocity may provide another analytical tool to understand a potential right to be as unknown to government as it is to us.

February 1, 2018 in Books, Media, Poverty | Permalink | Comments (0)

CFP Women's Leadership in Academia Conference

From Associate Dean Usha Rodrigues about the upcoming Women's Leadership in Academia Conference at the University of Georgia, and includes a call for proposals: 

We are happy to announce that Georgia Law will be hosting the first annual conference for Women's Leadership in Academia this summer on July 19-20.  The conference will emphasize giving attendees concrete skills in areas such as negotiation, as well as building a professional network.  Please visit the conference website for more details, and add your contact information in the “conference registration” section if you would like to be contacted as we finalize the details.

We are inviting you not only to attend our conference, but also to help shape it.  The conference website contains a call for panel proposals, and we are eager to hear your ideas to further our mission of promoting women leaders.

February 1, 2018 in Call for Papers, Conferences, Women lawyers | Permalink | Comments (0)

Wednesday, January 31, 2018

CFP: Feminist Judgments: Employment Discrimination Opinions Rewritten

The U.S. Feminist Judgments Project seeks contributors to rewrite judicial opinions to reflect feminist perspectives, and commentaries on the rewritten opinions, for an edited book collection tentatively titled Feminist Judgments: Employment Discrimination Opinions Rewritten. This edited volume is part of a collaborative project among law professors and other legal specialists to rewrite, from feminist perspectives, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Cambridge University Press has published the first volume in the series, Feminist Judgments: Rewritten Tax Opinions (2017). Other approved volumes in the series include family law and reproductive justice. Cambridge University Press welcomes proposals for additional volumes in the series that focus on other areas of law. 

The Employment Discrimination volume will be edited by Ann McGinley and Nicole Porter. We seek prospective authors for a number of employment discrimination opinions [listed in attached file.] We have selected the cases with the goal of creating a body of cases that can be largely internally consistent and that ultimately would improve employment discrimination law from feminist perspective.

More details here.   Download Revised Call for Authors 1.30.18 FINAL

Those who are interested in rewriting an opinion or providing commentary should apply no later than, February 12, 2018, by e-mailing the following information to Ann McGinley, ann.mcginley@unlv.edu and Nicole Porter, nicole.porter2@utoledo.edu

 

January 31, 2018 in Books, Call for Papers | Permalink | Comments (0)

The Trajectory of Feminist Theory in International Law

Karen Engle, Feminist Governance and International Law: From Liberal to Carceral Feminism, in Governance Feminism: Notes from the Field (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir, eds.) (University of Minnesota Press, 2018)

Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has primarily grown, and also developed significant influence, in the doctrinal areas of international humanitarian and criminal law. This piece, written as a chapter in a book on governance feminism, chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation. 

The chapter provides an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s. Each of the three approaches is identified according to its distinctive concern: liberal inclusion, structural bias, and the Third World, respectively. During the early period of feminist engagement, these approaches variously competed, complemented, and exchanged with each other in the push for a feminist foothold in human rights law. But the end of the Cold War, a compromise around “culturally sensitive universalism,” the emergence of a preoccupation with sexual violence in conflict, and the pursuit of criminal law as the primary response to it all ultimately functioned to favor a strand of structural bias feminism focused on female sexual subordination and to suppress and sideline the other feminist critiques, especially their material dimensions. 

Tracing this genealogy, the chapter calls into question a dangerous common sense about sexual violence in conflict, a common sense that bears upon culture, sex, economic distribution, and criminalization, and that still dominates human rights law and discourse today. It seeks to motivate a return to, and reevaluation of, other possibilities of feminist critique that were left by the wayside when the structural bias critique prevailed, and when sexual violence and carceral responses became central to feminist approaches to human rights law.

January 31, 2018 in International, Theory | Permalink | Comments (0)

Challenging the Criminal Prosecution of Pregnant Women

Patricia Ocen, Birthing Injustice: Pregnancy as a Status Offense, 85 G.W. L.Rev. 1163 (2017)

Over the last thirty years, pregnant women, particularly pregnant women of color, have increasingly come under the supervision and control of the criminal justice system. In July 2014, Tennessee became the first state in the country to pass a law criminalizing illegal drug use during pregnancy. Within weeks of its enactment, several women were arrested and subjected to prosecution under the statute. In Alabama, the State Supreme Court upheld convictions of several women after finding that the state’s chemical endangerment statute applied to fetal life. The women convicted of these crimes joined hundreds of other pregnant women arrested for or convicted of similar offenses. Indeed, according to recent studies, over 1000 women have been convicted of crimes ranging from child endangerment to second-degree murder as a result of conduct during pregnancy. In almost all of these cases, the conduct of the women prosecuted would have been lawful or subject to a lesser penalty had it been committed by a nonpregnant person.

This Article makes two central claims about the increasing number of criminal prosecutions of pregnant women. First, this Article contends that pregnant women are subject to a form of status offense. Status offenses, which criminalize the behavior of individuals within a select group of people that would be noncriminal if committed by persons outside of the group, have been utilized to regulate disfavored classes. Pregnant women, especially those who are poor and of color, are similarly constructed as a disfavored class and are therefore subject to unique forms of criminal regulation. Through the imposition of criminal liability, the state is enforcing gendered norms and policing the line between “good” and “bad” motherhood. As such, criminalization and incarceration play a significant role in the regulation of the reproductive autonomy of women. Second, the Article asserts that the prosecution of pregnancy-based status offenses violates the Eighth Amendment’s ban on cruel and unusual punishment.

January 31, 2018 in Pregnancy, Reproductive Rights | Permalink | Comments (0)

The Madonna/Whore Complex in the Italian Murder Conviction of Amanda Knox

Martha Grace Duncan, What Not to Do When Your Roommate is Murdered in Italy: Amanda Knox, her "Strange" Behavior, and the Italian Legal System

One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released. Retried in absentia, she was convicted again, only to be exonerated by the Italian Supreme Court, which handed down its final opinion in September, 2015. Throughout its eight-year duration, the case garnered worldwide attention, in part because of the pretty, photogenic defendant and the drug-fueled sex game that the prosecutor adduced as the motive for the crime. Interest in the case spiked again with the release of a Netflix original documentary, Amanda Knox, in the fall of 2016. 

While the Amanda Knox case has been remarkable for its ability to fascinate an international audience, it is not altogether unique. Rather, it is emblematic of broader themes and a broader problem−that of human beings’ prejudice against “strangeness” and our desperation for a hasty assessment of guilt or innocence‒qualities that can bleed into a legal system to the detriment of the quest for truth.

In this Article, I explore the Amanda Knox case in the context of our defective ability to judge. In Part One, I use the conceit of a “What Not to Do” list to highlight the role played by Amanda’s “strangeness” in bringing about her arrest and two convictions. In Part Two, I re-examine the usual rationale for Amanda’s behavior and suggest that a better explanation lies in her age and developmental stage. In Part Three, I shift from the interpreted to the interpreters, arguing that the latter were powerfully affected by the Madonna/whore complex and cultural differences between Perugia and Seattle. In Part Four, I analyze the impact of the Italian legal system, with its deep roots in the inquisitorial paradigm and its limited adversarial reforms.

This Article is based not only on scholarly research but also on my four sojourns in Italy, where I retraced Amanda’s footsteps and discussed the case with numerous legal experts. I had the opportunity to interview Amanda herself after she was free in Seattle.

January 31, 2018 in Gender, International, Pop Culture | Permalink | Comments (0)

Tuesday, January 30, 2018

Discussing Toxic Masculinity

Ask a Feminist: Michael Kimmel and Lisa Wade Discuss Toxic Masculinity, Signs Journal

Feminism basically offered women a symmetry between the social and the individual. The social observation was women as a group are not in power. And individually, women didn't feel powerful. So feminism basically said, let’s address both of those: the individual powerlessness and the social powerlessness. When you apply that same syllogism to men, men are in power, everyone agrees, but when you say therefore men must feel powerful, they look at you cross-eyed. They say, “What are you talking about? I have no power. My wife bosses me around. My kids boss me around. My boss bosses me around.” So with women you have a kind of symmetry; with men you have an asymmetry. All of the power in the world has not trickled down to individual men feeling powerful. This is important because you have a whole bunch of political groups out there who are saying things like, “You know, guys, you know how you don't feel powerful? You're right, the feminist women, they have all the power. Let's go get it back.” That's the men's rights guys. Then you have the guys who are saying, “Yes, you know how you don't feel powerful, let's troop off into the woods, and we’ll chant, and we'll drum, and we'll do the power rituals.” That’s the mythopoetic group.

 

I think our task has to be to address the asymmetry between the social and the individual, and here's how we do it. Our analysis of patriarchy is not simply men's power over women; it's also some men’s power over other men. Patriarchy’s always been a dual system of power, and unless we acknowledge that second one, we won't get an idea of why so many men feel like they're complete losers in the gender game, and they're not at all privileged, and they’ll resist any effort toward gender equality. I think we can make them allies.***

 

I have found in forty years of activism that the toxic/healthy dichotomy doesn't resonate for many men. I feel that when we come to them and talk about toxic masculinity, they very often think that we're telling them they're doing it wrong, that they're bad, and they have to change and give up their ideas of masculinity, the toxic ones, and embrace the new one. Basically we’re asking them to renounce Vin Diesel and embrace Ryan Gosling. And men won't go for it. They're too afraid to let go of things because you think they're unhealthy. So I feel like the toxic/healthy thing keeps guys a little bit askew—not exactly full-on resistant, although some are, but not engaged.

 

So I found it better—this is my own activist work,  . . . —but I have found it better to ask men what it means to be a good man and then contrast that with what it means to be a real man.

 

So I was not there to tell them that their behaviors were toxic. I was there to tell them that they are already experiencing a conflict, inside them, between their own values and this homosocial performance. So my job then shifted, not from scolding them to saying, “How can I support you living up to, not my definition of a good man, but yours? You already know the answer to this. You already do it very often, in private. You already do it when you stand up for the right, for the little guy, when you do the right thing. You already do it. How can we, grown-ups, how can we, the rest of society, support you in living up to your own standards?” I think that's a more effective way to reach these guys than it is to say, “You're doing it wrong, here’s how to do it right.”***

 

But I've done that same thing about good men and real men with frat guys when I've worked with them and they say to me, “Well, I know you're here to tell us that we shouldn't exist and fraternities should go away, etc.”

 

And I said, “Maybe not. Here’s a little good man / real man thing for you. Okay, bring me your charter, bring me the charter of your fraternity.” So they bring me the charter. And I said, “Now show me the part in your charter where it says ‘And we will have parties where we get girls so drunk that they can't stand up and they pass out so we can fuck them.’” And you know what? It doesn't say that in their charter. Nowhere. But here’s what it does say: “You’re men of honor, you’re men of integrity, you are about service, you’re about citizenship. I don't want you to live up to my ideals. I want you to live up to yours. If you can live up to your own ideals, you’ll have a reason to exist. Otherwise, no. I’m not okay with it.

January 30, 2018 in Gender, Masculinities, Pop Culture | Permalink | Comments (0)

MeToo in the Courts: An Investigation into the Complaints

Joan Biskupic, #MeToo in the Courts: Sexual Misconduct Kept Under Wraps,  CNN Investigation

The abuse women have suffered in the nation's courthouses has been a largely untold story. And its system for complaints -- where judges police fellow judges -- is a world so closely controlled and cloaked in secrecy that it defies public scrutiny.***

 

Rarely do sexual misconduct allegations against federal judges become public, . . . as they did in late 2017, with myriad complaints against California-based US Appeals Court Judge Alex Kozinski that drew national attention in the current #MeToo moment, forcing his resignation....

 
CNN compiled and reviewed nearly 5,000 judicial orders related to misconduct complaints and available online over the past 10 years. The documents, covering an array of misbehavior beyond sexual misconduct, are remarkably short on details.
  
The CNN analysis found that:
  • Very few cases against judges are deeply investigated, and very few judges are disciplined in any way. In many years, not a single judge is sanctioned.
  • None of the actual complaints (more than 1,000 are filed annually) are made public. In the public judicial orders, claims are sparingly summarized, and accused judges' names rarely appear. Some orders refer to "corrective action" by a judge without saying what happened.
  • Judicial orders are dumped onto circuit court websites as a series of numbered files with no indication of the allegations, person complaining or outcome. The practice makes it even more difficult to identify the most serious misconduct cases hidden among the opaque lists of documents because each order must be opened and individually read to gain even minimal information about the nature of the complaint.
In the 12-month period that ended September 30, 2016, there were 1,303 complaints filed. Of those, only four were referred to a special committee for the most serious level of investigation, according to the Administrative Office of the US Courts. In 2015, of the 1,214 complaints, four went to a special committee.
  
Going back to 2006, fewer than 10 cases annually were deeply investigated and even fewer resulted in disciplinary action. In six of the past 11 years, not a single judge was reprimanded, suspended or otherwise sanctioned for misconduct.

January 30, 2018 in Courts, Judges, Violence Against Women | Permalink | Comments (0)

Congress Passes Bill to Protect Amateur Athletes from Sexual Abuse

Congress Passes Bill to Protect Young Athletes Following Nassar Sentencing

The House passed a bill on Monday night that protects amateur athletes from sexual abuse by enforcing mandatory reporting regulations and extending the statute of limitations for child victims. 

 

The bill, which was sponsored by Sen. Dianne Feinstein (D-Calif.), came up for a vote one week after Larry Nassar was sentenced in what was the largest sexual abuse scandal in sports history. Congress agreed to use the Senate’s version of the bill to speed up its passage; it passed with a vote of 406-3. It just needs President Donald Trump’s signature to be made into law. ***

 

The bill has a three-pronged approach to protecting athletes and regulating governing bodies of amateur athletics.

 

First, it requires coaches, trainers and others to report any sexual abuse allegation to the police within a 24-hour period. Several women said they reported Nassar to MSU representatives and others as early as 1997, but Nassar’s abuse was allowed to continue because no one adhered to mandatory reporting regulations. 

 

Secondly, the legislation extends the statute of limitations to up to 10 years after a victim realizes he or she was abused. It’s not uncommon in child sexual abuse cases for survivors to have a delayed realization of the abuse they endured. Many of Nassar’s victims did not realize they had been abused until other women came forward with their stories. 

 

Lastly, the bill limits athletes under the age of 18 from being alone with an adult who isn’t their parent. Nassar often abused young girls while he was alone with them during medical visits, and many survivors said the isolation of elite gymnasts allowed the abuse to continue. ***

 

The bill has been in the works for about a year, with the help of former top-tier athletes and Nassar survivors including Mattie Larson and Jamie Dantzscher.

January 30, 2018 in Legislation, Sports | Permalink | Comments (0)

Monday, January 29, 2018

Kesha's Lawsuit

In light of Kesha's dramatic performance at last night's Grammy Awards, some excerpts and commentary on her lawsuit.  

Kesha's producer Dr. Luke sued her for breach of contract, and  Kesha alleged sexual assault and drug-related assault against the producer grounds for terminating the contract.  Reading between the lines, it seems the judge, Shirley Werner Kornreich, thought Kesha was making up the allegations in order to get out of a contract for better profits elsewhere.

At a quick glance, it looks like Kesha's counterclaims of assault were dismissed for lack of subject matter jurisdiction in NY, with some dicta about lack of merit, and for statute of limitations for the assaults.  The breach of contract action is still proceeding through contentious discovery.

Lucia Graves, Guardian, The Kesha Ruling is Offensive, Dismissive, and Utterly Predictable (Apr. 7, 2016)

To the non-legal mind, Kesha’s court case is eminently reasonable. She would like to be unshackled from a decade-old contract tying her to producer and collaborator Lukasz Gottwald (aka “Dr Luke”), a man she says has drugged, raped and psychologically abused her from the time she was 18. Specifically, she would like to be freed from working with his company Kemosabe, a subsidiary of Sony, explaining in a recent injunction request: “I know I cannot work with Dr Luke. I physically cannot. I don’t feel safe in any way.” (Gottwald has consistently denied all allegations.)

 

It doesn’t take a legal genius to determine that even if proving she was raped is an impossibility, she should be taken very seriously when she says she feels unsafe working with this man. But the legal mind presiding over her most recent case disagrees because, as it turns out, there are a million legal reasons why her personal story can’t be heard in any meaningful way. That her attorneys were beholden to these rules, stuck making a legal argument that didn’t reflect the severity of what she says happened to her, is an indictment of our justice system and how we handle rape survivors.

 

In a ruling Wednesday, New York supreme court justice Shirley Kornreich dismissed Kesha’s claims in the case on a litany of technicalities. Kornreich threw out the rape claims on the grounds that any abuses happened “outside New York and beyond the legal time limit”. She also found that Kesha’s claims that Gottwald emotionally abused her didn’t clear an absurdly high bar for intentional infliction of emotional distress.

Kesha's allegations, from Gottwald v. Sebert,

Kesha alleges that "soon after" she moved to Los Angeles in 2005, Gottwald began to make sexual advances, and forced her to take drugs and alcohol so he could take sexual advantage of her while she was intoxicated. While Kesha's CCs allege that she was sexually, physically and verbally abused by Gottwald for a decade, she describes only two specific instances of physical/sexual abuse. Kesha alleges that "one occasion" was when Gottwald "forced" her to snort an illicit drug before they boarded an airplane, after which Gottwald "continuously forced himself on" her during the flight, while she was intoxicated. CCs, 26. In the other incident, Gottwald allegedly told her to take "sober pills," which were a date rape drug (GHB), after which Kesha. believed Gottwald had raped her when she was unconscious because she woke up naked, sore and sick in his hotel room, with no memory of how she got there.  This occurred in 2005. 

 

Kesha allegedly "immediately" called her mother and told her mother that she had been raped and needed to go to an emergency room.  Kesha does not deny that the alleged airplane and rape incidents took place in 2005 and 2008. .... Kesha expressly states that she "never dared talk about, let alone report, what Dr. Luke had done to her,'' except purportedly telling her mother about the rape. CCs, ilil27, 28 & 41. She conclusorily alleges that the Sony Parties knew of, should have known about, ratified and concealed Gottwald's abuse, before and after Kemosabe was formed. She further alleges that she kept silent about it because Dr. Luke threatened to destroy her career and her family if she told anyone.  [FN: The only other specific "attack" allegedly occurred in Gottwald's Malibu house, when Gottwald screamed, threatened, thrashed his arms violently and backed her into a comer, which frightened her.]

 

With respect to.verbal abuse, Kesha alleges that Gottwald told her that she was worthless and inferior to other recording artists with whom he worked, and insulted her songwriting, vocals, clothing, weight, body and appearance. He allegedly denigrated her worth by saying that she would be nothing without him and that there were "a million girls out there like you." He reportedly criticized her weight "incessantly" and instructed her
to stop eating in front of others. In January 2014, Kesha entered a rehabilitation treatment center, where she claims she was diagnosed with bulimia nervosa, severe depression, post-traumatic stress, social isolation and panic attacks, which she blames on Gottwald's alleged abuse.

The judge's response on whether this was a gender-based hate crime:

The court agrees that the 3rd and 6th CCs fail to allege gender-motivated violence. Although Gottwald's alleged actions were directed to Kesha, who is female, the CCs do not allege that Gottwald harbored animus toward women or was motivated by gender animus when he allegedly behaved violently toward Kesha. Every rape is not a gender-motivated hate crime.

 

FN. Kesha cited one case, in which the court upheld gender-based employment discrimination, retaliation and hostile work environment claims based on deprecatory, vulgar and offensive remarks about women, including that they were useful only for administrative services and sex. Anderson v Edmiston & Co., Inc., 131 AD3d 416 (1st Dept 2015). Here, there are no facts to support Gottwald's animus toward women. Gottwald is alleged to have made offensive remarks about Kesha's weight, appearance and talent, not about women in general. Askin v Department of Educ. of the City of NY, 110 AD3d 621, 622 (1st Dept 2013) (no age-related animus shown where only allegations were that plaintiff 54 years old and was treated adversely or less well than others); Bennett v Health Mgmt Sys., Inc., 92 AD3d 29 (1st Dept 2011) (plaintiff mustdemonstrate discriminatory motive to support City HRL claim); Serdans v NY and Presbyterian Hospital, 112 AD3d 449 (1st Dept 2013) (no disability-based discriminatory animus shown by remarks that plaintiff brought her situation upon herself or should take her assets elsewhere). Although Kesha, again in conclusory language, alleges that Gottwald is known to abuse other women, she does not allege discriminatory motive or violence toward others.

 

January 29, 2018 in Pop Culture, Violence Against Women | Permalink | Comments (0)

Dept of Education Sued for Reversal of Policy for Campus Sexual Assault

Betsy Devos Sued for Weakening Sexual Assault Reporting Protections for Sexual Assault

Three civil rights organizations have filed a lawsuit against Education Secretary Betsy DeVos for rolling back protections for students who report sexual assault.

 

SurvJustice, which helps university women report assault, joined with Equal Rights Advocates and the Victim Rights Law Center to file the suit, which argues that the changes are discriminatory, violate federal law and are having a “chilling effect” on assault reports. In addition, schools are either not responding to the fewer complaints or not taking action as quickly, according to the suit.

 

The suit was filed Thursday in the Northern District of California against DeVos, the Department of Education and Candice Jackson, acting assistant secretary for civil rights at the department.

 

The suit argues that DeVos and Jackson hold “discriminatory stereotypes” about women and are convinced that many who report sexual abuse or assault “misunderstood a harmless romantic advance,” are lying or later regretted a “consensual sexual encounter.” 

This “discriminatory mindset not only motivated decision makers at the department, it flows from the top of the Executive Branch,” the complaint adds, referring to President Donald Trump.

 

DeVos issued a new policy in September increasing protections for those accused of sexual assault in kindergarten through college. She said that the Obama administration hadn’t ensured the rights of the accused and moved to adopt what she termed “fundamental fairness.” Shortly before the changes, DeVos called the 2011 Obama-era policies addressing campus sexual assault “shameful” and “wholly un-American.” 

 

She raised the standard of proof for accusers from a “preponderance of evidence” to “clear and convincing evidence.” The new guidelines also allowed even cases of sexual assault to be settled by mediation.

Education Secretary Betsy DeVos is Sued Over Sexual Assault Guidance

Victims’ rights and women’s rights groups sued Education Secretary Betsy DeVos on Thursday, saying that rules that she issued last year to guide campuses on how to manage sexual assault complaints violated federal law and discriminated against accusers.

 

Three organizations, represented by prominent civil rights litigators, filed a complaint in the Northern District of California outlining ways that the guidance issued by Ms. DeVos in the fall had had a “chilling effect” on campus sexual assault investigations.

 

Since the guidance was issued, the groups charged, accusers have been less inclined to pursue sexual assault cases, and colleges have demonstrated a lack of urgency and clarity in pursuing them.

 

In September, Ms. DeVos rescinded Obama-era guidance on how colleges should manage the investigations under Title IX, the federal law that prohibits sex discrimination and governs the rules on investigating sexual assault on campus.

January 29, 2018 in Education, Violence Against Women | Permalink | Comments (1)