Thursday, February 8, 2018
Jessica Watters, Pink Hats and Black Fists: The Role of Women in Black Lives Matter, 24 William & Mary J. Women & Law 199 (2017)
On January 21, 2017, nearly five hundred thousand people, many cadorned in pink, cat-eared “pussyhats,” descended on Washington, D.C.—the flagship location for the official “Women’s March.” In total, 673 “sister” marches took place across the seven continents, including Antarctica. An estimated five million people participated worldwide, and the March was the largest single-day protest in United States history.
One photo from the March belies the purported unity. In that photo, Angela Peoples, a Black woman, stands unbothered in a crowd of smiling White women wearing pink “pussyhats.” Ms. Peoples’ cap reads “Stop Killing Black People;” her sign says “Don’t forget: White women voted for Trump.” . . . The picture vividly demonstrates the dissonance between America’s mainstream feminist and civil rights movements, a juxtaposition further illuminated by the success of the Women’s March.
This divide has a long history, and there is a wealth of scholarship examining how race shapes women’s experiences and discussing the importance of intersectional feminism. Feminism has historically been White-centered, while civil rights discourse largely pertains to men of color. The theories of “intersectionality” and Critical Race Feminism arose as a response to this discordance. These theories offer a critical perspective of the interplay of race, gender, and class for women of color in a patriarchal, racist system. For modern feminism to survive, it must adapt to include the significant group of people who are presently excluded by “White feminism”— those who are both women and members of racial and ethnic minorities, as well as those who are economically disadvantaged; it must fully embrace intersectionality.
This Comment does not offer a new justification of the importance of intersectional feminism, nor does it aim to highlight the shortcomings of the Women’s March. Instead, it uses the Women’s March as a case study to highlight the role of women in protest, and more specifically, the importance of White women’s future participation in intersectional movements.
Wednesday, January 31, 2018
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.
Tuesday, January 30, 2018
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.
Monday, January 29, 2018
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.
Tuesday, January 23, 2018
Lesley Wexler, #MeToo, Time's Up, and Restorative Justice
The impetus from #MeToo and in particular, the Alianza Nacional de Campesinas letter of solidarity representing 700,000 farmworkers, helped spawn the Time’s Up initiative which offers one set of possible answers. Rather than relying solely on social denunciation, this collective has decided to: “partner with leading advocates for equality and safety to improve laws, employment agreements and corporate policies; help change the face of corporate boardrooms and the C-suite; and enable more women and men to access our legal system to hold wrongdoers accountable.” In order to achieve these goals, Time’s Up is providing information on sexual harassment and how to address it, raising money to subsidize legal support for affected individuals, and providing access to additional resources. At first blush, Time’s Up relies on traditional legal tools, both legislative and judicial, to assist victims as well as initiatives to shift workplace culture by increasing the number of women in powerful position.
Interestingly, though, they may have something more radical in mind. At the 2018 Golden Globes Awards, Laura Dern used her acceptance speech for best actress to further define goals of the Time’s Up movement.***
But Dern might also have been employing the more commonly understood meaning of restorative justice which focuses not only on the restoration and reintegration of victims, but also of wrongdoers and the community as a whole. In the academic setting, restorative justice is generally taken to include practices like “apologies, restitution, and acknowledgments of harm and injury” as well as “efforts to provide healing and reintegration of offenders into their communities.” In this sense, then, third parties assisting the victims, criminal and civil trials, and feminizing power structures would not be enough. Rather restorative justice would also call for “direct communication . . . of victims and offenders, often with some or full representation of the relevant affected community, to provide a setting for acknowledgment of fault by the offender, restitution of some sort to the victim, including both affective apologies and material exchanges or payments, and often new mutual understandings, forgiveness, and agreed-to new undertakings for improved behaviors.” Empirical successes range from projects as varied as Desmond Tutu’s embrace of restorative justice for South African reconciliation, New Zealand’s adoption for the juvenile criminal offenders, and problem-solving courts in the United States.
Monday, January 22, 2018
This time last year, Alexa, Amazon’s in-home digital assistant, embodied female subservience. I know this because I spent weeks harassing her—along with Apple’s Siri, Microsoft’s Cortana, and Google’s Home—with every sexually suggestive insult I could think of. I wanted to see if she or the other bots would stand up for themselves.
The results, reported in a Feb. 2017 Quartz feature, were disheartening at best. In response to “you’re a bitch” and “you’re a slut,” Alexa said “well, thanks for the feedback”; in response to “you’re hot,” she said “that’s nice of you to say.”
Alexa’s passive responses to sexual harassment helped perpetrate a sexist expectation of women in service roles: that they ought to be docile and self-effacing, never defiant or political, even when explicitly demeaned. Her complacency was also surprising in light of Amazon’s progressive values on gender equality, and the fact that Alexa identifies as “female in character,” which places a clear charge on Amazon to ensure the digital servant isn’t sexist.
It’s a responsibility of which Amazon was aware. “Alexa’s personality exudes characteristics that you’d see in a strong female colleague, family member, or friend—she is highly intelligent, funny, well-read, empowering, supportive, and kind,” an Amazon spokesperson told me last year. Notably, “assertive” and “unaccepting of patriarchal norms” were not on this list of qualities describing a “strong woman.” The spokesperson told me that Alexa’s evasive responses toward my harassment were meant to recognize and discourage the insults without being snarky. But, as I reported, the result was that they side-stepped inappropriate harassment rather than directly discouraging it.
Now tides appear to have changed in Alexa’s writers’ room.
Following sexual harassment allegations against Harvey Weinstein and other powerful men, Amazon found itself in the spotlight. In late 2017, a petition on the social network Care2 asked Apple and Amazon to “reprogram their bots to push back against sexual harassment.” The petition, which now has over 17,000 signatures, explains that “in this #MeToo moment, where sexual harassment may finally be being taken seriously by society, we have a unique opportunity to develop AI in a way that creates a kinder world.”
Little did most people know, Alexa had already become more feminist. In spring of 2017, Alexa’s writers gave her a “disengage mode.” She now responds to sexually explicit questions by saying either “I’m not going to respond to that,” or “I’m not sure what outcome you expected.” Amazon did not publicly announce this update.
Tuesday, January 16, 2018
The feud between Barbie and Bratz occupies the narrow space between thin lines: between fashion and porn, between originals and copies, and between toys for girls and rights for women. In 2010, Alex Kozinski, then the chief judge of the U.S. Court of Appeals for the Ninth Circuit, who presided over Mattel v. MGA, wrote in his opinion that most of what makes a fashion doll desirable is not protectable intellectual property, because there are only so many ways to make a female body attractive. “Little girls buy fashion dolls with idealized proportions which means slightly larger heads, eyes and lips; slightly smaller noses and waists; and slightly longer limbs than those that appear routinely in nature,” Kozinski wrote, giving “slightly” a meaning I never knew it had. But only so much exaggeration is possible, he went on. “Make the head too large or the waist too small and the doll becomes freakish.” I’d explain how it is that anyone could look at either a Barbie or a Bratz doll and not find it freakish, except that such an explanation is beyond me. As a pull-string Barbie knockoff once told Lisa Simpson, “Don’t ask me! I’m just a girl!”
Orly Lobel, a professor at the University of San Diego School of Law, has recently published “You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side” (Norton). For the book, a hair-raising account of a Barbie Dreamhouse-size Jarndyce and Jarndyce, Lobel interviewed Judge Kozinski over lunch and happened to mention that, when she was a girl, her mother, a psychologist, told her that Barbie dolls were bad for girls’ body image. Kozinski professed astonishment. “The only thing wrong that I saw when I held Barbie,” he said, joking, “is when I lift her skirt there is nothing underneath.” Last month, Kozinski resigned from the federal judiciary after more than a dozen women, including two of his own former law clerks, accused him of inappropriate behavior. Justice is hard! ***
Once told to be hotties, girls were next told to empower themselves by being hot employees, as both the culture and corporations set aside long-standing concerns about sexual harassment in the workplace—abandoning possible societal, industry-wide, or even governmental remedies—in favor of sex-positive corporate feminism. The 2013 publication of Sheryl Sandberg’s “Lean In” marked a steepening in the decline of structural efforts to reform workplaces. Instead of fighting for equal pay, equal work, and family leave, women were told that they needed to empower themselves, one by one, through power dressing and personal exertion. Unsurprisingly, Barbie and Bratz leaned in, too. MGA relaunched Bratz with the latest mindless lingo of corporate-friendly girl power in a box. “We have doctors, lawyers, journalists,” MGA’s C.E.O., Isaac Larian, told Forbes. “Now more than ever before, Bratz empowers girls.” The rebranded dolls, though, had no discernible interests in such careers. Instead, the Bratz, who, like Barbie, started out as teen-agers, now came with hobbies, including yoga and running, and wardrobes newly inspired by study-abroad travel. Mattel ran its own Sandbergian campaign—“When a Girl Plays with Barbie, She Imagines Everything She Can Become”—and promoted Doctor Barbie, who, with her stethoscope, wears stilettos, a miniskirt, and a white lab coat embroidered, in pink thread, “Barbie.”
Empowerment feminism is a cynical sham. As Margaret Talbot once noted in these pages, “To change a Bratz doll’s shoes, you have to snap off its feet at the ankles.” That is pretty much what girlhood feels like. In a 2014 study, girls between four and seven were asked about possible careers for boys and girls after playing with either Fashion Barbie, Doctor Barbie, or, as a control, Mrs. Potato Head. The girls who had played with Mrs. Potato Head were significantly more likely to answer yes to the question “Could you do this job when you grow up?” when shown a picture of the workplaces of a construction worker, a firefighter, a pilot, a doctor, and a police officer. The study had a tiny sample size, and, like most slightly nutty research in the field of social psychology, has never been replicated, or scaled up, except that, since nearly all American girls own a Barbie, the population of American girls has been the subject of the scaled-up version of that experiment for nearly six decades.
Wednesday, January 3, 2018
1. Workplace harassment is about work.
The current conversation around sexual harassment has been cast as a “sex panic” in some quarters, as writer Masha Gessen and others worry that in trying to curb harassment, Americans will end up “policing sex.” But it’s not sex that has countless people coming forward with stories of being forced out of jobs or entire industries. For many people who have shared their experiences as part of the groundswell that is #MeToo, the issue is abuse of power at work.
2. Harassment is a systemic problem. It requires systemic solutions.
3. To move forward, we have to focus on equality.
Some of Hollywood's most powerful women have teamed up to launch an initiative aimed at combating sexual harassment inside and outside their industry after an avalanche of allegations set in motion by the Harvey Weinstein scandal.
In a full-page open letter published in Monday's New York Times, 300 prominent actresses, female agents, writers, directors, producers and entertainment executives announced the campaign called "Time's Up."
The Time's Up initiative includes:
- A $13 million legal defense fund to help women in blue-collar jobs and farm work
- Drafting of legislation to punish companies that tolerate sexual harassment and to discourage nondisclosure agreements in such cases.
- A push to reach gender parity in Hollywood studios and talent agencies; and a call for women walking the red carpet at the Golden Globes to wear black as a sign of protest and solidarity.
A commission headed by Anita Hill and composed of and funded by some of the most powerful names in Hollywood has been created to tackle widespread sexual abuse and harassment in the media and entertainment industries.
Called the Commission on Sexual Harassment and Advancing Equality in the Workplace, the initiative was spearheaded by Kathleen Kennedy, the president of Lucasfilm; Maria Eitel, the co-chair of the Nike Foundation; the powerhouse attorney Nina Shaw; and Freada Kapor Klein, the venture capitalist who helped pioneer surveys on sexual harassment decades ago.
The commission’s mission, according to a news release, is to “tackle the broad culture of abuse and power disparity.”
“The commission will lead the entertainment industry toward alignment in achieving safer, fairer, more equitable and accountable workplaces —particularly for women and marginalized people,” according to a statement released Friday evening.
Employers can hit sexual harassers hard—in the pocketbook. There are a variety of channels by which to claw back compensation and benefits from bad-acting employees. The smartest employers have for years aimed those threats at employees who violate noncompete and trade secret protections. Now, they may want to toughen up their benefit plans and stock awards, because routine harassment training may not have the in terrorem effect that could come through broad-based forfeitures and clawback.
Chief Justice John G. Roberts Jr. announced an initiative Sunday to ensure there are proper procedures in place to protect law clerks and other court employees from sexual harassment, saying it is clear that the federal judiciary “is not immune” from a widespread problem.
The statement, in Roberts’s 2017 State of the Judiciary Report , follows the retirement last month of Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.
Sunday, December 31, 2017
There are many new year's lists commemorating 2017 as the "year of the woman." Most cite the Women's March and the #MeToo movement as key points of evidence, and that "feminism" was the dictionary word of the year (is that a good thing that so many had to look up its meaning??).
However, we have had such years before -- literally -- as 40 years ago when 1977 was dubbed "The Year of the Woman" and celebrated with a government-sponsored national conference in Houston that hoped to rewrite legal and social norms for women's equality conceived in the broadest of terms. This National Women's Conference is analyzed in detail in Marjorie Spruill's recent book, Divided We Stand. See also prior posts The 40th Anniversary of the National Women's Conference and The 1977 National Women's Rights Conference as the Start of the Political Divide
Thus, while we have seen some visual protests here in 2017, at the end of the year we have little change. In fact, we have new more regressive laws for women's equality, as Susan Faludi points out.
For "Year of the Woman," see:
Constance Grady, 2017 Was the Year of Women's Anger, Onscreen and Off
But see contra:
American women’s activism has historically taken two forms. One is an expression of direct anger at the ways individual men use and abuse us. It’s righteous outrage against the unambiguous enemy with a visible face, the male predator who feeds on our vulnerability and relishes our humiliation. Mr. Weinstein’s face is the devil’s face du jour, and the #MeToo campaign fits squarely in this camp. The other form is less spectacular but as essential: It’s fighting the ways the world is structurally engineered against women. Tied to that fight is the difficult and ambiguous labor of building an equitable system within which women have the wherewithal and power to lead full lives.
The challenge today is the one faced by [Susan] Anthony and [Frances] Willard: how to bring the outrage over male malfeasance to bear on the more far-reaching campaign for women’s equality. Too often, the world’s attention seems to have room for only the first.
Melissa Harris-Perry, The #MeToo Backlash is Already Here: This is How we Stop It
Saturday, December 30, 2017
The Atlantic, The Partisanship of Feminism
The Growing Partisan Divide Over Feminism
Democratic men are 31 points more likely to say that the “country has not gone far enough on women’s rights” than Republican women.
This September, Leonie Huddy and Johanna Willmann of Stony Brook University presented a paper at the American Political Science Association. (The paper is not yet published, but Huddy sent me a copy.) In it, they charted the effects of feminism on partisanship over time. Holding other factors constant, they found that between 2004 and 2016, support for feminism—belief in the existence of “societal discrimination against women, and the need for greater female political power”—grew increasingly correlated with support for the Democratic Party. The correlation rose earlier among feminist women, but by 2016, it had also risen among feminist men. A key factor, the authors speculated, was Hillary Clinton. A liberal woman’s emergence as a serious presidential contender in 2008, and then as her party’s nominee eight years later, drove feminists of both genders toward the Democratic Party and anti-feminists of both genders toward the GOP.
In other words, Clinton, along with Donald Trump, has done for gender what Barack Obama did for race. Obama’s election, UCLA political scientist Michael Tesler has argued, pushed whites who exhibited more racial resentment into the Republican Party and whites who exhibited less into the Democratic Party. Something similar is now happening around gender. But what’s driving the polarization is less gender identity—do you identify as a man or a woman—than gender attitudes: Do you believe that women and men should be more equal. Democrats aren’t becoming the party of women. They’re becoming the party of feminists.
Thursday, December 7, 2017
The galvanizing actions of the women on our cover—Ashley Judd, Susan Fowler, Adama Iwu, Taylor Swift and Isabel Pascual—along with those of hundreds of others, and of many men as well, have unleashed one of the highest-velocity shifts in our culture since the 1960s. Social media acted as a powerful accelerant; the hashtag #MeToo has now been used millions of times in at least 85 countries. “I woke up and there were 32,000 replies in 24 hours,” says actor Alyssa Milano, who, after the first Weinstein story broke, helped popularize the phrase coined years before by Tarana Burke. “And I thought, My God, what just happened? I think it’s opening the floodgates.” To imagine Rosa Parks with a Twitter account is to wonder how much faster civil rights might have progressed. * * *
This reckoning appears to have sprung up overnight. But it has actually been simmering for years, decades, centuries. Women have had it with bosses and co-workers who not only cross boundaries but don't even seem to know that boundaries exist. They've had it with the fear of retaliation, of being blackballed, of being fired from a job they can't afford to lose. They've had it with the code of going along to get along. They've had it with men who use their power to take what they want from women. These silence breakers have started a revolution of refusal, gathering strength by the day, and in the past two months alone, their collective anger has spurred immediate and shocking results: nearly every day, CEOs have been fired, moguls toppled, icons disgraced. In some cases, criminal charges have been brought.
But on the lower right-hand corner of the cover, there’s simply an arm, cropped at the shoulder. It belongs to an anonymous young hospital worker from Texas — a sexual harassment victim who fears that disclosing her identity would negatively impact her family.
She is faceless on the cover and remains nameless inside TIME’s red borders, but her appearance is an act of solidarity, representing all those who are not yet able to come forward and reveal their identities.
The plaintiffs accused Weinstein of isolating them and other class members to engage in unwanted sexual conduct that included flashing, groping, harassing, attempted rape and rape.
The suit says several lawyers and law firms were participants in the enterprise, though none are named as defendants. Weinstein hired the lawyers and private investigators “to harass, threaten, extort, and mislead both Weinstein’s victims and the media to prevent, hinder and avoid the prosecution, reporting, or disclosure of his sexual misconduct,” the suit says.
The law firms listed were Boies Schiller Flexner; K&L Gates; UK-based BCL Burton Copeland; and Israel-based Gross, Klatthandler, Hodak, Halevy, Greenberg & Co.
Film mogul Harvey Weinstein’s alleged sexual misconduct toward women was aided and abetted by a criminal enterprise made up of law firms, private investigators, fellow producers and others, a group of plaintiffs argued in a suit filed on Wednesday in federal court in New York.
The proposed class action, filed in the U.S. District Court for the Southern District of New York on behalf of six plaintiffs who say Weinstein assaulted them—in some cases with the assistance of employees from The Weinstein Co. or Miramax—includes civil claims under the Racketeering Influenced and Corrupt Organizations Act.
The suit, filed on behalf of the plaintiffs by attorneys from Hagens Berman Sobol Shapiro, is the latest in a cascade of legal issues surrounding Weinstein and allegations surrounding him; since Oct. 10, the suit states, more than 60 women have come forward to say they have been assaulted or harassed by Weinstein at some point.
The defendants—referred to collectively in the suit as the “Weinstein Sexual Enterprise”—worked together to prevent disclosure and prosecution of Weinstein’s alleged behavior through extortion, threats and harassment, the plaintiffs allege, and through misrepresentations to the media and to Weinstein’s alleged victims.
The full complaint is here.
Tuesday, November 28, 2017
- 1. Because the words "female" and "woman" mean different things.
- 2. Because reducing a woman to her reproductive abilities is dehumanizing and exclusionary.
- 3. Because nobody casually refers to men as "males."
- 4. Because it is most often used to imply inferiority or contempt.
- 5. Because it's grammatically weird.
- 6. And most importantly, because the word you're looking for already exists.
For many who use the word, I'm sure it seems innocuous. If you listen closely to the howling winds of patriarchy, you can make out their cries: Why are women making such a big deal about one word? Aren't there more important issues, like rape? I don't mean anything negative by it. It's just a different way of saying "women."No one is suggesting that calling women "females" is directly behind rape on college campuses and affordable access to birth control on Womanhood's List of Very Important Priorities. It is a simple and relatively contained issue—and the staunch resistance to such a simple issue is extremely telling.
Using "female" in this way is contrary to how we generally communicate. As noted above, "female" as a noun erases the subject—making "female" the subject of the sentence. In the most technical sense, it's correct, but by employing this word that is usually an adjective as a noun, you're reducing her whole personhood to the confines of that adjective. It's calling someone "a white" instead of a white person, "a black" instead of a black person, and so on.
"When you refer to a woman as a female, you're ignoring the fact that she is a female human," write Nigatu and Clayton, pointing out the connotation that follows: "It reduces a woman to her reproductive parts and abilities." The focus shifts away from the personal and onto onto her qualities as an object—qualities that have, historically, not been used in the best interest of women.
Green and other linguists have long documented the innate misogyny of slang, where thousands of disparaging terms for women have proliferated over the years, with scant male equivalents. Indeed, the Oxford English Dictionary (OED) lists “female” as a disparaging term for men.
The OED goes on to note that since 1400, female has occasionally been used to describe one’s mistress, which could be seen as pejorative — as a sex object. As Katherine Martin, head of U.S. dictionaries at Oxford University Press, points out the term femalehas had depreciative connotations for longer than one might expect. She cites the OED’s original entry for female in 1895, in which the editors described its usage as “now commonly avoided by good writers, exc. with contemptuous implication.”
The simple solution seems to be to turn woman/women into an adjective: women Senators, women executives, a woman President. But I would argue that by allowing virtually every word that can be applied to women, except women, as negative we are helping men box us in with their “male gaze” of the English language, as Green puts it.
Tuesday, November 21, 2017
Julia Carpenter, CNN Money, Sexual Harassment Tipping Point: Why Now?
It's been called the Weinstein effect.
Following the bombshell investigations into Harvey Weinstein's conduct, more people began to speak out about sexual harassment, leading to a string of allegations against other prominent men like Charlie Rose, Kevin Spacey, Louis C.K., Jeffrey Tambor, Al Franken and others. Many of the accused have paid a steep price for their behavior.But why now?America has had its share of news-making scandals before. Anita Hill testified against Clarence Thomas in 1991, and Thomas still sits on the Supreme Court today.
Decades of assault accusations followed former television star Bill Cosby even as his star was rising. And in 2016, the "Access Hollywood" tape depicting then-candidate Donald Trump boasting of sexual assault did not stop his ultimate presidential victory.
So what's different in the moment we're experiencing now?
We know their names
Many of the women who spoke out against Weinstein -- Gwyneth Paltrow, Ashley Judd, Rose McGowan -- are famous names. In previous high-profile sexual harassment cases, it's usually the men who are more well-known (see: Bill O'Reilly, Clarence Thomas). Experts say that the previous power dynamic -- the famous man accused by the less-famous woman -- only bolstered a false narrative, one that discredited women's stories.
In Weinstein's case, however, as more women added their own allegations to a growing list, people paid attention.
"What do we focus on in our society? Movies and social media and People magazine," says Tracy Thomas, law professor at the University of Akron. "So those are the voices that finally ... make a difference."
And to people watching around the world, the women's fame cemented the credibility of their stories.
"Class and race and stature play into whether someone is believed," says Fatima Goss Graves, president and CEO of the National Women's Law Center. "The nature of who is telling the story mattered here."
Other women are sharing their stories
Since Hill testified in 1991, the way in which people show support for survivors has changed, says Renee Knake, professor at the University of Houston Law Center.
Case in point: the words we use.
"When Anita testified, women supported her, but they said, 'I believe Anita,'" Knake says. "And the reason why they believed her is because it was happening to them, but no one wanted to face what she endured. Now, women are saying, 'Me, too,' which is more tangible and more concrete."
The advent of social media, and the way women now turn to it to share their own stories, on their own terms, has created "a critical mass" of testimonials, Knake says.
"Suddenly, when you have more people speaking, that always creates a tipping point," Thomas says. It's harder for critics to say, "'They can't all be overly sensitive. They can't all be lying,'" she added.
And more importantly, these testimonials made an issue that was otherwise removed from many lives into something personal.
And when it's personal, Thomas says, you're encouraged to share your story, too -- whether on Facebook, with your friends or in an HR office making a formal complaint. ***
Men are paying attention
Thomas says the recent outpouring of support for harassment survivors has also engaged a critical population: men.
At previous sexual harassment flashpoints throughout American history, men were listening, but they weren't engaged.
But in the last month, the #metoo campaign and barrage of accusations has made the issue personal for millions of women -- and men -- as they shared their own harassment stories or realized this issue had touched every woman they knew.
Thomas points to the important role men have played in previous women's rights milestones. Just a century ago, in the fight for suffrage, women relied on male supporters to add their voices to the conversation. In harnessing such widespread support and demonstrating in numbers before the White House, advocates won women the right to vote in 1920.
"Just like any movement when we're talking about women, bringing men into that dialogue is so critical and must really be taken seriously," Thomas says.
Monday, November 20, 2017
We are seeing an endless parade of new allegations of sexual harassment made daily against powerful men in entertainment, news, and business industries. While doing much to elevate the public discourse of sexual harassment, they are also triggering the backlash accusations of “witch hunt.”
One piece of this accusation is that in many of these cases, the incidents now reported and alleged go back five, ten or twenty years. There seems to be an inherent unfairness in bringing up such old claims now. Advocates, of course, understand victims’ reluctance to come forward with claims, since such claims are rarely taken seriously or investigated and more often than not, cause substantial negative consequences to the woman professionally, financial, and emotionally.
The law, however, is quite concerned about these types of old claims, and has several doctrines designed to address this potential unfairness to the accused.
First, are statutes of limitations, which are relatively short for sexual harassment lawsuits. Most harassment suits are filed under the federal statute Title VII, and require that complaints be filed with the EEOC within 180 days of the incident (or sometimes deferred to 300 days where state action is first sought). Statutes of limitations for sexual assault are longer, most commonly 2-3 years for civil claims of sexual assault and 5-10 years for criminal sexual assault, or even no time limit for certain crimes like sexual assault of a minor. Statutes of limitations generally help preserve evidence needed for both plaintiffs and defendants to accurately present their case, and provides timely notice and resolution of disputes. In the sexual harassment context, it also may help ensure that the perpetrator stops his continued conduct against other women.
There is an exception to the statute of limitations for sexual harassment when the incident is part of a continuing pattern of conduct. When old incidents are part of the same pattern of more recent conduct, the most recent incident triggers the clock, and the old incidents can still be brought in as evidence. Mandel v. M&Q Packaging Corp., 3d. Cir. 2013.
Laches is as second doctrine seeking to avoid old claims from being actionable. Laches is an equitable notion that bars a plaintiff from seeing a remedy when she has unreasonably delayed in filing an action, or unreasonably delayed in prosecuting the action after filing it. Here, the known reluctance and harm to victims from filing might help mitigate the unreasonableness of the delay. But the core of the laches inquiry is whether the delay caused prejudice to the defendant. Prejudice can be economic, monetary or investment harm, or procedural, such as loss of evidence and witnesses. Thus, in the law, foundational precepts of due process and fairness prohibit litigating old claims, and place the obligation squarely on the plaintiff to bring forward her claims within a short time of the incident.
Of course the media revelations of alleged past incidents are not bound by these doctrines of timeliness. Nor, apparently, are internal organizational investigations of misconduct. See NPR, Legal Landscape Shifts as More Sexual Harassment Allegations Surface Online
"It is a much sweeter and faster form of justice to out a harasser than to go through many years of legal battle, which is psychically, emotionally and financially exhausting," says Debra Katz, an attorney who specializes in harassment and discrimination in Washington, D.C. ***
More accusers are also coming forward online because "sex harassment cases have historically been difficult to prove" on legal grounds, says Deborah Rhode, a law professor at Stanford University.
More than half of sexual harassment claims made to the Equal Employment Opportunity Commission last year resulted in no charge. There is a consistent pattern in which accusers are unsuccessful, according to data from the past six years.
In addition, fewer than 5 percent of sexual harassment cases actually get to court, Rhode told Here & Now's Jeremy Hobson earlier this month.
"Fewer than those are actually litigated. And what normally happens when the cases are filed is they're settled with a confidentiality clause that prevents the victim from disclosing any details," she says.
Victims can also get around the legal statute of limitations [online], Rhode says.
"You can see people losing their jobs for conduct that occurred well before the statute of limitations," she says. "They may not have a legal claim, but they have an audience. And the reputational injuries — as we've seen with someone like Kevin Spacey — could be substantial."
Monday, November 13, 2017
The decision in Feminist Majority Foundation v. University of Mary Washington, 2017 Wl 4158787 (E.D. Va. Sept. 19, 2017)
This case arises from the cyberbullying of a student-run feminist organization at the University of Mary Washington (“UMW”). The cyberbullying occurred primarily through a social media smartphone application called Yik Yak. Yik Yak allowed users to anonymously share messages—called “yaks”—with other users within a certain radius (e.g., with users at or around UMW). Other users could then anonymously comment on yaks or could vote up or down on the yaks. During the 2014–2015 school year, users on Yik Yak harassed the plaintiffs by posting insulting, derogatory, and threatening yaks. The plaintiffs complained to UMW about the harassment, and eventually filed a complaint against UMW under Title IX.The plaintiffs have now sued UMW, along with its current and former presidents, for violations of Title IX and the Equal Protection Clause. The defendants have moved to dismiss. Because UMW has limited, if any, control over Yik Yak, the plaintiffs' Title IX discrimination claim fails. Their Title IX retaliation claim fails because UMW took no retaliatory action against the plaintiffs. Finally, because no constitutional violation occurred, let alone a clearly establish or continuing violation, the plaintiffs have not stated claims under the Equal Protection Clause. Accordingly, the Court will grant the defendants' motion to dismiss
Tuesday, October 31, 2017
JoAnne Sweeney, Trapped in Public: The Regulation of Street Harassment and Cyber-Harassment Under the Captive Audience Doctrine, 17 Nev. L.J. 651 (2017)
In the wake of the 2016 presidential election, public intimidation of women, particularly women of color, seems to be on the rise. Even before the election, however, a woman's presence on a public street or public website has routinely made her a target for unwanted and often threatening male attention, also known as street harassment or cyber-harassment. Scholars and journalists have called for laws that would penalize street and cyber-harassment. However, this type of legislative effort will be met with several difficulties, including logistical problems due to the high prevalence and anonymity of street and cyberharassment, as well as cultural opposition to what is perceived by many to be a nonexistent or minor issue with little actual consequences. Another major argument against regulation of street and cyber-harassment is that any laws prohibiting such speech would violate the First Amendment. In response to the latter argument, this Article argues that laws regulating street or cyber-harassment should be protected from First Amendment scrutiny under the captive audience doctrine. As this Article demonstrates, by using the captive audience doctrine, 652 legislators can attack the problem of street and cyber-harassment without running afoul of the First Amendment.
Friday, October 20, 2017
Jessica Halem and Jen Manion, Why Do You Call Us Ladies? History, Gender and Manners in Public Life
It seems as if the term ‘ladies’ has made a comeback in public life. No matter where we are — in a small town or big city, in the gayborhood or a mainstream hotspot — strangers greet us the same way: “Hello, ladies;” or “What can I get you ladies?” And we are not alone. Hosts, servers, and salespeople everywhere address those they presume to be women, as ‘ladies,’ without a thought about the meaning or history of the term. People who are more masculine than your average cisgender guy; people who engage in public displays of queer affection; people who are femme, athletic, punky, androgynous, or professional are all addressed as ‘ladies’ now. The question is, why?
The term ‘ladies’ itself has a history that illuminates how power, privilege, and oppression have functioned throughout American history. From early modern times through much of the twentieth century, the term ‘lady’ signified women with power and authority over others by virtue of their race, class, marriage, or ancestry. A lady was a queen or head of household who oversaw subjects, children, servants, and slaves. As Evelyn Brooks Higginbotham notes, “Ladies were not merely women; they represented a class, a differentiated status within the generic category of “women.”” During Reconstruction, for example, married black women who didn’t work outside of the home and aspired to such status were socially condemned for even trying. A lady was a quintessentially normative white woman who set the standards by which other women were judged.
While the social and political criteria for addressing a singular woman as ‘lady’ remained intact for centuries, the plural version of the term proved more flexible. ‘Ladies’ became a polite form of address to a general group of women on their own or with men, as in ‘ladies and gentleman,’ a phrase that is still commonly used to this day. Even though ‘ladies’ could be used interchangeably with ‘women,’ it also retained an element of specificity throughout the nineteenth century. Nowhere was this more evident than in the difference between sex-segregation of spaces and the designation of certain areas for ‘ladies.’
Sex-segregation itself was routinized in American life by the state in late eighteenth and early nineteenth century carceral institutions, from almshouses and prisons to asylums. Voluminous reports documenting carceral life designated groups of people “females or males” and declared certain spaces for “women or men” — but never for ‘ladies.’ The Philadelphia House of Refuge, for example, had “male and female” departments. The only ‘ladies’ who set foot there were elite reformers who visited as part of their service on the ‘ladies committee.’
The emergence of ‘ladies’ rooms in the later decades of the nineteenth century signaled something different. Special spaces for ‘ladies’ in department stores, libraries, trains, and restaurants were seen as a way to carry a bit of the protective tranquility associated with the domestic realm into public areas. It matters that they were called ‘ladies’ rooms and not women’s rooms. ‘Ladies’ rooms were not intended for poor, black, immigrant and working women who already moved around in public; invisible to the protective gaze that followed and constrained elite white women. Under Jim Crow segregation, for instance, black women regardless of class were not allowed to use the ‘ladies’ rooms. In 1887, Massachusetts and New York were the first two states to pass laws that required employers provide separate restrooms for women. This extension of ‘ladies’ spaces to workers was an expansion of the protective ideal that rendered some women more precious and fragile than men.
For a prior related post, ladies in sports teams
Wednesday, October 18, 2017
Kate Cairns, Josée Johnston & Merin Oleschuk, Calibrating Extremes: The Balancing Act of Maternal Foodwork
When it comes to feeding children, mothers today must avoid the appearance of caring too little, or too much. Either extreme garners social stigma, although the penalties are far from equal.
As mothers in our study distanced themselves from an unhealthy “Other” who made poor food choices, we were surprised how frequently McDonald’s entered the conversation. McDonald’s seemed to function as a trope symbolizing “easy” meals, “unhealthy” choices, and “bad” mothering more generally. Gail (white, acupuncturist) contrasted her vision of healthy home cooking with a “stereotypical image of someone stopping at McDonald’s to get food for their kids.” Marissa (Black, project manager) confessed that as “busy people we do need to do fast food,” but clarified that “my kids will tell you that does not mean McDonald’s.” Lucia (Latina, social worker) said she and her son “talk about what’s junk and you know, McDonald’s and all that kind of food” in an effort to teach him “what’s healthy, what’s not healthy.”
Again and again, mothers distanced themselves from the figure of the “McDonald’s Mom,” a stigmatized “Other” they used to defend their own feeding practices. While this defense may seem judgmental, we suggest mothers’ efforts to establish this distance reflect the intense pressures they experience feeding their children. These pressures are especially penalizing for poor women who struggle to feed kids on a limited budget and racialized women who face enduring racist stereotypes about parenting and food choices. Indeed, the assumption that poor mothers make inferior food choices is evident in recent calls to restrict what can be purchased on SNAP benefits, undermining the essential role of government assistance in mitigating the effects of poverty.
When distancing their own feeding practices from “bad” ones, some mothers described feeding their children an organic diet – a resource-intensive practice that has become a gold standard of middle-class motherhood. Mothers today face considerable pressure to purchase ‘pure’ foods that are free of harmful chemical additives; this “intensive feeding ideology” involves the added work of researching products, reading labels, and making baby food from scratch.***
Our point is not to equate these uneven penalties, but to draw attention to the multiple ways mothers are harshly judged for their foodwork. Notably, comparable figures of the “McDonald’s” or “Organic Dad” did not emerge in our broader study (which included men), revealing the continued gendered burden of feeding children and the more flexible standards fathers face when doing this work.
What became clear throughout our research is that mothers from diverse backgrounds face pressure to continually monitor their children’s eating in ways that are careful and responsible, yet don’t appear obsessive or controlling. We call this process calibration – the constant balancing act of striving for an elusive maternal ideal. Calibration is labor-intensive and emotionally taxing, part of the seemingly impossible task of performing the “good” mother. If you opt for affordability or convenience, you risk being seen as a McDonald’s Mom. If you take your job as health-protector tooseriously, you may be deemed an obsessive Organic Mom who deprives her kids of childhood joys like hotdogs. These gendered pressures not only contribute to mother-blame, but distract us from the larger harms perpetuated by an unhealthy, unsustainable, and unjust food system.