Gender and the Law Prof Blog

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

Tuesday, July 11, 2017

Appointed Legal Counsel for Victims of Campus Sexual Assault

Merle Weiner, Legal Counsel for Survivors of Campus Sexual Assault, 29 Yale J. L & Feminism 123 (forthcoming 2017)

Abstract

This Article argues that survivors of campus sexual violence often need legal counsel before, during, and after campus disciplinary proceedings. Lawyers have been overlooked as a critical resource for survivors, and this omission means that most survivors do not receive essential services for addressing their victimization and furthering their recovery. This Article sets forth the reasons why institutions of higher education should make available free legal services to their students who are victimized, and addresses the reasons why institutions might be hesitant to do so. The Article then argues that potential institutional concerns do not relieve colleges and universities of their existing legal obligation to provide some survivors with free legal services. This Article suggests that schools would best meet their legal obligation by providing all survivors with free legal services. The Article then puts its theoretical discussion into perspective by describing the University of Oregon’s unique on-campus program that provides free legal counsel to student survivors. The Article concludes by recommending that the Office for Civil Rights clarify campuses’ legal obligation to provide free attorneys for some survivors and by suggesting that campuses offer all survivors this service. The result would be a better campus response to sexual violence, a decline in the overall rate of post-assault traumatic distress, a likely reduction in the rate of campus sexual violence, and greater progress toward the goal of gender equality.

July 11, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Thursday, July 6, 2017

New Study Provides Insights of Sexual Harassment of Graduate Students by University Faculty

Nancy Chi Cantalupo & William C. Kidder have posted A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty, Utah Law Review (forthcoming)

One in ten female graduate students at major research universities reports being sexually harassed by a faculty member. Many universities face intense media scrutiny regarding faculty sexual harassment, and whether women are being harassed out of academic careers in scientific disciplines is currently a subject of significant public debate. However, to date, scholarship in this area is significantly constrained. Surveys cannot entirely mesh with the legal/policy definition of sexual harassment. Policymakers want to know about serial (repeat) sexual harassers, where answers provided by student surveys are least satisfactory. Strict confidentiality restrictions block most campus sexual harassment cases from public view. 

Taking advantage of recent advances in data availability, this article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. It also situates this review within the available and most relevant social science literature on sexual harassment and violence in education and the workplace, as well as on methodological limitations of litigated case data, which tend to contain a higher concentration of high-severity cases compared to a random sample.

Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.

July 6, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, June 20, 2017

Should Domestic Violence be Decriminalized?

Leigh Goodmark, Should Domestic Violence be Decriminalized?, 50 Harv. J. Law & Gender 43 (2017)

Abstract

In 1984, the United States started down a path towards the criminalization of domestic violence that it has steadfastly continued to follow. The turn to the criminal legal system to address domestic violence coincided with the rise of mass incarceration in the United States. Levels of incarceration have increased by five times during the life of the anti-domestic violence movement. The United States incarcerates approximately 2.2 million people, with another 5 million under the scrutiny of parole and probation officers. While the criminalization of domestic violence did not have “a significant causal role” in the increase in mass incarceration in the United States, scholars have argued that the turn to criminal law to address domestic violence has contributed to the phenomenon of mass incarceration. Given the current focus on overcriminalization and decreasing mass incarceration, the time may be ripe to consider alternatives to criminalization of intimate partner violence. In her 2007 article, The Feminist War on Crime, law professor Aya Gruber wrote, “Although I am skeptical about the ability of criminal law to solve social inequality problems, there may be good reasons to keep domestic violence crimes solidly on the books.” Professors Cecelia Klingele, Michael Scott and Walter Dickey have called for the development of scholarship addressing “crime problems for which arrest, prosecution, and conviction are the most appropriate responses to crime, along with instances in which invocation of traditional response is particularly fruitless or counterproductive.” Both generally and specifically in the context of intimate partner violence, these articles ask about the continued utility of criminal interventions. This article takes up those questions and asks: should domestic violence be decriminalized?

June 20, 2017 in Violence Against Women | Permalink | Comments (0)

Friday, June 16, 2017

Economic Justice in Cases of Domestic Violence

Margo Lindauer, "Please Stop Telling her to Leave": Where is the Money: Reclaiming Economic Power to Address Domestic Violence, 39 Seattle U.L. Rev. 1263 (2016)

In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support for victims. I discuss the feasibility of using these systems to provide such support. From there, I provide a safety and security analysis with an eye towards economic freedom.

June 16, 2017 in Violence Against Women | Permalink | Comments (0)

Tuesday, May 30, 2017

The Unlikely Focal Point in the Title IX Campus Assault Debate: The Preponderance of Evidence Standard

Deborah Brake, Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard, 78 Montana L.Rev. 109 (2017)

In the heated controversy over the obligations Title IX places on colleges and universities to respond to sexual assault, no issue has been more contentious than the standard of proof used to make findings of responsibility in internal student misconduct processes. In 2011, the Office for Civil Rights (OCR) of the U.S. Department of Education released a “Dear Colleague” letter (DCL) clarifying the obligations imposed on institutions of higher education to use fair and equitable grievances procedures in resolving allegations of sexual assault. Among numerous other requirements, the DCL alerted colleges and universities that it expected them to use the normal civil standard, a preponderance of the evidence (POE), in resolving internal complaints of alleged sexual assault. From the beginning, detractors of the DCL have decried the unfairness of forcing campuses to find students responsible for sexual assault based on a preponderance of the evidence, and the POE remains the singularly most controversial piece of the Title IX framework.

On the surface, the POE is an unlikely focal point in the debate over Title IX’s application to sexual violence. Notwithstanding the emphasis OCR’s critics have placed on the POE, the agency’s 2011 endorsement of the POE largely ratified the status quo. Most educational institutions were already using the POE for sexual misconduct cases well before OCR weighed in. Moreover, it is unclear how much distance separates the POE and its closest competitor, the clear and convincing evidence standard. Although this article defends the POE and argues against ratcheting up the standard to require proof by clear and convincing evidence, it contends that the actual impact of OCR’s endorsement of the POE standard is disproportionate to the pitched debate it has prompted. Understanding why the POE is so contentious requires an examination of the broader debate over Title IX’s application to campus sexual assault.

 

May 30, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Friday, April 14, 2017

Books: Two Books Argue Against the Furor Over Rape on Campus

Jill Filipovic, Two Books Explore the Furor Over Rape on Campus

According to our last president, several sitting senators, feminist activists and female college students all over the country, sexual violence on campus is one of the most pressing issues facing young American women. Statistics promulgated by the Obama White House declare that an estimated one in five college women will be sexually assaulted. To combat this scourge, universities have hired new administrators, mandated anti-rape training sessions at freshman orientation and sped up the disciplinary process for accused assailants. Prominent feminists and lawyers say many schools are still doing too little to protect female students and far too much to protect male ones.

 

But according to the Northwestern professor and cultural critic Laura Kipnis, the opposite is true: It’s now men who are the victims of a nationwide sexual panic, one seated more in traditional views of women as vulnerable and sexually passive than in a feminism that recognizes young women to be self-sufficient independent actors (who are also human enough to make, and learn from, stupid sexual blunders).

 

Kipnis’s “Unwanted Advances: Sexual Paranoia Comes to Campus” focuses on one professor whose career was ruined by accusations of sexual assault and the ensuing Title IX investigation. Kipnis is drawn into this man’s professional drama after she too was on the receiving end of two Title IX complaints stemming from an essay she wrote deploring her university’s policy of frowning on relationships between teachers and students. Her book is a look at the secretive and largely unaccountable processes by which campus sexual assault allegations are investigated and adjudicated, using a handful of real incidents to illustrate her broader argument that complex interpersonal relationships and dumb drunken mistakes are now the quasilegal purview of well-paid administrators more interested in protecting a university’s reputation — even if it means ruining a few men’s lives — than seeking either truth or justice. The high-volume conversation about campus sexual assault, she says, is a kind of black-and-white gender traditionalism dressed up in feminist clothes, obscuring ambiguities and power plays inherent to human sexual desire, and instead casting adult women as innocent victims (or victims-in-waiting) and men as either rapists or potential predators.

 

And yet I loved reading it. Kipnis’s book is maddening; it’s also funny, incisive and often convincing. ***

 

If only the same could be said about “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” by KC Johnson, a professor at the CUNY Graduate Center, and Stuart Taylor Jr., a contributing editor at National Journal. An in-depth look at how universities compromise due process norms in adjudicating sexual assault cases — and it is clear they do — is overdue; instead, the authors choose a handful of egregious examples to make the case that campus sexual assault isn’t all that common and that the bigger problem is innocent young men railroaded by promiscuous women who get drunk and regret their choices, or flat-out lie at the behest of conniving campus feminists. Instead of an honest analysis of the complex issues and competing values at play, the book teems with vastly overstated claims, questionable statistics and quotes massaged beyond their original meaning.

April 14, 2017 in Books, Violence Against Women | Permalink | Comments (0)

Thursday, April 6, 2017

Trial Lawyers' Report Concludes Campus Sexual Assault Process Unfair Against Accused

New Report on Colleges and Sex Assault Cases

With the Trump administration reportedly debating whether to reverse Obama administration guidance on how colleges should investigate sexual assault, a group of trial lawyers has released a report suggesting the current processes on many campuses are unfairly slanted against the accused.

 

The guidance, issued in a 2011 Dear Colleague letter, was meant to clarify areas of the law, the administration said at the time. It beefed up protections for victims of sexual assault and was a way to push colleges to more thoroughly respond to complaints. Such guidance does not carry the force of law, but it did contain a threat that colleges’ federal funding could be revoked should they fail to comply

 

The American College of Trial Lawyers, in a report last month, said this prospective loss of funding, combined with heavy media attention on cases of sexual assault, has resulted in colleges sometimes disregarding the rights of those accused and on occasion recklessly siding with someone making a complaint to avoid backlash.

 

It suggested that:

  • All hearings in sexual misconduct cases be conducted keeping in mind even the appearance of partiality -- fact finders assigned to the cases should be vetted for any conflicts of interest or affiliations.
  • Anyone accused in a case should be provided with full details of the allegations against them and kept abreast of all evidence as the case proceeds.
  • Those accused should be advised of their right to a lawyer and be allowed to have one present at all stages of an investigation.
  • Parties, including the one accused, should be allowed to do cross-examination of witnesses. (This could be particularly controversial, considering it is generally advised that victims do not interact with the alleged perpetrator. The lawyers' group notes that court systems have said there are alternate ways to see victim testimony, such as via a tape-recorded message or closed-circuit TV.)
  • The accused should be provided with a written record in case they wish to appeal.

April 6, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, March 28, 2017

Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases

Joann Sahl, Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases, 101 Marquette L.Rev. 527 (2016) [WL link]

Domestic violence is the most common tort committed in our country, involving nearly 1.3 million victims. When a domestic violence incident occurs, the press regularly reports it. Highlighted in these articles is the name of the perpetrator.
 
Perpetrators identified as committing an act of domestic violence face public outrage, contempt, and stigma. This is particularly true if a court determines that the act of domestic violence necessitates a civil protection order (CPO) that bars the perpetrator from having any contact with the victim. Nearly 1.2 million people receive a CPO each year. More people use this civil remedy than those who seek a tort remedy, or those who are involved with the criminal justice system.
 
The CPO process, and its related orders, produces real and lasting “prejudicial collateral legal consequences” that extend past the life of the CPO. These consequences can include preventing the perpetrator from finding or keeping employment, obtaining a professional license, or being admitted to an academic institution. The prejudicial legal consequences arise because information about the perpetrator's involvement in a CPO case is not confidential. At least twenty-seven states, Guam and Puerto Rico allow public access to protection order files.
 
This continuing public access to CPO cases, even when there is no active order, means the former batterer is subjected to perpetual prejudicial consequences from the CPO case. To end these ongoing consequences, the courts should allow perpetrators to seal inactive CPO cases from public view. This sealing remedy is necessary to ameliorate the significant economic impact of those consequences. * * * 
 
Proposing a remedy to help those once labeled a batterer may ignite controversy. As one author has noted, “[w]orking to improve the conditions abusers face has long been considered taboo in the battered women's movement.” However, the sealing remedy proposed by this article is not at odds with the CPO process and its underlying rationale. A CPO is to provide “a simple, immediate remedy to increase the safety of victims." Once the court, or the victim, determines that the CPO is no longer necessary for the victim's safety, the CPO has achieved its purpose, so the collateral consequences related to the CPO should end as well.

March 28, 2017 in Violence Against Women | Permalink | Comments (0)

Thursday, February 23, 2017

The Mistaken Reliance on Title IX to Deter and Punish Campus Sexual Assault

Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kansas L.Rev. (2016)

Abstract:     

This Article attempts to answer an essential question related to Title IX’s role in student sexual assault at universities: is it better to improve and universalize student safety and conduct codes or rely on the new Title IX framework that has emerged? The tentative answer offered is that it is a mistake to solely or primarily depend on Title IX to deter and punish offenders in university sexual assault cases. This conclusion is based upon the uncertainty related to various aspects of Title IX doctrine and the regulatory regime that has emerged to enforce the statute. Consequently, this Article concludes Congress should adopt a basic, uniform student safety and conduct code that will cure many of the shortcomings of a legal regime based entirely upon Title IX. This legislation, unlike proposals aimed at merely strengthening the Title IX framework, might potentially avoid some of the backlash that has emerged in the wake of Title IX’s growing application in student-to-student sexual assault cases at universities while better addressing the issue.

 

February 23, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, February 22, 2017

Bringing Tort Law to the Campus Sexual Assault Debate

Sarah Lynnda Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kansas L.Rev. (forthcoming)

Abstract

In the last few years, campus sexual assault has risen to prominence as a national public concern. As policy-makers scramble to figure out how best to address this problem, the contours of the conversation in scholarship, media articles, and policy-making have devolved into two competing adjudicative frameworks: criminal law or Title IX. In this criminal law versus Title IX debate, two questions dominate. First, who can better adjudicate claims of campus sexual assault: criminal courts using criminal laws, or schools using Title IX? Second, if schools do adjudicate sexual assault claims under Title IX, are students entitled to the same procedural protections as criminal defendants? In this Symposium piece, I argue that this criminal law versus Title IX framing is unduly narrow. It ignores a third, important mode of adjudication for sexual assault claims: tort law. In this essay, I show why tort law has been left out of the campus sexual assault debate, and the potential impact of its inclusion. Incorporating tort law into the campus sexual assault debate has three specific benefits. First, conceptualizing campus sexual assault as a tort reminds us that the same wrong can be legitimately framed and addressed in multiple ways. Second, tort law sets a useful standard for determining the scope of procedural protections in campus sexual assault proceedings. Third, tort law suggests that affirmative consent may be appropriate for campus sexual interactions. Ultimately, bringing tort law into the campus sexual assault debate opens up the vast and fertile ground between the two poles of criminal law and Title IX, and creates a space where better institutional design and a more effective solution to this social problem might be found.

February 22, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, February 21, 2017

The Burden of Asylum for Gender-Related Persecution

Joanna Kallinosis, Refugee Roulette: A Comparative Analysis of Gender-Related Persecution, 6 DePaul J. Women, Gender & L. (2017)

This essay examines the existing law regarding gender related persecution and the burden imposed on female asylum applicants to fit their claims within the circumscribed notion of a refugee within Immigration law of the United States of America. Such difficulties are contrasted with the Canadian Immigration system, where women enjoy greater freedom in the interpretation of requisites necessary to be granted asylum. Section I of this essay explores the problems women face in gaining asylum in the United States. Section II of this essay will analyze the conflicting claims and claimants. Section III of this essay will explore past trends in asylum law; discuss the framework for evaluating asylum claims under current US asylum law; analyze the competing judicial interpretations of asylum law and discuss the inconsistency of judicial decisions. Section IV of this essay will discuss the projection of future trends. Section V of this essay will propose an amendment to the Refugee Act to include a Sixth category of gender or sexual persecution.

February 21, 2017 in International, Violence Against Women | Permalink | Comments (0)

Monday, February 20, 2017

The Absence of Binding Norms for Gender-Based Asylum

Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G: Evolving Standards and Fair Application of the Law,  22 Southwestern J. Int'l Law 1 (2016)

Abstract:     

When I last studied this issue — the eligibility of domestic violence survivors for asylum in the United States — I concluded: “the absence of binding norms remains a major impediment to fair and consistent outcomes for women who fear return to countries where they confront unimaginable harms, or worse, death.” Despite a recent decision by the highest immigration tribunal in the United States accepting that women fleeing domestic violence can meet the refugee definition and qualify for protection, I could write the same words today. The 2014 ruling in a case known as Matter of A-R-C-G- marked a critical advancement in U.S. law. Notwithstanding, in the year since that decision, arbitrary and inconsistent outcomes have continued to characterize asylum adjudication in this area of the law.

I do not mean to diminish the importance of the A-R-C-G- precedent, a long-awaited and hard-fought victory. Issued by the Board of Immigration Appeals (BIA or Board), the decision constitutes binding precedent for immigration judges (and asylum officers) across the country who often have the final word in these life or death matters because adverse decisions are not often appealed, and if appealed, the vast majority are upheld. For thirteen years, from the vacating of the well-known and controversial Matter of R-A- decision denying asylum to a domestic violence survivor in 2001, to the issuance of the A-R-CG- decision in 2014, immigration judges and asylum officers adjudicated domestic violence asylum claims without the benefit of jurisprudential (or regulatory) guidance.

 

February 20, 2017 in International, Violence Against Women | Permalink | Comments (0)

Friday, February 17, 2017

Exploring Why Cases of Sexual Assault against Black Women Rarely Result in a Conviction

 

Channel Fitch, Teri Platt & Michelle Wilson,  Black Women and the Criminal Justice System: The Politics of Processing Sexual Assault Cases

Abstract

According to the Rape, Abuse, and Incest National Network (RAINN), 3.7% of reported sexual assault instances are tried in court and only 2% result in a conviction. Despite evidence that most victims of sexual assault are children, multi-racial women, and black women, the majority of cases that are tried are those where the victims were white women. This paper will examine cases where black women are the victims in order to understand why these instances do not result in convictions. Our argument is that socioeconomic factors may make it more difficult for black women to navigate the process. We will explore this by analyzing each phase of the process to identify complexities in the system that may prevent these cases from concluding in court. The purpose of this paper is to provide insight into the experiences of black women in the criminal justice system and recommend procedural reforms that will result in an increase in reports and convictions.

February 17, 2017 in Violence Against Women | Permalink | Comments (0)

Victim Narratives in Sexual Assault Cases in the Age of Social Media

Erin Sheley, Victim Impact Statements and Expressive Punishment in the Age of Social Media, Wake Forest L. Rev. (forthcoming)

Abstract

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds. This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

February 17, 2017 in Violence Against Women | Permalink | Comments (0)

Tuesday, January 31, 2017

OH Proposes Legislation to Extend Domestic Violence Laws to Dating Relationships

Victims of Dating Violence Could Finally Get Legal Protection in Ohio

Closing what many regard as a gaping loophole in Ohio's domestic-violence laws has become a top priority for state legislators.

Currently, only Ohio and Georgia do not offer specific legal options for victims of dating violence, such as civil-protection orders.

A protection order from a judge can legally prevent contact between a victim and perpetrator, including ordering that person to move out of a home that a couple shares. It also can grant child custody and require the offender to relinquish any firearms.

But currently, such orders are limited to family members.

"It's not necessarily about definitions; it's about the relationship and what type of violence arises out of that relationship," said Rep. Emilia Sykes, a Columbus Democrat given an unusual co-sponsorship of a prime bill in the GOP-dominated Ohio House.

"Our statutory law has not caught up to that here in Ohio, so that leaves victims in this state unprotected for the purposes of obtaining civil-protection orders, simply because they don't meet that very specific and narrow definition of domestic violence."

 

January 31, 2017 in Legislation, Violence Against Women | Permalink | Comments (0)

Monday, January 30, 2017

Russia Decriminalizes Domestic Violence

Russia Parliament Votes 380-3 to Decriminalize Domestic Violence

Russia's parliament voted 380-3 on Friday to decriminalize domestic violence in cases where it does not cause "substantial bodily harm" and does not occur more than once a year.

 

The move, which eliminates criminal liability in such cases, makes a violation punishable by a fine of roughly $500, or a 15-day arrest, provided there is no repeat within 12 months. 

 

The bill now goes to the rubber-stamp upper chamber, where no opposition is expected. It then must be signed by President Vladimir Putin, who has signaled his support. 

 

Kremlin spokesperson Dmitry Peskov told journalists that family conflicts do "not necessarily constitute domestic violence." 

 

The passage by the parliament, or Duma, reverses a ruling by the Supreme Court last year, subsequently backed by parliament, that decriminalized battery that does not inflict bodily harm, but retained criminal charges involving battery against family members. That reform is effectively reversed by Friday's vote.

January 30, 2017 in International, Violence Against Women | Permalink | Comments (0)

Thursday, January 26, 2017

Reforming Rape's Mens Rea

Kari Hong, Rape by Malice, Montana L.Rev. (forthcoming)

Abstract:     

When people seek to reform rape law, the focus is on the actus reus — either abandoning the force element or redefining consent. This Article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this Article proposes that states adopt the mens rea of malice — a callous indifference towards the risk of whether the defendant had secured the consent of his sexual partner. If someone shoots a gun in a crowd and kills someone, that person had no knowledge or intent to kill. But the shooter would be liable for murder under the mens rea of malice because the person acted with callous disregard to the objective risk of harm that her conduct involved. When imported to rape, malice then effectively captures what is the precise social wrong in having unwanted sex — it is a defendant acting with callous indifference over whether his or her actions present an objective risk that he or she engaged in sexual activity without the consent of his or her partner.

 

January 26, 2017 in Violence Against Women | Permalink | Comments (0)

Tuesday, January 24, 2017

Understanding the Meaning of Consent

Aya Gruber, Consent Confusion, 38 Cardozo L.Rev. 415 (2016)

Abstract:     

The slogans are ubiquitous: “Only ‘Yes’ Means ‘Yes’”; “Got Consent?”; “Consent is Hot, Assault is Not!” Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic “yes”?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today’s widespread uncertainty is partly a product of the affirmative consent reform juggernaut and its rapid legal changes. Confusion is also connected to the nature of consent as a liberal, contract principle. Sexual consent appears a morally self-evident issue of free will, but it actually veils a struggle between various judgments about how sex should happen, its benefits and harms, and the role of criminal law in regulating it. Indeed, proponents and critics of affirmative consent entertain different empirical and normative presumptions and often simply talk past each other. Structurally mapping the consent framework and the affirmative consent debate reveals exactly what is at stake in this new world of reform — a revelation necessary for meaningful dialogue on acceptable sex and acceptable sex regulation.

 

January 24, 2017 in Violence Against Women | Permalink | Comments (0)

Thursday, January 19, 2017

Providing Attorneys for Campus Sexual Assault Victims

Kelly Ann Behre, Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys

Abstract:     

There is a national conversation about the role and responsibility of colleges in addressing campus sexual assault, including a debate about the definition of consent, reporting requirements, interim measures, adjudicatory processes, appropriate standard of proof, accused students’ legal rights, and judicial oversight. As colleges increase internal reporting requirements and form information-sharing agreements with local law enforcement agencies, student victims begin to lose their choice and agency in reporting decisions and investigations. And as college adjudicatory proceedings become more complicated and extend past adjudicatory findings into appeals and lawsuits, student victims lose their voice and ability to fully enforce their rights. It is time to bring victims back into the discussion by acknowledging their legal rights to safety, privacy, and education, and by providing attorneys to ensure victims’ choice and voice throughout overlapping legal processes.

Survivors of sexual assault generally report negative experiences with the criminal justice system, civil law system, and campus adjudicatory system - all a source of secondary trauma. Access to individualized, comprehensive legal advice at all stages of sexual assault investigations and the adjudication process has the potential to diminish secondary trauma by providing student victims with two vital tools: a choice to initiate and participate in a criminal and/or campus investigation by providing sufficient information for informed consent and a voice throughout the investigation and legal proceedings.

Part I employs storytelling to illustrate the experience of many survivors of campus sexual assault following their disclosure or report of the assault. Part II provides an overview of campus sexual assault. Part III provides a brief summary of Title IX, the civil rights law addressing sex discrimination in education. Part IV discusses the theories of secondary trauma (i.e. second rape) and victim justice. Part V proposes the four stages in which student victims of sexual assault might benefit from access to victims’ attorneys: pre-reporting, investigations, campus hearing, and post hearings (appeals and lawsuits).

 

January 19, 2017 in Violence Against Women, Women lawyers | Permalink | Comments (0)

Monday, January 9, 2017

Reforming Social Security's Marriage Duration Requirement in Cases of Domestic Violence

Sarah Boonin, Ten Years Too Long: Reforming Social Security's Marriage Duration Requirement in Cases of Domestic Violence, 39 Harv. J. Gender & Law 369 (2016)

Abstract:     

Social Security's retirement program has evolved over time to become a major source of economic security in older age for workers' family members, including spouses and ex-spouses. To qualify for derivative retirement benefits as an ex-spouse, the applicant must have been married to the wage earner for at least ten years. This Article explores in-depth this so-called "ten-year rule" and critiques its application in cases involving domestic violence. Drawing on a gut-wrenching case study, the rule's legislative history, as well as social science and feminist literature on the impacts of domestic violence, this piece argues that the ten-year rule unfairly punishes and imperils victims of domestic violence. It serves as the final blow, felt long after the abuse has ended. The Article proposes and defends an amendment to the Social Security Act that would extend vital retirement benefits to victims divorced from shorter-term marriages.

 

January 9, 2017 in Family, Violence Against Women | Permalink | Comments (0)