Gender and the Law Prof Blog

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

Thursday, September 29, 2016

Domestic Violence in the Divorce Cases of Marital Cruelty, 1840-1860

Book Review: Harris on Sager, Marital Cruelty in Antebellum America, reviewing the book Robin C. Sager, Marital Cruelty in Antebellum America (Lousiana State University Press 2016)

In literature and the popular press, antebellum women were lauded for their virtue and piety; they maintained the sanctity of the home and were responsible for the moral training of the next generation. Yet, many homes were not idyllic sites of domestic tranquility. In Marital Cruelty in Antebellum America, Robin C. Sager uncovers the fascinating and disturbing account of “those spouses who were simply trying not to kill one another” (p. 12). Through an analysis of 1,500 divorce cases in Virginia, Texas, and Wisconsin, Sager chronicles the meanings and cultural significance of marital cruelty in the years 1840-60. Sager contends that regional scholarship has tended to label the South as particularly violent, connecting that violence to norms of Southern honor. To interrogate these assumptions, the author analyzes Virginia (often considered the archetypal Southern state), Texas (a frontier Southern state), and Wisconsin (a frontier state in the process of settlement). Sager finds that the cultural uncertainty of frontier Wisconsin perpetuated violent domestic cruelty, while greater stability of gender norms in Virginia and Texas mitigated violence in marriage.

 

Marital Cruelty is organized around types of cruelty: verbal, physical, sexual, and negligence. Within each chapter Sager compares divorce cases from Virginia, Texas, and Wisconsin. In the chapter on physical cruelty, for example, Sager identifies a fixation on the exact nature of the violence in each state’s attempt to determine the line between permissible violence and marital cruelty. Courts would attempt to determine the exact number of blows, the type of violence, and the emotional valences behind the violence. While there was no universal standard for what constituted cruelty, violence that reinforced gendered familial duty was more likely to be considered legitimate. As such, whipping tended to be more acceptable than punching, and the seemingly rational administration of violence was more acceptable than emotional or animalistic violence. Sager also identifies significant regional differences in physical violence, explaining that the unsettled frontier of Wisconsin led to “more permanent injuries and generalized brutality within marriages than can be seen in either Virginia or Texas for the period” (p. 39). This chapter is also notable because it includes instances of wives' cruelty toward their husbands, a particularly egregious violation of gender expectations. * * * 

 

The unrelenting litany of domestic violence can be challenging to read, but the attention to regional difference and lower court marriage law makes the study valuable to researchers. While state and federal appeals and Supreme Court decisions from the antebellum era are more likely to be accessible, documents from lower-level divorce cases can be difficult to find. The vast majority of citizens seeking a divorce would have had their case only heard before a lower-level court, such as a circuit, district, or chancery court, and Sager’s meticulous research provides unique insight into the ways in which Americans used the state to negotiate marital conflict. However, as the author notes, not all Americans had equal access to the law, and Sager acknowledges that the choice to study divorce cases may obfuscate questions of race and class.

September 29, 2016 in Books, Family, Violence Against Women | Permalink | Comments (0)

Thursday, September 1, 2016

A Proposal for a Post-Arrest Confrontation Hearing in Domestic Violence Cases

Robert Hardaway, Domestic Violence and the Confrontation Clause: The Case for a Prompt Post-Arrest Confrontation Hearing, 22 Cardozo J.Law & Gender 1 (2015)

In the years leading up to the 2004 Supreme Court decision in Crawford v. Washington, a prosecutor could pursue a domestic violence case and introduce the prior accusatory testimonial statement of the victim even if the victim refused to appear at trial, declined to testify at trial, retracted a prior statement made to police, or claimed lack of memory about the events described in her prior statement. Introduction of a prior statement was permissible if the victim was unavailable, and the statement bore "adequate indicia of reliability" as indicated by falling within a "firmly rooted hearsay exception" or satisfied "particularized guarantees of trustworthiness."  In Crawford, the Supreme Court overruled Ohio v. Roberts, holding that admission of a prior victim statement complied with the Confrontation Clause only if the victim was unavailable, and the defendant had a "prior opportunity to cross-examine."  Critics of Crawford claimed that it initiated an "open season" on domestic violence victims by giving the defendant spouse an irresistible motive to escape justice by intimidating, threatening, or even killing the victim prior to the victim being becoming subject to cross-examination at trial.

 

It has been noted that the cause of justice pays a high price for insuring the right to physically confront a witness at trial-which may take place months or even years after the arrest of the defendant-because it provides the accused with ample time to intimidate or threaten potential witnesses against him.  Defendants in domestic violence cases quickly realize that without a testifying witness at trial, the case against him must be dismissed no matter how hideous the crime of which he is charged.' Witness tampering appears to work in favor of perpetrators, particularly in domestic violence cases, because 80-90% of victims do not cooperate with prosecutors in domestic violence cases. These cases include instances in which a witness mysteriously disappears prior to trial, declines to testify, or refuses to cooperate with the prosecution. This has proved to be of particular concern in domestic violence cases in which a battered spouse declined to testify for a variety of reasons, including purported lack of memory,  a fear of retribution either admitted or suspected, a plea for understanding from the prosecutor of a victim's desire to preserve the family unit, or a claim that the defendant has changed his ways and propensity for violence and is unlikely to repeat his crime. 


It is the aim of this article to propose a more effective means of eliminating a defendant's motive to intimidate or harm domestic violence victims who may be witnesses against the defendant at trial by providing defendants in domestic violence cases with the right to cross-examine a complaining witness at a confrontation hearing convened promptly after the defendant's arrest. Such a procedure would both comply with the Crawford requirement of a "prior opportunity to cross-examine" while reducing the time in which a defendant can devise means of making the victim unavailable for trial.

 

September 1, 2016 in Courts, Violence Against Women | Permalink | Comments (0)

Wednesday, August 31, 2016

Tribal Authority and the Reauthorized Violence Against Women Act

Angela Riley, Crime and Governance in Indian Country, 63 UCLA L Rev. (forthcoming)

Abstract:     

Criminal jurisdiction in Indian country is defined by a central, ironic paradox. Recent federal laws expanding tribal criminal jurisdiction are, in many respects, enormous victories for Indian country, as they acknowledge and reify a more robust notion of tribal sovereignty, one capable of accommodating increased tribal control over safety and security on Indian reservations. At the same time, the laws make clear that sovereignty comes at a price, potentially working to effectuate further assimilation of tribal courts and Indian people. As a result, at the same time that tribal sovereignty gains ground in ways critical to autonomy and self-governance, it is simultaneously threatened by exogenous forces that have the potential to homogenize tribal justice systems legally, politically, and — in particular — culturally.

This Article offers the first comprehensive assessment of the Tribal Law and Order Act and the reauthorization of the Violence Against Women Act, respectively, to show how they relate to one another on the ground and the implications for tribal sovereignty and self-determination. Ultimately, based on data compiled for the first time as well as extensive secondary sources, I argue that expanded criminal jurisdiction and punishment authority have, perhaps paradoxically, enhanced the ability of tribes to develop and enforce policies, laws, and procedures that are consistent with tribal custom and tradition. This presents a unique opportunity worthy of further exploration. In other words, rather than sovereignty and assimilation expanding in tension with one another, I find that the application of the laws has been experienced in tribal communities, as least anecdotally and preliminarily, as greatly enhancing — not threatening or destroying — tribal sovereignty and Indian cultural survival.

 

August 31, 2016 in Courts, Violence Against Women | Permalink | Comments (0)

Wednesday, August 17, 2016

Universities Challenge Education Dept's Title IX Guidance

Chronicle, Oklahoma Wesleyan Joins Lawsuit Challenging Education Dept's Title IX Guidance

Oklahoma Wesleyan University is joining a former University of Virginia student’s lawsuit challenging the Title IX guidance of the U.S. Education Department’s Office for Civil Rights, according to court documents filed Monday.

 

The university joins the plaintiff, identified in the lawsuit as John Doe, who was found responsible for sexual misconduct. The lawsuit asserts that the student was found responsible only because the department’s standard of proof is so low.

 

The suit raises objections to the department’s “Dear Colleague” letter, which states that colleges should use a “preponderance of evidence” standard when reviewing sexual-violence complaints.

 

“A growing number of innocent students have been trampled in the wake of these new requirements, found responsible for serious charges based often on the flimsiest of evidence,” the suit reads.

August 17, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, August 2, 2016

A Public Health Approach to Rape and Sexual Culture

Angela Harris, American Sexual Culture as Public Health Crisis, JOTWELL

Reviewing:  Margo Kaplan, Rape Beyond Crime, 66 Duke L.J. (forthcoming 2017), available at SSRN. 

Not long ago, I was indulging in one of my favorite lazy-day pastimes – standing in my local bookstore, reading. The book was Girls and Sex, Peggy Orenstein’s latest, and I left the bookstore considerably more unsettled than when I walked in. Suddenly it seemed like a good idea, if not to forbid her to go to college altogether, at least to walk my 18-year-old daughter to the nearest feminist sex-toy store first. Now comes Margo Kaplan to offer a legal perspective on American “rape culture,” and a new plan for furthering the feminist project of healthy, happy sex lives for       everyone.* * * 

Kaplan concludes that “absent a broader change in this culture, criminal law faces a double bind: rape laws can be either ineffective or unjust.” Because there is such a mismatch between the world sexual equality feminists, at least, would like to live in and the world we actually do live in, scholars and actors in the criminal justice system struggling to apply statutory terms like “force” and “consent” find themselves either confirming social norms that preserve men’s sexual access to women (ignoring the needs of male and female victims), or promoting idealistic norms that feel alien and unreasonable to the ordinary person.

 

The answer, Kaplan proposes, is to supplement the criminal law of sexual assault with a public health approach to sexual culture. As she notes, “public health law” is a grab bag of doctrines and policies including educational initiatives, data collection, and public-private partnerships among government, nonprofit organizations, media outlets, and advocates, all underwritten by the police power of the states and the federal power of the purse. The cornerstone of a public health approach, according to Kaplan, is its focus on “populations and prevention” – the exact opposite of the criminal justice system, which focuses on individuals and, despite its aspirations to deterrence, requires a violation as a trigger.

 

Kaplan’s proposed public health approach to rape has two main prongs. First, government agencies would amass detailed data on sexual violence (and where possible, presumably, sexual encounters that are unwanted regardless of whether they are understood as “violent”). Second, government agencies would promote new cultural norms for sexual behavior, challenging the norm of male aggression/female passivity and promoting in its stead an ideal of “good sex—sex that involves communication, mutual respect, and mutual pleasure.” (On the model of Michelle Obama’s work on obesity, I imagine First Husband Bill Clinton traveling the country promoting good sex for all.) In addition, Kaplan would encourage rape prevention campaigns to look “upstream” at structural determinants of victimization, such as poverty.

August 2, 2016 in Healthcare, Violence Against Women | Permalink | Comments (0)

Monday, July 11, 2016

Books: Women as Aggressors of Marital Violence in Antebellum American

Robin Sager, Marital Cruelty in Antebellum America (LSU Press 2016)

In Marital Cruelty in Antebellum America, Robin C. Sager probes the struggles of aggrieved spouses shedding light on the nature of marriage and violence in the United States in the decades prior to the Civil War. Analyzing over 1,500 divorce records that reveal intimate details of marriages in conflict in Virginia, Texas, and Wisconsin from 1840–1860, Sager offers a rare glimpse into the private lives of ordinary Americans shaken by accusations of cruelty. * * *

 

Correcting historical mischaracterizations of women’s violence as trivial, rare, or defensive, Sager finds antebellum wives both capable and willing to commit a wide variety of cruelties within their marriages. Her research provides details about the reality of nineteenth-century conjugal unions, including the deep unhappiness buried within them.

h/t Legal History Blog

 

July 11, 2016 in Family, Legal History, Violence Against Women | Permalink | Comments (0)

Friday, July 8, 2016

Books: Fiction on Campus Sexual Assault by and about a Woman Prosecutor

ABA J, The Last Good Girl

Author Allison Leotta has used her 12 years of experience as a federal sex-crimes prosecutor in Washington, D.C., to bring real-world issues into her fiction. Leotta has written five novels chronicling the adventures of her protagonist, prosecutor Anna Curtis. The most recent, The Last Good Girl, takes on the issue of campus sexual assault at a fictional private college in Michigan.

The ABA Journal’s Lee Rawles spoke with Leotta about how she shifted her career from lawyer to author; why the issue of campus sexual assault is so timely; and what’s next for her intrepid heroine Anna Curtis.

July 8, 2016 in Books, Violence Against Women | Permalink | Comments (0)

Re-Entrenching Stereotypes About Gendered Violence?

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 In thinking about new ways to end gendered violence, it may be time to reconsider the ways in which the law normalizes male violence and marginalizes women’s violence and how this binary treatment re-entrenches stereotypes. Consider, for example, the standards in the Kentucky Batterer’s Intervention Program (BIP). Many aspects of the Kentucky BIP requirements are the same for men and women, such as the requirements to provide content defining domestic violence, discussing the cycle of violence, and developing nonviolent methods for resolving conflict. 920 Ky. Admin. Regs. 2:020 (1)(10) (2015). Male abusers, however, are uniquely instructed in the: “confrontation of rigid sex role stereotyping” and “development of a relapse prevention technique.” Importantly, the focus on relapse prevention is in addition to the requirements of challenging a male client’s “pattern of aggression in a conflict with a victim” and exploring “a constructive and nonviolent method for resolving conflict in a relationship” that already apply to both men and women’s BIP programs.

Women share the male curriculum, except for the provisions cited above, which do not apply to women. Women do not consider sex stereotyping or the prevention of relapse. Instead, women’s programs focus on the following areas unique to women’s BIPs: “[e]xploration of life experiences and belief systems that have fostered choices for violent behavior;” and “[s]afety planning and knowledge of domestic violence resources.”

This suggests that women must uniquely account for their violence. It suggests that something went wrong for women in their lives and experiences, whereas men were expected to commit violence. Men’s violence is framed as uncontrollable and relapses are expected. Women’s violence is an aberration and a choice. Women do not plan to relapse; they prepare to be future victims accessing domestic violence resources. Instruction on safety planning and resources is a startling requirement for perpetrators of domestic violence, particularly after women under this statute are already uniquely required to qualify for eligibility.

These gendered differences in BIPs suggest that some life experience fostered violence as an aberration for women. Why should women not study the sex stereotypes that underlie their use of violence as well? Why should men not also explore the life experiences and belief systems that fostered their behavior? Is not men’s violence a choice as well? Seemingly, these differences might send a message of despair and pessimism to victims of men’s violence and a message of incredulity to victims of women’s violence. Is the law here re-entrenching gendered stereotypes about violence in problematic ways?

This blog is adapted from my research originally published in The Feminist Case for Acknowledging Women’s Acts of Violence available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790940.

July 8, 2016 in Guest Bloggers, Violence Against Women | Permalink | Comments (0)

Wednesday, July 6, 2016

Ending Marital Rape per International Law

Melanie Randall &Vasanthi Venkatesh,  Why Sexual Assault in Intimate Relationships Must be Criminalized as Required by International Human Rights Law, American Journal of International Law Unbound, May 17, 2016.

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women,rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.

July 6, 2016 in Violence Against Women | Permalink | Comments (0)

Tuesday, July 5, 2016

Critiquing “Crisis” in Campus Sexual Assault Responses

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Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.  

 

Merriam-Webster’s Dictionary defines the term “crisis” to mean a “turning point for better or worse in an acute disease or fever,” an “attack of pain, distress, or disordered function,” or “an emotionally significant event or radical change of status in a person’s life (e.g., midlife crisis).” Dictionary.com likewise defines a “crisis” as a “turning point” in a sequence of events, “a condition of instability or danger, as in social, economic, political, or international affairs, leading to a decisive change,” or “a dramatic emotional or circumstantial upheaval in a person’s life.” The word “crisis” itself is of late Middle English origin, rooted in “kri,” meaning to decide, separate, or judge. 

These definitions align well with many political and social uses of the word “crisis.” The Cuban Missile Crisis was a turning point in a sequence of events. It was a condition of instability leading to decisive change. It was a dramatic upheaval. The refugee crisis of families fleeing Syria can be defined as a condition of instability or danger, an upheaval, or a turning point. These definitions work well for most humanitarian crises following earthquakes, tsunamis, floods, etc. The word crisis, however, is notably not used in other occurrences. We do not think of cancer, debilitating illnesses, poverty, terrorism, or child abuse through the lens of “crisis.” Nor do we think about being victims of other types of crimes generally as creating a “crisis,” like arson or assault. Rather, these comparative examples are thought of as either more systemic, more longstanding, perhaps with more permanence or enduring complexities than a “crisis,” or, alternatively, as episodic and isolated.    

The rape crisis model has dominated community responses to sexual assault since the 1970s and 1980s. We send women to “crisis centers,” staff “rape crisis” hotlines, and deploy “crisis response” teams. In this capacity, rape is framed as creating a “crisis” for individual survivors of it, needing quick responses and interventions. That language has carried over into campus sexual assault responses as well, but in the context of campus sexual assault, it has been used in two distinct ways. First, campus sexual assault responses have transported the crisis response model applied in communities directly to college campuses. Colleges likewise offer crisis counseling, crisis hotlines, and crisis teams to assist students who have been sexually assaulted. Second, the language of crisis on college campuses has also been used in a very different way. It has also been used on a systemic level to frame a “campus sexual assault crisis” in the frequency and the normalization of campus sexual assault. This framing has been used regularly in news stories and political calls to action. 

Both uses of “crisis” seem to merit more thoughtful consideration in the campus sexual assault context. First, in its micro application to individual victims, this language of crisis denotes urgency, decisiveness, judgment, action, and mobilization, all leading to closure. These descriptions are problematic when mapped on to the lived experiences of campus sexual assault victims. The National Institute of Justice reports that an assailant known to the victim perpetrates 85%-90% of sexual assaults reported by college women. Campus sexual assaults are more often happening at parties, on dates, and in the victim or assailant’s residence. According to the National Institute for Justice, these complexities lead more than half of student victims to not define the incident as “rape” and just a small fraction of victims to report. Absent an obvious physical injury in many cases and without the complexities of identifying or “catching” the assailant, the language of “crisis” may not resonate with the experiences of campus sexual assault victims. For campus sexual assault victims, the experience is often dominated by confusion, self-doubt, isolation, and loneliness. It is not hallmarked by decisive action leading to closure for many, if not most, women.  Might there be collateral consequences to this framing? Might the language of crisis, for example, suggest urgency to reporting that is not consistent with existing statute of limitation laws? Might it suggest a need for decisive action, even beyond that which the law requires? Might it communicate implicitly to victims that closure or decisive judgment are to be expected, when the lived experiences reveal that the harms of sexual assault endure far beyond the immediate aftermath? Second, on a systemic level, while the language of crisis seems to invoke an urgent call to action, which is to be applauded, this language of systemic crisis also risks blurring the long history of sexual assault on campus and erasing a legacy of inaction. It also suggests a beginning and an end. It suggests that closure is attainable, when ongoing monitoring, responsiveness, and engagement are critically necessary. Transporting the language of “crisis” from community response models to campus sexual assault might complicate our understanding of and responses to campus sexual assault in ways worthy of further examination.  

July 5, 2016 in Violence Against Women | Permalink | Comments (0)

Wednesday, June 29, 2016

Commentary on the Voisine Case and Banning Guns for Serial Domestic Abusers

Slate, In Voisine SCOTUS Says Domestic Abusers Can't Have Guns. If Only Someone Would Enforce It.

From a prior post here on Gender Law Prof Blog, on Justice Thomas in Voisine oral argument, Justice Thomas Breaks 10-Year Silence to Question Federal Ban on Guns in Domestic Violence

On the interesting affiliation of Thomas and Sotomayor in the dissent, see Noah Feldman, When Opposites Converge Over Domestic Violence, Chicago Tribune.

What Thomas and Sotomayor share in common -- along with being the court's two members of racial minorities -- is a long-term concern with the overreach of federal criminal law.

 

Thomas's worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor's concern is more with the status of the individual defendant, who may be subject to long federal sentences.

 

June 29, 2016 in SCOTUS, Violence Against Women | Permalink | Comments (0)

Monday, June 27, 2016

SCOTUS Upholds Firearms Ban for Prior Misdemeanors of Domestic Violence

The Voisine v. U.S. decision is here. By Kagan.

Dissent by Thomas & Sotomayor (that's right) on legal standards of intentional conduct.

June 27, 2016 in Violence Against Women | Permalink | Comments (0)

Wednesday, June 22, 2016

The Thirteenth Amendment as Protection Against Domestic Violence

James Gray Pope, The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin's Exclusion of Infants, Lunatics, Women and Seamen, 39 Seattle L. Rev. (2016) 

 

In Robertson v. Baldwin [1897], the Supreme Court held that merchant seamen under contract could be legally compelled to work notwithstanding the Thirteenth Amendment’s prohibition on slavery and involuntary servitude.  According to the Court, seamen were “deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults,” and therefore could—along with children and wards—be deprived of liberty. From a present-day perspective, the Court’s casual deprecation of seamen’s intelligence and character might seem anachronistic, even shocking. ***

 

Robertson’s domestic exclusion raises intertwined issues of class and gender. As a general rule, the Thirteenth Amendment limits inequalities of class, where class is conceived as “power relationships among groups involved in systems of production.” Regardless of contractual consent, workers may not be legally or physically compelled to work. The Supreme Court has explained this principle in terms of class power, as necessary to prevent the “master” from dominating the “laborer”: “When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Robertson carves out a gendered exception to this protection, relegating seamen to what political theorist Carole Pateman has described as “the private sphere of natural subjection and womanly capacities.”

 

By contrast, it is an open question whether the Amendment reaches gender relations. On that issue, Robertson has historically served to block jurisprudential development by preserving the domestic sphere as a zone where services can be coerced free from Thirteenth Amendment scrutiny. As Joyce McConnell has shown, Robertson’s domestic exclusion has operated to deprive women, married or not, of protection against coercion by intimate partners. When a woman enters into an intimate relationship with a man, then, she departs the public sphere of class relations and loses her Thirteenth Amendment protection against coercion of services. Over the past few years, however, several courts have applied statutory bans on “involuntary servitude” and “forced labor” (a “species of involuntary servitude”) to protect women and children in domestic settings.

 

June 22, 2016 in Constitutional, Family, Violence Against Women | Permalink | Comments (0)

Tuesday, June 14, 2016

The Argument for Acknowledging Women's Acts of Violence

Jamie Abrams, The Feminist Case for Acknowledging Women's Acts of Violence, 27 Yale J. Law & Feminism 101 (2016)

Abstract:     

This Article makes a feminist case for acknowledging women’s acts of violence as consistent with — not threatening to — the goals of the domestic violence movement and the feminist movement. It concludes that broadly understanding women’s use of strength, power, coercion, control, and violence, even illegitimate uses, can be framed consistent with feminist goals. Beginning this conversation is a necessary — if uncomfortable — step to give movement to the movement to end gendered violence.

The domestic violence movement historically framed its work on a gender binary of men as potential perpetrators and women as potential victims. This binary was an essential starting point to defining and responding to domestic violence. The movement has since struggled to address women as perpetrators. It has historically deployed a “strategy of containment” to respond to women as perpetrators. This strategy includes bringing male victims of domestic violence within existing services, monitoring exaggerations and misstatements about the extent of women’s violence, and noting the troublesome line between perpetrator/victim for women. This strategy achieved specific and important goals to domestic violence law reforms. These goals included retaining domestic violence’s central and iconic framing as a women’s issue, preserving critical funding sources and infrastructure to serve victims, and thwarting obstructionist political challenges largely waged by men’s rights groups.

While acknowledging that these goals were sound and central to the historic underpinnings of domestic violence law reforms, this Article considers whether the strategy of containment is too myopic and reactive to endure. It begins a discussion of whether moving beyond a strategy of containment might paradoxically advance the efficacy of both domestic violence law reforms and the feminist movement. It suggests that moving beyond the strategy of containment would strengthen the infrastructure and foundation of the domestic violence movement. It would move beyond the limited masculinist frame dominating domestic violence, beyond the pathologized and marginalized frame depicting women abusers, and toward a more inclusive movement. It further examines potential gains to the broader feminist movement, such as preserving the movement’s sustained legacy, diffusing gender stereotypes, righting skewed legal standards, and advancing women’s political and professional status.

 

June 14, 2016 in Violence Against Women | Permalink | Comments (0)

The Argument for Acknowledging Women's Acts of Violence

Jamie Abrams, The Feminist Case for Acknowledging Women's Acts of Violence, 27 Yale J. Law & Feminism 101 (2016)

Abstract:     

This Article makes a feminist case for acknowledging women’s acts of violence as consistent with — not threatening to — the goals of the domestic violence movement and the feminist movement. It concludes that broadly understanding women’s use of strength, power, coercion, control, and violence, even illegitimate uses, can be framed consistent with feminist goals. Beginning this conversation is a necessary — if uncomfortable — step to give movement to the movement to end gendered violence.

The domestic violence movement historically framed its work on a gender binary of men as potential perpetrators and women as potential victims. This binary was an essential starting point to defining and responding to domestic violence. The movement has since struggled to address women as perpetrators. It has historically deployed a “strategy of containment” to respond to women as perpetrators. This strategy includes bringing male victims of domestic violence within existing services, monitoring exaggerations and misstatements about the extent of women’s violence, and noting the troublesome line between perpetrator/victim for women. This strategy achieved specific and important goals to domestic violence law reforms. These goals included retaining domestic violence’s central and iconic framing as a women’s issue, preserving critical funding sources and infrastructure to serve victims, and thwarting obstructionist political challenges largely waged by men’s rights groups.

While acknowledging that these goals were sound and central to the historic underpinnings of domestic violence law reforms, this Article considers whether the strategy of containment is too myopic and reactive to endure. It begins a discussion of whether moving beyond a strategy of containment might paradoxically advance the efficacy of both domestic violence law reforms and the feminist movement. It suggests that moving beyond the strategy of containment would strengthen the infrastructure and foundation of the domestic violence movement. It would move beyond the limited masculinist frame dominating domestic violence, beyond the pathologized and marginalized frame depicting women abusers, and toward a more inclusive movement. It further examines potential gains to the broader feminist movement, such as preserving the movement’s sustained legacy, diffusing gender stereotypes, righting skewed legal standards, and advancing women’s political and professional status.

 

June 14, 2016 in Violence Against Women | Permalink | Comments (0)

Monday, June 13, 2016

SCOTUS Upholds Serial Offender Provisions of Tribal Domestic Violence Act

Justice Ruth Bader Ginsburg wrote the opinion for a unanimous Court in US v. Bryant holding that two convictions of domestic violence in tribal court without provision of counsel can be put together to constitute "serial offenses" which are felonies under federal law.

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders. Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084. Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings. 

The Court held that the use of the uncounseled convictions did not violate the defendant's Sixth Amendment or Fifth Amendment due process rights.

Justice Ginsburg spent much of the opening pages of the opinion detailing the problem of domestic violence against Native American women.

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner.  American Indian and Alaska Native women “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.” American Indian women experience battery “at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women,” and they “experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among Black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women.” As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence “often escalates in severity over time.” 

 Justice Thomas wrote a concurrence questioning the Court's precedents on federal tribal jurisdiction:

It is time that the Court reconsider these precedents. Until the Court ceases treating all Indian tribes as an undifferentiated mass, our case law will remain bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty. And, until the Court rejects the fiction that Congress possesses plenary power over Indian affairs, our precedents will continue to be based on the paternalistic theory that Congress must assume all encompassing control over the “remnants of a race” for its own good. 

 

 

June 13, 2016 in SCOTUS, Violence Against Women | Permalink | Comments (0)

Tuesday, June 7, 2016

Why the Stanford Sex Offender Sentence is So Unusual

WashPost, What Makes the Stanford Sex Offender's Six Month Jail Sentence So Unusual

Most people accused of rape are never found guilty — the Rape, Abuse and Incest National Network estimates 97 of 100 avoid punishment. Turner’s crime, however, had witnesses. He was charged with three felonies related to sexual assault and convicted in March on all counts. He faced a maximum prison sentence of 14 years, with prosecutors recommending six.

 

But last week, Judge Aaron Persky leveled instead a punishment that ignited fury nationwide: Six months in the county jail, followed by three years’ probation.

 

The penalty sharply deviated from the sentencing norm. The majority of convicted rapists in the United States go to prison. The average sentence length is 11 years, according to the Bureau of Justice Statistics:

 

Turner, to be sure, was not convicted of rape. The two rape charges he originally faced were dropped. But at least two of the three remaining charges — assault with intent to commit rape of an intoxicated woman, sexually penetrating an unconscious person with a foreign object and sexually penetrating an intoxicated person with a foreign object — fall under the Justice Department's definition of rape: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

June 7, 2016 in Violence Against Women | Permalink | Comments (0)

Friday, May 27, 2016

Rethinking the Cultural Attitudes of Masculinity in Acquaintance Rape Cases

Eric Carpenter (FIU), Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases, 68 Hastings L.J. (forthcoming 2016)

Abstract:     

Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man.

In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of rape.

If Kahan is right, radical change may be necessary. The institutions responsible for handling sexual assault complaints – law enforcement communities, the military, and university and college administrations – are stratified and hierarchical, and are likely over-populated by people who are attracted to hierarchical institutions and who hold hierarchical world views. These institutions may need to be overhauled – or even replaced.

However, the study has a methodological flaw: it uses the Hierarchy-Egalitarianism Scale to measure those hierarchical world views, and as this article demonstrates, this scale has reliability and validity issues.

This article then applies a different methodology to the underlying data and shows that patriarchy, not hierarchy, explains the differences in guilt perceptions. This more accurate understanding of Kahan’s data carries important policy implications. Rather than radical change, targeted training that addresses inaccurate rape beliefs may be enough to ensure accurate processing of these cases.

 

 

May 27, 2016 in Masculinities, Violence Against Women | Permalink | Comments (0)

Tuesday, May 24, 2016

New Hotline for Native American Domestic Violence

Advocates' Hopes High for Domestic Violence Hotline for Native Women

Rape and domestic violence against Native women have reached “epidemic proportions,” but the hotlines that could help are often unprepared for the unique cultural needs of tribal women who may live in rural areas with little support and a bewildering legal system.

 

But that could be changing.

 

Sometime this year, the National Domestic Violence Hotline expects to take the first call at a hotline created specifically to respond to tribal victims.

 

The hotline, four years in the making, will be staffed either by tribal women or specially trained advocates “who can answer calls from Native women to help them … problem-solve around these issues,” said Katie Ray-Jones, CEO of the national hotline.

 

“I think our commitment from the hotline side just accelerated so quickly because of the number of stories, heartbreak, hardship, the lack of hope that many women were feeling,” Ray-Jones said about the first meeting with Native leaders. “(It) just became crystal clear to us that we need to do something.”

 

With the help of the National Indigenous Women’s Resource Center, the tribal hotline will offer crisis intervention, safety planning assessments and referrals to local resources tailored to Native women.

 

Leanne Guy, executive director of the Southwest Indigenous Women’s Coalition, said it was important to have a tribal-specific hotline where people answering the phone understand cultural nuances, how tribal governments function and what it’s like living on a reservation where police may be understaffed, underfunded and serving a large, rural area.

May 24, 2016 in Violence Against Women | Permalink | Comments (0)

Friday, May 13, 2016

Challenges for a Feminist Criminal Defense Lawyer

Elaine Craig, A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos, JOTWELL

Reviewing: Abbe Smith, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53 Am. Crim. L. Rev. (forthcoming 2016).
 

Reading the work of those writing from a different perspective has been productive to the development of my own thinking. Abbe Smith’s forthcoming article,Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, is no exception. Like her other scholarship,Representing Rapists is impeccably written, thoughtful, and well reasoned. What makes this work exceptional is its brutal honesty. With its steadfast transparency and willing self-reflection, the article is downright brave.

 

Abbe Smith, a well known legal ethicist and criminal lawyer, has committed much of her professional attention to theorizing and defending the need for unmitigated zeal in the representation of the criminally accused – including, of course, those accused of sexual offences. With a view to better protecting sexual assault complainants, I have dedicated a lot of scholarly attention in the last few years to developing feminist arguments in support of the ethical limits on defence lawyers who represent clients accused of sexual offences. Where our perspectives likely differ most is with respect to the cross-examination of sexual assault complainants.

May 13, 2016 in Violence Against Women, Women lawyers | Permalink | Comments (0)