Monday, February 8, 2016
A bill introduced by Democratic state lawmakers in 2013 would have required people subject to temporary protection orders in criminal or civil cases to surrender firearms to law enforcement agencies or sell them to federally licensed firearms dealers. The bill also spelled out how the guns could be returned after the protective order expired.
The bill, sponsored by former Rep. Bob Hagan, a Youngstown Democrat, was referred to the GOP-controlled House Judiciary Committee, where it languished after just one hearing.
THE NEW BILL
Rep. Nickie Antonio, a Democrat from Lakewood in suburban Cleveland, says her upcoming bill would give judges the discretion to order firearms removed when temporary protective orders have been issued. Antonio says the bill would also bring state law into line with federal law.
Arguably, a civil court has power to do so now: Ohio Rev. Code 3113.31
(h) Grant other relief that the court considers equitable and fair, including, but not limited to, ordering the respondent to permit the use of a motor vehicle by the petitioner or other family or household member and the apportionment of household and family personal property
Thursday, February 4, 2016
Nancy Chi Cantalupo (Barry), For the Title IX Civil Rights Movement: Congratulations and Cautions, Yale Law Journal Forum (forthcoming).
Abstract:The Yale Law Journal's September 25, 2015 Conversation on Title IX confirmed the existence of a new civil rights movement in our nation and our schools, led by smart, courageous survivors of gender-based violence and joined by multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. Movement leaders have wisely chosen Title IX as their particular banner and organizing point. As a civil rights statute, Title IX guarantees broad rights to an equal education, and although schools' compliance with Title IX and the statute's enforcement still require significant improvements, today's movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements.
But in doing so, the Title IX movement must remain vigilant against pushes to criminalize Title IX. Suggestions that gender-based violence which violates Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX's central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.
Tuesday, January 12, 2016
Mary Anne Franks (Miami), How Stand-Your-Ground Law Hijacked Self Defense, in Guns and Contemporary Society: The Past, Present, and Future of Firearms and Firearm Policy, Vol. 3 (Glen Utter, ed.), 2016.
In 2005 Florida passed the nation’s first so-called stand-your-ground law. By 2014 stand-your-ground laws had been passed in thirty-three states, transforming the legal landscape of self-defense. These laws significantly alter the historical understanding of justifiable force, ostensibly in order to clarify and strengthen the concept of justifiable self-defense and enhance public safety. The real accomplishment of these laws, however, has been to encourage the use of deadly force as a first, instead of a last, resort. Not only have these laws failed to deter crime, they have encouraged the escalation to deadly force in situations that do not call for it. Homicide rates increased in states with stand-your-ground laws after passing the legislation, and these states have higher homicide rates than states without stand-your-ground laws. The laws have encouraged the unnecessary use of deadly force on the part of those who have least reason to use it, and inhibited the use of deadly force by those most vulnerable to attack. These laws have undermined the limited protections victims of domestic violence have achieved after decades of reform efforts and worsened existing racial disparities in the criminal justice system. Stand-your-ground laws do violence to the very concept of self-defense by conflating self-defense with gun use, encouraging vigilantism and violent escalation, and exploiting delusions of heroic prowess. True reform of the legal and social concept of self-defense should focus on clarifying when deadly force is truly necessary and reasonable. Such a reform effort should expand protections for women defending themselves against abusers, critically evaluate the disproportionate use of deadly force against unarmed minorities, and encourage training in and access to non-fatal methods of self-defense.
Monday, January 4, 2016
A groundbreaking law on domestic abuse takes effect today in England and Wales. It expands the meaning of domestic violence to include psychological and emotional torment. So it is now a crime there to control your spouse, say, through social media or online stalking. Experts in domestic violence say it represents a new way to look at the whole issue of abuse.
Until recently, the only way police there could arrest someone for domestic violence was if the person assaulted or threatened their spouse. After a lot of research with victims, authorities realized that abuse often starts earlier and is more pervasive than they thought.
The new law makes illegal all sorts of controlling and coercive behavior in a relationship. This can include stealing money from a spouse, limiting financial freedom, Internet stalking or restricting access to friends and family. Prosecutors will have to show a pattern of abuse and that it has real impact on a victim's life.
Police around England and Wales are now being trained to spot signs of controlling behavior and enforce the law. Violators could face a sentence of up to five years behind bars.
When Chinese survivors of domestic violence summon the courage to go to the police, they often hear one thing: That's a private matter, go home.
That, at long last, may change.
After years of feminist organizing and advocacy, China's legislature this weekend passed a domestic violence law. For those who worked to make it happen, it's a hard-earned victory — an achievement "worth celebrating," according to veteran campaigner Feng Yuan.
At the same time, advocates say, the law is deeply flawed, a sort of field guide to enduring stereotypes and societal blind-spots. It fails to account for sexual violence, for one. And it is silent on the matter of same-sex couples.
"The law is very necessary to combat the epidemic of domestic violence, but there are a lot of problems with this legislation," said Leta Hong Fincher, author of “Leftover Women: The Resurgence of Gender Inequality in China."
"And," she said, "we will have to see how it's enforced."
The law was a long time coming. Women's groups here have for more than a decade campaigned to take domestic violence out of the shadows and into the courts.
Wednesday, December 16, 2015
One critical part of improving LEAs’ response to allegations of sexual assault and domestic violence is identifying and preventing gender bias in policing practices. Gender bias in policing practices is a form of discrimination that may result in LEAs providing less protection to certain victims on the basis of gender, failing to respond to crimes that disproportionately harm people of a particular gender or offering reduced or less robust services due to a reliance on gender stereotypes. Gender bias, whether explicit or implicit, conscious or unconscious, may include police officers misclassifying or underreporting sexual assault or domestic violence cases, or inappropriately concluding that sexual assault cases are unfounded; failing to test sexual assault kits; interrogating rather than interviewing victims and witnesses; treating domestic violence as a family matter rather than a crime; failing to enforce protection orders; or failing to treat same-sex domestic violence as a crime. In the sexual assault and domestic violence context, if gender bias influences the initial response to or investigation of the alleged crime, it may compromise law enforcement’s ability to ascertain the facts, determine whether the incident is a crime, and develop a case that supports effective prosecution and holds the perpetrator accountable.
Four days after an Oklahoma police officer was found guilty of serial rape, U.S. Attorney General Loretta Lynch announced the Department of Justice’s new guidelines for authorities handling sexual assault cases in their communities and within their departments.
The report, released Tuesday, calls for law enforcement agencies to fight gender bias in their responses to sexual assault and domestic violence with clear policies and updated training.
Lynch said officers across the country too often make snap judgments about women who report rape: She’s drunk. She’s an unreliable narrator. She’s just embarrassed by her actions.
Women's Law Project, WLP on the DOJ's First-Ever Guidance on Gender Bias in Law Enforcement
Thursday, December 10, 2015
Abstract:The victim impact statement (VIS) is a victim’s voluntarily written account of a range of harms experienced as a consequence of a crime. Rarely is the VIS investigated specific to sexual assault or from a theoretical perspective. This qualitative study was designed to address these gaps. Interviews were conducted with 44 participants who sought or provided VIS-related services in Canada. Findings were analyzed using insights from actor-network theory.
Findings of the overall study are presented through three distinct but interrelated papers. “Obliging Detours” (Miller, submitted) describes the development of the VIS in Canada, and its multiple, innovative, and unauthorized pathways of use. These pathways created novel opportunities, demands, and risks for sexual assault victims, particularly those who were mothers, female offenders, or had been excluded at trial. “Relational Caring” (Miller, 2014) identifies an ethic of care that underpinned use of the VIS by sexually assaulted women. Victims prioritized the well-being of others by constructing VIS narratives that privileged the harms experienced by others, protected future victims, and promoted the interests of intimate partner offenders. Victims who were mothers, especially those abused as minors, and those who were intimate partners of their offenders were particularly implicated. “Purposing and Repurposing Harms” (Miller, 2013) demonstrates how harm descriptions were manipulated by victims and others in keeping with, and contrary to, legislators’ design of the VIS. VIS repurposing occurred through victims’ practices of strategic disclosure, which was intended to effect changes in others’ behaviours, and harm peddling, which was the circulation of the VIS in nonsentencing arenas by victims and nonvictims to obtain compensation, child custody, and parole delay.
Taken together, the findings revealed that the VIS has a protean nature that is produced by structural and relational factors, and lends itself to multiple uses in multiple contexts. VIS-related outcomes and the effects on victims and others could neither be wholly predicted nor prevented, and involved interactions beyond the criminal court setting. The protean, unpredictable, and persisting positive and negative effects of the VIS hold promise — and danger — for sexual assault victims.
Thursday, November 12, 2015
But she was facing a major financial challenge. Typically, the cost of processing one rape kit is $1,500; testing 11,341 kits would cost about $17 million. That did not include the expense of hiring more investigators and then prosecuting the cases, a process that would most likely cost at least $10 million more. At the time, the Wayne County Prosecutor’s Office only had three sex crimes investigators on staff.
“We had no resources, no money and no support from the county of Wayne,” Ms. Worthy says. She swung into action.
“I asked everybody for money,” she says, “foundations, people, groups, organizations.” She was able to secure federal grant money to test 2,000 kits and to conduct a study on how sexual assault victims are treated in the criminal justice system. Several years later, the state of Michigan provided $4 million to cover the testing of 8,000 more kits. By then Ms. Worthy had been able to negotiate the cost of the testing down to $490 a kit. But there were still 1,341 untested kits and just two investigators dedicated to the new cases.
In early 2013, a Detroit businesswoman named Joanna Cline saw Ms. Worthy discussing the untested rape kits on a national news program. “I was and am furious” at the oversight, says Ms. Cline, who is the chief marketing officer of Fathead, which manufactures and sells wall decals. When she learned that Ms. Worthy’s office didn’t have enough funding to test the kits and prosecute the resulting cases, she became convinced that this was a solvable problem.
Tuesday, November 10, 2015
A proposed definition of rape being considered by the American Law Institute could lead to “disturbingly arbitrary” prosecutions and convictions if adopted by the states, according to a Harvard law professor who is an adviser on the project.
The draft definition would define sexual consent as a positive, freely given agreement to engage in a specific act of sexual penetration or sexual contact, according to a New Yorker article by Harvard law professor Jeannie Suk.
“If sex that doesn’t meet these criteria becomes criminal, a lot of people will be committing sexual assault even when they have mutually desired sex,” Suk writes. Prosecutions under this standard “will feel disturbingly arbitrary. But we will continue to have these scapegoats for a sexual culture that we increasingly reject,” she says.
The prior legal definition of rape was intercourse accomplished by force and without consent. Many states no longer require proof of force, and no longer require the victim to physically resist. The new definition is the law in New Hampshire.
Tuesday, November 3, 2015
I had the pleasure of hearing Jonathan Witmer-Rich (Cleveland State) speak last Friday at the NE Ohio Faculty Colloquium, a twice-annual lunch with the faculties of Akron, Case, and Cleveland State.
He previewed his thesis that the new legislative movement of "Yes Means Yes" doesn't actually change the existing legal standard of consent, for good or for bad. He wove in the recent discussion draft of recommended changes to the Model Penal Code.
You can hear more on this from Jonathan at AALS on January 9, 2016 on Panel 1 of the Symposium on Violence Against Women.
Monday, October 19, 2015
Colleges and universities in the U.S. are now required to disclose incidents of domestic and dating violence, such as stalking, in their annual crime reports, thanks to a sexual assault reform bill that went into effect this academic year.
Introduced by Democratic Pennsylvania Senator Robert Casey and Democratic New York Representative Carolyn Maloney, The Campus Sexual Violence Elimination Act (SaVE Act) is among the more substantial updates to the Jeanne Clery Act, the 1990 sexual assault prevention bill requiring colleges and universities that receive federal funding to disclose campus crime data like rape, assault and robbery.
Thursday, October 15, 2015
Last month, Michigan became the latest state legislature to introduce a “Yes Means Yes” law, mandating the teaching of affirmative consent as a sexual standard. In the past year, affirmative consent has become the mandated standard on college campuses in New York and California and is being voluntarily adopted by a growing number universities beyond those two states. The idea is simple: In matters of sex, silence or indifference aren’t consent. Only a freely given “yes” counts. And if you can’t tell, you have to ask.
Every time one of these bills is introduced, a certain subset of adults freaks out. Earlier this year, as the spring semester got underway and these new policies took hold on some campuses, Robert Carle, writing for libertarian outlet Reason, shrieked that “[a]ffirmative consent laws turn normal human interactions into sexual offenses,” as if there’s anything “normal” about a disinterest in whether or not the person you’re having sex with is a willing participant. In the New York Times, Judith Shulevitz dismissed the new standard because “[m]ost people just aren’t very talkative during the delicate tango that precedes sex, and the re-education required to make them more forthcoming would be a very big project,” an assertion for which she provides no evidence. But if students aren’t yet used to practicing affirmative consent, that’s no argument against it. Marital rape used to be both popular and legal, and we didn’t wait until everyone had stopped committing it to institute new laws. And in the Boston Globe, Wendy Kaminer protests that “in practice [affirmative consent standards] aim to protect women from the predations of men,” even though, as even she acknowledges, the standard is gender neutral. (More on that in a moment.)
All the grownup scaremongering is drowning out one important fact: Young people are embracing affirmative consent.
Wednesday, September 23, 2015
More than 1 in 4 female undergraduate students say they have been victimized by nonconsensual sexual contact, according to a survey released Monday of 27 universities across the country.
But the survey for the Assn. of American Universities, one of the most comprehensive ever conducted on college sexual misconduct, found wide variation in the cases depending on campus, gender, age and type of offense.
In California, for instance, 29.7% of female undergraduates at USC and 12.7% at Caltech reported the most serious sexual misconduct — sexual penetration or touching involving force or incapacitation by alcohol or drugs.
Tuesday, September 22, 2015
Wash Post, What a Massive Sexual Assault Survey Found at 27 Top US Universities (summarizing the results).
The Association of American Universities’ much-anticipated report on sexual assault—a survey that compiled responses from more than 150,000 students at 27 universities—is out today, and it confirms that the situation on campus is as bad as you probably already thought it was. Some bullet points:
• One-third of female college seniors reported that they had been the victims of nonconsensual sexual contact at least once since enrolling in college.
These numbers are roughly consistent with findings of previous studies; if anything, they’re a little higher than the results of the seminal 2007 study that gave us the grim axiom “1-in-5.”—but the authors acknowledge that could be due to the low response rate of 19.3 percent, and the possibility that people who’d experienced misconduct were more likely to participate. As always, the authors had to deal with the challenge of conveying uniform definitions in an area where every experience is intensely individual; for this reason, they didn’t use loaded words such as rape and assault, instead trying to precisely describe situations. But this could’ve caused confusion as well as averted it.
The most interesting thing in the AAU study isn’t what’s on the page, but a question that hovers, frustratingly, between the lines. “The study found a wide range of variation across the 27 [institutions],” the authors write in the executive summary
Friday, September 11, 2015
As the “yes means yes” standard of sexual conduct spreads to many US college campuses, California legislators have passed a new measure that will put affirmative consent curriculum into the state’s high schools beginning next year.
The legislation will require high schools that have a health component as a graduation requirement to teach the “different forms of sexual harassment and violence”, and include lessons on seeking explicit, affirmative permission from a partner before moving forward with sexual activity. The bill, SB695, is now awaiting the signature of the governor to become law, expected in the coming days. California would be the first state in the nation to adopt a mandatory education policy on the topic for K-12 students.
Wednesday, September 9, 2015
According to Rep. Jeong Yong-ki of the ruling Saenuri Party, the number of murder cases among dating partners has been on the rise in Korea since 2012, from 99 to 108 last year. In the last three years, the number of victims like Kim totaled 313.
The murder cases accounted for 11.9 per cent of all crimes committed by the victims' romantic partners against them, including stalking, physical violence and rape. The rate is particularly high considering the total number of murder cases in Korea only accounted for 1.69 per cent of all violent crimes -- murder, rape, robbery and aggravated assault -- in the same period.
"This means two people are being killed by their romantic partners every week," Rep. Jeong said.
According to Korea Women's Hotline, a nongovernmental organisation helping female victims of violence, at least 114 Korean women were killed by either their husbands or boyfriends last year, while at least 95 women survived after being seriously attacked by their spouses or romantic partners.
Thursday, August 13, 2015
Donna Coker (Miami), Leigh Goodmark (Maryland), Marcia Olivo, CONVERGE! Reimagining the Movement to End Gender Violence, 5 U. Miami Race & Social Justice Law Review 249 (2015)
Abstract:This introduction to the CONVERGE! Symposium by conference co-chairs Donna Coker, Leigh Goodmark, & Marcia Olivo, describes the aspirations of conference organizers, reflects on the accomplishments of the conference, and looks ahead to ongoing work.
CONVERGE! Reimagining the Movement to End Gender Violence brought together more than 200 academics, activists, survivors, students, and service providers convened in Miami. People came in response to a call to reimagine the work to end gender violence: "We seek to refocus United States priorities in funding, activism, legal responses, and social services in ways that better address the intersecting inequalities that create and maintain gender violence."
The conference highlighted the connections between what is often described as “gender violence” or “violence against women” — interpersonal violence, particularly intimate partner violence and sexual assault — and the structural inequalities of colonization, sexism, heterosexism, racism, anti-immigrant bias, and economic injustice. Building on the groundbreaking work of INCITE!, conference speakers expanded the traditional interpersonal violence frame to encompass state violence directed at women — violence that is embodied in racist, homophobic, classist, and anti-immigrant policies and practices, whether in prisons, on the streets, at the borders, in the workplace, or in homes.
CONVERGE! was bilingual, with a strong voice of monolingual Spanish speakers, undocumented women survivors of domestic violence and sexual assault, and domestic workers.
Monday, August 3, 2015
Three former members of the Phi Kappa Psi fraternity at the University of Virginia filed a lawsuit against Rolling Stone on Wednesday for defamation and infliction of emotional distress, saying the magazine’s discredited article on a campus gang rape had a “devastating effect” on their reputations.
The article, written by Sabrina Rubin Erdely and published last fall, set off a national discussion with its vivid account of a student’s assault, but it was retracted in April after it fell apart under scrutiny by journalists and law enforcement officials. A report by the Columbia Graduate School of Journalism uncovered an assortment of journalistic lapses, including a lack of skepticism and a failure to interview those accused of the assault.
On July 11, 2015, NY passed a yes-means-yes law for sexual intimacy on college campuses. Here's the story:
SYRACUSE, N.Y. -- What if you had to ask if it was okay
to put your hand on the other person's butt during foreplay? What if you had to
ask again before touching her breast? What if there was a law that said you had
to do this?
In New York, there is now on all college campuses. A bill signed into law July 7 requires both parties to obtain consent for sex and each nibble and caress that sometimes paves the way. The law applies only on college campuses. At its heart is a simple concept: instead of "No Means No," it's "Yes Means Yes."
It switches the dynamic of consent in what could be an empowering way. The hope is that by changing the power structure of the hook-up and making it law, college sexual assaults will decrease. The legislation, proposed by Gov. Andrew Cuomo and called "Enough is Enough," was passed unanimously by the state Legislature.
There have been critics, including this one:
"You look at the legal system we're building and it's incredible risky to hook up with someone you're not married to," said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida.
"It changes the rules of the game. It gives the game rules," Lake said.
Perhaps Prof. Lake said more in the interview, stuff that wasn't included in the article. But what he does say makes no sense to me. There's no explanation for why the consent requirement would make things "incredibly risky." Nor do I see what is presumptively problematic about "chang[ing] the rules of the game" or giving the "game rules." (Is anyone else unsettled by the description of sexual intimacy as a "game"?) Sexual intimacy already has rules; it is already governed by norms for what is acceptable intimacy and what is rape. A proposal to change said rules--or, rather, make them more explicit--is not in and of itself objectionable.
Sunday, August 2, 2015
Marital rape is a serious and frequently occurring form of domestic violence. Marital rape strikes at the heart of the marriage covenant, taking the promise, as in some Christian marriage ceremonies, to "cherish" the body of the spouse and turning into to a horror.
For most of human history, however, the marriage contract has meant the wife has "consented to sex" and thus sexual relations at any time are an entitlement by the husband. This is an extension of the idea that wives are the property of their husbands, as Diana Russell wrote in her 1990 landmark book Rape in Marriage.
Today, marital rape is now illegal in all 50 states and has been since July 5, 1993. Donald Trump's lawyer, Michael Cohen, has apparently just learned this.
Cohen exploded in response to an article in The Daily Beast that cited a 22 year-old allegation that Trump raped his former wife, Ivana. Ivana Trump's assertion of "rape" came in a deposition that was part of the Trumps early '90s divorce case, and revealed in the 1993 book Lost Tycoon: The Many Lives of Donald J. Trump.
Cohen said, "You cannot rape your spouse."
Actually, of course, you can. The legal definition of marital rape varies within the United States, but it is generally defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent (Russell, 1990).
Jill Hasday (Minnesota), Wash Post, Donald Trump's Lawyer was Right: In Some Places, Raping Your Wife is Still Treated Like a Minor Offense
This week, Donald Trump’s lawyer Michael Cohen reportedly said: “You cannot rape your spouse. And there’s very clear case law.” The comment ricocheted around the Internet and was denounced by scores of critics, who accused Cohen of misstating the law. He’s since apologized.
Unfortunately, Cohen’s broad declaration was less wrong than we’d like to think. All states prosecute some forms of marital rape in theory. But in reality, statutes criminalizing marital rape are often inadequate. They also remain dramatically and disproportionately under-enforced.
This injustice has deep historical roots. For centuries, husbands were absolutely exempt from criminal prosecution for raping their wives. In the eyes of the law, marital rape was a legal impossibility.