Saturday, December 20, 2014
Jeannie Suk in The Trouble with Teaching Rape Law revives the argument against teaching rape in the classroom due to the potential traumatic effect on students who might have experienced it.
Corey Yung disagrees, arguing the importance of this area of law in Jeannie Suk on Teaching Rape.
In this week’s New Yorker, Jeannie Suk laments what she perceives as the increasing difficulty in teaching rape to today’s law students. I was a bit surprised in reading Suk’s article because her descriptive account of today’s law school classroom environment regarding rape is at completely at odds with my own. A few years ago, I attended SEALS where there was a panel discussing teaching rape in the classroom. I asked the panelists whether the reluctance to teach rape, most famously described in James Tomkovicz‘s 1992 Yale Law Journal article on the subject, was simply outdated. Almost everyone else was teaching rape and students were reacting positively to that choice. And that is why Suk’s article struck me as particularly strange – teaching rape has become the majority rule in 1L Criminal Law.
Of course, the reluctance to teach rape articulated by Tomkovicz was somewhat different than the one now described by Suk. Tomkovicz was primarily focused on classroom controversy, potential professional consequences, and students being marginalized because of classroom discussions. In contrast, Suk focuses on trauma of rape victims in the classroom. She is concerned that students seem to want trigger warnings or no discussion of rape in the classroom.
Given the prevalence and front-page news of the issue of rape today, and debates over what "legitimate rape" or "campus rape" or "sexual assault" is, it seems like this topic is critical now more than ever. And much more than academic.
Urban Dictionary now lists the song under the heading “Christmas Date Rape Song.” Recently, it was given a “feminist makeover” in the clever, if not quite as catchy, YouTube video “Baby, It’s Consent Inside.”
Is all this controversy over a catchy classic really warranted?
Upon first listen, maybe. The tune was penned in the 1940s by Frank Loesser — writer of Guys and Dolls — to be performed as a duet with his wife at Los Angeles parties. Its predatory nature is apparent from the original notes, which label the male’s part as “wolf” and the female’s as “mouse.”
And try reading the lyrics with a moderately critical eye. She doesn’t want to stay. He tries to convince her. “It’s cold outside,” he croons over her protestations, “gosh your lips look delicious.” Over the course of their back and forth, she infamously wonders what’s in the drink he handed her. Oy.
However, the story behind the tune isn’t quite so uncomplicated. As feminist blog Persephone Magazine noted in 2010, the song’s historical context matters. At the time they were written, an unmarried woman staying the night at her beau’s was cause for scandal. It’s this fear we see reflected in the lyrics, more than any aversion on the part of the woman to staying the night.
Friday, December 19, 2014
Joe Biden gave a speech about fighting violence against women. Here were some comments he made about the moral obligations of manliness:
But unlike most people of my dad’s generation, he went further. He was a gentle man, but he raised us to intervene. He taught us, where we saw it, the definition of our manhood was not what a great football player, baseball player me or any of my brothers or sister were, it was to stand up and do the right thing.
I remember when my sister, my younger sister, was beat up by a young boy when she was in seventh grade. I'm older than my sister, I was two years ahead of her. I remember coming back from mass on Sunday, always the big treat was we would get to stop at a doughnut shop at a strip shopping center. We went in, and we would get doughnuts, and my dad would wait in the car. As I was coming out, my sister tugged on me and said, ‘That’s the boy who kicked me off my bicycle.’
Read the rest here.
Thursday, December 18, 2014
Callisto, an online sexual assault reporting system under development by a nonprofit called Sexual Health Innovations, aims to change this and provide better options for victims of sexual assault on college campuses.
The project builds on the idea of “information escrows” proposed by Ian Ayres and Cait Unkovic in a 2012 Michigan Law Review article. Mr. Ayres, an economist at Yale’s law school, and Ms. Unkovic, a graduate student at the University of California-Berkeley, suggest that reporting of misbehavior that is difficult or costly for victims to disclose might be increased if people had the option to report that information to a third party who would make the disclosure only if others also reported misconduct by the same individual.
Friday, December 12, 2014
BOULDER, Colo. — He was suspended for three semesters by the University of Colorado Boulder for “sexual misconduct,” even though police filed no charges against him and his accuser admitted she wanted to scare him when she made the complaint.
So John Doe, as he is known in court records, filed a lawsuit last week against the university saying his rights had been violated under Title IX, the 1972 law that forbids universities from discriminating on the basis of sex.
“CU Boulder has created an environment in which an accused male student is effectively denied fundamental due process by being prosecuted through the conduct process under the cloud of a presumption of guilt,” says the Nov. 21 lawsuit filed in U.S. District Court in Colorado. “Such a one-sided process deprived John Doe, as a male student, of education opportunities at CU Boulder on the basis of his sex.”
Wednesday, December 10, 2014
Disturbing story from the New Republic:
The most stirring art has the ability to make us stop, think, and even act, but a new interactive documentary made in Peru may just help decide the political future of the whole country. Created as a result of collaboration between the University of Bristol and London-based Chaka Studio, the Quipu project relays the story of a recent and very dark moment in Peruvian history. As many as 300,000 women in rural areas of Peru were possibly hoodwinked into being sterilized during the mid-to-late 1990s, all in the name of bringing an end to poverty.
The scale of the heinous medical campaign remained buried until recently, as the village areas most affected did not know that both neighboring and far-flung areas had also been hit. Various legal cases on the issue brought against right-wing former-president Alberto Fujimori have hit the buffers and the local headlines, but the story has largely remained unknown outside the urban centers of Peru.
Tuesday, December 9, 2014
The TV show "The Newsroom" (admittedly one of my favorites) "in an astonishing case of prescience, created a plot that hewed closely to the recent article in Rolling Stone magazine about an accusation of gang rape at the University of Virginia."
The New Yorker, The Newsroom's Crazy-Making Campus-Rape Episode
From Legal History Blog, New Release: Pliley, Policing Sexuality: The Mann Act and the Making of the FBI
New from Harvard University Press: Policing Sexuality: The Mann Act and the Making of the FBI (Nov. 2014), by Jessica R. Pliley(Texas State University). A description from the Press:
America’s first anti–sex trafficking law, the 1910 Mann Act, made it illegal to transport women over state lines for prostitution “or any other immoral purpose.” It was meant to protect women and girls from being seduced or sold into sexual slavery. But, as Jessica Pliley illustrates, its enforcement resulted more often in the policing of women’s sexual behavior, reflecting conservative attitudes toward women’s roles at home and their movements in public. By citing its mandate to halt illicit sexuality, the fledgling Bureau of Investigation gained entry not only into brothels but also into private bedrooms and justified its own expansion.
Monday, December 8, 2014
Op-Ed from the Boston Globe:
Well, this is awful.
The Web blew up Friday afternoon with the news that Rolling Stone magazine no longer stands behind last month’s horrific, explosive story of a gang rape at a University of Virginia fraternity. A report in The Washington Post cast central elements of her story into serious doubt. Her friends and supporters now say they’re dubious, too.
It’s disastrous for everybody involved. At this writing, the victim, Jackie, insists she was telling the truth about being raped by seven students. Whatever the truth, she must be in a world of pain right now, particularly if she tried to extricate herself from the magazine story before it was published, as she now maintains.
The destructive fallout goes beyond one woman’s suffering. The Rolling Stone story, which had helped make it all but impossible to ignore the scourge of campus sexual assault, is now going to do the opposite. Because now, emboldened by this one possibly fabricated story of rape, the chorus of people who believe women routinely make these things up will grow louder.
Monday, December 1, 2014
Feminist legal theory "asks the woman question," that is, questions the law from the perspective of the woman in the case, focusing on considerations of gender. In the Elonis case heard by the US Supreme Court yesterday, then the legal question should ask how did the women in the case understand the threats, and what is the implication of the case for other women's rights. But once again, we get another SCOTUS case with enormous threat to women's rights, but cast in sheep's clothing, this time of free speech.
Here, the defendant threatened to kill his wife, detailing the blood and gore, mocked her protection order, and threatened to kill an FBI agent, also a woman. Once arrested, he offered "the rap defense," that this online terror was just rap lyrics to his own little song. The question for the Court reads out the gender, framing the issue as whether online words (taking out even the gendered context of domestic violence) should be evaluated from the subjective perspective of what the defendant says he meant by the comments, or by the objective standard of a reasonable person. Why not the standard of a reasonable woman? Why not ask what would a reasonable woman think sitting in the shoes of the wife here to whom the threats were directed?
Others including amici in the case, have emphasized the potential damaging implications for domestic violence advocacy by adopting a legal standard that credits the self-serving statements of the stalker or batterer himself as to the intended meaning of his threatening words. Brief of Amicus Curaie, The National Network to End Domestic Violence; Brief of Amicus Curiae, National Center for Victims of Crime; NPR, Is a Threat Posted on Facebook Really a Threat?
Justice Alito, the former prosecutor, briefly acknowledged the issue during the oral argument, though it was quickly dismissed:
JUSTICE ALITO: Well, what do you say to the to the amici who say that if your position is adopted,
this is going to have a very grave effect in cases of domestic violence? They're just wrong, they don't
20 understand the situation?
MR. ELWOOD: I mean, it is in their interest to have a standard that requires no mens rea because
it makes it much easier to prove these.
JUSTICE ALITO: Well, this sounds like a roadmap for threatening a spouse and getting away with
it. So you you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an
aspiring rap artist. And so then you are free from prosecution.
Sunday, November 30, 2014
With public revulsion rising in response to snowballing accusations that Bill Cosby victimized women in serial fashion throughout his trailblazing career, the response from those in the know has been: What took so long?
What took so long is that those in the know kept it mostly to themselves. No one wanted to disturb the Natural Order of Things, which was that Mr. Cosby was beloved; that he was as generous and paternal as his public image; and that his approach to life and work represented a bracing corrective to the coarse, self-defeating urban black ethos.
Only the first of those things was actually true.
Those in the know included Mark Whitaker, who did not find room in his almost-500-page biography, “Cosby: His Life and Times,” to address the accusations that Mr. Cosby had assaulted numerous women, at least four of whom had spoken on the record and by name in the past about what they say Mr. Cosby did to them.
From the libertarian Reason.com:
It’s difficult to imagine a more callous, wholly inadequate response to a culture of seemingly rampant sexual assault at the University of Virginia (UVA) than the one its administrators practiced year after year, according to a horrifying account finally publicized by Rolling Stone last week. But that’s precisely what happens when an entity equipped only to deal with academic misbehavior is instead pushed to do something about sexual assault: it finds itself putting the university’s brand name first and the victims second.
The lesson of the UVA assault, then, is that efforts undertaken by state governments and federal agencies to beef up university adjudication of sex crimes—including theincreasing popular “yes means yes” bills—are doomed to failure. Students will never see justice so long as colleges, rather than the police, are expected to intervene in rape cases.
From Nicholas Kristof of the NYT:
The world’s wrath and revulsion seem to be focused on Bill Cosby these days, as he goes in the public mind from “America’s Dad” to an unofficial serial rape suspect.
Yet that’s a cop-out for all of us. Whatever the truth of the accusations against Cosby — a wave of women have now stepped forward and said he drugged and raped them (mostly decades ago), but his lawyer denies the allegations — it’s too easy for us to see this narrowly as a Cosby scandal of celebrity, power and sex. The larger problem is a culture that enables rape. The larger problem is us.
Wednesday, November 26, 2014
Saturday, November 22, 2014
John Goldberg (Harvard), Jotwell, When is Sexual Abuse Within the Scope of Employment?, reviewing Martha Chamallas (Ohio State), Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013), available at SSRN.
Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability.
Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability.
Modern doctrine maintains that an employee’s on-the-job wrong will be imputed to her employer when the wrong is foreseeable, or involves the realization of risks characteristic of the employer’s enterprise. Under these tests, vicarious liability has at times extended to employees’ intentional acts of physical violence, as well as to negligence perpetrated by drunken, off-duty employees.
It is thus surprising, Chamallas argues, to find prominent cases in which courts decline to impose vicarious liability for sexual abuse. For example, the California Supreme Court refused to hold a hospital liable for its medical technician’s molestation of a young woman during the performance of an ultrasound, and also declined to hold a school district liable for a teacher’s abuse of a student during a school-sanctioned extra-curricular activity. According to Chamallas, modern legal tests for “scope of employment” are capacious enough to permit liability in cases such as these. Moreover, standard instrumental rationales for respondeat superior (“let the master answer”)—that it incentivizes appropriate precaution-taking by employers, better ensures compensation of victims, and fairly comports with the risks characteristic of the employer’s enterprise—arguably also favor liability. So why would courts decline to hold employers liable under the circumstances?
Friday, November 21, 2014
Alexandra Brodsky, a Yale Law student, wrote an editorial in WaPo:
In 2008, Wagatwe Wanjuki reported to her school, Tufts, that her boyfriend had repeatedly assaulted her. But the college refused to investigate the claim. The stress of the abuse and institutional betrayal took a toll on her grades, but without the school’s support she could not afford the tutoring she needed. Tufts then expelled Wanjuki for her substandard academic performance in 2009. (Tufts declined to comment on Wanjuki’s experience, citing confidentiality laws.) No longer enrolled as a student, Wanjuki’s student debt continued to accrue. Years later, she transferred to Rutgers University. Now a prominent anti-violence activist (and friend of mine), she graduated in August with a degree in sociology. But she also has more than $100,000 in debt from two schools.
Under Title IX, schools must ensure that all students have equal access to educational opportunities regardless of gender. According to courts and the Department of Education, this requirement includes an affirmative duty for colleges and universities to help survivors of gender-based violence continue their educations. That means schools must provide services such as tutors, dorm changes that allow victims to avoid their abusers, and mental health support to survivors who report harassment or abuse – even if they do not pursue disciplinary charges against the offender.
Yet stories from students across the country show that colleges and universities often shirk their responsibilities to support survivors. Students are then left to fend for themselves (with the help of their families, if they are lucky) as they try to stay in school. Thousands of dollars can disappear into rent for a new apartment off campus, away from an abusive ex, or into bills for hours of much-needed counseling. When a school denies survivors the services and support they need to recover, students may be forced to take out additional loans — or even to leave school, a semester’s tuition down the drain.
Tuesday, November 18, 2014
Jed Rubenfeld, NYT, Mishandling Rape
Our strategy for dealing with rape on college campuses has failed abysmally. Female students are raped in appalling numbers, and their rapists almost invariably go free. Forced by the federal government, colleges have now gotten into the business of conducting rape trials, but they are not competent to handle this job. They are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.
We have to transform our approach to campus rape to get at the root problems, which the new college processes ignore and arguably even exacerbate.***
Is the answer, then, as conservatives argue, deregulation — getting the government off the universities’ backs? Is it, as the Harvard law professors suggest, strengthening procedural protections for the accused?
Neither strategy would get to the true problems: rapists going unpunished, the heady mixture of sex and alcohol on college campuses, and the ways in which colleges are expanding the concept of sexual assault to change its basic meaning.***
But if schools are genuinely interested in preventing sexual assault, they need to overhaul how they think about assault and what they do about it. Prevention, rather than adjudication, should be a college’s priority.
Here's the response from 75 Yale Law Students. Professor's Campus Rape Op-Ed Gets it Wrong [Thanks Dara Purvis].
More than 75 students at Yale Law School have signed an open letter pushing back on a recent New York Times column about campus rape written by one of their professors.***
[W]hat has drawn the most ire are Rubenfeld's comments about consent. In his column, Rubenfeld characterizes affirmative consent policies as unenforceable and overly broad, and suggests that such an approach categorically redefines all drunk sex as rape.
Monday, November 17, 2014
“The phone call. The phone call," sighed Allison Strange. "There’s always that one call that you never expect to get.”
On Sept. 6, 2011, the caller ID showed her son's cell phone, but the voice on the other end wasn't Josh. Her son had been arrested for rape.
Josh Strange avoided prosecution, but he did face the justice of Auburn University, where he was a sophomore. Under federal civil rights law, colleges and universities have to conduct their own investigations into sexual assault reports, separate from a criminal one. And after a 99-minute hearing, the discipline committee – chaired by a university librarian – reached its decision.
“Josh was as white as a piece of notebook paper, and just looked like he had been punched in the stomach,” remembered Allison Strange, who was outside the hearing room. “I walked up and I looked, and Josh said, ‘Mom, I’m gone. They don’t want me here anymore. I can’t stay. They’ve expelled me.’”
In the aftermath, Allison and Josh Strange formed the group Families Advocating for Campus Equality that pushes for universities to get out of the business of adjudicating sexual assault cases. Allison Strange wants those cases to be left to the criminal justice system, and she says you only need to look at her son's case to understand why.
Saturday, November 1, 2014
Susan Hanley Duncan (Louisville) has published The Devil is in the Details: Will the Campus SAVE Act Provide More or Less Protection to Victims of Sexual Assault [WL only], 40 J. College & Univer. Law 443 (2014). From the Introduction:
Campus violence, especially sexual harassment which includes sexual violence, remains a major issue facing colleges and universities today. Colleges and universities must not abrogate their legal obligations to law enforcement; they have a shared responsibility under federal civil rights laws to proactively provide safe environments for students to live and learn. Despite several laws addressing the problem, guidance from federal agencies, and greater education efforts, the statistics still reflect a sad reality-young people in colleges and universities, especially young women, are not safe. The White House Council on Women and Girls released a report in January 2014, Rape and Sexual Assault: A Renewed Call to Action, which portrayed a frightening landscape of sexual violence on college campuses, in the military, and among certain defined populations including LGBT individuals and Native American women.More needs to be done now. To that end, President Obama and Congress recently revised legislation hoping these modifications would make college and university campuses safer. In addition, the President formed a White House Task Force to Protect Students from Sexual Assault, a task force of senior administration officials to provide him with recommendations within ninety days on the topic of best practices for preventing and responding to sexual assault and rape. In addition, he requested that the task force explore how well universities and colleges are complying with the law, and provide him with ideas on how to increase transparency with enforcement and encourage better collaboration between governmental agencies enforcing the law.This renewed focus on campus sexual assaults comes at the same time the new Campus Sexual Violence Elimination Act (Campus SaVE Act) goes into effect on March 7, 2014. This new law seeks to increase transparency, accountability, and education surrounding the issue of campus violence, including sexual assaults, domestic violence, dating violence and stalking. The law remains hotly debated within victim advocate circles and college and university administrators as to whether it will help victims or reduce their protections under Title IX. All the interested parties agree, however, that the law leaves many questions unanswered and are anxiously watching the negotiated rulemaking process in hopes for more clarity.
Tuesday, October 21, 2014
Amanda Marcotte, Slate, South Carolina Says "Stand Your Ground" Law Doesn't Apply to Abused Women
South Carolina has an expansive "stand your ground" law that paves the way for someone to get immunity from prosecution by declaring that they killed another person in self-defense. Liberals have been critical of these laws, arguing that they make it far too easy for violent people to deliberately provoke or escalate confrontations and then avoid prosecution when things get out of hand. (There is some proof that such laws correlate with a rise in the murder rate.) There are also concerns that the laws are unfairly applied, due to massive racial disparities in who successfully invokes "stand your ground" to avoid punishment. Now comes a reason for women to be especially worried.
In South Carolina, prosecutors are trying to argue that a woman's right to stand her ground in a domestic dispute is less than a man's right to stand his ground with some stranger he's gotten into a fight with. Andrew Knapp at the Charleston Post and Courier—which has been aggressively covering the issue of domestic violence in recent months—reports that three North Charleston women have been "charged with murder during the past two years after stabbing a boyfriend or a roommate she said attacked her," despite the existence of the state's strong "stand your ground" law.
[h/t Molly McBurney]
We recently blogged here about legal scholarship on this issue. In this article, Professor Mary Anne Franks argues:
This two-track system of self-defense — Battered Women’s Syndrome for women and Stand Your Ground for men — has far-reaching implications outside of the courtroom. Battered Women’s Syndrome sends the legal and social message that women should retreat even from their own homes in the face of objective, repeated harm to their bodies; Stand Your Ground sends the legal and social message that men can advance against strangers anywhere on the basis of vague, subjective perceptions of threats.