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Erdely and published last fall, set off a national discussion with its vivid account of a student’s assault, but it was retracted in April after it fell apart under scrutiny by journalists and law enforcement officials.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.
Wednesday, July 29, 2015
Tuesday, July 21, 2015
Rona Kitchen (Duquesne), Constrained Choice: Mothers, The State, and Domestic Violence, Temple Political & Civil Rights L.J. (2015).
Abstract:Mothers who are the victims of domestic violence face unique challenges in their quest for safety. The legal response to domestic violence requires that mothers respond to abuse in specific state-sanctioned manners. However, when mothers respond accordingly, such as by reporting abuse and leaving the abusive relationship, their safety and the safety of their children is not guaranteed. Moreover, by responding in state-sanctioned manners, mothers risk a host of negative consequences including increased threat to their immediate and long-term safety, the loss of their children, undesired financial, health, and social consequences, and criminal prosecution. On the other hand, when mothers respond to abuse in unsanctioned manners, such as by staying in abusive relationships, they face similarly hostile consequences including continued abuse, the loss of their children, and criminal prosecution. Thus, regardless of how mothers respond to domestic violence, they risk being harmed by their abuser and the state. As a result battered mothers’ choices are significantly constrained.
Though the legal response to domestic violence has improved dramatically over the past few decades, reforms are still needed. The state should sanction a broader range of maternal responses to domestic violence and accept greater responsibility for preventing and responding to private family violence. In addition to increasing victim safety, implementation of these reforms would increase respect for maternal autonomy and demonstrate the state’s true commitment to protecting women and children from domestic violence.
Monday, July 13, 2015
A bit dated by cyberspace terms but still worth reading from the New Republic:
We cannot talk about the violence that Dylann Roof perpetrated at Emanuel AME last Wednesday night without talking about whiteness, and specifically, about white womanhood and its role in racist violence. We have to talk about those things, because Roof himself did. Per a witness account, we know that he said: “You rape our women and you’re taking over our country.” “Our” women, by whom he meant white women.
There is a centuries-old notion that white men must defend, with lethal violence at times, the sexual purity of white women from allegedly predatory black men. And, as we saw yet again after this shooting, it is not merely a relic of America’s hideous racial past. American racism is always gendered; racism and sexism are mutually dependent, and cannot be unstitched.
Saturday, July 11, 2015
NYT, Regulating Sex
THIS is a strange moment for sex in America. We’ve detached it from pregnancy, matrimony and, in some circles, romance. At least, we no longer assume that intercourse signals the start of a relationship. But the more casual sex becomes, the more we demand that our institutions and government police the line between what’s consensual and what isn’t. And we wonder how to define rape. Is it a violent assault or a violation of personal autonomy? Is a person guilty of sexual misconduct if he fails to get a clear “yes” through every step of seduction and consummation?
According to the doctrine of affirmative consent — the “yes means yes” rule — the answer is, well, yes, he is. And though most people think of “yes means yes” as strictly for college students, it is actually poised to become the law of the land.
About a quarter of all states, and the District of Columbia, now say sex isn’t legal without positive agreement, although some states undercut that standard by requiring proof of force or resistance as well.
Codes and laws calling for affirmative consent proceed from admirable impulses. (The phrase“yes means yes,” by the way, represents a ratcheting-up of “no means no,” the previous slogan of the anti-rape movement.) People should have as much right to control their sexuality as they do their body or possessions; just as you wouldn’t take a precious object from someone’s home without her permission, you shouldn’t have sex with someone if he hasn’t explicitly said he wants to.
Friday, July 10, 2015
The report, now a bit dated, but still interesting:
TrustLaw, an organization that provides legal aid and information on women's rights, set out to determine which countries were the most dangerous for women. By polling more than 200 international gender experts on general perception of danger and six other issues – health threats, discrimination, cultural and religious norms, sexual violence, nonsexual violence, and trafficking – TrustLaw determined that women were at the most risk in the following five countries.
* Afghanistan tops expert poll of dangers to women
* Congo plagued by rape as weapon of war
* Pakistan blighted by acid attacks and 'honour killings'
* India cited for trafficking and sexual slavery
* Somalia seen as having full gamut of risks
Tuesday, June 16, 2015
Not too long ago, the term “marital rape” was considered an oxymoron. In some U.S. states, it might as well still be one.
Lawmakers in Ohio are trying to remove archaic forms of “marital privilege” in state laws pertaining to rape, The Columbus Dispatch reports. Although marital rape is illegal in Ohio as well as nationwide, the notion of marital privilege or exemption dates from an era when a man could only be charged with rape if the alleged victim was not his wife—an era that only ended in the United States on July 5, 1993 when North Carolina criminalized marital rape, becoming the final state to do so.
But although marital rape is illegal in the United States, Ohio is one of several states in which marital rape continues to be handled in a substantially different way than rape outside of marriage, whether it is charged under a different section of criminal code, restricted to a shorter reporting period, held to a different standard of coercion and force, or given a different punishment.
The classic historiography of marital rape laws is Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 California Law Rev. 1373 (2000).
Thursday, June 4, 2015
Study Finds Military's Handling of Sexual Assault Cases Slowed by Traditional Gender Role Beliefs and Conservatism
Two articles from Eric R. Carpenter (FIU)
The study: Evidence of the Military's Sexual Assault Blind Spot, 4 Va. J. Crim. Law (forthcoming).
Abstract:In response to the American military's perceived inability to handle sexual assault cases, many members of Congress have lost confidence in those who run the military justice system. Critics say that those who run the military justice system are sexist and perceive sexual assault cases differently than the public does.
This article is the first to empirically test that assertion. Further, this is the first study to focus on the military population that matters – those who actually run the military justice system.
This study finds that this narrow military population endorses two constructs that are associated with the acceptance of inaccurate rape schemas – traditional gender role beliefs and conservatism – to a much higher degree than the general population. Regression models based on these findings predict that in a test rape case, 54% of the general public would find the man guilty while only 41% of this narrow military population would.
This suggests that at the macro-level, those who run the military justice system may be honestly committed to resourcing the fight against sexual assault and to finding a solution to the problem. But at the micro-level, when looking at a particular case, they have an unconscious cognitive process that interferes with their ability to accurately solve it.
The appendices for this paper are available at the following URL: http://ssrn.com/abstract=2598210
Soraya Chemaly and Mary Anne Franks, Supreme Court May Have Made Online Abuse Easier, TIme
On Monday, the Supreme Court ruled in favor of a man who posted violent messages about his estranged wife on Facebook. The case, Elonis v. United States, garnered widespread interest and media coverage because it seemed to pose a question that the court had not considered before: whether “free speech” means something different online.
But the court skirted the First Amendment issue, choosing instead to decide the case on statutory grounds. The court ruled that a conviction for violating the federal threat statute cannot stand if it is based only the finding that a “reasonable person” would have foreseen that the statements would be perceived as threatening. Instead, the speaker’s subjective intent in making the statements has to be taken into consideration.
The court’s narrow decision provides little guidance to courts struggling with the issues raised by threatening speech—online or offline—and raises troubling issues for victims of threats, especially in the context of domestic violence.
After Elonis’s wife sought a protective order from him, he posted messages including, “There’s one way to love ya, but a thousand ways to kill ya,” “I’m not going to rest until your body is a mess,” and “Fold up your protective order and put in your pocket. Is it thick enough to stop a bullet?” Elonis also described a school shooting and a fantasy about killing a female FBI agent. He was indicted on five counts of interstate communication of illegal threats and sentenced to 44 months in jail.
While the court did not go so far as to hold that a true threat turns on what the speaker intended to accomplish, the ruling suggests that the determination of what constitutes threatening speech rests with the speaker and not his audience. Looking to a speaker’s subjective intent might allow domestic abusers to create plausible defenses for themselves by claiming that they never really “meant” their threats as threats. Elonis explicitly characterized his speech as rap lyrics, saying that he was emulating rap artist Eminem, whose violently misogynistic lyrics include fantasies about killing his ex-wife and raping singer Iggy Azalea. He also suggested that the statements were a kind of therapy for him, a way of blowing off steam. These explanations seem intended to strip his words of context and provide a plausible defense.
But context is key. Elonis was not a famous rapper doling out violent misogyny for the entertainment of a cheering crowd, or patient struggling with emotional upheaval in a private session with a therapist. He was a man seemingly angered by a woman’s decision to leave him. The context was highly suggestive of a domestic violence scenario, which all too often include psychological terrorism as well as physical violence.
Friday, May 1, 2015
Male students accused by their colleges of sexual assault are increasingly turning to gender discrimination and bias lawsuits to fight for exoneration, with many of them citing their colleges' obligations under Title IX of the Education Amendments of 1972 -- the same civil rights law meant to protect victims of sexual violence.
Monday, April 27, 2015
A male student accused of raping his classmate has sued Columbia University for failing to protect him against backlash and harassment.
Authorities rejected Emma Sulkowicz's case that Paul Nungesser, a German citizen, was a 'serial rapist' who assaulted her after class.
Nonetheless, the case gathered international attention as Sulkowicz, a senior majoring in visual arts, publicly paraded her mattress in protest, calling for his indictment.
And according to Nungesser's lawsuit citing 'gender-based harassment and defamation', Columbia presented the allegations as fact on a university-owned website.
Tuesday, April 21, 2015
Pants on fire are a frequent motif in Jon Krakauer’s “Missoula,” a book about date rapes on a college campus. Mr. Krakauer, who admits to having known or cared virtually nothing about this subject before a personal experience prompted him to explore it, has a lot to say about lying.
When the alleged assaults are he said/she said encounters, credibility is everything. His book asks what the truth means to victims, assailants, university officials, local police, prosecutors, journalists and, eventually, the United States Department of Justice — which sees such a mess in Missoula’s handling of rape cases that it initiates an investigation. Mr. Krakauer’s book was not scheduled for release this soon, and he was still making corrections to it in March. But he has said that its publication has been moved up in the wake of Rolling Stone’s botched andretracted article about an alleged fraternity gang-rape at the University of Virginia.
Friday, April 10, 2015
It was a bland bit of guidance from the Department of Education, cast in legal language and tucked into a footnote two-thirds of the way through a 46-pagedocument about how colleges and universities should address sexual assault on campus.
But it did not sit well with Celia Wright, president of the student body at Ohio State University. The footnote “discourages” having students sit on conduct boards in cases concerning sexual violence. Ohio State and many other campuses no longer let students serve.
Ms. Wright and student leaders from 75 other colleges and universities, representing 1.2 million students, have sent a letter to the department urging it to reconsider, citing “significant unintended consequences” and even discrimination against students who would sit on panels.
Thursday, April 9, 2015
Legal History Blog, Katz on Judicial Patriarchy, Domestic Violence, and the Family Privacy Narrative
Elizabeth Katz, a doctoral candidate in History at Harvard University, with an JD and MA in history from the University of Virginia,has posted Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, which is forthcoming in the William and Mary Journal of Women and the Law 21 (Winter 2015): 379-471. Ms. Katz received the Kathryn T. Preyer Award of the American Society for Legal History for an earlier version of this article.
According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.
Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.
See also a previous post on related scholarship,A Surprising History of Domestic Violence Protection
And see also Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence from Colonial Times to the Present (2004)
Tuesday, April 7, 2015
Four women who say they were victims of sexual abuse while on active military duty filed a federal lawsuit against the Pentagon alleging that the military created and condoned a sexually hostile environment. Speaking at a press conference in Washington on Tuesday, one of the plaintiffs, her lawyer, and several sexual assault prevention advocates described obscene and violent songs, violent sexual assaults, verbal and physical attacks, and retaliation when trying to report crimes and harassment.
Jennifer Smith, one of the plaintiffs and a former Air Force technical sergeant, described being sexually assaulted while deployed in Iraq and subjected to crude songs and pornographic materials stored on government computers while she was stationed in South Carolina. She says she reported both the harassment and the assault but "waited for months and never heard back from anyone."
"All of the officers [in my case] received nothing more than a piece of paper reprimanding them. All were in command, or supervisory roles. All will still lead. They will oversee rape and sexual assault claims and make decisions on whether the case will be prosecuted," she added.
The plaintiffs charge that the military has failed to "prevent and punish widespread sexual harassment" while permitting "widespread retaliation" against victims, and has deprived victims of their constitutional right to a fair trial. They also argue that it's inappropriate for most military commanders to oversee sexual assault investigations since they often have no legal experience and must supervise both the victim and the perpetrator.
Monday, April 6, 2015
Rolling Stone had reported about a rape that had occurred at frat house in UVA. After much criticism of its reporting, RS asked the Columbia Journalism School to assess its article. Columbia subsequently delivered a fatal critique of general incompetence. RS was never serious journalism on par with the WaPo, the WSJ and the NYT, but it is a very sad day for victims of rape whose stories are likely to be doubted because of RS's shoddy standards.
Monday, March 30, 2015
“You hold women in contempt”: Frat culture isn’t an aberration, it’s everything men learn about being a “real man”
...thus reads the headline from Salon:
There are a lot of stories out there right now about frat culture, which is maybe why I find myself circling back to bigger questions about masculinity. Or at least the version of masculinity on display in some of these fraternities.
Read the rest here.