Gender and the Law Prof Blog

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

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)

Wednesday, May 11, 2016

Study Documents Title IX's Significant Shift from a Law for Athletics to a Law for Sexual Harassment

Celene Reyolds, The Mobilization of Title IX in Colleges and Universities, 1994-2014      

Abstract:

Title IX has been widely recognized as a crucial step toward gender equality in America. Yet it remains unclear how the law actually functions, particularly how it has been used in response to gender disparities in higher education. This article provides the first systematic analysis of how Title IX has been mobilized at the postsecondary level. Drawing on new data acquired through seven Freedom of Information Act requests, I analyze all resolved Title IX complaints filed with the Office of Civil Rights against four-year nonprofit colleges and universities from 1994 to 2014 (N=6,654). I find that the mobilization of Title IX has changed both in frequency and in kind during this period. Filings started to rise after 2000 and exploded after 2009, while sexual harassment complaints nearly equaled academic and athletic filings for the first time in 2014. Finally, despite the egalitarian design of the complaint process, private schools and more selective schools face a disproportionate number of complaints relative to enrollment, indicating the power of institutions in mediating legal mobilization.

Introduction: 


Title IX, the U.S. civil rights law that prohibits sex discrimination in federally funded education programs, has been called one of the most significant steps toward gender equality in the last century. Yet research on how the law has been used in response to perceived gender disparities in the academy is lacking. There are recent indications that the mobilization of Title IX—in the form of complaints filed against allegedly noncompliant colleges and universities with the Office of Civil Rights (OCR), the primary federal administrative agency responsible for implementing the law—has both increased dramatically and shifted from an emphasis on fostering gender equity in athletics to policing sexual harassment and assault on campus. But there has been no comprehensive analysis of this shift, or of the law’s mobilization more generally, and therefore we have little sense of if and how it took place. How has Title IX been mobilized to combat gender inequalities in higher education? Is it deployed broadly or only to address some forms of sex discrimination in certain types of institutions? Is its use consistent or contradictory?

 

This paper provides the first systematic analysis of how Title IX has been mobilized at the postsecondary level over the last two decades. I draw from a new data set I constructed using information acquired through seven Freedom of Information Act requests filed over 18 months. The data include all resolved postsecondary Title IX complaints filed with OCR against allegedly noncompliant schools from 1994 to 2014. Using these data, I seek to rigorously map the phenomenon. . . . 


I find that over the last two decades the number of Title IX complaints filed against four year nonprofit institutions skyrockets in 1999 and again starting in 2013. Individuals engaged in mass filings are responsible for both spikes. Net of this effect, I find that the number of Title IX complaints has trended upward since 2000, exploding after 2009 and reaching a record high in 2014. Complaints citing discrimination in academics were the modal type of complaint filed for most of the last 20 years, until 2014 when sexual harassment, academics, and athletics complaints reached near parity. I also find that the mobilization of Title IX is institutionally uneven: relative to overall enrollment, a disproportionate number of complaints are filed against private, more selective institutions located in states with high numbers of women serving in state legislatures.

May 11, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, May 4, 2016

Debunking the Myth of Male Privilege in the Military and Assault

Jamie R. Abrams (Louisville), Debunking the Myth of Universal Male Privilege, 49 U.Mich.J.L. Reform 303 (2016)    

 
Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military's statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male violence to men, and positions women as perpetual outsiders.
Debunking the myth of universal male privilege in heavily masculinized institutions would advance gender equality and shift the law reform focus. It would bring sexual assault, domestic violence, and sexual harassment into the same frame as the military mental health crisis and even mass solidier-on-soldier shootings. This would reveal the gender equality implications of military mental health and disentangle masculinities and military efficacy. Debunking the myth of univeral male privilege would yield more vigilance to how law reforms can exacerbate hyper-masculine violence. It introduces new entry points to gendered violence in the military, expanding the focus from incident-based responses to recruiting and training.

May 4, 2016 in Gender, Masculinities, Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, May 3, 2016

Processing Sexual Assault: Lawyers, Courtrooms and Ethics

   Elaine Craig, The Inhospitable Court, 66 Toronto Law J. (2016)

Who speaks and with what authority, who is believed, what evidence is introduced, and how it is presented, is informed not only by the substantive law and the rules of evidence but also by the rituals of the trial. It is from this legal process as a whole that a judge or jury determines the (legal) ‘truth’ about a woman’s allegation of rape. A sexual assault complainant’s capacity to be believed in court, to share in the production of meaning about an incidence of what she alleges was unwanted sexual contact, requires her to play a part in certain rituals of the trial. Many of these rituals are hierarchical, requiring complainants to perform subordinate roles that mirror the gender, race, and socio-economic status based societal hierarchies in which the problem of sexual violence is rooted. Relying on the work of Robert Cover and interdisciplinary work on ritual for its conceptual framework, this article pursues two objectives. First, it attempts to depict, through the use of trial transcripts, the brutality of the process faced by sexual assault complainants. Second, it exposes some of the institutionalized practices, as manifested through courtroom rituals, that contribute to the inhospitable conditions faced by those that participate in the criminal justice response to sexualized violence.

Elaine Craig,  The Ethical Identity of Sexual Assault Lawyers, 47 Ottawa L. Rev. 1 (2016)     

Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the criminal law’s response to sexual harm? What is their sense of professionalism when acting in this capacity? If reforms to the law of sexual assault will not alone result in significant improvements to the experience of sexual assault complainants, perhaps greater focus on the ethics of sexual assault lawyering could improve the legal response to sexual harm. While the body of legal scholarship examining the issue of sexual violence has grown substantially in the past several decades, there has been very little research on the perspectives of criminal lawyers themselves. This is the first research aimed specifically at ascertaining how sexual assault lawyers understand their ethical obligations. Through analysis of semi-structured, in-depth interviews with experienced criminal defence lawyers and crown attorneys across Canada, this article presents a portrait of the ethical identity of sexual assault lawyers.

May 3, 2016 in Courts, Violence Against Women | Permalink | Comments (0)

Conceptualizing Rape as Coerced Sex

Scott Allen Anderson, Conceptualizing Rape as Coerced Sex

Philosophers, feminists, and legal theorists have long criticized the current definition of rape as it is formulated in most of the states of the U.S. because of its dual “force” and “consent” requirements. Several prominent writers have recently sought to reconceptualize rape as “non-consensual sex,” thus omitting the “force” requirement. While there are some unmistakable practical advantages to such proposals, I argue that such a conceptualization risks failing to grasp what is distinctively problematic about rape for women, and why rape has the effect it does in supporting women’s gender oppression. I suggest that one of the reasons why consent-focused reform proposals have been so popular is because the dominant accounts of coercion in recent philosophical writing have not been suited to help identify rape in terms of coercion. I offer an alternative approach to thinking about coercion which, I argue, can replace the focus on “force” in current conceptualizations of rape in order to avoid their main difficulties, especially with respect to identifying “acquaintance” rape as such. I further show how conceptualizing rape as coerced sex does help explain its distinctive badness both for the individual victims as well as for women as a group.
 
Robin West's review and response, On Rape, Coercion and Consent, JOTWELL
 
Scott Anderson’s article Conceptualizing Rape as CoercedSex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.”

 

May 3, 2016 in Theory, Violence Against Women | Permalink | Comments (0)

Anti-Rape Culture as Feminist Intolerance

Today's series of posts include several writings thinking through the different angles and permutations of sexual assault.

Aya Gruber, Anti-Rape Culture, Kansas L.Rev. (forthcoming)

Abstract:     

This essay, written for the Kansas Law Review Symposium on Campus Sexual Assault, critically analyzes “anti-rape culture” ― a set of empirical claims about rape’s prevalence, causes, and effects and a set of normative ideas about sex, gender, and institutional authority ― which has heralded a new era of discipline, in all senses of the word, on college campuses. In the past few years, publicity about the campus rape crisis has created widespread anxiety, despite the fact that incidents of sexual assault have generally declined and one-in-four-type statistics have been around for decades. The recent surge of interest is due less to an escalation of rape culture than to a new found anti-rape culture ― a distinctly feminist rape intolerance. Feminist political activism is normally ground for progressive rejoicing and, indeed, society should be rape intolerant. However, here, one might wonder whether feminism has reincarnated as a single-issue movement that centers on punishing sex ranging from violent to ambiguous and embraces illiberal positions and institutions. The essay focuses on the costs of anti-rape culture’s construction of the status quo as one in which at least a quarter of college women will be brutalized by a sexual predator and left traumatized, possibly for life. In addition to creating the risk that the sex that college women inevitably have is a minefield of mental distress, the rhetorical strategy has other costs, including punitive over-correction, bureaucratic management of students stripped of their subjectivity, and speech restrictions. In the end, the essay counsels reformers to be cautious lest their commendable concern for safety and equality creates a culture in which drunken sex is ruinous to women, administrative power distributes burdens randomly, or worse, to marginalized men, and silence is the norm in an area desperate for open discussion.

 

May 3, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Friday, April 29, 2016

Understanding Campus Sexual Misconduct as Sexual Harassment

Katharine Baker (Chicago-Kent), Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, Kansas L.Rev. (forthcoming)

Abstract:     

This article explains and defends the Department of Education’s campaign against sexual misconduct on college campuses. It does so because DOE has inexplicably failed to make clear that their goal is to protect women from the intimidating and hostile environment that results when men routinely use women sexually, without regard to whether women consent to the sexual activity. That basic point, that schools are policing harassing and intimidating behavior, not necessarily rape, has been lost on both courts and commentators. Boorish, entitled, sexual behavior that stops well short of rape, if pervasive enough, has been actionable as sexual harassment for decades. The failure to understand the theory of university regulation is problematic not only because it leads courts to ask the wrong questions when reviewing university tribunals, but also because it blinds both courts and commentators to the hard questions that follow from a theory of sexual harassment. First, evidence from both sides in cases of college sexual misconduct is likely to lack credibility and critical detail. Reasonable minds will differ on whether the complainant’s or the accused’s story is more accurate. What should college tribunals do in close cases, allow for findings of liability, as is permitted by the civil law of discrimination (and harassment), or require more proof, as is required by the criminal law and some college codes of conduct? Second, while many women on college campuses feel insulted and demeaned by the culture of male sexual entitlement, most women - by their own admission - are probably not being irreparably injured. If DOE’s policy is to be justified it is probably not on grounds that women are so severely hurt by men’s sense of their own sexual entitlement, but because that sense of entitlement undermines the norms of respect, civility and equality that university’s routinely enforce in other contexts. Is it worth curtailing men’s (entitled sense of) sexual freedom to enforce those norms?

 

April 29, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Thursday, April 28, 2016

Policing Rape

Corey Rayburn Yung (Kansas), Policing Rape

Abstract:     

For decades, reformers have sought to increase the number and success rate of rape prosecutions by amending evidentiary rules, substantive definitions of rape, and consent standards. Such efforts are simply doomed from conception because they are primarily designed to affect the stage of the criminal justice process that few cases ever reach: trials. Looking to substantial empirical and institutional evidence, this Article concludes that police across the United States act as aggressive gatekeepers who prevent rape complaints from progressing by fervently policing the culturally disputed concept of “rape.” The Article breathes life into these data by exploring eight recent cases, which are illustrative of the overall statistical landscape, where victims were disbelieved, even prosecuted for filing false complaints, but ultimately had their complaints validated through confessions and/or forensic evidence. These data and supporting narratives indicate that to have any real effect in decreasing sexual violence, solutions must focus on removing the numerous police-imposed gatekeeping obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. The belief that reforming trial rules would trickle-down to police decisions has proven to be unwarranted. As long as rape victims do not have consistent access to the criminal justice system due to failures of policing, tinkering with rules and statutes is at best futile, and possibly counterproductive.

 

April 28, 2016 in Violence Against Women | Permalink | Comments (0)

Monday, April 11, 2016

The Sex Bureaucracy

Jacob E. Gersen (Harvard) & Jeannie Suk (Harvard), The Sex Bureaucracy, California L. Rev. (forthcoming)

Abstract:     

We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.

 

April 11, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Considering Coed Dorms as a Causative Factor in Campus Sexual Assault

Andrea Curcio, (Georgia State), What Schools Don't Tell you About Campus Sexual Assault

However, a 10-year study looked at rapes and sexual assaults between 2001 and 2011 occurring on Massachusetts’ college and university campuses – including dorms, apartments and fraternity houses. The study found that 81 percent of all reported rapes and assaults occurred in the dorms, 9 percent occurred in houses or apartments and only 4 percent occurred in fraternity houses.

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When colleges fail to examine where assaults happen, they expose themselves to litigation. More importantly, they miss critical opportunities to explore solutions to the widespread campus sexual assault problem.

Schools should look closely at their own sexual assault reports and consider targeted solutions if there are particular dorms with a high incidence of assaults.

Studies should be conducted at the national level to examine overall patterns. Those studies should examine questions such as whether sexual assaults are more likely to occur in certain types of dorms, such as athlete dorms or even coed dorms. Studies should also look at whether it makes a difference if dorms are coed by floor, by hall or by room.

[This post is an excerpt from a longer article originally posted on The Conversation.  The full article can be accessed here: https://theconversation.com/what-schools-dont-tell-you-about-campus-sexual-assault-57163]

April 11, 2016 in Education, Violence Against Women | Permalink | Comments (0)

Thursday, April 7, 2016

Murder, Gender, and Responsibility

Julie Stubbs (New South Wales), Murder, Manslaughter and Domestic Violence, in K Fitz-Gibbon and S Walklate (eds) Homicide, Gender and Responsibility, Routledge, Forthcoming

Abstract:     

Taking a cue from the title of this book, this chapter is organised around the three themes murder, gender and responsibility. It begins by considering the shifting boundary between murder and manslaughter, and, contrary to common wisdom, the lack of consensus around these terms. The focus then shifts to gender, and a consideration of gendered patterns in homicide and femicide using the overlapping categories of domestic homicide and intimate partner homicides. It also demonstrates the value of more complex conceptions of gender to understanding patterns in homicide using an intersectional framework to explore the differential vulnerability of women to homicide. The third theme, responsibility, is examined by reference to legal responses to domestic homicide and intimate partner homicides for battered women. While some women have benefited from law reforms and shifts in legal practices, women who do not conform to idealised notions of what it means to be a battered woman or other ‘benchmarks’ continue to be disadvantaged.

 

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