Friday, May 27, 2016
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.
Tuesday, May 24, 2016
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.
Friday, May 13, 2016
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).
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.
Wednesday, May 11, 2016
Study Documents Title IX's Significant Shift from a Law for Athletics to a Law for Sexual Harassment
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.
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.
Wednesday, May 4, 2016
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.
Tuesday, May 3, 2016
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.
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.
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.”
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.
Friday, April 29, 2016
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?
Thursday, April 28, 2016
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.
Monday, April 11, 2016
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.
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.
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]
Thursday, April 7, 2016
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.
Monday, April 4, 2016
Deborah Tuerkheimer (Northwestern), Underenforcement as Unequal Protection, 57 Boston College (forthcoming)
Abstract:Rape law is largely underenforced. Yet criticism of policing practices has myopically focused on enforcement excesses, thus overlooking the problem of the state withholding protective resources. This neglect is particularly troubling where sexual violence is at issue. Empirical evidence demonstrates the operation of pervasive biases in police officers’ decisions not to pursue an investigation. Over time, law enforcement officers have discriminated against rape victims with immunity. Recently, however, this has changed. This Article is the first to describe a new effort by the Justice Department to hold law enforcement officers accountable for failing to protect victims of sexual assault. In important respects, this turn is unprecedented. But insofar as the latest developments target violence without redress, the assertion of federal power in this domain possesses a venerable historical pedigree. When the Equal Protection Clause was conceived, the framers were chiefly concerned with the state’s failure to provide black citizens with protection from private violence. After passage of the Fourteenth Amendment, the “protection model” of equal protection, along with the federal power to enforce it, lay dormant. Recent events have revived this model and this power, allowing us to glimpse a modern version of what the 39th Congress intended. The Justice Department’s latest deployment of its “pattern or practice” enforcement authority may come as close as any intervention since Reconstruction to addressing the framers’ core concern with underenforcement. Notwithstanding the Supreme Court’s divergent jurisprudential framework, the original meaning of equal protection has begun to resurface.
Thursday, February 18, 2016
Alissa Ackerman & Rich Furman, Sex Crimes: Transnational Problems and Global Perspectives (Columbia U. Press)
- This book is the first to investigate all aspects of sexual crimes and the policy and management initiatives developed to address them from a transnational, global perspective. Introducing an array of tools for reducing the prevalence and consequences of sex crimes, this volume brings together leading scholars in criminology, criminal justice, social work, and law to discuss topics ranging from sex trafficking and sex tourism to pornography, cyberstalking, and sexual abuse in the military and the Catholic church. Case studies track the reporting of these crimes, the methods used to interview victims and perpetrators, and the policies enacted to punish those involved.
- Listen to an interview with author Alissa Ackerman on the subject: http://www.againstthegrain.org/program/1191/mon-72715-sex-crimes-and-masculiniti
Alexandra Lutnick, Domestic Minor Sex Trafficking (Columbia U. Press)
- “This book is a must for anyone interested in youth involved in the sex trades or sex-trafficking issues. The research and discussions offer a glimpse into the nuanced and complicated realities that facilitate youth involvement in sex trades. Lutnick's scholarship helps us to think beyond the victim/villain binary by exposing the various ways in which family, friends, policy, and the state are accountable to their circumstances. The book offers timely and useful strength-based strategies that also attend to issues of oppression and justice.”
Thursday, February 11, 2016
Natali Nanasi (SMU), Domestic Violence Asylum and the Perpetuation of the Victimization Narrative
Abstract:Pitiful. Helpless. Powerless. The words often used to describe survivors of domestic violence conjure a vivid and specific image of a woman lacking both strength and agency. These (mis)conceptions stem from the theories of “Battered Woman Syndrome” and “learned helplessness,” developed in 1979 by psychologist Lenore Walker, who hypothesized that intimate partner abuse ultimately causes a woman to resign herself to her fate and cease efforts to free herself from violence or dangerous situations.
Although widely criticized, learned helplessness has permeated the legal establishment, for example, serving as the foundation for mandatory arrest and “no drop” policies in the criminal sphere of domestic violence law. Legal scholars have examined the problematic impacts of both the theory of learned helplessness itself and its effect on survivors in the criminal and civil justice systems. This article adds to that important conversation by exploring the previously unexamined area of learned helplessness’ impact on immigration, specifically asylum, law.
Through a series of cases from 1996 to 2014, it is now established that a woman may receive asylum protection if she can establish that she is “unable to leave” a violent domestic relationship. This formulation fits squarely within Walker’s framework, as it requires a victim to advance a narrative of helplessness if she is to obtain refuge in the United States. Furtherance of the notion of Battered Woman Syndrome in asylum law is troubling for a number of reasons, namely, as this piece details, in the harms that can result when survivors of domestic violence are required to conform to a specific “stock story” (including injury to both those who fit the stereotype and those who do not). Additionally, continued adherence to and reliance on learned helplessness poses challenges for client-centered lawyering, perpetuates the tendency of victim-blaming, ignores the realities of the dangers of separation violence, and furthers the damaging dichotomy of “worthy” and “unworthy” immigrants.
By identifying these concerns and proposing alternative bases for protection that would encompass not just pitiable and vulnerable victims of domestic violence, but strong, empowered and capable fighters against domestic abuse, this article seeks to critique, rebut and prevent the infiltration of static and stereotypical images of battered women in the realm of immigration law.
This Executive Summary (8 pages) outlines findings and recommendations from research to identify the experience of women who are subject to immigration control and experience domestic abuse in the UK. Focussing on one immigration rule, ‘no recourse to public funds,’ it concludes that the fundamental rights of women in the UK, to life, and to freedom from torture, are being violated. The state does not uphold the rights of these women, nor is it neutral. Rather, the role of the state prolongs the abuse and makes it worse. This summary also summarises recommended changes to law and policy
Monday, February 8, 2016
A bill introduced by Democratic state lawmakers in 2013 would have required people subject to temporary protection orders in criminal or civil cases to surrender firearms to law enforcement agencies or sell them to federally licensed firearms dealers. The bill also spelled out how the guns could be returned after the protective order expired.
The bill, sponsored by former Rep. Bob Hagan, a Youngstown Democrat, was referred to the GOP-controlled House Judiciary Committee, where it languished after just one hearing.
THE NEW BILL
Rep. Nickie Antonio, a Democrat from Lakewood in suburban Cleveland, says her upcoming bill would give judges the discretion to order firearms removed when temporary protective orders have been issued. Antonio says the bill would also bring state law into line with federal law.
Arguably, a civil court has power to do so now: Ohio Rev. Code 3113.31
(h) Grant other relief that the court considers equitable and fair, including, but not limited to, ordering the respondent to permit the use of a motor vehicle by the petitioner or other family or household member and the apportionment of household and family personal property
Thursday, February 4, 2016
Nancy Chi Cantalupo (Barry), For the Title IX Civil Rights Movement: Congratulations and Cautions, Yale Law Journal Forum (forthcoming).
Abstract:The Yale Law Journal's September 25, 2015 Conversation on Title IX confirmed the existence of a new civil rights movement in our nation and our schools, led by smart, courageous survivors of gender-based violence and joined by multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. Movement leaders have wisely chosen Title IX as their particular banner and organizing point. As a civil rights statute, Title IX guarantees broad rights to an equal education, and although schools' compliance with Title IX and the statute's enforcement still require significant improvements, today's movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements.
But in doing so, the Title IX movement must remain vigilant against pushes to criminalize Title IX. Suggestions that gender-based violence which violates Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX's central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.
Tuesday, January 12, 2016
Mary Anne Franks (Miami), How Stand-Your-Ground Law Hijacked Self Defense, in Guns and Contemporary Society: The Past, Present, and Future of Firearms and Firearm Policy, Vol. 3 (Glen Utter, ed.), 2016.
In 2005 Florida passed the nation’s first so-called stand-your-ground law. By 2014 stand-your-ground laws had been passed in thirty-three states, transforming the legal landscape of self-defense. These laws significantly alter the historical understanding of justifiable force, ostensibly in order to clarify and strengthen the concept of justifiable self-defense and enhance public safety. The real accomplishment of these laws, however, has been to encourage the use of deadly force as a first, instead of a last, resort. Not only have these laws failed to deter crime, they have encouraged the escalation to deadly force in situations that do not call for it. Homicide rates increased in states with stand-your-ground laws after passing the legislation, and these states have higher homicide rates than states without stand-your-ground laws. The laws have encouraged the unnecessary use of deadly force on the part of those who have least reason to use it, and inhibited the use of deadly force by those most vulnerable to attack. These laws have undermined the limited protections victims of domestic violence have achieved after decades of reform efforts and worsened existing racial disparities in the criminal justice system. Stand-your-ground laws do violence to the very concept of self-defense by conflating self-defense with gun use, encouraging vigilantism and violent escalation, and exploiting delusions of heroic prowess. True reform of the legal and social concept of self-defense should focus on clarifying when deadly force is truly necessary and reasonable. Such a reform effort should expand protections for women defending themselves against abusers, critically evaluate the disproportionate use of deadly force against unarmed minorities, and encourage training in and access to non-fatal methods of self-defense.
Monday, January 4, 2016
A groundbreaking law on domestic abuse takes effect today in England and Wales. It expands the meaning of domestic violence to include psychological and emotional torment. So it is now a crime there to control your spouse, say, through social media or online stalking. Experts in domestic violence say it represents a new way to look at the whole issue of abuse.
Until recently, the only way police there could arrest someone for domestic violence was if the person assaulted or threatened their spouse. After a lot of research with victims, authorities realized that abuse often starts earlier and is more pervasive than they thought.
The new law makes illegal all sorts of controlling and coercive behavior in a relationship. This can include stealing money from a spouse, limiting financial freedom, Internet stalking or restricting access to friends and family. Prosecutors will have to show a pattern of abuse and that it has real impact on a victim's life.
Police around England and Wales are now being trained to spot signs of controlling behavior and enforce the law. Violators could face a sentence of up to five years behind bars.