Gender and the Law Prof Blog

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

Friday, April 14, 2017

Books: Two Books Argue Against the Furor Over Rape on Campus

Jill Filipovic, Two Books Explore the Furor Over Rape on Campus

According to our last president, several sitting senators, feminist activists and female college students all over the country, sexual violence on campus is one of the most pressing issues facing young American women. Statistics promulgated by the Obama White House declare that an estimated one in five college women will be sexually assaulted. To combat this scourge, universities have hired new administrators, mandated anti-rape training sessions at freshman orientation and sped up the disciplinary process for accused assailants. Prominent feminists and lawyers say many schools are still doing too little to protect female students and far too much to protect male ones.

 

But according to the Northwestern professor and cultural critic Laura Kipnis, the opposite is true: It’s now men who are the victims of a nationwide sexual panic, one seated more in traditional views of women as vulnerable and sexually passive than in a feminism that recognizes young women to be self-sufficient independent actors (who are also human enough to make, and learn from, stupid sexual blunders).

 

Kipnis’s “Unwanted Advances: Sexual Paranoia Comes to Campus” focuses on one professor whose career was ruined by accusations of sexual assault and the ensuing Title IX investigation. Kipnis is drawn into this man’s professional drama after she too was on the receiving end of two Title IX complaints stemming from an essay she wrote deploring her university’s policy of frowning on relationships between teachers and students. Her book is a look at the secretive and largely unaccountable processes by which campus sexual assault allegations are investigated and adjudicated, using a handful of real incidents to illustrate her broader argument that complex interpersonal relationships and dumb drunken mistakes are now the quasilegal purview of well-paid administrators more interested in protecting a university’s reputation — even if it means ruining a few men’s lives — than seeking either truth or justice. The high-volume conversation about campus sexual assault, she says, is a kind of black-and-white gender traditionalism dressed up in feminist clothes, obscuring ambiguities and power plays inherent to human sexual desire, and instead casting adult women as innocent victims (or victims-in-waiting) and men as either rapists or potential predators.

 

And yet I loved reading it. Kipnis’s book is maddening; it’s also funny, incisive and often convincing. ***

 

If only the same could be said about “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” by KC Johnson, a professor at the CUNY Graduate Center, and Stuart Taylor Jr., a contributing editor at National Journal. An in-depth look at how universities compromise due process norms in adjudicating sexual assault cases — and it is clear they do — is overdue; instead, the authors choose a handful of egregious examples to make the case that campus sexual assault isn’t all that common and that the bigger problem is innocent young men railroaded by promiscuous women who get drunk and regret their choices, or flat-out lie at the behest of conniving campus feminists. Instead of an honest analysis of the complex issues and competing values at play, the book teems with vastly overstated claims, questionable statistics and quotes massaged beyond their original meaning.

April 14, 2017 in Books, Violence Against Women | Permalink | Comments (0)

Thursday, April 6, 2017

Trial Lawyers' Report Concludes Campus Sexual Assault Process Unfair Against Accused

New Report on Colleges and Sex Assault Cases

With the Trump administration reportedly debating whether to reverse Obama administration guidance on how colleges should investigate sexual assault, a group of trial lawyers has released a report suggesting the current processes on many campuses are unfairly slanted against the accused.

 

The guidance, issued in a 2011 Dear Colleague letter, was meant to clarify areas of the law, the administration said at the time. It beefed up protections for victims of sexual assault and was a way to push colleges to more thoroughly respond to complaints. Such guidance does not carry the force of law, but it did contain a threat that colleges’ federal funding could be revoked should they fail to comply

 

The American College of Trial Lawyers, in a report last month, said this prospective loss of funding, combined with heavy media attention on cases of sexual assault, has resulted in colleges sometimes disregarding the rights of those accused and on occasion recklessly siding with someone making a complaint to avoid backlash.

 

It suggested that:

  • All hearings in sexual misconduct cases be conducted keeping in mind even the appearance of partiality -- fact finders assigned to the cases should be vetted for any conflicts of interest or affiliations.
  • Anyone accused in a case should be provided with full details of the allegations against them and kept abreast of all evidence as the case proceeds.
  • Those accused should be advised of their right to a lawyer and be allowed to have one present at all stages of an investigation.
  • Parties, including the one accused, should be allowed to do cross-examination of witnesses. (This could be particularly controversial, considering it is generally advised that victims do not interact with the alleged perpetrator. The lawyers' group notes that court systems have said there are alternate ways to see victim testimony, such as via a tape-recorded message or closed-circuit TV.)
  • The accused should be provided with a written record in case they wish to appeal.

April 6, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, March 28, 2017

Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases

Joann Sahl, Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases, 101 Marquette L.Rev. 527 (2016) [WL link]

Domestic violence is the most common tort committed in our country, involving nearly 1.3 million victims. When a domestic violence incident occurs, the press regularly reports it. Highlighted in these articles is the name of the perpetrator.
 
Perpetrators identified as committing an act of domestic violence face public outrage, contempt, and stigma. This is particularly true if a court determines that the act of domestic violence necessitates a civil protection order (CPO) that bars the perpetrator from having any contact with the victim. Nearly 1.2 million people receive a CPO each year. More people use this civil remedy than those who seek a tort remedy, or those who are involved with the criminal justice system.
 
The CPO process, and its related orders, produces real and lasting “prejudicial collateral legal consequences” that extend past the life of the CPO. These consequences can include preventing the perpetrator from finding or keeping employment, obtaining a professional license, or being admitted to an academic institution. The prejudicial legal consequences arise because information about the perpetrator's involvement in a CPO case is not confidential. At least twenty-seven states, Guam and Puerto Rico allow public access to protection order files.
 
This continuing public access to CPO cases, even when there is no active order, means the former batterer is subjected to perpetual prejudicial consequences from the CPO case. To end these ongoing consequences, the courts should allow perpetrators to seal inactive CPO cases from public view. This sealing remedy is necessary to ameliorate the significant economic impact of those consequences. * * * 
 
Proposing a remedy to help those once labeled a batterer may ignite controversy. As one author has noted, “[w]orking to improve the conditions abusers face has long been considered taboo in the battered women's movement.” However, the sealing remedy proposed by this article is not at odds with the CPO process and its underlying rationale. A CPO is to provide “a simple, immediate remedy to increase the safety of victims." Once the court, or the victim, determines that the CPO is no longer necessary for the victim's safety, the CPO has achieved its purpose, so the collateral consequences related to the CPO should end as well.

March 28, 2017 in Violence Against Women | Permalink | Comments (0)

Thursday, February 23, 2017

The Mistaken Reliance on Title IX to Deter and Punish Campus Sexual Assault

Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kansas L.Rev. (2016)

Abstract:     

This Article attempts to answer an essential question related to Title IX’s role in student sexual assault at universities: is it better to improve and universalize student safety and conduct codes or rely on the new Title IX framework that has emerged? The tentative answer offered is that it is a mistake to solely or primarily depend on Title IX to deter and punish offenders in university sexual assault cases. This conclusion is based upon the uncertainty related to various aspects of Title IX doctrine and the regulatory regime that has emerged to enforce the statute. Consequently, this Article concludes Congress should adopt a basic, uniform student safety and conduct code that will cure many of the shortcomings of a legal regime based entirely upon Title IX. This legislation, unlike proposals aimed at merely strengthening the Title IX framework, might potentially avoid some of the backlash that has emerged in the wake of Title IX’s growing application in student-to-student sexual assault cases at universities while better addressing the issue.

 

February 23, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, February 22, 2017

Bringing Tort Law to the Campus Sexual Assault Debate

Sarah Lynnda Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kansas L.Rev. (forthcoming)

Abstract

In the last few years, campus sexual assault has risen to prominence as a national public concern. As policy-makers scramble to figure out how best to address this problem, the contours of the conversation in scholarship, media articles, and policy-making have devolved into two competing adjudicative frameworks: criminal law or Title IX. In this criminal law versus Title IX debate, two questions dominate. First, who can better adjudicate claims of campus sexual assault: criminal courts using criminal laws, or schools using Title IX? Second, if schools do adjudicate sexual assault claims under Title IX, are students entitled to the same procedural protections as criminal defendants? In this Symposium piece, I argue that this criminal law versus Title IX framing is unduly narrow. It ignores a third, important mode of adjudication for sexual assault claims: tort law. In this essay, I show why tort law has been left out of the campus sexual assault debate, and the potential impact of its inclusion. Incorporating tort law into the campus sexual assault debate has three specific benefits. First, conceptualizing campus sexual assault as a tort reminds us that the same wrong can be legitimately framed and addressed in multiple ways. Second, tort law sets a useful standard for determining the scope of procedural protections in campus sexual assault proceedings. Third, tort law suggests that affirmative consent may be appropriate for campus sexual interactions. Ultimately, bringing tort law into the campus sexual assault debate opens up the vast and fertile ground between the two poles of criminal law and Title IX, and creates a space where better institutional design and a more effective solution to this social problem might be found.

February 22, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, February 21, 2017

The Burden of Asylum for Gender-Related Persecution

Joanna Kallinosis, Refugee Roulette: A Comparative Analysis of Gender-Related Persecution, 6 DePaul J. Women, Gender & L. (2017)

This essay examines the existing law regarding gender related persecution and the burden imposed on female asylum applicants to fit their claims within the circumscribed notion of a refugee within Immigration law of the United States of America. Such difficulties are contrasted with the Canadian Immigration system, where women enjoy greater freedom in the interpretation of requisites necessary to be granted asylum. Section I of this essay explores the problems women face in gaining asylum in the United States. Section II of this essay will analyze the conflicting claims and claimants. Section III of this essay will explore past trends in asylum law; discuss the framework for evaluating asylum claims under current US asylum law; analyze the competing judicial interpretations of asylum law and discuss the inconsistency of judicial decisions. Section IV of this essay will discuss the projection of future trends. Section V of this essay will propose an amendment to the Refugee Act to include a Sixth category of gender or sexual persecution.

February 21, 2017 in International, Violence Against Women | Permalink | Comments (0)

Monday, February 20, 2017

The Absence of Binding Norms for Gender-Based Asylum

Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G: Evolving Standards and Fair Application of the Law,  22 Southwestern J. Int'l Law 1 (2016)

Abstract:     

When I last studied this issue — the eligibility of domestic violence survivors for asylum in the United States — I concluded: “the absence of binding norms remains a major impediment to fair and consistent outcomes for women who fear return to countries where they confront unimaginable harms, or worse, death.” Despite a recent decision by the highest immigration tribunal in the United States accepting that women fleeing domestic violence can meet the refugee definition and qualify for protection, I could write the same words today. The 2014 ruling in a case known as Matter of A-R-C-G- marked a critical advancement in U.S. law. Notwithstanding, in the year since that decision, arbitrary and inconsistent outcomes have continued to characterize asylum adjudication in this area of the law.

I do not mean to diminish the importance of the A-R-C-G- precedent, a long-awaited and hard-fought victory. Issued by the Board of Immigration Appeals (BIA or Board), the decision constitutes binding precedent for immigration judges (and asylum officers) across the country who often have the final word in these life or death matters because adverse decisions are not often appealed, and if appealed, the vast majority are upheld. For thirteen years, from the vacating of the well-known and controversial Matter of R-A- decision denying asylum to a domestic violence survivor in 2001, to the issuance of the A-R-CG- decision in 2014, immigration judges and asylum officers adjudicated domestic violence asylum claims without the benefit of jurisprudential (or regulatory) guidance.

 

February 20, 2017 in International, Violence Against Women | Permalink | Comments (0)

Friday, February 17, 2017

Exploring Why Cases of Sexual Assault against Black Women Rarely Result in a Conviction

 

Channel Fitch, Teri Platt & Michelle Wilson,  Black Women and the Criminal Justice System: The Politics of Processing Sexual Assault Cases

Abstract

According to the Rape, Abuse, and Incest National Network (RAINN), 3.7% of reported sexual assault instances are tried in court and only 2% result in a conviction. Despite evidence that most victims of sexual assault are children, multi-racial women, and black women, the majority of cases that are tried are those where the victims were white women. This paper will examine cases where black women are the victims in order to understand why these instances do not result in convictions. Our argument is that socioeconomic factors may make it more difficult for black women to navigate the process. We will explore this by analyzing each phase of the process to identify complexities in the system that may prevent these cases from concluding in court. The purpose of this paper is to provide insight into the experiences of black women in the criminal justice system and recommend procedural reforms that will result in an increase in reports and convictions.

February 17, 2017 in Violence Against Women | Permalink | Comments (0)

Victim Narratives in Sexual Assault Cases in the Age of Social Media

Erin Sheley, Victim Impact Statements and Expressive Punishment in the Age of Social Media, Wake Forest L. Rev. (forthcoming)

Abstract

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds. This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

February 17, 2017 in Violence Against Women | Permalink | Comments (0)

Tuesday, January 31, 2017

OH Proposes Legislation to Extend Domestic Violence Laws to Dating Relationships

Victims of Dating Violence Could Finally Get Legal Protection in Ohio

Closing what many regard as a gaping loophole in Ohio's domestic-violence laws has become a top priority for state legislators.

Currently, only Ohio and Georgia do not offer specific legal options for victims of dating violence, such as civil-protection orders.

A protection order from a judge can legally prevent contact between a victim and perpetrator, including ordering that person to move out of a home that a couple shares. It also can grant child custody and require the offender to relinquish any firearms.

But currently, such orders are limited to family members.

"It's not necessarily about definitions; it's about the relationship and what type of violence arises out of that relationship," said Rep. Emilia Sykes, a Columbus Democrat given an unusual co-sponsorship of a prime bill in the GOP-dominated Ohio House.

"Our statutory law has not caught up to that here in Ohio, so that leaves victims in this state unprotected for the purposes of obtaining civil-protection orders, simply because they don't meet that very specific and narrow definition of domestic violence."

 

January 31, 2017 in Legislation, Violence Against Women | Permalink | Comments (0)

Monday, January 30, 2017

Russia Decriminalizes Domestic Violence

Russia Parliament Votes 380-3 to Decriminalize Domestic Violence

Russia's parliament voted 380-3 on Friday to decriminalize domestic violence in cases where it does not cause "substantial bodily harm" and does not occur more than once a year.

 

The move, which eliminates criminal liability in such cases, makes a violation punishable by a fine of roughly $500, or a 15-day arrest, provided there is no repeat within 12 months. 

 

The bill now goes to the rubber-stamp upper chamber, where no opposition is expected. It then must be signed by President Vladimir Putin, who has signaled his support. 

 

Kremlin spokesperson Dmitry Peskov told journalists that family conflicts do "not necessarily constitute domestic violence." 

 

The passage by the parliament, or Duma, reverses a ruling by the Supreme Court last year, subsequently backed by parliament, that decriminalized battery that does not inflict bodily harm, but retained criminal charges involving battery against family members. That reform is effectively reversed by Friday's vote.

January 30, 2017 in International, Violence Against Women | Permalink | Comments (0)

Thursday, January 26, 2017

Reforming Rape's Mens Rea

Kari Hong, Rape by Malice, Montana L.Rev. (forthcoming)

Abstract:     

When people seek to reform rape law, the focus is on the actus reus — either abandoning the force element or redefining consent. This Article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this Article proposes that states adopt the mens rea of malice — a callous indifference towards the risk of whether the defendant had secured the consent of his sexual partner. If someone shoots a gun in a crowd and kills someone, that person had no knowledge or intent to kill. But the shooter would be liable for murder under the mens rea of malice because the person acted with callous disregard to the objective risk of harm that her conduct involved. When imported to rape, malice then effectively captures what is the precise social wrong in having unwanted sex — it is a defendant acting with callous indifference over whether his or her actions present an objective risk that he or she engaged in sexual activity without the consent of his or her partner.

 

January 26, 2017 in Violence Against Women | Permalink | Comments (0)

Tuesday, January 24, 2017

Understanding the Meaning of Consent

Aya Gruber, Consent Confusion, 38 Cardozo L.Rev. 415 (2016)

Abstract:     

The slogans are ubiquitous: “Only ‘Yes’ Means ‘Yes’”; “Got Consent?”; “Consent is Hot, Assault is Not!” Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic “yes”?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today’s widespread uncertainty is partly a product of the affirmative consent reform juggernaut and its rapid legal changes. Confusion is also connected to the nature of consent as a liberal, contract principle. Sexual consent appears a morally self-evident issue of free will, but it actually veils a struggle between various judgments about how sex should happen, its benefits and harms, and the role of criminal law in regulating it. Indeed, proponents and critics of affirmative consent entertain different empirical and normative presumptions and often simply talk past each other. Structurally mapping the consent framework and the affirmative consent debate reveals exactly what is at stake in this new world of reform — a revelation necessary for meaningful dialogue on acceptable sex and acceptable sex regulation.

 

January 24, 2017 in Violence Against Women | Permalink | Comments (0)

Thursday, January 19, 2017

Providing Attorneys for Campus Sexual Assault Victims

Kelly Ann Behre, Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys

Abstract:     

There is a national conversation about the role and responsibility of colleges in addressing campus sexual assault, including a debate about the definition of consent, reporting requirements, interim measures, adjudicatory processes, appropriate standard of proof, accused students’ legal rights, and judicial oversight. As colleges increase internal reporting requirements and form information-sharing agreements with local law enforcement agencies, student victims begin to lose their choice and agency in reporting decisions and investigations. And as college adjudicatory proceedings become more complicated and extend past adjudicatory findings into appeals and lawsuits, student victims lose their voice and ability to fully enforce their rights. It is time to bring victims back into the discussion by acknowledging their legal rights to safety, privacy, and education, and by providing attorneys to ensure victims’ choice and voice throughout overlapping legal processes.

Survivors of sexual assault generally report negative experiences with the criminal justice system, civil law system, and campus adjudicatory system - all a source of secondary trauma. Access to individualized, comprehensive legal advice at all stages of sexual assault investigations and the adjudication process has the potential to diminish secondary trauma by providing student victims with two vital tools: a choice to initiate and participate in a criminal and/or campus investigation by providing sufficient information for informed consent and a voice throughout the investigation and legal proceedings.

Part I employs storytelling to illustrate the experience of many survivors of campus sexual assault following their disclosure or report of the assault. Part II provides an overview of campus sexual assault. Part III provides a brief summary of Title IX, the civil rights law addressing sex discrimination in education. Part IV discusses the theories of secondary trauma (i.e. second rape) and victim justice. Part V proposes the four stages in which student victims of sexual assault might benefit from access to victims’ attorneys: pre-reporting, investigations, campus hearing, and post hearings (appeals and lawsuits).

 

January 19, 2017 in Violence Against Women, Women lawyers | Permalink | Comments (0)

Monday, January 9, 2017

Reforming Social Security's Marriage Duration Requirement in Cases of Domestic Violence

Sarah Boonin, Ten Years Too Long: Reforming Social Security's Marriage Duration Requirement in Cases of Domestic Violence, 39 Harv. J. Gender & Law 369 (2016)

Abstract:     

Social Security's retirement program has evolved over time to become a major source of economic security in older age for workers' family members, including spouses and ex-spouses. To qualify for derivative retirement benefits as an ex-spouse, the applicant must have been married to the wage earner for at least ten years. This Article explores in-depth this so-called "ten-year rule" and critiques its application in cases involving domestic violence. Drawing on a gut-wrenching case study, the rule's legislative history, as well as social science and feminist literature on the impacts of domestic violence, this piece argues that the ten-year rule unfairly punishes and imperils victims of domestic violence. It serves as the final blow, felt long after the abuse has ended. The Article proposes and defends an amendment to the Social Security Act that would extend vital retirement benefits to victims divorced from shorter-term marriages.

 

January 9, 2017 in Family, Violence Against Women | Permalink | Comments (0)

Thursday, December 22, 2016

Reconsidering the Criminal Justice Focus of Domestic Violence Remedies

Deborah Weissman, The Community Politics of Domestic Violence, Brooklyn Law Rev (forthcoming)

Abstract:     

Gender violence has long been identified as a crisis of epidemic proportions that defies facile solution. Despite decades of law reform, and notwithstanding increased social services and public health interventions, the rates of gender violence have not appreciably declined. The field of domestic violence advocacy is itself in a crisis, and it has been difficult to discern the best way forward. Despite its intellectual and practical engagement, the domestic violence movement seems unable to shift from the neoliberal paradigm that emphasize the features associated with the carceral state while appearing indifferent to the structural sources of domestic violence as a social problem. Reliance on the criminal justice system has tended to fracture the domestic violence movement even as it marginalized itself from disenfranchised populations.

This Article offers a case study of an incident that occurred between the Sheriff of San Francisco and his wife in December 2011 that resulted in domestic-violence related criminal proceedings and additional charges of official misconduct and efforts by the Mayor to remove him from the office of Sheriff. The Sheriff had been recently elected largely as a result of a coalition of marginalized communities, immigrant rights advocates, environmental justice organizations, labor groups, and other progressive organizations. The case reached beyond the courts and city hall into neighborhoods and households, and community meeting places throughout the city. The legal and public citizen commentary offered throughout nine months of proceedings against the Sheriff set in relief the contradictions and tensions emblematic of the crisis that confronts the domestic violence movement. The case provide a unique opportunity to consider the problems of domestic violence anew, a way to interrogate old premises and presumptions, examine prevailing practices, and reconsider responses.

This Article addresses the perils attending over-reliance on criminal justice paradigms as remedy for domestic violence, that –- in fact -– deployment of law enforcement methods has acted not only to diminish the efficacy of domestic violence strategies but also to diminish the relevance of domestic violence advocacy to the social justice movement. To rely on models of victimhood as the means to obtain the intervention of criminal justice remedies implies loss of voice and agency, whereby the interests of the “victim” are preempted in discharge of larger logic of the criminal justice system. That domestic violence advocates identify with criminal justice remedies, moreover, at a time when law enforcement practices are under scrutiny and suspicion within marginalized communities, has acted to deepen the breach between domestic violence advocates and the social justice movement.

The Article offers an opportunity to reconsider the definition of domestic violence as well as the criminal justice and community response to this problem. It seeks to re-engage in dialogue about the private/public dichotomy without returning to a point in time where private abuse between intimate partners can be considered of little or no socio-political or legal import. Domestic violence persists as a manifestation of gender and other forms of inequality and social norms that oppress and repress its victims. But the mainstream responses often accomplish little to eliminate or repair the damage caused by intimate partner violence. The Article reiterates the recommendations scholars have offered in recent years as alternatives to criminal justice remedies and suggests that what is lacking is not prescriptives but rather political will.

 

December 22, 2016 in Violence Against Women | Permalink | Comments (0)

Wednesday, December 14, 2016

Damages Caps on Noneconomic Harm for Sexual Assault of Minor Upheld as Constitutional

Damage Caps Constitutional When Applied to Sexual Assault of Minor

Capping damages awarded in a civil lawsuit to a teenage victim of a sexual assault did not violate the girl’s constitutional rights, the Ohio Supreme Court ruled today.

 

The Supreme Court affirmed the Fifth District Court of Appeals decision allowing a $3.6 million juryverdict in favor of Jessica Simpkins to be reduced to $500,000 when the trial court applied limits on “noneconomic damages,” which the Ohio General Assembly enacted as part of a 2005 “tort reform” law.

 

Simpkins and her father sued their church and former church leaders claiming that in March 2008 Brian Williams, the senior pastor of Sunbury Grace Brethren Church, forced oral and vaginal intercourse with Simpkins who was 15 years old at the time. Williams was convicted of two counts of sexual battery and sentenced to two four-year prison terms.

 

Simpkins argued the caps in R.C. 2315.18(B)(2) for noneconomic loss, which include “pain and suffering,” “loss of consortium,” “loss of companionship,” “disfigurement,” and ”mental anguish” are unconstitutional when it comes to minors because they suffer far more long-term consequences from the emotional damages of a sexual assault than they would from any “economic” damages. Writing the Court’s lead opinion, Justice Judith L. French wrote there may be a set of circumstances where the statutorydamages caps would prove unconstitutional, but the law “as applied to the facts before us” is constitutional.

 

In separate dissenting opinions, Justices Paul E. Pfeifer and William M. O’Neill argued that the General Assembly’s caps on jury awards are unconstitutional and can only be imposed by an amendment to the Ohio Constitution.

December 14, 2016 in Constitutional, Violence Against Women | Permalink | Comments (0)

Friday, October 14, 2016

The Stereotyped Domestic Violence Offender

Carolyn Ramsey, The Stereotyped Offender: Domestic Violence and the Failure of Intervention, 120 Penn State L.Rev. 337 (2015)

Abstract:     

Scholars and battered women’s advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, and gay men; abuse is as common in same-sex relationships as in their heterosexual counterparts. Failure to take such factors into account perpetuates a one-dimensional image of the batterer as a controlling, heterosexual, male villain — a stereotype that impedes efforts to coordinate effective responses to domestic violence and entrenches gendered hierarchies that affect men, as well as women.

This Article begins by placing the feminist paradigm of the batterer in historical context. Although feminists transformed the dialogue about domestic violence by locating it in patriarchy and gender inequality, the offender stereotype that the Battered Women’s Movement used to spur a vigorous state response and that still drives domestic violence policy shares some limitations with earlier paradigms of the wife beater — the hot-headed sinner in Puritan New England or the drunken brute of Temperance discourse. Like these earlier stereotypes, the image of the coercive, controlling male batterer is too one-dimensional and too closely tied to other sociopolitical agendas to yield a practical approach to prevent domestic violence and change the behavior of its perpetrators.

Drawing on historical, sociological, and psychological materials, as well as insights from masculinities studies, this Article suggests limits to our understanding of those who commit intimate-partner abuse and to the laws and policies — especially court-mandated batterer intervention programs (“BIPs”) — currently in place. It presents an original analysis of 46 sets of state and local standards for BIPs to show that, although these standards are starting to be more inclusive, they still tend to impose a “one-size-fits-all” formula designed for heterosexual male offenders. The “one-size-fits-all” approach ignores crucial differences — not only in intimate-partner violence committed by women, as opposed to men, and homosexuals, as opposed to heterosexuals — but also between heterosexual male offenders and the types of abuse they inflict. Recognizing these differences would facilitate the effective tailoring of BIPs to achieve long-term behavioral change in a variety of participants. The Article concludes by offering preliminary suggestions for transforming pro-feminist interventions to encourage accountability and rehabilitation and to reduce recidivism without stereotyping domestic violence offenders.

 

October 14, 2016 in Violence Against Women | Permalink | Comments (0)

Books: Sex Trafficking in the US

Andrea J. Nichols, Sex Trafficking in the United States (Columbia Press 2016)

Sex Trafficking in the United States is a unique exploration of the underlying dynamics of sex trafficking. This comprehensive volume examines the common risk factors for those who become victims, and the barriers they face when they try to leave. It also looks at how and why sex traffickers enter the industry. A chapter on buyers presents what we know about their motivations, the prevalence of bought sex, and criminal justice policies that target them. Sex Trafficking in the United States describes how the justice system, activists, and individuals can engage in advocating for victims of sex trafficking. It also offers recommendations for practice and policy and suggestions for cultural change.

 

Andrea J. Nichols approaches sex-trafficking-related theories, research, policies, and practice from neoliberal, abolitionist, feminist, criminological, and sociological perspectives. She confronts competing views of the relationship between pornography, prostitution, and sex trafficking, as well as the contribution of weak social institutions and safety nets to the spread of sex trafficking. She also explores the link between identity-based oppression, societal marginalization, and the risk of victimization. She clearly accounts for the role of race, ethnicity, immigrant status, LGBTQ identities, age, sex, and intellectual disability in heightening the risk of trafficking and how social services and the criminal justice and healthcare systems can best respond. This textbook is essential for understanding the mechanics of a pervasive industry and curbing its spread among at-risk populations.

 

Please visit our supplemental materials page (https://cup.columbia.edu/extras/supplement/sex-trafficking-united-states) to find teaching aids, including PowerPoints, access to a test bank, and a sample syllabus

October 14, 2016 in Books, Human trafficking, Violence Against Women | Permalink | Comments (0)

Thursday, October 13, 2016

Anita Hill on Sexual Harassment: Focus on the Victims

Anita Hill, Op ed, What We Can Still Learn from Sexual Harassment

What I learned in 1991 is no less true today and no less important for people to understand: responses to sexual harassment and other forms of sexual violence must start with a belief that women matter as much as the powerful men they encounter at work or at school, whether those men are bosses or professors, colleagues or fellow students.

 

We must understand the harm that sexual harassment and sexual violence causes. Missing from the conversation this weekend, which focused almost exclusively on the character of the offender, was concern about the victims of sexual violence....

 

A recent Equal Employment Opportunity Commission Task Force reported on the psychological, physical, occupational, and economic harm that victims of sexual harassment suffer. Since 1991, I’ve heard from thousands of women who have experienced harassing bosses and colleagues. Some overcome the situations, but none of them ever forget the pain of it. To understand why the way women are treated matters, we must view Donald Trump’s comments and the behavior he described from the point of view of a victim of sexual predation.

 

Trump’s language, which he and others have tried to minimize as “locker room banter,” is predatory and hostile. To excuse it as that or as youthful indiscretion or overzealous romantic interest normalizes male sexual violence. According to attorney Joe Sellers, a member of the EEOC Task Force, “Trump’s remarks reflect the quintessential mindset of a harasser: the view that he has certain privileges and power by virtue of his celebrity status and position.”

October 13, 2016 in Pop Culture, Violence Against Women | Permalink | Comments (0)