Gender and the Law Blog

Studies Show Women Legislators Get More Work Done

The Research is Clear: Electing More Women Changes How Government Works

Hillary Clinton clinching the Democratic nomination is, on one level, a symbolic breakthrough. Yesterday we lived in a country where no woman had ever won a major political party’s presidential nomination. Today that's no longer true. This is a huge and momentous step forward.

 

But it’s not purely symbolic. As more and more women start to occupy the White House and Congress, we should expect them to govern differently.

 

Political science research has found this over and over again: Women legislators are more likely to introduce legislation that specifically benefits women. They’re better at bringing funding back to their home districts. And, to put it bluntly, they just get more shit done: A woman legislator, on average, passed twice as many bills as a male legislator in one recent session of Congress.

 

Women bring a different background to Congress. They face different obstacles to success — and sometimes more obstacles to winning office. That shapes how they govern and what issues they choose to focus their time on.

Colorado Adds Pregnancy and Post-Partum to Anti-Discrimination Laws

Colorado Amends Discrimination Law to Accommodate Pregnant and Post-Partum Employees

On June 1, 2016, Gov. Hickenlooper signed into law Colorado House Bill 16-1438, requiring employers to provide reasonable accommodations for pregnant and post-partum employees (specifically, for applicants or employees with “health conditions related to pregnancy, the physical recovery from childbirth, or related conditions”). Employers who fail to do so may assert the affirmative defense of undue hardship. The amendments will become effective Aug. 10, 2016. Critically, there are posting and notification requirements. Starting Aug. 10, 2016, employers are required to provide notice to new employees, and by Dec. 8, 2016, notice to existing employees. Conspicuous notice must also be posted. . . .

 

[T]he General Assembly’s overarching policy goal is to provide pregnant and post-partum women workplace protections to ensure they can remain gainfully employed by ensuring: “full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.” To that end, the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401, et seq., was amended to prohibit an employer from discriminating against employees and applicants who have health conditions related to pregnancy, the physical recovery from childbirth, or related conditions. Specifically, employers must:

•  provide reasonable accommodations unless that would cause undue hardships on the employer’s business;
• not take adverse actions against employees who request or use a reasonable accommodation;
• hire applicants despite the need to make a reasonable accommodation;
• not require an applicant or employee to accept an accommodation that the employee did not require or that is not necessary to perform the essential job functions; and
• not require leave if the employer can provide another reasonable accommodation.

People Unfazed by All-Gender Restroom at DNC

People Were Unfazed by This All-Gender Restroom at the Democratic Convention

Hundreds of men and women shared a big, busy “all-gender restroom” at the Democratic National Convention on Monday — and were seemingly unfazed by the experience.

 

“It doesn’t make me nervous at all,” Lula Dualeh, a delegate for Bernie Sanders, told BuzzFeed News. “I just need to use the restroom. I don’t care who’s next to me.”

 

But restrooms have been a hot-button issue for many Republicans. State and federal politicians have politicized bathroom access, saying that allowing transgender women — whom they call “men” — to use the women’s restroom poses a safety threat.

 

At the Wells Fargo Center, which also had single-sex restrooms, a sign at the entrance of the all-gender restroom featured a figurine in a dress and another figurine without a dress.

 

Inside, everyone took turns using stalls; then women and men washed their hands side-by-side at a bank of sinks. Nobody who spoke to BuzzFeed News found the situation troubling.

Study Finds Men More Likely to Cite Their Own Science Papers

Study Finds Men are More Likely to Cite Their Own Science Papers

Why? Is it confidence? production? specialization?

A new study led by sociologists at Stanford University and uploaded to the Arxiv preprint server shows that, since the 18th century, male academics cite their own papers on average 56 percent more than their female counterparts. And although you might expect this trend to level off as women occupy more tenure track positions and publish more papers, the opposite appears to be true: In the past two decades, the rate of self-citation among men was 70 percent higher than that of women....

 

An increased propensity to point to one’s own work—“manciting,” if you will—is no small thing when the number of citations a paper has is often used as a proxy to measure a scientist’s importance by both peers and employers....

 

Self-citation, or referencing a work that has an author in common with your own paper, makes up nearly 10 percent of total citations across all 1.5 million papers on the academic database JSTOR, which the researchers used for their study. King noted that a previous study looking at over half a million scientific papers concluded that each self-citation leads to nearly three additional total citations of an author’s work over the next few years, due to increased visibility—meaning that pointing people to your own work can have a multiplicative effect.

 

“Women aren't getting the credit from themselves, or the credit that accrues to them from others, and that's a pretty significant gap,” said King

 

The researchers speculate that men may self-cite more because they tend to evaluate their own abilities more positively than women, and because women may face a social penalty for self-promoting....

 

King says male academics tend publish more papers, possibly leaving them with more work to cite. And men also tend to be more specialized, meaning that with a narrower range of literature available they have no choice but to point to their own work.

Making A Big Deal of the Gender Reveal

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.

“Gender reveal” parties are a popular trend among expecting parents.  One website describes these parties as “a new trend that’s sweeping across the baby world.”  The “gender reveal” is described online as one of the “most thrilling parts of pregnancy.”  Expecting parents are accordingly encouraged to make this event “a big, wonderful, landmark event in your life.”  Parents then tuck their ultrasound in an envelope and plan a grand event around its opening.  The party reveals to family and friends – and to the couple themselves – the gender of the baby.

If you have not been invited or involved in one (I had not . . . and surely after this blog post, I will not be in the future!), it’s worth a quick online search.  You will find an endless array of products emphasizing a whimsical gender binary from banners to straws to stickers.  You can have buttons and voting materials for “Team He” versus “Team She.”  You can have cupcakes and cake toppers for “Team Lashes “versus “Team Stashes.”   

The emergence of gender reveal parties in this modern era is most perplexing.  First, the use of the word gender itself defies a general movement toward greater sophistication and nuance between the terms sex and gender and an expanded recognition that gender is not binary.  In this sense, the “gender” reveal is really not a gender reveal at all; it is really a “biological sex” reveal.  The American Psychological Association describes sex as one’s biological sex, which is indicated by external genitalia, internal reproductive organs, and chromosomes.  In contrast, gender “refers to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex.”  Other dimensions of gender include one’s gender identity and one’s gender expression.  Gender is not determined by one’s physical genitalia and it is not binary.

Even if the “gender reveal” party were most awkwardly renamed as a “genitalia reveal” party or a “biological sex reveal,” that too would inaccurately pretend that all bodies fit on “Team He” or “Team She” as the merchandise suggests.  Sex – unlike gender – may be described on a male-female binary, but critically not all bodies conform to that binary; others are intersex.  Making a big deal of the gender reveal wrongly presumes that the child’s gender is fixed in utero and that all bodies fit on “Team He” or “Team She.”  Ironically, the parties themselves are premised on inclusivity.  The planning sites suggest that they are to be celebrated because “male guests are allowed” and because “husbands can be involved.”  So, these parties are celebrating the inclusivity of the party, while the party is framed around exclusivity.

This whimsical in utero trend of the big “gender reveal” defies the increased political, legal, and social recognition that biological sex does not define one’s gender and that gender is not binary.  So, if I’m invited to a gender reveal party, I will happily engage in a tasty protest enjoying a cupcake for both “Team Lashes” and “Team Stashes” to quietly contest outdated and inaccurate depictions of gender.

    

Solving the Policing Problem with More Women Cops

Wash Post, One Way to Curb Police Brutality that No One is Talking About

Law enforcement remains one of the least gender-diverse professions in the United States — and that could be a major factor in the questionable shootings and excessive force complaints against police. Female officers have fewer of these problems than their male colleagues, which could make gender diversity a key to addressing the breakdown in the relationship between the nation's police and the community.

 

Studies have found female officers tend to place more importance on de-escalation and community trust building. “Female officers are better at defusing potentially violent confrontations before those encounters turn deadly,” wrote Katherine Spillar, executive director of the Feminist Majority Foundation, in an essay for The Washington Post last year.

 

Women on the force also appear to be more inclined to call out their colleagues for shady behavior. A 1994 study of 861 officers in Illinois — 96 percent of which were men — found the small band of women were more likely to report spotting unethical actions by fellow officers.  

 

Male police officers, meanwhile, are disproportionately more likely than their female colleagues to draw citizen complaints about excessive force, wind up in excessive force lawsuits and be in involved in lawsuits that lead to significant victim payouts. Of the 54 officers charged with fatally shooting someone while on duty in the past decade, only two were women.

Ms, Our Policing Problem is Also a Diversity Problem

Before Philando Castile and Alton Sterling were shot by police officers within days of each other,and our country erupted yet again into complex conversations about race and police violence, I called all of the largest local police departments in the country to compile data on the gender and race breakdown of their departments as part of a research study for the Feminist Majority Foundation.

 

What I found corroborates published research on the subject: Women of color and other minority officers are significantly underrepresented in these departments. According to the Bureau of Justice statistics, only 27 percent of all police officers in local police departments in 2013were racial or ethnic minorities. Women of color are even more underrepresented, accounting for only 4.8 percent of full-time sworn personnel, according to a 2001 study from the National Center for Women and Policing. The most recent Bureau of Justice statistics on the breakdown of gender in the largest local police departments were published in 2008, and they range from 9 percent female officers in the Las Vegas Metro Police Department to 27 percent female officers in the Detroit Police Department.

 

Why is this a problem? Well, let’s consider the recently released audio recording, taping the two officers who shot Philando Castile. The taping suggests that they pulled Castile over not because of a broken taillight but because he matched the characteristics of an armed robber due to his “wide-set nose.” This information is disturbing to say the least. It indicates that Castile was stopped and subsequently shot not because he was committing a crime but because he was racially profiled by two white police officers.

 

Violence is what we have come to expect from a police system that hires primarily white men, who are proven to be more violent and to commit more crimes than their female and non-white counterparts. In order to change police culture, we must improve hiring practices and recruit more women officers and more officers of color.

Revisiting Gendered Critiques of the Socratic Method

 

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.

 

As law schools nationwide prepare to implement the new ABA requirements governing experiential learning and assessment, it is also appropriate to revisit the gendered critiques of the Socratic dialogue.  Scholars such as Professor Lani Gunier and Professor Elizabeth Mertz have studied its disproportionately marginalizing effect on women and minority law students.  While innovations in law teaching are everywhere, these innovations are being constructed upon and limited by the ancient architecture of the case-based Socratic method, which still endures and persists throughout first-year and core upper-level courses.  Law schools continue to design their budgets, curricula, and student experience around some degree of case-based, Socratic law teaching in large-lecture style classrooms.    

But the Socratic method admittedly has some advantages that none of the other curricular innovations have.  It is repeated hundreds of times in different courses, whereas a typical student in a law clinic will represent just a handful of clients on discreet legal issues.  It is delivered to a large and diverse group of students allowing for competing perspectives and critical inquiry.  It has robust volumes of existing teaching materials built around it making it the most economical method of law teaching.  It is comfortable for many professors and law faculties because they were taught this way and they have taught this way for decades, thus allowing greater buy-in and ease of adaptation.

The Socratic method can be reframed to better catalyze other teaching innovations, create more practice-ready lawyers, and cultivate more inclusive and inviting law classrooms.  Within the existing framework of law teaching – the same casebooks, class sizes, and teaching style – the case-based Socratic method can be reframed in three straight-forward ways to better align with curricular innovations in legal education and to create a more positive student experience. These adaptations are consistently (1) positioning client(s) at the center of the Socratic dialogue; (2) positioning law students as attorneys considering legal research and weight of authority as a springboard to client counseling and outcomes; and (3) sensitizing students to varied lawyering skills such as client counseling, settlement, drafting, and discovery within the Socratic case-based approach.  

These re-framings of the Socratic method would create a more inclusive law school experience for all.  These approaches reduce the hierarchy of the professor over the students and invite inclusive participation. The participation that is sought is more collaborative and inviting of diverse perspectives because it is offered as a means to advance client interests and goals, rather than to challenge the professor or a classmate. This would role model collaborative, collegial, and productive lawyering for our students, not just adversarial competencies.

This entry is excerpted from my article on Reframing the Socratic Method previously published in the Journal of Legal Education. 

Gender and the Marital Presumption of Parentage

 

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.  

Despite rapid and enduring transformations in family structures, it has been decades since many states significantly amended their parentage laws.  A Uniform Parentage Act (UPA) Drafting Committee is hard at work preparing a 2017 revision to the uniform act last updated in 2002.  These revisions do important work to fix problematic gendered framings of the marital presumption in a post-Obergefell world. 

Most states continue to follow a marital presumption that presumes that when a wife gives birth to a child her husband is the legal parent of the resulting child.  One high profile example of this presumption was when Kim Kardashian became pregnant with Kanye West’s child, the marital presumption would have presumed that Kris Humphries was the legal father because he was still married to Kim at the time.  This gendered language, however, problematically presumes that a married couple is one man and one woman.  This, of course, is no longer the case.  Many state laws need to be updated to reflect this modern reality.  In fact, only seven states have so far amended their marital presumption laws after Obergefell.  Other states may, however, be interpreting the gender specific language of their parentage laws in a way that is inclusive of same-sex couples at the judicial level or on a case-by-case level. 

The 2017 UPA would extend that marital presumption to either a male or female spouse of the woman who gave birth.  Notably, the 2017 UPA does not propose a completely gender-neutral standard.  The drafting committee acknowledged that the State of Washington, for example, had adopted a completely gender-neutral approach.  It noted, however, that this could produce unusual results.  For example, it might mean that a wife would be presumed to be the legal parent of a child birthed by another woman if a husband impregnated a woman that was not his wife during an affair.  The gender-neutral marital presumption, in that instance, might then override the birthing woman’s parentage.  Washington was the only state to adopt an entirely gender-neutral presumption.  The UPA Drafting Committee explained that the other six states that had amended their parentage laws had done so in a manner similar to the 2017 UPA’s proposed approach, which expands the marital presumption to the female spouse of a birthing wife. 

This blog post only summaries changes to the marital presumption’s gendered framing.  The 2017 UPA would also modify surrogacy provisions, provide certain rights to access information about gamete donors, and modify the handling of competing presumptions.   To learn more about the drafting process visit the Drafting Committee’s site of the Uniform Law Commissioners or to view a comparison between the 2002 and 2017 UPA see the Committee’s chart.

From Standing With Planned Parenthood to Moving Forward

 

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.   

 

Unqualifiedly, “I stand with Planned Parenthood,” consistent with the viral social media hashtag that so mobilized the reproductive rights movement this year.   I’ve made my donations.  I’ve changed my Facebook status picture.  I’ve defended the reputation and profound importance of Planned Parenthood.   

I also celebrated last month’s decision in Whole Woman's Health v. Hellerstedt  . . . but I did so more privately and discreetly, a point this blog seeks to explore.  Whole Woman’s Health challenged the motive and methodology of state legislatures enacting restrictive laws regulating abortion and abortion providers.  It concluded that the state does impose an “undue burden” on a woman’s right to choose when it enacts laws that are not medically justified and that restrict access to as many women as the Texas provisions did.  I celebrate this decision for its affirmation of the undue burden standard, its demand for sound legislation supported by medicine and science, and the potential it offers to push back on the increasing frequency and intensity of restrictive measures.

Yet, for the most significant Supreme Court decision protecting a woman’s right to choose in decades, what form of mobilized and energized support could be seen away from the Supreme Court steps?  I, for one, did not change my social media imagery.  In fact, I did not post anything on social media at all, not even a simple link to the decision or news coverage of it.  It seemed that only a small handful of my colleagues and friends who are active in this area posted anything other than a few vague social media posts best characterized as  “phew” points, more than substantive or celebratory posts.     

Interestingly, who was busy blogging and posting about women and what they need and what their rights are . . . . opponents to abortion access!  Notably, opponents to the decision were not characterizing this as judicial overreach or inconsistency – like the dissenting justices had – rather, they were tweeting and blogging about how the Supreme Court failed to protect women and make abortion safer for women. 

As we breathe a sigh of relief from this legislative and Supreme Court term, we now stand poised to assess the carnage of the past years, and the last year particularly, and to assess the reproductive rights movement’s trajectory.  Social movements, like the reproductive rights movement, are about collective action to bring change.  They require an oppositional frame and they develop a collective identity.  This collective identity defines what it means to join the movement and how its members recognize themselves and are recognized externally.  This creates a shared sense of oneness or we-ness.  Historic framings of reproductive rights were broadly tethered to larger understandings of women’s equal citizenship and participation in public and private life, including women’s health, women’s autonomy, and women’s freedom.

Contrasting the social and political responses to attacks on Planned Parenthood over the past year to responses to the Whole Woman’s Health decision or even contrasting social and political responses to Whole Women’s Health to historic reproductive rights successes, it merits thoughtful reflection on what the consequences have been to the reproductive rights social movement in having spent so much time in a defensive posture.  The movement’s defensive posture in the past year has forced us to shift our emphasis to the myopic focus on defending an institution instead of defending the people and issues that it protects, serves, and saves.  When I declare that “I stand with Planned Parenthood,” I am not declaring more directly the politically and historically grounded points that I stand for women’s equal autonomy to make medical decisions and the central importance of women’s reproductive autonomy to control their political, social, professional selves as men do.  This focus arose out of necessity, but centralizing a social or political movement so squarely around one institution a worrisome long-term strategy that places too much weight and pressure on the institution’s leaders?  Does this institutional focus compromise the collective action or “oneness” of women supporting reproductive rights more broadly?

As I defend the relevance and importance of Planned Parenthood, I worry that its four walls limit me and perhaps the movement’s trajectory.  As we stand and defend the four walls of Planned Parenthood and its access to funding, there is reason to worry that the opposition is swiftly co-opting the gendered framing of abortion and the broader rights at stake for women. 

I worry that the muted reaction to Whole Woman’s Health reveals a deeper shift and narrowing of the framing of the reproductive rights movement.  I write, not to be critical of the past, but looking to the future.  There was a critical time and need to “stand with Planned Parenthood.”  But we cannot maintain a movement for reproductive justice and women’s bodily autonomy just by defending the necessity and credibility of one institution or even one procedure.  I do stand with Planned Parenthood.  I also stand with midwives.  I also stand with birthing women . . . at home and in hospitals.  I stand with women seeking birth control, just as I stand with those not using birth control for reasons religious or otherwise.  As we move forward, now is the time to expand the base, expand the conversation, and reach for new allies, not narrow and institutionalize the conversation.  We stood in defense of a fortress when we needed to do so.  Now we must move forward in ways that restore a sense of “oneness” that is tethered to issues and people. 

Book Review: Black Women and the Carceral State

Black Women and the Carceral State

Reviewing:    

No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity
by Sarah Haley
The University of North Carolina Press, 2016, 360 pp. Link here. 

 

Chained in Silence: Black Women and Convict Labor in the New South
by Talitha L. LeFlouria
The University of North Carolina Press, 2016, 280 pp. Link here.

 

When you think of convict labor in the postbellum South, you probably think of men. Consider the cultural touchstones: John Henry driving steel in West Virginia, Robert Burns’s I Am a Fugitive from a Georgia Chain Gang!, the manacled singers in Alan Lomax’s field recordings, Nat Adderley’s classic “Work Song” (“Breaking rocks out here on the chain gang/Breaking rocks and serving my time”). Or perhaps not—by far the finest rendition of “Work Song,” after all, is Nina Simone’s. By singing Adderley’s song, Simone made audible what has been systemically silenced: the historical experience of black women subjected to coerced labor and state violence. While the repression and coercion of black women have been constant features of American life in one form or another across the centuries, they are also today the site of a vital strand of political resistance. The appearance of two historical works on the subject, then, is significant. Talitha L. LeFlouria’s Chained in Silence: Black Women and Convict Labor in the New South, and Sarah Haley’s No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity, represent the most thorough historical accounting of the system of carceral labor inflicted on black women.

 

These are books for our moment. African-American women—queer, black women in particular—have been critical in local organizing against police violence, and have emerged as the leaders of the nation’s most significant national movement for racial justice, Black Lives Matter. Partly, this reflects a long tradition of black female political leadership; partly it is the product of the relative invisibility of state violence against black women.

Abortion Politics in the Age of Zika

Carol Sager, Abortion Politics in the Age of Zika, US News

It seems clear then that neither Zika transmission nor pregnancy can be wholly prevented. Despite the most diligent attempts to contracept, unwanted pregnancy happens, whether through contraceptive failure, a partner's refusal to cooperate or bad luck. (Forty-five percent of pregnancies in the U.S. are unintended.) All this procreation takes place against the background of the mosquito season now upon us.

 

This is where public health runs smack into the politics of reproduction. The CDC advises pregnant women with the virus to seek a medical diagnosis for microcephaly and have it confirmed after their baby is born. But some women may wonder whether they want to continue their pregnancies at all under these circumstances. Here, three facts stand out. First, not all Zika-infected women transmit the virus to their fetuses. Second, if the virus is transmitted, common results are serious birth defects – hearing and vision impairment, seizures, intellectual and physical disability – for which there is no cure. Third, at present doctors are unable to confirm microcephaly until around the 20th week of pregnancy. On these facts, decisions about what course to follow may well be complicated, though at least women in the U.S. have a choice. Unlike most of Central and South America where abortion remains a crime, women in the U.S. have a constitutional right to decide whether or not to terminate a pregnancy.

 

Yet in a number of U.S. states, exercising that right has been made increasingly difficult. In attempts to create abortion-free zones, states have been hacking away at the abortion right any way they can. The general strategy is to make abortion harder to get – harder legally, financially, emotionally and practically. Common tactics include waiting periods, mandatory ultrasounds and burdensome requirements on clinics and providers. Last week the Supreme Court struck down two such provisions in Texas on the ground that neither advanced the health of pregnant women. But among the Texas regulations still in effect is a total ban on abortion after 20 weeks. Recall that microcephaly cannot be definitively diagnosed until after 20 weeks. This means pregnant women may be timed out of legal abortion in Texas, and may not have the resources to go elsewhere.

 

Timing isn't the only legal problem. Indiana and North Dakota ban abortions sought on the basis of fetal disability, claiming that such abortions are a form of discrimination. Babies born with microcephaly will certainly be disabled.

Books: Women as Aggressors of Marital Violence in Antebellum American

Robin Sager, Marital Cruelty in Antebellum America (LSU Press 2016)

In Marital Cruelty in Antebellum America, Robin C. Sager probes the struggles of aggrieved spouses shedding light on the nature of marriage and violence in the United States in the decades prior to the Civil War. Analyzing over 1,500 divorce records that reveal intimate details of marriages in conflict in Virginia, Texas, and Wisconsin from 1840–1860, Sager offers a rare glimpse into the private lives of ordinary Americans shaken by accusations of cruelty. * * *

 

Correcting historical mischaracterizations of women’s violence as trivial, rare, or defensive, Sager finds antebellum wives both capable and willing to commit a wide variety of cruelties within their marriages. Her research provides details about the reality of nineteenth-century conjugal unions, including the deep unhappiness buried within them.

h/t Legal History Blog

 

Books: Fiction on Campus Sexual Assault by and about a Woman Prosecutor

ABA J, The Last Good Girl

Author Allison Leotta has used her 12 years of experience as a federal sex-crimes prosecutor in Washington, D.C., to bring real-world issues into her fiction. Leotta has written five novels chronicling the adventures of her protagonist, prosecutor Anna Curtis. The most recent, The Last Good Girl, takes on the issue of campus sexual assault at a fictional private college in Michigan.

The ABA Journal’s Lee Rawles spoke with Leotta about how she shifted her career from lawyer to author; why the issue of campus sexual assault is so timely; and what’s next for her intrepid heroine Anna Curtis.

Re-Entrenching Stereotypes About Gendered Violence?

 In thinking about new ways to end gendered violence, it may be time to reconsider the ways in which the law normalizes male violence and marginalizes women’s violence and how this binary treatment re-entrenches stereotypes. Consider, for example, the standards in the Kentucky Batterer’s Intervention Program (BIP). Many aspects of the Kentucky BIP requirements are the same for men and women, such as the requirements to provide content defining domestic violence, discussing the cycle of violence, and developing nonviolent methods for resolving conflict. 920 Ky. Admin. Regs. 2:020 (1)(10) (2015). Male abusers, however, are uniquely instructed in the: “confrontation of rigid sex role stereotyping” and “development of a relapse prevention technique.” Importantly, the focus on relapse prevention is in addition to the requirements of challenging a male client’s “pattern of aggression in a conflict with a victim” and exploring “a constructive and nonviolent method for resolving conflict in a relationship” that already apply to both men and women’s BIP programs.

Women share the male curriculum, except for the provisions cited above, which do not apply to women. Women do not consider sex stereotyping or the prevention of relapse. Instead, women’s programs focus on the following areas unique to women’s BIPs: “[e]xploration of life experiences and belief systems that have fostered choices for violent behavior;” and “[s]afety planning and knowledge of domestic violence resources.”

This suggests that women must uniquely account for their violence. It suggests that something went wrong for women in their lives and experiences, whereas men were expected to commit violence. Men’s violence is framed as uncontrollable and relapses are expected. Women’s violence is an aberration and a choice. Women do not plan to relapse; they prepare to be future victims accessing domestic violence resources. Instruction on safety planning and resources is a startling requirement for perpetrators of domestic violence, particularly after women under this statute are already uniquely required to qualify for eligibility.

These gendered differences in BIPs suggest that some life experience fostered violence as an aberration for women. Why should women not study the sex stereotypes that underlie their use of violence as well? Why should men not also explore the life experiences and belief systems that fostered their behavior? Is not men’s violence a choice as well? Seemingly, these differences might send a message of despair and pessimism to victims of men’s violence and a message of incredulity to victims of women’s violence. Is the law here re-entrenching gendered stereotypes about violence in problematic ways?

This blog is adapted from my research originally published in The Feminist Case for Acknowledging Women’s Acts of Violence available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790940.

Books: Race and Gender in Copyrighting Choreography

Anthea Kraut, Choreographing Copyright: Race Gender and Intellectual Property Rights in American Dance (Oxford 2015)

In Choreographing Copyright: Race, Gender and Intellectual Property Rights in American Dance, Anthea Kraut wrestles mightily with these questions as she presents the first book by a dance scholar to focus explicitly on matters of copyright and choreography. Combining archival research with critical race and gender theory, Kraut offers new perspectives in this cross-genre history of American Dance. Professor Kraut’s research addresses the interconnections between American performance and cultural history and the raced and gendered dancing body.

Book Review: Two Books on Cyberspace Harassment of Women

Catharine Ross, Taming the Wild West: Online Excesses, Reactions and Overreactions, 51 Tulsa L.Rev. 267 (2016)

Abstract:     

A review essay discussing Danielle Keats Citron’s Hate Crimes in Cyberspace (Harvard University Press 2014) and Amy Adele Hasinoff’s, Sexting Panic: Rethinking Criminalization, Privacy and Consent (University of Illinois Press 2015). Both books consider the risks and harms in cyberspace, blaming of victims, and the interaction between law and online expression. Citron documents widespread hate speech, cyberstalking, revenge porn, and other speech that especially targets women online. Hasinoff, grounded in feminist and cultural studies, emphasizes the positive aspects of the agency girls who sext voluntarily display in exploring and displaying their sexuality, arguing that advising girls that control of their own lives must lead them refuse to sext (a widespread approach) deprives them of voice. Both books analyze law and propose legal reforms, and both also explore the relationship between social norms and legal regimes. Ross’s review finds commonality in the authors’ arguments that women “have a right to sexual expression without fear of moral or legal repercussions” and that both ultimately “look to greater self-policing by the technology industry,” and to promoting “cultural transformation” as much as legal change.

 

The Rise of Women Judicial Leaders in Africa

Josephine Dawuni & Alice Kang, Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa, 62 Africa Today 45 (2015)

In recent years, women have been selected as leaders of African judiciaries. This article identifies where and when women have become chief justices and presidents of constitutional courts from 1990 to 2014. We profile women from three civil-law and three common-law countries and find that the women selected meet or exceed the requirements for holding the highest position in the judiciary. We then explore why some African countries, but not others, have had female judicial leaders. We initially find that the selection method may be less important than the type of legal system, the commitment of gatekeepers, the end of major armed conflict, and regional diffusion in explaining why some countries have seen women rise to leadership positions in the judiciary.

Court Holds EEOC Met Obligation to Conciliate Sex Bias Claim

BNA, EEOC Met Obligation to Conciliate Sex Bias Claim  

The Equal Employment Opportunity Commission met its obligation to try to settle, or conciliate, a sex discrimination claim before suing a health-care provider, a federal district court in Maryland decided (EEOC v. Dimensions Healthcare Sys., 2016 BL 169980, D. Md., No 15-2342, 5/27/16 ).

 

After the EEOC sued alleging Dimensions Healthcare System denied a promotion to a female employee because of her sex, the company contended the agency hadn't adequately tried to conciliate the claim before the lawsuit. The EEOC didn't meet its pre-lawsuit obligations under Title VII of the 1964 Civil Rights Act, Dimensions argued.

 

Applying Mach Mining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (U.S. 2015) (82 DLR AA-1, 4/29/15), the district court said evidence that the EEOC invited Dimensions to “informally resolve” the sex bias claim, sent a conciliation proposal to the employer and informed Dimensions that conciliation had failed after two months had elapsed satisfied the agency's obligation.

 

“We are pleased that courts consistently apply” Mach Mining in a way “that recognizes the ‘expansive discretion' the [EEOC] has in the conciliation process, and that ensures the focus of commission litigation is on the merits of the case,” EEOC General Counsel P. David Lopez said in a June 1 e-mail to Bloomberg BNA.

Ending Marital Rape per International Law

Melanie Randall &Vasanthi Venkatesh,  Why Sexual Assault in Intimate Relationships Must be Criminalized as Required by International Human Rights Law, American Journal of International Law Unbound, May 17, 2016.

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women,rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.

Critiquing “Crisis” in Campus Sexual Assault Responses

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.  

 

Merriam-Webster’s Dictionary defines the term “crisis” to mean a “turning point for better or worse in an acute disease or fever,” an “attack of pain, distress, or disordered function,” or “an emotionally significant event or radical change of status in a person’s life (e.g., midlife crisis).” Dictionary.com likewise defines a “crisis” as a “turning point” in a sequence of events, “a condition of instability or danger, as in social, economic, political, or international affairs, leading to a decisive change,” or “a dramatic emotional or circumstantial upheaval in a person’s life.” The word “crisis” itself is of late Middle English origin, rooted in “kri,” meaning to decide, separate, or judge. 

These definitions align well with many political and social uses of the word “crisis.” The Cuban Missile Crisis was a turning point in a sequence of events. It was a condition of instability leading to decisive change. It was a dramatic upheaval. The refugee crisis of families fleeing Syria can be defined as a condition of instability or danger, an upheaval, or a turning point. These definitions work well for most humanitarian crises following earthquakes, tsunamis, floods, etc. The word crisis, however, is notably not used in other occurrences. We do not think of cancer, debilitating illnesses, poverty, terrorism, or child abuse through the lens of “crisis.” Nor do we think about being victims of other types of crimes generally as creating a “crisis,” like arson or assault. Rather, these comparative examples are thought of as either more systemic, more longstanding, perhaps with more permanence or enduring complexities than a “crisis,” or, alternatively, as episodic and isolated.    

The rape crisis model has dominated community responses to sexual assault since the 1970s and 1980s. We send women to “crisis centers,” staff “rape crisis” hotlines, and deploy “crisis response” teams. In this capacity, rape is framed as creating a “crisis” for individual survivors of it, needing quick responses and interventions. That language has carried over into campus sexual assault responses as well, but in the context of campus sexual assault, it has been used in two distinct ways. First, campus sexual assault responses have transported the crisis response model applied in communities directly to college campuses. Colleges likewise offer crisis counseling, crisis hotlines, and crisis teams to assist students who have been sexually assaulted. Second, the language of crisis on college campuses has also been used in a very different way. It has also been used on a systemic level to frame a “campus sexual assault crisis” in the frequency and the normalization of campus sexual assault. This framing has been used regularly in news stories and political calls to action. 

Both uses of “crisis” seem to merit more thoughtful consideration in the campus sexual assault context. First, in its micro application to individual victims, this language of crisis denotes urgency, decisiveness, judgment, action, and mobilization, all leading to closure. These descriptions are problematic when mapped on to the lived experiences of campus sexual assault victims. The National Institute of Justice reports that an assailant known to the victim perpetrates 85%-90% of sexual assaults reported by college women. Campus sexual assaults are more often happening at parties, on dates, and in the victim or assailant’s residence. According to the National Institute for Justice, these complexities lead more than half of student victims to not define the incident as “rape” and just a small fraction of victims to report. Absent an obvious physical injury in many cases and without the complexities of identifying or “catching” the assailant, the language of “crisis” may not resonate with the experiences of campus sexual assault victims. For campus sexual assault victims, the experience is often dominated by confusion, self-doubt, isolation, and loneliness. It is not hallmarked by decisive action leading to closure for many, if not most, women.  Might there be collateral consequences to this framing? Might the language of crisis, for example, suggest urgency to reporting that is not consistent with existing statute of limitation laws? Might it suggest a need for decisive action, even beyond that which the law requires? Might it communicate implicitly to victims that closure or decisive judgment are to be expected, when the lived experiences reveal that the harms of sexual assault endure far beyond the immediate aftermath? Second, on a systemic level, while the language of crisis seems to invoke an urgent call to action, which is to be applauded, this language of systemic crisis also risks blurring the long history of sexual assault on campus and erasing a legacy of inaction. It also suggests a beginning and an end. It suggests that closure is attainable, when ongoing monitoring, responsiveness, and engagement are critically necessary. Transporting the language of “crisis” from community response models to campus sexual assault might complicate our understanding of and responses to campus sexual assault in ways worthy of further examination.