Gender and the Law Blog

Domestic Violence in the Divorce Cases of Marital Cruelty, 1840-1860

Book Review: Harris on Sager, Marital Cruelty in Antebellum America, reviewing the book Robin C. Sager, Marital Cruelty in Antebellum America (Lousiana State University Press 2016)

In literature and the popular press, antebellum women were lauded for their virtue and piety; they maintained the sanctity of the home and were responsible for the moral training of the next generation. Yet, many homes were not idyllic sites of domestic tranquility. In Marital Cruelty in Antebellum America, Robin C. Sager uncovers the fascinating and disturbing account of “those spouses who were simply trying not to kill one another” (p. 12). Through an analysis of 1,500 divorce cases in Virginia, Texas, and Wisconsin, Sager chronicles the meanings and cultural significance of marital cruelty in the years 1840-60. Sager contends that regional scholarship has tended to label the South as particularly violent, connecting that violence to norms of Southern honor. To interrogate these assumptions, the author analyzes Virginia (often considered the archetypal Southern state), Texas (a frontier Southern state), and Wisconsin (a frontier state in the process of settlement). Sager finds that the cultural uncertainty of frontier Wisconsin perpetuated violent domestic cruelty, while greater stability of gender norms in Virginia and Texas mitigated violence in marriage.

 

Marital Cruelty is organized around types of cruelty: verbal, physical, sexual, and negligence. Within each chapter Sager compares divorce cases from Virginia, Texas, and Wisconsin. In the chapter on physical cruelty, for example, Sager identifies a fixation on the exact nature of the violence in each state’s attempt to determine the line between permissible violence and marital cruelty. Courts would attempt to determine the exact number of blows, the type of violence, and the emotional valences behind the violence. While there was no universal standard for what constituted cruelty, violence that reinforced gendered familial duty was more likely to be considered legitimate. As such, whipping tended to be more acceptable than punching, and the seemingly rational administration of violence was more acceptable than emotional or animalistic violence. Sager also identifies significant regional differences in physical violence, explaining that the unsettled frontier of Wisconsin led to “more permanent injuries and generalized brutality within marriages than can be seen in either Virginia or Texas for the period” (p. 39). This chapter is also notable because it includes instances of wives' cruelty toward their husbands, a particularly egregious violation of gender expectations. * * * 

 

The unrelenting litany of domestic violence can be challenging to read, but the attention to regional difference and lower court marriage law makes the study valuable to researchers. While state and federal appeals and Supreme Court decisions from the antebellum era are more likely to be accessible, documents from lower-level divorce cases can be difficult to find. The vast majority of citizens seeking a divorce would have had their case only heard before a lower-level court, such as a circuit, district, or chancery court, and Sager’s meticulous research provides unique insight into the ways in which Americans used the state to negotiate marital conflict. However, as the author notes, not all Americans had equal access to the law, and Sager acknowledges that the choice to study divorce cases may obfuscate questions of race and class.

Why are Feminist Judgments Necessary?

Kathy Stanchi, Why Are Feminist Judgments Necessary?

Feminist Judgments: Rewritten Opinions of the United States Supreme Court, the new book I edited with Linda Berger and Bridget Crawford, imagines what 25 key Supreme Court cases on gender might have looked like had the Justices used feminist reasoning to decide the cases. In essence,Feminist Judgments imagines a Supreme Court diverse in multiple ways – not just race, gender, socioeconomic class and sexual orientation, but also philosophy, experience and perspective. The United States Supreme Court has been remarkably homogeneous in all these ways throughout history.

Would Feminist Judgments have been necessary as a visionary project had we had an ERA? It is unclear. Perhaps the passage of the ERA would have changed the composition of the Court – but that seems unlikely. And when I ponder what the ERA would have meant for American anti-discrimination law in the hands of an entirely conservative, white, economically privileged male Supreme Court, questions linger. After all, Geduldig’s holding was based on the famous distinction between women and “pregnant persons.” If it isn’t sex discrimination to treat “pregnant persons” unequally, would an ERA have really made a difference? And Roe and its progeny might have fared no better. Feminist advocates have been largely unsuccessful in convincing the Supreme Court that anti-abortion laws are an equal protection violation based on sex. If “pregnant persons” are a different category from women, aren’t “persons who get abortions” a similarly limited category?

One mission of Feminist Judgments: Rewritten Opinions of the United States Supreme Court is to show that diversity – of sex, race, socioeconomic class, sexual orientation, among others – matters in our system of law. ERA or no ERA, the composition of the Court is critical, because the Justices are the last interpretive word on what the Constitutional text means. If the Justices saw the ERA as limited, or not covering pregnancy or abortion, all the grand words of equality would not have made a real difference in women’s lives. So, in some ways, Phyllis Schlafly made Feminist Judgments necessary, but we might have needed it anyway.

The related US Feminist Judgments Conference, Rewriting the Law, Writing the Future is October 20 & 21.  Register here.

Misogyny May Become a Hate Crime in England

Guardian, Police in England and Wales Consider Making Misogyny a Hate Crime

Police forces across England and Wales are considering expanding their definition of hate crime to include misogyny after an experiment in one city that saw more than 20 investigations launched in two months.

 

The initial success of Nottingham’s crackdown against sexist abuse has drawn national interest after the city’s police revealed that they investigated a case of misogyny every three days during July and August, the first months to see specially trained officers targeting behaviour ranging from street harassment to unwanted physical approaches.

 

Several other forces have confirmed they are sending representatives to Nottingham this month to discuss the introduction of misogyny as a hate crime.

 

Police and campaigners said the initial figures were broadly in line with other categories of hate crime such as Islamophobia and antisemitism but were likely to rise significantly as awareness increased.

 

Dave Alton, the hate crime manager for Nottingham police, said: “The number of reports we are receiving is comparable with other, more established, categories of hate crime. We have received numerous reports and have been able to provide a service to women in Nottinghamshire who perhaps wouldn’t have approached us six months ago. The reality is that all of the reports so far have required some form of police action.”

Sister Wives Stars File Cert to Supreme Court

Celebrity Plural Family Case Appeal Filed With the Supreme Court

“Sister Wives” TV star Kody Brown is taking his case to Washington, as his attorneys have filed a last-ditch Supreme Court appeal in Brown’s “plural family” case.

 

George Washington University law professor Jonathan Turley filed a request for the high court to take Brown’s appeal. Since 2010, Brown and his four “Sister Wives” have starred in a reality show on the TLC network that documents their lifestyle in Utah and Nevada.

 

Brown has been in court trying to determine if there is a constitutional right to his plural family lifestyle. Brown is legally married to one woman and also “spiritually married” to three other women at the same time. Two years ago, Brown and his attorneys won a significant victory in a federal court in Utah.

 

Before that in 2011, Brown sued the state of Utah after episodes of “Sister Wives” were shown on TLC, and Utah County Attorney Jeff Buhman threatened to prosecute Brown under the state’s anti-polygamy laws. Brown and his family moved to Nevada in reaction to the threat from Buhman. Then, Buhman adopted policies that would exempt the Brown family from the Utah law.

 

A federal judge, Clark Waddoups, handed Brown’s cause a big victory when he struck down part of a Utah state law making it a crime to “cohabit with another person” if the partners weren’t legally married to each other. The state of Utah then appealed the decision to the U.S. Court of Appeals for the Tenth Circuit, which overturned the decision made by Waddoups. A three-judge federal appeals court panel ruled the case as “moot,” since Brown didn’t face prosecution from Utah County.

 

After failing to get the full Tenth Circuit bench to hear Brown’s appeal, Turley filed paperwork with the U.S. Supreme Court on Monday, arguing that the case was about Brown’s constitutional rights.

New Book: Lifetime Disadvantage, Discrimination and the Gendered Workforce

New Book Examines Working Women's Lifetime Disadvantage highlights the forthcoming book by Susan Bisom-Rapp and Malcolm  Sargeant, Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge Press). 

From the publisher:

Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women's discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.

• Proposes a new model of lifetime discrimination suffered by women at work, leading to an holistic solution rather than the current incremental approach
• Examining how the law approaches each stage of women's working life cycle allows readers to identify the disjointed incremental approach and see its disadvantages
• Provides a new framework for discussing the issue of disadvantage that women suffer in employment

New Books: Gender Shrapnel in the Academic Workplace

Ellen Mayock, Gender Shrapnel in the Academic Workplace

Female students and faculty members have often felt at odds with their institutions and other members of their workplaces when sexual harassment and assault enter the work environment. What is one to do when experiencing gender-based discrimination in the academic workplace? Ellen Mayock in her recent book Gender Shrapnel in the Academic Workplace (Palgrave Macmillan, 2016) seeks to put a name to the phenomenon that many women in academia face as well as provide solutions to institutional failures that allow for these experiences of harassment and assault to occur. Drawing upon feminist theory, linguistics, and the power of personal narratives, Mayock discusses how gender shrapnel occurs in the academic workplace. The later chapters of the book provide very tangible solutions to gender shrapnel that individuals and institutions can embark upon in order to curb the instances of gender shrapnel in academia.

 

The Symmetry Principle of Anti-Discrimination Law

Bradley Areheart, The Symmetry Principle

Abstract:     

Antidiscrimination principles have been studied and written about for decades. Surprisingly, the question of how some laws protect symmetrically, while others protect asymmetrically, has received little attention. Even more surprising is the fact that legal scholars have not provided any systemic account of symmetry’s function in antidiscrimination law. Title VII, for example, makes it illegal to discriminate against both blacks and whites, against both men and women. In contrast, the Age Discrimination in Employment Act’s scope is asymmetrical in that it protects only those over the age of forty. This Article proposes “the symmetry principle” as a major normative theory for considering the design of antidiscrimination laws. When antidiscrimination laws are symmetrical they have the capacity to harness a unique mix of strengths—while minimizing weaknesses—from previous normative theories regarding the means and ends of antidiscrimination law. The symmetry principle is thus a design compromise, somewhere between the poles of particularism and universalism, in fashioning laws to prevent and rectify subordination.

 

Scholars Debate Whether the ERA's Defeat was Really a Loss for Feminism

NYT, Was the ERA's Defeat Really a Loss for Feminism?

When Congress submitted the Equal Rights Amendment to the states in 1972, it seemed as if a monumental feminist victory was at hand. In five years all but three of the 38 states needed for ratification had approved the measure, which asserted that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Then conservative forces — led by Phyllis Schlafly, who died this week at the age of 92 — fought back, killing the E.R.A. and staggering the feminist movement.  

 

Since then, Supreme Court rulings have recognized principles of equality the amendment was intended to enforce. Did feminists win even though the E.R.A. was defeated?

  Joanna Grossman, Even the ERA Couldn't Bring About Real Equality

Mary Ann Case, Supreme Court has Delivered on Many of the ERA's Promises

Elizabeth Price Foley, The ERA's Defeat Prevented More Radical Changes

Serena Mayeri, Despite Feminist Gains, Effects of ERA's Defeat are Unknown

I recently wrote a bit on this topic in a book chapter forthcoming tracing the history of the ERA back to its origins in the late suffrage movement and then up to its modern resurrection.   See Tracy Thomas, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Lee Ann Banaszak & Holly McCammon eds. forthcoming Oxford U. Press) (with TJ Boisseau)

A key question is whether legally women need the ERA, or whether its goals of general equality and specific rights have effectively been accomplished through other means. The virtually unanimous consensus of legal scholars is that the ERA’s goals have been effectively achieved through the Supreme Court’s equal protection jurisprudence. Courts now review gendered state action under intermediate scrutiny requiring that any laws treating women differently be justified by important governmental interests and that the laws be closely tailored to those interests. Other scholars, however, have emphasized the limitations of equal protection analysis for sex equality. For gender discrimination cases under equal protection, the Court utilizes a lower standard of intermediate scrutiny, rather than the strict scrutiny used in race and religions discrimination. This lower standard tolerates many of the continuing instances of less overt sex discrimination and laws that have discriminatory effect rather than textual prohibitions on gender. The equal protection approach is also limited because it requires proof of intent--defendants thinking bad thoughts about women--which [Catharine] MacKinnon notes “doesn’t address how discrimination mostly operates in the real world,” where “the vast majority of sex inequality is produced by structural and systemic and unconscious practices” inherited from centuries of gender hierarchy. Equal protection law’s formal classification structure, she explains, which rigidly treats only exactly similar things the same, is incapable of assessing the ways in which people “can be different from one another yet still be equals, entitled to be treated equally” or where affirmative diversity is needed to treat alike those whom are different. 

 

Some scholars also conclude that equality for women has essentially been achieved for women without the ERA because the specific substantive goals of the amendment were accomplished through a variety of federal legislation on specific issues as well as the parallel state constitutional amendments. Twenty-three states adopted mini-ERAs and such amendments have helped strengthen women’s ability to challenge discriminatory laws in those states. Courts often interpret the state ERAs to require strict scrutiny, and two states mandate an even higher absolute standard that presumes any discriminatory law to be unconstitutional. In addition, federal legislation has mandated equal employment and education in The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Pregnancy Discrimination Act of 1978, and the Violence Against Women Act of 1994. Such piecemeal legislation, however, is subject to the political ebb and flow and can be rolled back, as the Violence Against Women Act was when the Supreme Court held in United States v. Morrison (2000) that Congress had no power to address civil remedies for domestic violence.

 

The renewed campaign for an ERA emphasizes the continued systemic harms to women of economic inequality, violence against women, and pregnancy discrimination and the limits of existing laws to address these concerns. Proponents of ERA emphasize the need for a permanent constitutional guarantee to control an overarching legal and social principle of women’s equality. The U.S., unlike the majority of other countries, has refused to incorporate such an express guarantee in its written constitution or adopt the international women’s bill of rights by ratifying the United Nations’ treaty.  The absence of an express guarantee permits traditional literalists like Justice Antonin Scalia to opine: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” The ERA offers a corrective to this thinking and the equivocal state of women’s rights under the law. It offers a textual guarantee of sex equality, an inspiration for public policy, and a powerful symbolic support of women’s equality in all social and legal venues.

 

The Anti-Feminism of Phyllis Schlafly

Arch anti-feminist Phyllis Schlafly died this week.  She has ironically, as Slate notes, become "doomed to represent the feminism she hated."

I recently wrote about Schlafly and her leadership of the political movement that stopped ERA.   After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Lee Ann Banaszak & Holly McCammon eds.) (Oxford Univ. Press forthcoming) (with TJ Boisseau).

The face of women’s opposition to ERA was conservative activist Phyllis Schlafly and her STOP ERA (Stop Taking Our Privileges) organization. Schlafly, a mother to six children, offered herself to the anti-ERA movement as a voice for stay-at-home mothers in need of special privileges and protections under the law. The irony that she, much like all the most prominent reformers historically lining up on either side of the ERA amendment (such as Alice Paul, Florence Kelley, and Pauli Murray), held a law degree and enjoyed a flourishing decade-long career in the public eye, was utterly elided in her rhetoric.

 

Doggedly focused on women’s roles as mothers and home-makers, Schlafly trumpeted the cause of women’s difference from men—championing the special rights of women as citizens who, ideally, did not work outside the home.  She asserted that equality was a step back for women: “Why should we lower ourselves to ‘Equal Rights’ when we already have the status of ‘special privilege?’”  She and other ERA opponents reframed the issue as forcing women into dangerous combat, co-education dormitories, and unisex bathrooms.  Feminist advocates responded by clarifying that privacy rights protected concerns about personal living spaces in residences and bathrooms, but their counsel was unheard in the din of threat to traditional family and gender roles. Opponents equated ERA with homosexuality and gay marriage, as the amendment’s words “on account of sex,” “were joined with ‘sexual preference’ or homosexuality to evoke loathing, fear, and anger at the grotesque perversion of masculine responsibility represented by the women’s movement”  Schlafly hurled insults at the ERA supporters, urging her readers to view photographs of an ERA rally and “see for yourself the unkempt, the lesbians, the radicals, the socialists,” and other activists she labeled militant, arrogant, aggressive, hysterical, and bitter. When ERA supporters “gathered at the federally financed 1977 International Women’s Year Conference in Houston and endorsed homosexual rights and other controversial resolutions on national television, they helped to make the case for ERA opponents.” 

 

The shift in debate slowed and then stopped ratification of the ERA. In 1974, three states ratified the amendment, one state ratified in 1975 and in 1977, and then ended with only 35 of the 38 required.  At the same time, states began to rescind their prior ratifications, with five states voting to withdraw their prior approval. The legality of the rescissions was unclear, but these efforts had political reverberations in the unratified states. When the deadline arrived without the required three-fourths approval, Congress voted in 1978 to extend the ratification deadline three years to June 30, 1982.  Not a single additional state voted to ratify during this extension.

 

 

New Autobiography of one of the First Woman Law Profs

Barbara Babcock's Memoir "Fish Raincoats" Recounts a Woman Lawyer's First, Quid Pro Books

The life and times of a trailblazing feminist in American law. The first female Stanford law professor was also first director of the District of Columbia Public Defender Service, one of the first women to be an Assistant Attorney General of the United States, and the biographer of California’s first woman lawyer, Clara Foltz. Survivor, pioneer, leader, and fervent defender of the powerless and colorful mobsters alike, Barbara Babcock led by example and by the written word — and recounts her part ofhistory in this candid and personal memoir.

 

"For woman lawyers, Barbara Babcock has led the way. How? By being smarter and tougher than the men; also, more empathetic and self-aware. Funny, shrewd, and telling, her memoir Fish Raincoats is a joy to read.”
— Evan Thomas, author of Being Nixon: A Man Divided

 

“Life will afford you no better sherpa on the extraordinary journey women have taken in the legal profession than Barbara Babcock. This book should be required reading for anyone who isn’t certain that they have a place at the lawyers table. Babcock’s amazing life has made a space for so many of us. Her story will do the same.”
— Dahlia Lithwick, Senior Editor, Slate

Here is also a book review I wrote of Babcock's key work on the biography of California's first lawyer Clara Foltz. Book Review: Woman Lawyer: The Trials of Clara Foltz (Stanford Press 2011).

 

Rethinking Sex Discrimination Remedies from a Feminist Perspective

The book US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016), is now published.

My contribution was to rewrite the Supreme Court's decision in  City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978) regarding sex discrimination in retirement benefits for women.  The department had charged women extra for their retirement benefits because, on average, women live longer than men.  The Court invalidated that practice as violating Title IX.  By then the practice had stopped, due to intervening state law.  The Court however refused to award reimbursement of the discriminatory surcharges.  

Here's an excerpt on the remedies point:

Ubi Jus, Ibi Remedium

            The question remains as to the appropriate relief in this case. It is a standard proposition of law that ubi jus, ibi remedium: “where there’s a right, there must be a remedy.” As we held in the early days of this Court, the very foundations of justice and jurisprudence require that violations of rights are vindicated with meaningful remedies. Marbury v. Madison, 5 U.S. 137 (1803). “It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.” Id. For in the absence of such tangible, meaningful relief, legal rights become empty, unenforceable aspirations that are not supported with concrete action forcing defendants to internalize the consequences of their wrongful behavior. Without specific consequences, defendants have no incentives to avoid such discriminatory misconduct.

            That is the case here. The Department seeks to avoid all consequences for its history of sex discrimination. While injunctive relief and an intervening California law have ended the use of this discriminatory plan, they do not redress the years of overcharges and lost monies to the plaintiff class. The Civil Rights Act provides that a court in a Title VII case may “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement . . . with or without back pay . . . or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5. Back pay is limited to two years prior to the filing of the case with the EEOC. Id. at 5(g). Courts also have discretion to award prevailing plaintiffs attorney’s fees. Id. at 5(k). In accordance with the statute, the District Court ordered the refund of all overcharges going back to April 5, 1972, the date of the EEOC regulations. Fair Emp. Prac. Case at 1625. This was a shorter period of time than permitted by the statute, which would have allowed retroactive relief to June 5, 1971. The court also awarded reasonable attorney’s fees.

        While the Department challenges this retroactive refund as inappropriate, the Court has previously established a “presumption in favor of retroactive liability” in Title VII cases which “can seldom be overcome.” Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The strong presumption is that “the injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Id. at 418. Retroactive relief should be denied only “for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.”  Id. at 421.  Retroactive monetary relief makes plaintiffs whole and provides the consequences for discriminatory conduct and the incentives for required egalitarian treatment. Such retroactive relief is the usual default remedy in both Title VII and the law more generally. The only required showing is loss to the plaintiff. No heightened standard of bad faith or evil intent is required because the statutory purpose is compensatory, not punitive. “If backpay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers’ injuries. This would read the ‘make whole’ purpose right out of Title VII for a worker’s injury is no less real simply because the employer did not inflict it in ‘bad faith.’” Id. at 422. Thus, it is immaterial whether the plan administrators were conscientious or recalcitrant in the face of intervening EEOC guidelines. What is relevant is the economic loss to the plaintiffs from the charges illegally withheld from their paychecks. We measure the amount of this loss by awarding the difference between contributions made by female employees and those made by male employees. While the inability to assess the discriminatory surcharge might have required the Department to adopt a different, undifferentiated actuarial table that would have reassessed contributions for both women and men, we cannot use this hypothetical past to calculate monetary relief nor can we rectify a precise accounting by deducting pay from the checks of the male employees who are not parties to this action. Instead, our goal is to ensure the “employee is placed in no worse a position than if” the conduct had not occurred, and the return of the improper contributions as actually paid is necessary required to provide that meaningful relief as envisioned by Title VII.  Mt. Healthy City School District Board of Ed. v. Doyle, 429 U.S. 274, 286 (1977).

            We recently approved such retroactive relief for a class of men in a Title VII case similarly challenging a retirement plan. Fitzpatrick v. Bitzer, 427 U.S. 455 (1976). In Fitzpatrick, the Court held that a state retirement plan that allowed women to retire five years earlier than men discriminated on the basis of sex and that the Eleventh Amendment did not bar retroactive payment of retirement benefits as an appropriate remedy. Denying this same retroactive relief in the case here when confronted with a similar discriminatory retirement plan would establish the perverse rule that allows damages for men, but not women. Such a result would clearly “frustrate the central statutory purposes of eradicating discrimination” under Title VII by re-inscribing sex inequality via the remedial mechanism. Albemarle Paper Co., 422 U.S. at 421.  

A Proposal for a Post-Arrest Confrontation Hearing in Domestic Violence Cases

Robert Hardaway, Domestic Violence and the Confrontation Clause: The Case for a Prompt Post-Arrest Confrontation Hearing, 22 Cardozo J.Law & Gender 1 (2015)

In the years leading up to the 2004 Supreme Court decision in Crawford v. Washington, a prosecutor could pursue a domestic violence case and introduce the prior accusatory testimonial statement of the victim even if the victim refused to appear at trial, declined to testify at trial, retracted a prior statement made to police, or claimed lack of memory about the events described in her prior statement. Introduction of a prior statement was permissible if the victim was unavailable, and the statement bore "adequate indicia of reliability" as indicated by falling within a "firmly rooted hearsay exception" or satisfied "particularized guarantees of trustworthiness."  In Crawford, the Supreme Court overruled Ohio v. Roberts, holding that admission of a prior victim statement complied with the Confrontation Clause only if the victim was unavailable, and the defendant had a "prior opportunity to cross-examine."  Critics of Crawford claimed that it initiated an "open season" on domestic violence victims by giving the defendant spouse an irresistible motive to escape justice by intimidating, threatening, or even killing the victim prior to the victim being becoming subject to cross-examination at trial.

 

It has been noted that the cause of justice pays a high price for insuring the right to physically confront a witness at trial-which may take place months or even years after the arrest of the defendant-because it provides the accused with ample time to intimidate or threaten potential witnesses against him.  Defendants in domestic violence cases quickly realize that without a testifying witness at trial, the case against him must be dismissed no matter how hideous the crime of which he is charged.' Witness tampering appears to work in favor of perpetrators, particularly in domestic violence cases, because 80-90% of victims do not cooperate with prosecutors in domestic violence cases. These cases include instances in which a witness mysteriously disappears prior to trial, declines to testify, or refuses to cooperate with the prosecution. This has proved to be of particular concern in domestic violence cases in which a battered spouse declined to testify for a variety of reasons, including purported lack of memory,  a fear of retribution either admitted or suspected, a plea for understanding from the prosecutor of a victim's desire to preserve the family unit, or a claim that the defendant has changed his ways and propensity for violence and is unlikely to repeat his crime. 

It is the aim of this article to propose a more effective means of eliminating a defendant's motive to intimidate or harm domestic violence victims who may be witnesses against the defendant at trial by providing defendants in domestic violence cases with the right to cross-examine a complaining witness at a confrontation hearing convened promptly after the defendant's arrest. Such a procedure would both comply with the Crawford requirement of a "prior opportunity to cross-examine" while reducing the time in which a defendant can devise means of making the victim unavailable for trial.

 

New Issue Yale Journal of Law & Feminism

Roman, Hannah. Foster parenting as work. 27 Yale J.L. & Feminism 179-225 (2016). [H]|[L]|[LA]|[W]|[WN]

Elengold, Kate Sablosky. Structural subjugation: theorizing racialized sexual harassment in housing. 27 Yale J.L. & Feminism 227-286 (2016). [H]|[L]|[LA]|[W]|[WN]

Abrams, Jamie R. The feminist case for acknowledging women's acts of violence. 27 Yale J.L. & Feminism 287-329 (2016). [H]|[L]|[LA]|[W]|[WN]

Nicolas, Peter. Fundamental rights in a post-Obergefell world. 27 Yale J.L. & Feminism 331-361 (2016). [H]|[L]|[LA]|[W]|[WN]