Monday, January 31, 2022

Concurring Opinion in Felony-Murder Conviction Highlights Femicide in U.S.

The Massachusetts Supreme Court published Commonwealth v. Paige in December 2021. The case involved the 1987 killing of Dora Brimage for which the defendant had been indicted in 2016. The defendant and his brother drove Dora home from a party. She was found murdered the next day at a construction site where defendant's brother worked. She died of blunt force injuries to her head and strangulation. The case remained unsolved until 2013 when federal funding supporting the use of DNA testing to solve "cold cases" was used to test sperm located on the victim. The defendant was subsequently charged with felony-murder in the first degree with a predicate offense of aggravated rape. The Supreme Court upheld the conviction after considering several issues on appeal. The case is quite remarkable for the concurring opinion written by Justice Elspeth B. Cypher contextualizing the case as femicide within a larger epidemic of violence again women. The opinion is heavily excerpted below with citations and footnotes largely omitted: 

I write separately to more firmly reject our reasoning in Commonwealth v. Scesny, 472 Mass. 185, 34 N.E.3d 17 (2015), and to address the continuing epidemic of violence against women, including femicide. We have not used the term “femicide” in our case law, but I think it should be recognized as a distinct phenomenon.

Femicide is the intentional killing of a woman because she is a woman. Because the victims of femicide are targeted based on their sex, femicide may be understood as a type of hate crime. The violence of these offenses serves to terrorize the victims and, thus, to subjugate women as a group. As such, hate crimes exact a greater toll on society and women, both individually and as a group, than isolated incidents of violence. 

Femicide also exists on a continuum of sexual violence, including sex trafficking, rape, aggravated rape, and sexual harassment. When any one of these forms of sexual violence results in death, a femicide has been committed. Femicide is thus “the most extreme form of sexist terrorism, motivated by hatred, contempt, pleasure, or a sense of ownership of women.” J. Caputi & D.E.H. Russell, Femicide: Sexist Terrorism against Women, in Femicide: The Politics of Women Killing 13, 15 (J. Radford & D.E.H. Russell eds., 1992). Where, as here, the jury apparently found that the victim’s murder stemmed from the same criminal episode as her aggravated rape, I believe it is appropriate to refer to her killing as a femicide.

[Omitted discussion of the legal treatment of women historically as context for femicide, including the legality of marital rape and doctrines like the "heat of passion," which implies that the victim, by committing adultery, is partly to blame for the defendant’s violence, and that the defendant was excused in the killing."]  


To use the term “femicide” also acknowledges its prevalence in our society at large. Reliable data on the incidence of femicide is unfortunately lacking. No official sources directly study male-on-female homicide or its motivations. An analysis of cross-sex homicide rates generally, however, suggests that femicide is on the rise in the United States. See Violence Policy Center, When Men Murder Women: An Analysis of 2019 Homicide Data 2 (Sept. 2021) (“Since reaching its low ... in 2014, the rate [of women murdered by men in incidents with one victim and one offender] has increased, with 2019’s rate ... up nine percent since 2014”).

The Federal Bureau of Investigation (FBI) Uniform Crime Reporting (UCR) Program provides the primary source of data on such homicides. * * *  The UCR shows that in the year 2019, there were 1,647 known killings of women committed by men, compared to 477 killings of men by women. The year before, there were 1,731 killings of women committed by men. While these statistics paint a blurry portrait of femicide in the United States, they demonstrate that its occurrence is significant.

The paucity of statistics is partly to blame for femicide’s lack of recognition. More importantly, femicide also is ignored because of its finality. As Jill Radford appropriately notes, “When a woman is killed, there may be no survivor to tell her story.” Radford, Introduction, Femicide: The Politics of Women Killing at 4. While there may be valid reasons for society’s reluctance to relive the violent murders of women, the failure to do so risks femicide being forgotten or denied.

It is in the context of this finality that I wish to make clear that I reject the reasoning in Commonwealth v. Scesny, 472 Mass. at 193-194, 34 N.E.3d 17. In both Scesny and the present case, the evidence tended to establish that in each case, the sexual encounter with and the killing of the victim were contemporaneous. While it is certainly true that a killing may follow a consensual sexual encounter, that does not appear to have occurred in either case; each woman was apparently murdered so immediately after her rape that neither woman even had the chance to stand up after the assault. Id. at 189-190, 34 N.E.3d 17. Nonetheless, in Scesny, we concluded that there was insufficient evidence of rape because its traditional indicia, such as torn clothing or injured genitalia, were absent. Id. at 193, 34 N.E.3d 17.

This reasoning obscures the context in which the rape occurred: femicide. When a killing takes place following a rape, the victim no longer can testify about the absence of consent in the sexual encounter. She effectively has been silenced. In cases such as these, the jury must be permitted to infer from the evidence of a killing that the sexual encounter was nonconsensual. This is not a “piling [of] ‘inference upon inference’ ” or “conjecture and speculation.” * * * These are reasonable inferences that the jury are entitled to draw. 

Additionally, such inferences wholly are in line with our previous holdings that consent is not a defense to serious injuries allegedly inflicted during sexual encounters. Analogously, consent is not present where the jury find that the sexual encounter took place at the same time as a violent killing.

I also wish to address directly the implication that prostituted women are more likely to consent to a sexual encounter before being killed. A prostituted woman is no more likely to do so than a nonprostituted woman. Even outside the context of homicide, evidence that a woman is prostituted does not decrease the likelihood that she was raped. Rather, studies suggest that prostituted women are more likely to be raped than others. * * * Additionally, evidence suggests that homicides occur with similar frequency alongside prostitution as they do alongside rape.  

Regardless whether the victims in Scesny and the present case were prostituted, I agree with the court that the jury should be permitted to infer that a sexual encounter was nonconsensual where it occurred contemporaneous with a killing. Permitting the jury to make such a finding acknowledges that femicide and rape both exist on a continuum of sexual violence.

January 31, 2022 in Courts, Violence Against Women | Permalink | Comments (0)

Compared to What? Menstruation, Pregnancy, and the Complexities of Comparison

Emily Gold Waldman has published her article Compared to What? Menstruation, Pregnancy, and the Complexities of Comparison in volume 41 of the Columbia Journal of Gender and Law. The abstract summarizes : 

When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York’s tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a “double standard” when deciding which products would be considered tax-free medical items and which would not. Similar arguments were made in the subsequent challenge to Florida's tampon tax. In both cases, the arguments had powerful rhetorical force, helping to effectuate legislative repeal of the tampon taxes in those states.

This piece explores the complexities of the comparative model as applied to sex discrimination claims that are connected to female biology. On the one hand, comparisons can be a useful and precise way to pinpoint discrimination. But the model also contains two traps. First, almost no comparison is perfect. There is often some potential for distinguishing and line-drawing, some way to argue that the comparison does not fully hold up. Second, the comparative model is itself inherently limiting. The biological processes of menstruation, menopause, and pregnancy (along with breastfeeding, which this piece does not address) are closely intertwined with female sex, with no obvious analogues. Indeed, these processes impose specific challenges and needs that are not borne equally across the sexes. Yet the comparative model reductively suggests that if no products receive tax-exempt status, or if no employees receive accommodations for their inability to work, there is no sex discrimination issue at all. Although advocates cannot escape the current comparative framework within which they must work—and indeed should use it to their advantage when possible—we should all remain mindful of the framework’s ultimate limitations.


The piece begins by analyzing Young v. United Parcel Service, Inc., the 2015 Supreme Court case that grappled with how to apply the PDA’s comparison-based standard. I discuss how Young illustrates the complexities of comparison, and unpack the compromise approach that emerged. I then consider the potential usefulness of the Young approach to the tampon tax cases, while acknowledging that they arise under the Equal Protection Clause rather than Title VII. I conclude with some broader reflections.

January 31, 2022 in Constitutional, Healthcare, Pregnancy | Permalink | Comments (0)

Can Criminal Justice Reform Measures Help Halt Police Sexual Assault on Black Women?

Michelle S. Jacobs has published Sometimes They Don't Die: Can Criminal Justice Reform Measures Help Halt Police Sexual Assault on Black Women in Volume 44 of the Harvard Journal of Law and Gender. Here is the abstract: 

In the eighteen months between March 2019 and August 2020, at least eight Black women were murdered by the police. Breonna Taylor was one of them. Officer Brett Hankison, one of the three officers who murdered Breonna Taylor, was eventually discharged from the Louisville Police Department. In the memo discharging him, the police chief cited behavior that amounted to an extreme indifference to the value of human life: Hankison blindly fired ten rounds into the home of Ms. Taylor's neighbor. Additionally, in the aftermath of Ms. Taylor's death, two women came forward and accused Hankison of sexually assaulting them while he was in uniform. Breonna Taylor's case highlights the intersection of police violence and sexual violence against Black women. Police who are accused of brutal violence often have histories of misconduct, with numerous complaints from civilians. For many women, the police misconduct is sexual assault. The women don't die, but the assault strips away their dignity and sense of security.

This paper will challenge the belief that police sexual misconduct is an infrequent, hidden crime. In fact, it is a common occurrence and is allowed to continue in most police departments. Both adult women and children are victims of police sexual misconduct. The unwillingness of federal and state authorities to tackle this issue forced researchers and journalists to create their own databases of police officers who commit crimes, including sexual misconduct.

Our nation is primed to tackle the issue of police reform in a way it has not been in recent years.This paper will argue that unless police reform efforts look beyond a narrow, male-centered understanding of police violence, the opportunity to create reform that helps protect Black women from police sexual misconduct will be lost.

January 31, 2022 in Race, Violence Against Women | Permalink | Comments (0)

Wednesday, January 26, 2022

The Gender Gap in Merger and Acquisition Leadership

Afra Afsharipour, Women and M&A, 12 UC Irvine Law Review (2022 Forthcoming)

Corporations, law firms and investment banks all state that diversity matters. This Article shows that there is a chasm between discourse and action. For the most important decisions undertaken by companies—large merger and acquisition (M&A) transactions—a gender gap persists. This Article provides a holistic examination of the entire network of lead actors involved in M&A, revealing that women’s leadership opportunities continue to be vastly unequal. Using hand-collected data from 700 transactions, this Article reveals that thirty years after women began to account for almost half of all law students, gender parity in M&A leadership lags far behind. To illustrate, over a 7-year period, women make up on average 10.5% of lead legal advisors for buyers in M&A. Moreover, this Article documents the lack of transparency on leadership data for other players in M&A. This Article argues that understanding, documenting, and disclosing the gender gap in M&A leadership is critical for increasing accountability and for determining the solutions that may work to reduce such disparities

January 26, 2022 in Business, Equal Employment, Women lawyers | Permalink | Comments (0)

Assessing the Impact of the Violence Against Women Act

Leigh Goodmark, Assessing the Impact of the Violence Against Women Act, 5 Annual Rev. of Criminology 115 (2022) 

 The Violence Against Women Act (VAWA) has been hailed as the federal government's signature legislation responding to gender-based violence. VAWA, passed in 1994 and reauthorized three times since then, has created several new programs and protections for victims of gender-based violence. VAWA is, however, primarily a funding bill and what it primarily funds is the criminal legal system. But the criminal legal response to gender-based violence has not been effective in decreasing rates of gender-based violence or deterring violence. A VAWA that discontinued funding for the criminal legal system and instead focused on economics, prevention, and community-based resources—a noncarceral VAWA—could better meet the needs of victims of gender-based violence and target the underlying causes of that violence.

January 26, 2022 in Legislation, Violence Against Women | Permalink | Comments (0)

The Strict Scrutiny Team and "A Podcast of One's Own"

 

Leah Litman, Melissa Murray, and Katherine Shaw, A Podcast of One's Own, 28 Mich. J. Gender & L. 51 (2021).

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are often white men; and the commentators who translate the Court’s work for the public are also largely white men. We suggest this lack of diversity has consequences both for the Court’s work and for the public’s understanding of the Court. We also identify some of the factors that contribute to the lack of diversity in the Court’s ecosystem, including unduly narrow conceptions of expertise and a rigid insistence on particular notions of neutrality. We also note and discuss our own modest efforts to disrupt these dynamics with Strict Scrutiny, our podcast about the Supreme Court and the legal culture that surrounds it. To be sure, a podcast, by itself, will not dismantle the institutional factors that we have identified in this Essay. Nevertheless, we maintain that our efforts to use the podcast as a platform for surfacing these institutional dynamics, while simultaneously cultivating a more diverse cadre of Supreme Court experts and commentators, is a step in the right direction.

With the title derived from British feminist writer Virginia Woolf's famous essay, A Room of One's Own (1929).

All I could do was to offer you an opinion upon one minor point--a woman must have money and a room of her own if she is to write fiction; and that, as you will see, leaves the great problem of the true nature of woman and the true nature of fiction unsolved.

January 26, 2022 in Books, Constitutional, SCOTUS, Technology | Permalink | Comments (0)

CFP Symposium State Violence and Womxn - Defining the Reaches of Modern Policing

California Western School of Law, State Violence and Womxn: Defining the Reaches of Modern Policing

TOPIC SUMMARY

The protests against police killings during the summer of 2020 emphasized that race plays a critical role in understanding the nature of state-sanctioned violence. To date, much of the conversation regarding such violence has focused on Black and Latinx men. Nevertheless, there is much to be said about the topic as it relates to race and gender, particularly with respect to cis-women of color and trans women. Moreover, discussions regarding this issue often center around the actions of police, despite such violence also appearing in various law enforcement contexts such as, but not limited to, within prison walls and at border crossings.

To this end, the California Western Law Review is hosting a virtual symposium on March 24, 2022, for the purpose of facilitating a comprehensive discussion on the topic of state-inflicted violence against cis-women of color and trans women in various law enforcement contexts. Ultimately, the goals of the symposium are to identify and bring awareness to critical legal issues underlying this topic and to consider the possibility of positive change for all womxn by adapting current law enforcement practices to incorporate features of restorative justice.

Registration and additional symposium details are forthcoming.


CALL FOR PAPERS

The Law Review Symposium Committee invites those interested in participating in the symposium to submit an abstract that introduces an article (hereinafter “manuscript”) related to the topic described above to be published in the symposium issue of the California Western Law Review.

Abstract Due Date: February 7, 2022
Final Paper Due Date: May 2, 2022

Abstract submissions should include:

  • The title of the submitted manuscript;

  • 300 to 500-word abstract that discusses the proposed symposium topic and outlines the contents of the paper;

  • The name and email address of the author;

  • The curriculum vitae of the author; and

  • A statement indicating whether the author would like their topic to be considered as a featured topic* for a discussion panel at the symposium.
    *Please see below for more details regarding discussion panel topics.

Final Manuscript Requirements:

  • 10,000 maximum word limit (approximately 20 single-spaced pages);

  • Citations must be contained in footnotes and conform to the most recent edition of The Bluebook: A Uniform System

    of Citation;

  • Manuscripts should be timely and provide an original in-depth analysis of the topic above;

  • The title page should include the author’s full name, their academic/professional affiliations, and complete contact

    information where correspondence can be made.

Featured Topics for Discussion Panels:

The symposium will feature three discussion panels, each consisting of no more than three panelists. To determine the topic for each panel, the committee will select four abstracts/manuscripts to be featured as discussion topics. The respective authors will also be invited to participate as panelists for the panel that features their topic.

Author-speakers will receive an honorarium for their contributions.

Prior to the symposium, the four authors will submit a “Symposium Draft” consisting of a general overview of the author’s ideas to be featured in their manuscript as well as potential talking points. This document will be provided to the moderator and fellow panelists for reading. The reason for this is to ensure robust and consistent dialogue during each panel. As a result, the authors and audience members alike will benefit from the overall discussion and engagement that follows. Moreover, all authors will have the opportunity to revisit their manuscripts with potentially new insights and ideas to incorporate in their final drafts due May 2, 2022.

How to Submit:

Please submit abstracts to [email protected] or with “State Violence and Womxn” in the subject line.


January 26, 2022 in Call for Papers, Conferences, Race | Permalink | Comments (0)

Tuesday, January 25, 2022

Cash Aid to Poor Mothers Increases Brain Activity in Babies, Study Finds, Possible Policy Implications

Cash Aid to Poor Mothers Increases Brain Activity in Babies, Study Finds

A study that provided poor mothers with cash stipends for the first year of their children’s lives appears to have changed the babies’ brain activity in ways associated with stronger cognitive development, a finding with potential implications for safety net policy.

The differences were modest — researchers likened them in statistical magnitude to moving to the 75th position in a line of 100 from the 81st — and it remains to be seen if changes in brain patterns will translate to higher skills, as other research offers reason to expect.

Still, evidence that a single year of subsidies could alter something as profound as brain functioning highlights the role that money may play in child development and comes as President Biden is pushing for a much larger program of subsidies for families with children.

“This is a big scientific finding,” said Martha J. Farah, a neuroscientist at the University of Pennsylvania, who conducted a review of the study for the Proceedings of the National Academies of Sciences, where it was published on Monday. “It’s proof that just giving the families more money, even a modest amount of more money, leads to better brain development.”

Another researcher, Charles A. Nelson III of Harvard, reacted more cautiously, noting the full effect of the payments — $333 a month — would not be clear until the children took cognitive tests. While the brain patterns documented in the study are often associated with higher cognitive skills, he said, that is not always the case.

“It’s potentially a groundbreaking study,” said Dr. Nelson, who served as a consultant to the study. “If I was a policymaker, I’d pay attention to this, but it would be premature of me to pass a bill that gives every family $300 a month.”

A temporary federal program of near-universal children’s subsidies — up to $300 a month per child through an expanded child tax credit — expired this month after Mr. Biden failed to unite Democrats behind a large social policy bill that would have extended it. Most Republicans oppose the monthly grants, citing the cost and warning that unconditional aid, which they describe as welfare, discourages parents from working.

January 25, 2022 in Family, Gender, Legislation, Poverty | Permalink | Comments (0)

Senators are pushing to reauthorize the Violence Against Women Act. Will it help Indigenous communities?

Senators are pushing to reauthorize the Violence Against Women Act. Will it help Indigenous communities?

On any given day, Annita Lucchesi might be ordering casket sprays, prepping food for a wake, buying school supplies for a child with a missing parent or booking a motel for a woman escaping domestic violence.

Some days, she said, she will drive up to 300 miles through southeastern Montana and the surrounding areas in her work as the executive director of Sovereign Bodies Institute, a grass-roots organization that does community-based research on gender and sexual violence against Indigenous people as well as provides services to those affected.

Her grim professional docket is a reflection of the scale of the crisis of violence facing Indigenous people, as well as long-standing negligence by the federal government and law enforcement when it comes to Indigenous people’s safety, she said.

“The reality is that the only people doing any of this work are grass-roots folks,” Lucchesi said. “If we as community members didn’t step up to do it, it literally wouldn’t get done.”

Lucchesi, who is of Cheyenne descent, said that as a survivor of domestic violence, sexual assault and trafficking who has loved ones who are missing or murdered, this work has never felt like a choice. She said that just in her small community of about 3,000 people, she has tracked more than 100 unsolved cases of missing and murdered people in the last couple of decades by following news reports and talking to community members. This winter alone, she said, there have been three murders she has tracked using these methods.

“It’s personal to me,” said. “At what point does our local cemetery become a mass grave?”

. . .

Lucchesi’s experiences with violence are not uncommon. More than 84 percent of Indigenous women have experienced violence in their lifetime, according to a 2016 National Institute of Justice report. In some counties, the U.S. Department of Justice found, Indigenous women are murdered at a rate 10 times higher than the national average. Indigenous men face disproportionately high rates of violence, and while data collection on transgender and two-spirit Indigenous people is often lacking, Lucchesi said they too face overwhelmingly high rates of violence.

Lucchesi added that these shocking numbers, however, are probably undercounts — of the oft-cited statistic that one in three Indigenous women have been raped, she said she has an aunt who says skeptically: “Show me the other two.”

The majority of sexual assault cases in the United States go unreported, according to an analysis by the Justice Department. Poor data collection on gender-based violence among Indigenous people, including misclassifications of homicides as suicides or accidents, paired with a difficult-to-access legal system probably make this worse for Indigenous people, women’s rights experts say. Last year, Deb Haaland, the first Native American sworn in as U.S. interior secretary, announced a new Missing & Murdered Unit (MMU) within the Bureau of Indian Affairs to try to tackle some of these issues.

It is a problem that a bipartisan group of lawmakers says they’re also hoping to address this month by pushing to reauthorize the 1994 Violence Against Women Act for the first time in almost a decade. The updated version of the bill, led by Sens. Lisa Murkowski (R-Ala.), Dianne Feinstein (D-Calif.), Joni Ernst (R-Iowa) and Richard J. Durbin (D-Ill.), would include provisions expanding tribal jurisdiction over gendered violence.

January 25, 2022 in Family, Gender, Legislation, Violence Against Women | Permalink | Comments (0)

Monday, January 24, 2022

Using Litigation to Advance Sexual and Reproductive Health and Rights Worldwide

Join the Center for Reproductive Rights this Wednesday at 9:00 a.m. EST for a virtual panel discussion on the impact of litigation in advancing sexual and reproductive health and rights (SRHR) worldwide.

 

Although SRHR are essential to gender equality, millions of women and girls still lack legal protections for these fundamental rights. Strategic litigation before international and regional bodies has proven to be a powerful tool for creating accountability for SRHR violations and generating progress at the national-level.

In a new report, the Center studied landmark cases and how they’ve transformed the legal landscape on SRHR, reverberating across borders and strengthening legal guarantees for millions of people around the world. The report, titled “Across Borders: How International and Regional Reproductive Rights Cases Influence Jurisprudence Worldwide,” will be launched at the webinar.

Panelists from the Center and leading organizations will discuss how the cases at the heart of the study – some in countries and regions with the most restrictive reproductive rights laws in the world – have advanced access to abortion services, maternal health care, assisted reproduction and other reproductive and human rights. In addition, they will share insights on the future role of litigation to advance SRHR and how advocates and other stakeholders can leverage this critical tool to accelerate progress.

January 24, 2022 in Abortion, Healthcare, International, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Amicus Briefs Filed in Brandt v. Rutledge (8th Cir.)

The ACLU summarizes the legal issues raised in Brandt v. Rutledge (Eighth Circuit) and their importance to the plaintiffs: 

Four families of transgender youth and two doctors have challenged an Arkansas law that would prohibit healthcare professionals from providing or even referring transgender young people for medically necessary health care. The law would also bar any state funds or insurance coverage for gender-affirming health care for transgender people under 18, and it would allow private insurers to refuse to cover gender-affirming care for people of any age. The lawsuit, filed in federal court, alleges that House Bill 1570 is a violation of the U.S. Constitution.

Some of the families who have sued the state are considering leaving their homes, their jobs, their extended families, and their communities, to ensure their children are able to access gender-affirming care. The care that would be banned by the Arkansas law has been shown in recent studies to dramatically reduce depression and suicidal ideation in transgender young people with gender dysphoria.

The N.Y. Times gave in-depth coverage of the plaintiffs and the uncertainties and anxieties that the underlying statute has created in their day-to-day lives. The Eastern District of Arkansas had enjoined the law concluding that: 

The Court finds the Act's ban of services and referrals by healthcare providers is not substantially related to the regulation of the ethics of the medical profession in Arkansas. Gender-affirming treatment is supported by medical evidence that has been subject to rigorous study. Every major expert medical association recognizes that gender-affirming care for  transgender minors may be medically appropriate and necessary to improve the physical and mental health of transgender people. Act 626 prohibits most of these treatments. Further, the State's goal of ensuring the ethics of Arkansas healthcare providers is not attained by interfering with the patient-physician relationship, unnecessarily regulating the evidence-based practice of medicine and subjecting physicians who deliver safe, legal, and medically necessary care to civil liability and loss of licensing. If the Act is not enjoined, healthcare providers in this State will not be able to consider the recognized standard of care for adolescent gender dysphoria. 

This week, amicus briefs were filed in the matter, including one filed by bioethicists and health law scholars and one filed by Lambda Law and numerous women's rights organizations

 

January 24, 2022 in Courts, Gender, Healthcare | Permalink | Comments (0)

Indigenous Feminist Legal Pedagogies

Emily Snyder has published Indigenous Feminist Legal Pedagogies in volume 58 of the Osgoode Hall L. J. 369 (2021).  The abstract explains: 

What does “Indigenous feminist legal pedagogy” mean? This article takes up this inquiry through an analysis of interviews that were done with twenty-three professors who teach in the area of Indigenous law (Indigenous peoples’ own laws) in Canada. Overwhelmingly, the professors were on board with the idea that gender matters and that it needs to be included in education about Indigenous laws, but how people were taking up gender, and the responses as they relate to Indigenous feminisms, varied. The interviews signal that there is a need for ongoing work in the area of gender and feminisms in the field of Indigenous law. This article illustrates why gendering Indigenous legal education is vital and argues for increased engagement with the idea and practice of Indigenous feminist legal pedagogies.

January 24, 2022 in Law schools | Permalink | Comments (0)

Gender Pay Disparities in the Legal Academy

Christopher J. Ryan, Jr. & Meghan Dawe have published Mind the Gap: Gender Pay Disparities in the Legal Academy in Volume 34 of the Georgetown Journal of Legal Ethics. The authors conclude: 

The distribution of salaries of law professors in our analysis indicates that, of the 1,051 respondents who reported their earnings, 64.6 percent earn below $150,000 annually and 35.4 percent earned at above that threshold. Looking at the intersection of gender and race, we observe white women and women of color earned salaries of $150,000 or greater at far lower rates than white men, by nearly 15 percentage points and by 25 percentage points, respectively. In fact, on average, women of color and white women earn more than $24,000 and nearly $14,000 less than white men, respectively. Men of color earned salaries at or exceeding $150,000 at roughly comparable rates to white men, but on average, men of color earn more than $7,000 less than white men. 

* * *

A wealth of research has demonstrated that the gender wage gap in the legal profession is both pervasive and persistent. Our investigation of a rich and unique dataset of tenured law professors reveals gender stratification in the legal academy, clearly demonstrated by our finding that tenured women law professors—and especially women of color—receive lower compensation than their male colleagues. We find evidence that women law professors are very likely to earn lower salaries and additional income than men, even when they both enjoy the same protection of tenure. Moreover, we find that gendered earnings disparities are experienced more acutely by women of color. In addition to documenting that gendered earnings disparities exist, it is important to examine the mechanisms that underly these persistent forms of gender—and racialized—inequality. Our findings demonstrate the salience of human capital and social capital in mediating the relationship between gender and earnings in the legal academy.

January 24, 2022 in Equal Employment, Law schools, Workplace | Permalink | Comments (0)

Wednesday, January 19, 2022

New Jersey Enacts the Freedom of Reproductive Choice Act Guaranteeing the Fundamental Right of Reproductive Autonomy

NJ Abortion Bill Signed Into Law by Gov Murphy at Teaneck Event

Gov. Phil Murphy on Thursday signed into law a bill protecting abortion rights, at a Teaneck ceremony where he was joined by former Senate Majority Leader Loretta Weinberg and other lawmakers who championed the bill.

Approved by the Legislature on Monday, the Freedom of Reproductive Choice Act guarantees "the fundamental right of reproductive autonomy." The scaled-back version of the bill doesn’t add a requirement that health insurers cover abortions and birth control at no cost out of pocket, as the original bill did.

“The United States Supreme Court is preparing to take a wrecking ball to its own precedent Roe v. Wade, and that would also demolish our case-law-based foundation here in New Jersey,” Murphy said Thursday outside the Teaneck Public Library. “Neither I nor those with me today can let that happen

January 19, 2022 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

The Anti-Immigrant Rhetoric of the Women's Suffrage Movement and its Effectiveness in Passing the Nineteenth Amendment

Kit Johnson, Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric, 94 St. John's L. Rev. 937 (2021)  

American suffragist Elizabeth Cady Stanton famously wrote: “We hold these truths to be self-evident; that all men and women are created equal.” Yet when suffragettes spoke of “all” men and women, they were clear about exceptions. Immigrants did not qualify. Indeed, in her own address at the First Women’s Rights Convention, held in Seneca Falls, New York, in July 1848, Stanton said that “to have . . . ignorant foreigners . . . fully recognized, while we ourselves are thrust out from all the rights that belong to citizens, it is too grossly insulting to the dignity of woman to be longer quietly submitted to.”

This Article begins with an exploration of the anti-immigrant rhetoric of the suffragettes, noting how their nativist approach helped to secure the ultimate passage of the Nineteenth Amendment. Next, this Article explores modern parallels to the suffragettes’ story, where nativist approaches propelled success for movements around issues, people, and political parties. Finally, this Article calls upon the modern women’s movement to take a different path: rising up without pushing down.

January 19, 2022 in Constitutional, Legal History | Permalink | Comments (0)

How Judges Should Apply the Exceptions to the Hague Abduction Convention to Protect Victims of Domestic Violence

Merle Hope Weiner, You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence, 28 UCLA Women's L. J. 223 (forthcoming)

This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return. The trial judge decides whether a child is returned to the place from which the domestic violence victim fled or whether a child is allowed to remain in the United States pursuant to an exception to the Hague Convention’s remedy of return. This Article canvases the arguments that attorneys make to defeat the application of article 13(b), and refutes them by drawing upon social science, the Guide to Good Practice, its sanctioned Australian Bench Book, case law, and common sense. The Article also argues that if a trial judge cannot grant the article 13(b) exception solely because of unwarranted legal obstacles, the judge should disregard the law. This part of the Article builds upon Jeffrey Brand-Ballard’s book, Limits of Legality: The Ethics of Lawless Judging

January 19, 2022 in Courts, Family, International, Violence Against Women | Permalink | Comments (0)

FemTech, AI, and the Propagation of Gender Stereotypes and Discrimination

Eleonore Fournier-Tombs & Celine Castets-Renard, Algorithms and the Propagation of Gendered Cultural Norms, forthcoming for publication in French in “IA, Culture et Médias” (2022) (edited by: Véronique Guèvremont and Colette Brin. Presses de l’université de Laval).

Artificial intelligence is increasingly being used to create technological interfaces - whether chatbots, personal assistants or robots whose function is to interact with humans. They offer services, answer questions, and even undertake domestic tasks, such as buying groceries or controlling the temperature in the home.

In a study of personal assistants with female voices, such as Amazon's Alexa and Apple's Siri, the United Nations Educational, Scientific and Cultural Organization (UNESCO) argued that these technologies could have significant negative effects on gender equality . In addition to the fact that these artificial intelligence (AI) systems are trained on gender-specific models, these female-voiced assistants all feature stereotypical female attributes. This problem is compounded by the fact that these systems were probably created primarily by male developers . These gender-specific assistants can pose a threat through the biased representation of women they generate, especially as they become increasingly ubiquitous in our daily lives. It is predicted that by the end 2021, there will be more voice assistants on the planet than human beings .

Given the increasing use of voice assistants trained with biased language models, the potential impact on gender norms is of concern. While isolation has increased significantly during COVID-19, there is a risk that some people's main 'female' interaction is with these voice assistants. If we are not careful, sexist representations of women, totally out of step with real women, will intrude into the privacy of the home or our smartphones, anywhere, anytime. Moreover, the models are essentially the same, leading to the reproduction of a single 'standard' and a cultural smoothing in human-machine interaction, denying the diversity of users of these products around the world.

While some have argued that learning algorithms may be less biased than humans, who are often influenced by discriminatory cultural norms of which they may not be aware , this is without regard to the fact that artificial intelligence (AI) is necessarily created by human beings whose way of thinking it incorporates. Indeed, it is easy to underestimate the importance of cultural norms in human decision-making. Artificial intelligence mimics the social biases of the data it has been given unless it is explicitly designed with different principles. It is therefore not surprising that artificial intelligence developed without built-in values only reflects already biased social norms.

Bethany Corbin, Digital Micro-Aggressions and Discrimination: FemTech and the "Othering" of Women, 44 Nova L. Rev. 337 (2020)

 

The boundary between the digital world and the human body has disintegrated. With the rise of artificial intelligence and the internet of medical things, patients’ bodies can resemble a sci-fi cyborg that operates both independently and electronically through sensors. As the physical and cyber worlds blur, scholars and practitioners have debated medical device regulation, liability for device malfunctions, device privacy, and cybersecurity. One area of the discussion that has been left relatively untouched, however, is femtech. Described broadly as female technology, femtech encompasses wearables, artificial intelligence, apps, and other hardware and software that not only seek to heighten awareness of female health, but also aim to enhance women’s agency over their bodies. Reporters have called femtech a win for women’s health, as startups and venture capitalists finally invest in female products that can benefit half of the population. Today, the most common femtech products on the market focus on menstruation, maternity, and fertility, and are advertised as giving women control over their bodies and wellbeing.

But what if they don’t? By using femtech devices without understanding how these products are regulated and how their data is collected, manipulated, or sold, women may unintentionally be losing control and autonomy over their bodies. These devices collect intimate health data that may be used to maintain stereotypes and societal norms about the female body. For instance, some femtech menstruation products do not permit a user to input abortions or irregular cycles. This failure to account for all female body types and decisions perpetuates the flawed assumption that abortions and irregular cycles are deviations from the standard female body and can marginalize women who do not conform to these “norms.” Similarly, femtech can reinforce outdated perceptions about women and their bodies by consistently trying to quantify, analyze, and create a version of “normal” that all women should strive to achieve.

The fundamental assumptions of femtech, therefore, do not necessarily align with female consumers and patients, and may inadvertently diminish women’s agency and control over their own bodies. This misalignment stems, in part, from the lack of female and provider input into device creation, the rush to market new devices without adequate testing and vetting, and the male-dominated startup industry creating these products. This article analyzes the societal implications associated with femtech in its current form and offers recommendations for modifying the femtech model to avoid undesirable consequences as the industry – and devices – grow in size and complexity.

 

January 19, 2022 in Business, Technology | Permalink | Comments (0)

Monday, January 17, 2022

Virtual Town Hall on Black Maternal Health, Jan. 19th at 4:00 EST

Join the ERA Coalition on Wednesday, January 19th at 4:00 for a town hall focused on "prioritizing Black mothers in the fight for health equity, and the ways forward."

Speakers include 

  • Rep. Lauren Underwood (D-Il), Co-Chair, Black Maternal Health Caucus
  • Rep. Alma Adams (D-NC), Co-Chair Black Maternal Health Caucus
  • Breanna Lipscomb, Senior Advisor of Maternal Health & Rights, Center for Reproductive Rights
  • Charles Johnson, Founder, 4 Kira 4 Moms
  • Linda Villarosa, Writer on Black maternal health, NYT Magazine

 

January 17, 2022 in Healthcare, Pregnancy, Race | Permalink | Comments (0)

Stereotypes, Sexism, and Superhuman Faculty

 Teneille R. Brown has posted Stereotypes, Sexism, and Superhuman Faculty on SSRN. This article is a preprint of a work forthcoming in volume 16 of the Florida International Law Review.  This is a powerful and personal read capturing many important takeaways of pandemic teaching as its hardships have mapped on to gender, race, and parental status. 

Despite our relative privilege, lawyers are not immune to the pandemic’s breathtaking ability to expose gender inequality. While working moms in other industries are afforded far fewer supports, and often cannot work from home, the lack of support offered by law schools and law firms has still been appalling. We risk losing much of the fragile equality we have won, as women scale back their pursuit of leadership positions, and have less focused time to spend researching cases, preparing for class, giving talks, or writing. The data are in: women lawyers’ productivity plummeted during the pandemic. This carried over to academic writing generally, where women’s submissions nosedived in the spring and summer. Women with children have lost 500 hours of research time, which makes them “disproportionately less likely to be promoted in rank and perhaps even more likely to drop out of academia altogether.” 

* * * 

As it might be clear by now, treating people as superhuman is an insidious and hollow form of adulation. Even though it seems positively valenced, it nonetheless reflects a form of dehumanization.  

 * * *  

Law faculty are not superhumans, and there is no virtue in regarding ourselves as such. We are individuals—empowered with the full range of complex thoughts and emotional vulnerabilities. This is not to say that all humans experience emotions to the same degree, or that we all draw from the same emotional depth or complexity. But for some, denying our emotional experience is a rejection of the self. Further, treating faculty as superhumans leads to workplace environments that are cold, uncaring, and discriminatory.

 

Unfortunately, the depth and complexity of the problem is disheartening, and there are no easy solutions. It is not enough to have women in leadership roles if those women espouse ambivalent sexism in their speech or policies. And it is not enough to respond to requests by working moms for accommodations, as those requests will often render those asking for them less competent. Research does suggest that women take less of a hit to their competence if they frame requests as advocating for others, and when they explicitly draw attention to sexist stereotypes. Thus, by making colleagues and administrators aware of the [Stereotype Content Model] and the deep social psychological roots of ambivalent sexism, we can begin to open their eyes. But because of the blow we take to competence when we mention our caregiving roles, professional women cannot make systemic change alone.

January 17, 2022 in Equal Employment, Family, Law schools, Women lawyers, Work/life | Permalink | Comments (0)

Sexual Exploitation and the Adultified Black Girl

Mikah K. Thompson has published Sexual Exploitation and the Adultified Black Girl in volume 94 of the St. John's Law Review (2022). The abstract is here: 

Blue Ivy Carter, daughter of entertainers Sean “Jay Z” Carter and Beyoncé Knowles Carter, celebrated her eighth birthday in January of 2020. To commemorate the occasion, Blue’s grandfather, Matthew Knowles, posted a picture of Blue on Instagram. Fans and journalists alike marveled that Blue looked so much like her famous mother, and many noted that she looked much older in the photograph. E! News tweeted Blue’s picture along with a question: “Can someone please explain to us when Blue Ivy became an adult?” The post went viral, and many people criticized E! News for referring to eight-year-old Blue as an adult, with some arguing that blurring the line between childhood and adulthood “ ‘perpetuates pedophilia.’ ” Others asserted that referring to a Black girl as an adult is especially dangerous because it reinforces the perception that Black girls are adult-like. E! News eventually deleted the tweet.

A recent research study confirms that society tends to view Black girls as older and more adult-like than they actually are. Thus, E! News’ description of Blue Ivy may reflect a larger problem that can have devastating effects for Black girls. This piece asserts that a two-tiered justice system exists for victims of sexual exploitation depending on their race. As we commemorate the one hundredth anniversary of the passage of the Nineteenth Amendment, which granted white women the right to vote but kept Black women disenfranchised, we must address the racial disparities that persist among girls and women today.

Part I of this piece describes adultification bias, a societal phenomenon that can result in the unfair treatment of Black girls who experience sexual exploitation, including statutory rape. Part II discusses the traditional and contemporary policy reasons that underpin the nation’s statutory rape laws. Part II also defines reasonable mistake of age, an affirmative defense to a charge of statutory rape, and addresses the effectiveness of the defense where the alleged victim is an adultified Black girl. Part III of this piece examines the policy reasons that support the continued use of the mistake of age defense when the alleged victim is a teenager and the alleged offender a minor or a young adult. Part III concludes with my proposal for the enactment of a limited mistake of age defense that would be available to young defendants who may be more likely to overestimate the age of any sexual partner but unavailable to defendants who are significantly older than their alleged victims. This proposal increases protections for the adultified Black girl while recognizing the sexual autonomy of teen girls and avoiding the potential weaponization of statutory rape laws against young Black defendants.

January 17, 2022 in Race, Violence Against Women | Permalink | Comments (0)