Thursday, October 27, 2022

Center for Constitutional Law Con Law Scholars Forum on "The Future of Reproductive Rights"

Study of Women Judges in Pacific Island Courts Concludes that Appointment of Women Helps, in Part to Affirm Gender Justice

Anna Dziedzic, "To Join the Bench and Be Decision-Makers": Women Judges in Pacific Island Judiciaries" 
In Melissa Crouch (ed.), Women and the Judiciary in the Asia-Pacific (Cambridge: Cambridge University Press, 2021) 29-65

Studies of women in leadership in the Pacific tend to focus on the under-representation of women in the political branches of government. The number and role of women in the judicial branch has received less attention. Male judges outnumber women judges across the region, but the reasons for this, and its implications, have not been the subject of detailed study. This chapter provides a history and comparative analysis of the appointment of women judges in the Pacific, focusing on the nine states of Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. It presents empirical data on the composition of the superior courts in these states, including judges’ gender and professional background. It examines how the criteria and processes for judicial appointment – including the distinctive use of foreign judges – affect the appointment of women to the judiciary. Finally, the chapter considers why it matters whether women are included on Pacific judiciaries, drawing on reflections by women who have served as judges in the region; scholarship on law and gender; and an examination of high-profile cases in which women judges have presided. The analysis suggests that the appointment of women judges to Pacific judiciaries cannot, in and of itself, correct all the harmful gender biases in law and society. However, the appointment of women judges in greater number would counter some of the harmful stereotypes about women that persist in Pacific societies and contribute to work across a range of sectors in Pacific states to ensure that the law meets the needs of women and affirms gender justice.

October 27, 2022 in Courts, Gender, International, Judges | Permalink | Comments (0)

New Arguments Against Transgender Equality Based on SCOTUS 1974 Case Geduldig Are Inconsistent with Equal Protection Doctrine

Katie Eyer, Transgender Equality and Geduldig 2.0 

In 1974, Geduldig v. Aiello held that pregnancy discrimination is not facially sex discrimination. Now, close to five decades later, opponents of transgender equality are trying to give the decision new life. Faced with the prospect of defending government laws and policies targeting “sex changes,” “gender dysphoria,” and more, such opponents have relied on Geduldig to argue that such policies are not facially discriminatory on the basis of sex or transgender status.

These new Geduldig arguments are inconsistent with the Supreme Court’s broader Equal Protection doctrine, and with Geduldig itself. Nevertheless, at least one court has credited them, and they are being made with increasing frequency in transgender rights cases. This Essay takes up the Geduldig arguments being made in contemporary transgender rights cases, and explains why such arguments must be rejected by the courts.

October 27, 2022 in Constitutional, LGBT, Pregnancy | Permalink | Comments (0)

Wednesday, October 26, 2022

Understanding the Theories and Impacts of Dobbs

Yvonne Lindgren, Dobbs v. Jackson Women's Health and the Post-Roe Landscape" 

This Article examines some of the important takeaways of the Dobbs decision itself and the likely reverberations it will have on other areas of law and reproductive healthcare more broadly. The Article proceeds in three parts. Part I examines the majority, concurring, and dissenting opinions to consider what they reveal about the new standard of review for abortion, the shift in power among the members of the Court itself, as well as what the opinion signals might come next. Part II explores the future of abortion in a post-Roe landscape as the abortion rights movement moves from the defensive to the offensive posture. The section briefly discusses emerging constitutional theories for sourcing the abortion right, as well as federal and state executive and legislative actions to protect abortion access. Part III briefly assesses the potential impact of the end of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey on criminalization of abortion and self-managed care, the surveillance of pregnant people, and adjacent issues, including reproductive health and assisted reproductive technology.

October 26, 2022 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Implicit Gender Effects in Denying Patents under Australian Law

Vicki Huang, Sue Finch & Cameron Patrick, Patents and Gender: A Big Data Analysis of 15 Years of Australian Patent Applications, 45 Univ. New South Wales L. J. (2022).

Recent recommended changes to Australia’s patent laws could narrow the scope of patentable inventions. We argue this could have a comparatively bigger impact on female inventors who we find clustered in the life sciences. We examine 309,544 patent applications filed with IP Australia (the majority from international applicants) across a 15-year period (2001–15) and attribute a gender to 941,516 inventor names. Only 23.6% of patent applications in this dataset include at least 1 female inventor. The average overall success rate irrespective of gender was 75.0%, but the odds of success increased with increasing numbers of male inventors on a team. The addition of female inventors to a team did not have the same effect. We propose that the gender disparity could arise from implicit gender effects (examiner or patentee) during patent prosecution.

October 26, 2022 in International, Science | Permalink | Comments (0)

Monday, October 24, 2022

Gender Disparities in Law Firm Partner Pay

The ABA Journal reports on ongoing disparities in law firm partner pay with some movement toward lessening the gap.  

The average male law firm partner earns 34% more than the average female partner, which is less of a differential than in prior years, according to a survey by recruiting firm Major, Lindsey & Africa in association with Law360.

Average compensation for male partners in midsize and large law firms is $1,212,000 for male partners and $905,000 for female partners, according to the 2022 Partner Compensation Survey. A summary and a link to download the survey is here.

The pay differential was 53% in 2018 and 44% in 2020.

Average partner compensation overall was $1,119,000, up 15% from 2020. Median compensation was $675,000.

October 24, 2022 in Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Ana Micaela Alterio on "Latin American Feminists, Gender, and the Binary System of Human Rights Protection"

Ana Micaela Alterio has published Latin American Feminists, Gender, and the Binary System of Human Rights Protection in volume 116 of the American Journal of International Law published online by Cambridge University Press (2022).  

On March 26, 2021, the Inter-American Court of Human Rights found Honduras responsible for the killing of Vicky Hernández, a trans woman and human rights defender. The Vicky Hernández et al. v. Honduras judgment is the first in which an international court has protected a trans woman by applying a human rights treaty that protects women. It thus provides an opportunity to analyze the impact of feminist ideas on the system of human rights protection at the regional level, with implications for international law more generally. In this essay, I defend the Inter-American Court's majority decision against the dissenting opinions, by arguing that the political subject of human rights is dynamic and emergent and, therefore, positive law is often one step behind in the struggles for recognition. For this reason, we need interpretations of rights that are inclusive, that evolve, and that push for the destabilization of law as binary, allowing the emergence of a more egalitarian legal system that recognizes intersectionality.


October 24, 2022 in International | Permalink | Comments (0)

Abortion Bans Preventing Access to Cancer Care

During Summer 2022, while I was taking a break from blogging for health reasons, I published this Op. Ed. with NBC News. I cautioned that abortion bans would quickly create a tale of two healthcare systems for pregnant women far beyond abortion access, focusing on my own experiences with breast cancer as I moved employment from Kentucky to Virginia. 

The ACLU of Ohio has now submitted affidavits in court documenting this occurrence along with many other harms to pregnant persons. The filing describes a woman with stage III melanoma who was was forced to suspend cancer care until she terminated her pregnancy, which she could not do legally in Ohio. 

An Article published by Katherine Van Loom, MD, and Jordyn Silverstein, MD, in JAMA Oncology (August 2022) reports that 

Approximately 1 in 1,000 pregnancies are affected by a concurrent cancer diagnosis. The most common cancers include breast cancer, cervical cancer, lymphoma, ovarian cancer, leukemia, colorectal cancer and melanoma. Termination of the pregnancy occurs in 9% to 28% of cases, with many occurring in the first trimester.

The 19th reported on this issue in its article Abortion Bans are Preventing Cancer Patients from Getting Chemotherapy. Shefali Luthra, writing for The 19th on October 7th explained the complexities: 

Those are often emotionally fraught conversations . . .  particularly for patients who intended to become pregnant and did not know about their cancer. If the disease is still in its early stages, some may attempt to surgically remove it, then wait for the pregnancy to reach its second trimester. If needed, they can begin chemotherapy at that point, hoping that the cancer has not progressed too far in the meanwhile. 


But others, particularly those whose cancer is already more advanced, may need to get an abortion, begin chemotherapy and then try to become pregnant after, once they have completed treatment. There are even further complications there since chemotherapy can damage someone’s fertility. 


In those cases, telling patients that they cannot receive an abortion in state becomes even more difficult. * * * “And then you have to say, ‘By the way, the state of Tennessee doesn’t think you’re dying enough, so for you to get the care you need now that you’ve made this tough decision, you have to go to an abortion clinic out of state.”

October 24, 2022 in Abortion, Family, Healthcare, Reproductive Rights | Permalink | Comments (0)

Friday, October 21, 2022

Key Lessons on the Theory of Feminism, Law and Gender from the Work of Martha Chamallas

Deborah Brake, Theory Matters—And Ten More Things I Learned from Martha Chamallas About Feminism, Law, and Gender,83 Ohio State L.J. 435 (2022)

This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; gender is intersectional; gender is constructed and gender constructs, to name a few), along with Chamallas’s scholarly works, remain as relevant as ever, and continue to spark new insights into perennial controversies touching on law and social change, gender and inequality, and feminism’s influence on law.

October 21, 2022 in Gender, Theory | Permalink | Comments (0)

OH Court Grants Preliminary Injunction Staying 6 Week Abortion Ban on Grounds of Due Process, Equality, and State Health Care Freedom Amendment

The Ohio decision in Preterm-Cleveland v. Yost granting the preliminary injunction is here.

The case is interesting for its analysis of privacy as reinforced by the state's health care freedom amendment, as well as its finding of an equal protection violation under state constitutional law. 

Download Preterm Cleve PI Order Oct 2022

October 21, 2022 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Social Security Administration will Now Allow People to Self Select Their Gender in Records

Social Security Will Now Allow People to Select Their Gender in Records

The Social Security Administration announced on Wednesday that people will now be allowed to select the sex that best aligns with their gender identity in records, a policy change intended to be more inclusive of transgender Americans.

The agency said it would now accept people’s self-identified gender identity of male or female, even if their identity documents show otherwise, and it is exploring a future policy that would allow for an “X” sex designation for people who do not identify as either male or female. The Social Security Administration had promised in March that the new policy would be in effect by fall.

The acting commissioner of the agency, Kilolo Kijakazi, said in a news release that the new policy demonstrated a “commitment to decrease administrative burdens and ensure people who identify as gender diverse or transgender have options in the Social Security Number card application process.”


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October 21, 2022 in Gender, LGBT | Permalink | Comments (0)

Thursday, October 20, 2022

SC Supreme Court Takes Up Abortion Ban and Right to Privacy Including Search and Seizure

SC Supreme Court Takes Up State's Abortion Ban

h Carolina Supreme Court justices grilled lawyers over the extent of the right to privacy in a case Wednesday that could determine the scope of the state's abortion restrictions.

The hearing marked the latest legal challenge to South Carolina's 2021 ban on abortions after cardiac activity is detected, typically around six weeks, with exceptions for pregnancies caused by rape or incest, or those that endanger the patient's life.

The law — previously suspended by federal courts — took effect shortly after the U.S. Supreme Court overturned Roe v. Wade. The state's high court temporarily blocked it in August as the justices considered this case.

Julie Murray, a Planned Parenthood Federation of America staff attorney representing the challengers, argued that the state's right to privacy, ratified in 1971, should be broadly interpreted to encompass abortion.

Justice John Kittredge said privacy is not an “amorphous” right and sought an objective legal framework for determining just how far it should extend.***

Kevin Hall, a lawyer representing the state Legislature, argued that historical context shows the right to privacy applies only to searches and seizures. Justices questioned whether that reading might be too narrow. When asked by Few if the Legislature could therefore also restrict birth control, Hall said no.

Beatty asked if a person has the right to make their own medical decisions. Hall said that yes, that right is protected by due process. But Hall said abortion differs from medical treatments because it involves multiple interests: “the life of the unborn” and the patient.

October 20, 2022 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Remote Work as Reinforcing Gender Inequality and the Difficulty of Work-Life Balance

Tammy Katsabian, The Work-Life Virus: Working from Home and its Implications for the Gender Gap and Questions of Intersectionality, Forthcoming in the Oklahoma Law Review

Work–life balance is considered to be the top challenge for working women globally. The COVID-19 pandemic catalyzed a worldwide experiment regarding the various components of this challenge and its possible solutions. Because the pandemic forced numerous workers to shift their working lives from the office to their private homes, it created the largest global experiment in remote work in human history, with implications for women’s equality.

As this article wishes to show, the phenomenon of remote work illuminates gender inequality and the difficulty of work–life balance. Since remote work is mainly conducted from the personal residence of the employee, it generates a hybrid private–professional site and brings to the workplace context the private characteristics of the employee. Thus, remote work exposes how women’s traditional role in the private sphere—caregivers—influences their ability to progress at work. The ubiquity of the trend of remote work during the pandemic also revealed what third-wave feminism argued long ago: the feminine experience is not unitary; different women must cope with different difficulties. The pandemic showed that the ability to shift to remote work and successfully balance work with familial duties is not uniform among women. Questions of financial and marital status are also part of this equation.

It appears that working from a distance with the help of technology will become the most prominent way to conduct work in the future. Unless different regulatory models are developed, the current massive telecommuting trend has the potential to strengthen gendered and socioeconomic inequalities in U.S. society. Against this background, this article suggests a model for a solution that considers private–professional hybridity and both employers and governmental authorities. In this way, the article offers broad systemic solutions intended to diminish the effect of an employee’s familial and socioeconomic background on her ability to shift to telework on an equal basis with others and, in doing so, participate equally in the digitalized labor market of the future. 

October 20, 2022 in Family, Work/life, Workplace | Permalink | Comments (0)

Tuesday, October 18, 2022

Digital Privacy for Reproductive Choice in the Post-Roe Era

Aziz Huq & Rebecca Wexler, Digital Privacy for Reproductive Choice in the Post-Roe Era, 97 NYU L Rev. (forthcoming) 

The overruling of Roe v. Wade unleashed a torrent of regulatory and punitive activity restricting lawful reproductive options. The turn to the expansive criminal law and new schemes of civil liability creates new, and quite different, concerns from the pre-Roe landscape a half-century, ago. Reproductive choice, and its nemesis, rests on information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion begin with clinic closings, but quickly will extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely digital. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the mere act of doing so places them in legal peril.

This Article offers the first comprehensive accounting of abortion-related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal and economic terrain upon which firms, individuals, and states will make privacy related decisions. Building on this political economy, we develop a moral and economic argument to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law, and should actively resist restrictionist states’ efforts to instrumentalize them into their war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance, explaining in particular a range of powerful yet legal options for firms to refuse cooperation with restrictionist criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from restrictionist warrants, subpoenas, court orders, and judicial proceedings.


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October 18, 2022 in Abortion, Pregnancy, Reproductive Rights, Science | Permalink | Comments (0)

How a Supreme Court Case About Pigs and the Dormant Commerce Clause Could Further Undermine Abortion Rights

Elie Mystal, How a Supreme Court Case About Pigs Could Further Undermine . . . Abortion Rights

This real-world lens is necessary to understand the big case argued in front of the Supreme Court this week: National Pork Producers Council v. Ross (that’s Karen Ross, secretary of the California Department of Food and Agriculture). On the surface, National Pork Producers is about, well, pork production. Specifically, it’s about the horrific and inhumane way pregnant pigs are housed to reduce costs and maximize profits....

California voters, in their decency, passed a law, via referendum, that bans the sale of products made from pigs kept in these horrific conditions. The pork producers sued, arguing that the California law effectively regulates the pork industry outside the state (as most pig farms are not in California), and thus violates the Constitution’s Commerce Clause. The Commerce Clause says that only Congress has the power to regulate “interstate commerce.” That power is thought to prohibit states from passing regulations that extend beyond their borders, even in cases where Congress has not yet acted; lawyers call it the “dormant” commerce clause. In this case, the pork producers argued that even though Congress has not yet taken a position on pig torture, California’s law violates the dormant commerce clause by de facto regulating the pig farming industry by mandating how pigs must be farmed if they are to be sold in California.***

At oral arguments, all nine justices struggled with the long-term implications of this case, with most of them appearing more concerned with something other than whether pigs should be tortured for pork and profit. Because the justices became untethered from the case in front of them, the arguments gave us a glimpse into what these nine lords want the most.

Justices Clarence Thomas and Neil Gorsuch want the destruction of the dormant commerce clause and the creation of a dystopian hellscape in which each state is free to discriminate in whatever way seems best to it. Their questions suggested that they think the states should have at it, each banning whatever they want, for whatever reason. These two were the most consistent defenders of the California law, but not because somebody snuck an Impossible Burger onto their lunch plates. They made no argument in defense of animals; instead, they made their arguments in defense of “states’ rights”—a Confederate battle cry that almost always results in the mistreatment of people of color, women, and the LGBTQ community.***

As for the liberals on the court, they were in their own tough spot: They didn’t want to follow Gorsuch down his dystopian rabbit hole of unstoppable bans on anything a state deems “immoral,” but they also didn’t want to whip to the other extreme of Roberts’s and Alito’s deregulatory nightmare. Sonia Sotomayor did what I would have done, which was to keep trying to refocus the argument on the health and safety risks posed to consumers who eat pork produced from pigs in gestation crates. There is some science that suggests it’s not the best way to raise meat, and if California can win because eating pork from mistreated pigs is bad for consumers, then we can skirt the moral issue altogether.


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October 18, 2022 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Gender and Racial Inequity in Federal Preemption of Cosmetics and the Need for State Tort Law

Marie Boyd, Preemption & Gender & Racial (In)equity: Why State Tort Law Is Needed in the Cosmetic Context, 102 Boston U.L.Rev. (2022)

Much of the legal scholarship on the preemption of state tort law in the food and drug context and beyond has focused on issues of federalism. While the literature has considered the relationship between state tort law and the regulatory system, it has not generally explored the impact the federal preemption of state tort law may have on women and people of color. Similarly, while the literature has grappled with gender and racial justice issues in the tort system, including in the context of tort reform, it has largely not examined the gender and racial equity issues raised by federal preemption. This Article fills this gap by examining how the federal preemption of state tort law may perpetuate and even compound existing racial and gender inequities in the context of cosmetics. It considers how tort law, coupled with appropriate federal regulatory reform, may help lead to safer cosmetics for all.

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October 18, 2022 | Permalink | Comments (0)

Monday, October 17, 2022

Public Comment Submitted by Cohen, Rebouche, and Donley on Veterans Affairs Reproductive Health Services Interim Final Rule

David Cohen, Rachel Rebouche, and Greer Donley, represented by Democracy Forward, have submitted a public comment in response to the Department of Veteran Affairs' Reproductive Health Services Interim Final Rule. The text of their public comment can be accessed here. The comments makes two critical points: 

State laws banning abortion even in the context of rape, incest, life or the health of the pregnant person (or laws that except rape, incest, life or health of the pregnant person more narrowly than the Department) are unenforceable against the Department because they are preempted by the Interim Final Rule and its underlying statutes.


The Department and its employees enjoy immunity from any state law that prohibits the healthcare services authorized by the Interim Final Rule. As the Rule explains at length, Congress has authorized the Department to provide the abortion-related care at issue to both veterans and CHAMPVA beneficiaries. 87 Fed. Reg. at 55,288-90. Accordingly, any state law attempting to prevent the Department from providing those services would “regulate the United States directly,” Washington, 142 S. Ct. at 1984, by “control[ling] the conduct of [federal employees] acting under and in pursuance of the laws of the United States,” Johnson, 254 U.S. at 57. The enforcement of such laws against the Department is therefore prohibited by the Supremacy Clause. 

October 17, 2022 in Abortion, Reproductive Rights | Permalink | Comments (0)

New Guide on Gender Diversity in Legal Writing

The British Columbia Law Institute has published a useful guide on Gender Diversity in Legal Writing. It includes helpful content about why gender inclusive writing is important in lawyering. It includes a useful "Pocket Guide" to gender diverse legal writing as well as a glossary of key terms. This is a helpful tool for legal educators and practitioners as we develop our writing curricula and modernize best practices in writing. It is available here. Here is a summary of the guide:

Legal writing comprises many forms: legislation, court submissions, opinion letters, transactional writing (e.g., contracts, wills), communications with clients and other lawyers, legal memoranda, legal texts and academic writing, court forms, judgments and decisions, and other reports and papers. Ultimately, the writer must choose the gender inclusive techniques needed for their audience and subject matter. The methods and tools explored in this publication give legal writers guidance to consider inclusivity in their writing. 

October 17, 2022 in Gender, Law schools | Permalink | Comments (0)

Maya Manian on "A Health Justice Approach to Abortion"

Maya Manian has posted an abstract on "A Health Justice Approach to Abortion" on SSRN. Here is an excerpt:   

The Supreme Court’s watershed decision in Dobbs v. Jackson Women’s Health Organization overturning fifty years of precedent protecting abortion rights has led to chaos in both the legal and public health landscapes. With Roe v. Wade eliminated, new legal frameworks are urgently needed to help regain access to comprehensive reproductive health care in the long term. Recently, a number of legal scholars have argued in favor of “medical civil rights”—that medicalizing rights could be used for advancing civil rights in the realms of anti-discrimination, housing, disability, and poverty rights. Medical civil rights uses the framework of health justice to talk about civil rights issues such as fair housing, race discrimination in policing, and poverty as public health issues. This Article is the first to extend the health justice framework to abortion. The health justice framework offers a new form of medicalization that could advance more equitable access to reproductive health care.

However, medicalization has a complicated history in the legal regulation of abortion. Although scholars do not all agree on a definition of the concept, medicalization is typically defined as the framing of a phenomenon as medical in nature and properly within the jurisdiction of medical experts in terms of decision-making authority. Feminist scholars have often viewed medicalization suspiciously, especially in the context of reproduction, since medicalization has tended to correspond with physician control over women’s bodies. In the last few decades of intense debate over abortion, the focus has been on abortion as a civil right, but the notion of abortion as a medical concern has been lost since Roe in part due to feminist push back against medicalizing abortion rights. As a result, abortion has been siloed from healthcare in the law and segregated from mainstream medicine. This Article challenges feminist legal scholars’ critiques of medicalization of abortion in the Supreme Court’s abortion jurisprudence. It threads together the literatures on medicalization and the burgeoning legal scholarship on medical civil rights and health justice to argue in favor of re-medicalizing abortion rights. Yet, unlike the medicalization of the past, a health justice approach to abortion offers the potential to advance more equitable access to abortion care in a post-Roe world.

October 17, 2022 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Friday, October 14, 2022

The Under-Enforcement of Crimes Against Black Women

Lisa Avalos, The Under-Enforcement of Crimes Against Black Women, Case Western Reserve Law Review (forthcoming 2023) 

It is well known that over-policing has a severe adverse impact on communities of color. What is less well known is that over-policing is accompanied by a corollary—a pervasive and systemic under-policing of violence against women of color. The refusal to see women of color as victims of crime who are worthy recipients of justice, and to minimize the severity of violence committed against them, are habits that are deeply embedded in the American system of [in]justice. From an 1855 Supreme Court decision refusing to recognize a female slave’s right to sexual autonomy to a prosecutor’s 2021 decision to prosecute a Black rape victim for alleged false reporting, this article explores the systemic neglect of crimes against Black women while it simultaneously criminalizes them. Along the way, the article considers why Oklahoma City police officer Daniel Holtzclaw targeted African American women during his campaign of sexual violence, how Cleveland resident Anthony Sowell got away with murdering eleven Black women without being detected, and what motivated D.C. police officers to charge an eleven-year-old African American rape victim with false reporting.

The article argues that race-conscious police reform requires an intersectional approach. We must consider remedies for the under-policing of crimes against women of color alongside remedies for police brutality, excessive use of force, and other forms of over-policing. It argues that achieving police accountability for investigating and prosecuting violence against women of color requires (1) robust protocols designed to reduce implicit bias by sharply curtailing officer discretion and (2) accountability and oversight mechanisms designed to ensure that each and every complaint of such violence is thoroughly investigated.

The article then draws attention to global proposals capable of catalyzing the needed systemic change. It first considers a statutory approach—the Illinois Sexual Assault Incident Procedure Act, arguing for other states follow Illinois’ lead. This law requires police to follow certain procedures in relation to every sexual assault report, eliminating the opportunity to ignore crimes based on the race or gender of the victim. It next considers a constitutional approach—the new Equality Amendment proposed by Kimberlé Crenshaw & Catharine MacKinnon, analyzing the impact this Amendment would have on crimes against women of color. The article concludes that both of these approaches could be powerful tools for placing under-policing of violence against women of color on the radar and creating the needed change.

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October 14, 2022 in Pregnancy, Violence Against Women | Permalink | Comments (0)