Monday, May 9, 2022

The Depp-Heard Trial and its Effects on the #MeToo Movement

WTOP News in the D.C. area reported on The searing testimony of the Depp-Heard trial and its effect on #MeToo in a podcast. I shared commentary on the case following prior writings about the increasing complexity of defamation suits in the #MeToo era. The podcast is summarized here: 

The defamation suit turned spectacle between Amber Heard and Johnny Depp has attracted nearly 10 million views so far. But there will be nothing to watch until May 16 as the trial goes on break after both Depp and Heard delivered searing accounts of their abuse and violence. WTOP’s John Domen summarizes what we’ve missed from the Fairfax County courtroom. And then, Professor of Law at the University of Louisville Jamie Abrams provides a legal perspective on the trial’s significance, how it’s impacting the #MeToo movement and society’s understanding of domestic violence.

May 9, 2022 in Courts, Violence Against Women | Permalink | Comments (0)

Wednesday, April 27, 2022

Gendered Judging and Benevolent Sexism

Jeffrey Rachlinski and Andrew Wistrich begin their article, Benevolent Sexism in Judges, with an epigraph that, in its pithiness, cannot be improved upon: “The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.” Perhaps the most infamous proof of this claim can be found in Justice Joseph Bradley’s concurring opinion in Bradwell v. Illinois, which points to “the natural and proper timidity and delicacy which belongs to the female sex,” as well as her “paramount destiny . . . to fulfil the noble and benign offices of wife and mother,” as reasons to deny Myra Bradwell a license to practice law in Illinois. The stereotypes that women are natural caregivers, more nurturing and attentive to their children than men, persist to this day, undergirding unequal treatment in the workplace, burdening nonconforming individuals, and discounting efforts of men who are excellent parents.

In some instances, however, these same stereotypes may favor women. Rachlinski and Wistrich set out to test this phenomenon, which they term “benevolent sexism.” They study whether judges are affected by gender bias in two contexts where women regularly experience better outcomes than men: child custody disputes and criminal sentencing. Judges are supposed to be impartial in their decisions and are typically forbidden from relying on gender when determining outcomes. The confirmation of gender bias would therefore be an important (albeit unsurprising) finding.2

As the authors note, the mere fact that women experience systematically better outcomes in some contexts, like custody disputes, cannot prove the existence of gender bias among judges, as other factors unique to those individual cases might influence outcomes.

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

Wednesday, April 13, 2022

An Argument for Equitable Tolling in Sexual Harassment Cases

Joseph Seiner, Time, Equity, and Sexual Harassment, 12 U.C. Irvine L. Rev.573 (2022)

Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims.

The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate.

This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct.

April 13, 2022 in Courts, Equal Employment, Violence Against Women, Workplace | Permalink | Comments (0)

Monday, April 4, 2022

Navy Ship to be Named After Justice Ginsburg

Tim Stelloh of NBC News reported on March 31, 2022 that a navy ship will be named after Justice Ginsburg:

A Navy fuel ship will be named for the late Supreme Court Justice Ruth Bader Ginsburg in recognition of her efforts to advance women's rights and gender equality, Navy Secretary Carlos Del Toro said Thursday.

The future John Lewis-class replenishment oiler — a ship that transfers fuel to the Navy's operating carrier strike groups — will be the eighth such vessel to be named for an historic figure who fought for civil and human rights


Others include former Supreme Court Justice Thurgood Marshall, abolitionist and women's rights activist Sojurner Truth, gay rights icon Harvey Milk and civil rights leader John Lewis.

April 4, 2022 in Courts, Women lawyers | Permalink | Comments (0)

Thursday, March 31, 2022

A Legal Roadmap to the Interjurisdictional Abortion Wars After Roe's Demise

David Cohen, Greer Donley & Rachel Rebouche, The New Abortion Battleground, 123 Columbia L.Rev. (forthcoming 2023)

This Article examines the paradigm shift that will occur if (and, likely, when) the Supreme Court overturns Roe v. Wade this coming summer. While most commentators are focusing on what a post-Roe world looks like within individual states, this Article examines the challenging legal issues that will arise across state borders and between the state and federal government. We emphasize how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for what lies ahead.

Judges and scholars have long claimed that abortion law will become simpler if Roe is overturned, but that is woefully naïve. Overturning Roe will create a novel world of complex, interjurisdictional legal conflicts over abortion. Some states will pass laws banning their citizens from out-of-state abortions while others will pass laws insulating their providers from out-of-state prosecutions. State legislatures are already introducing and drafting bills to this effect . The federal government will also stake a claim. Beyond promoting access to medication abortion, federal regulations may preempt state abortion bans and federal land could provide shelter for abortion services. Ultimately, once the constitutional protection for pre-viability abortion disappears, the impending battles over abortion access will transport the half-century war over Roe into a new arena, one that will make abortion jurisprudence more complex than ever before.

This Article is the first to offer insights into this fast-approaching transformation of abortion rights, law, and access. We explore the interjurisdictional issues sure to arise while looking ahead to creative strategies to promote abortion access in a country without a constitutional abortion right.

March 31, 2022 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Monday, March 28, 2022

Shanta Trivedi on "Supreme Mom Guilt" in Ms. Magazine

Shanta Trivedi writes for Ms. Magazine The Supreme Mom Guilt is Real: Judge Ketanji Brown Jackson and Motherhood. 

The struggles of employed motherhood in a society that is not built to support mothers (formal wage-earners or stay-at-home moms) has been documented time and again. But, in many ways, what Jackson was expressing is unique to Black women. Black women have historically been more likely to be a part of the workforce than their white counterparts. Black women and other women are color are also more likely to do work that supports white women’s ability to work outside the home, such as caregiving and housecleaning. And, for many Black women, they are the “only” of both their gender and race at work, putting even more pressure on them in already complicated work settings where they regularly face microaggressions, harassment or blatant misogynoir—the toxic, combined discrimination against Black females.

* * *

All mothers feel pressure to be perfect and the judgment that they face is real, but Black mothers face a microscope unlike no other, particularly when compared to the upper-middle class white version of Pinterest and Etsy-fueled parenting. In the midst of an exercise designed to scrutinize her and her life, despite her perfect resume, she highlighted her perceived imperfection as a parent. But perhaps there is no better evidence to the contrary than from her own children. 

March 28, 2022 in Courts, Judges, Women lawyers, Work/life | Permalink | Comments (0)

Wednesday, March 23, 2022

Book, Why Women in the Judiciary Really Matter

Sally Kenney, Book, Gender and Justice: Why Women in the Judiciary Really Matter 

[T]his book explores different questions in different North American and European geographical jurisdictions and courts, demonstrating the value of a gender analysis of courts, judges, law, institutions, organizations, and, ultimately, politics. Gender and Justice argues empirically for both more women and more feminists on the bench, while demonstrating that achieving these two aims are independent projects.

"In this impressive work of seminal scholarship, Professor Kenney documents and articulates a persuasive case for the value a gender analysis of legal systems and decisions, as well as there needing more politically and judicially astute women appointed to the bench. – Library Bookwatch, Midwest Book Review

March 23, 2022 in Books, Courts, Judges, Women lawyers | Permalink | Comments (0)

Tuesday, March 8, 2022

"Ruined": An analysis of judicial language used in sentencing rape and sexual assault defendants

"Ruined"

Maybell Romero

Judges play a critical role in one of the most important states of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants. This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.” The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.

In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment. However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article considers at how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing. I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

March 8, 2022 in Courts, Judges, Violence Against Women | Permalink | Comments (0)

Monday, March 7, 2022

"The 19th News" Reviews Judge Amalya Lyle Kearse's Supreme Court Consideration

Candice Norwood of The 19th News published an informative article titled 41 years before Ketanji Brown Jackson, Amalya Lyle Kearse was Considered for the Supreme Court.  

As the country prepares to watch the confirmation process for the first Black woman nominated to the nation’s highest court, The 19th revisits Kearse, who was the first Black woman judge on an appellate court and who still sits on the U.S. Court of Appeals for the 2nd Circuit. She was considered for a Supreme Court nomination by three different presidents, the first Black woman on record to receive such recognition. Kearse was a key figure in paving the way for Black women judges, who even with the high-profile nomination of Judge Ketanji Brown Jackson to the Supreme Court are underrepresented on the U.S. judiciary.

“Amalya Kearse’s existence on President Reagan’s shortlist over 40 years ago is concrete evidence that for as long as women have been allowed to be on the Supreme Court, there have been Black women who have been qualified to be there, and it is a long time coming to finally have that fulfilled,” said Renee Knake Jefferson, a professor at the University of Houston Law Center and co-author of the book “Shortlisted: Women in the Shadows of the Supreme Court.”

Read the article in full for an informative summary of her career.  

March 7, 2022 in Courts, Equal Employment, Race | Permalink | Comments (0)

Tuesday, March 1, 2022

Sprinting a Marathon: Next Steps for Gender Equity in Criminal Law Employment

Sprinting a Marathon: Next Steps for Gender Equity in Criminal Law Employment

By: Maryam Ahranjani

Minnesota Law Review, Vol. 106, Spring 2022

UNM School of Law Research Paper No. 2022-08

In an era when women’s hard-fought and hard-earned participation in the workforce is in peril, the ABA Criminal Justice Section’s Women in Criminal Justice Task Force (TF) continues its groundbreaking work of documenting challenges in hiring, retention, and promotion of women criminal lawyers. Sprinting a Marathon follows up on the initial findings of the TF as published in the Berkeley Journal of Criminal Law and the ABA Criminal Justice magazine and on the ABA Criminal Justice Section website. This Article describes the results of a survey of diverse criminal lawyers and judges conducted at the end of 2020, as well as the focus groups and follow-up survey to high-level criminal justice leaders hosted by the TF in late 2021.

Concluding that hiring, retention, and, particularly, promotion of women in criminal justice continue to be a problem, the 2020 follow-up survey also revealed the following serious obstacles: (1) limited flexibility with work schedules; (2) insufficient wellness resources; (3) deficient training opportunities, particularly in state and rural criminal law offices; and (4) short supply of meaningful mentorship. Some employers seem receptive to change but many do not. This Article shares high-level takeaways and recommendations that the TF summarized in a one-page chart to address the barriers faced by women criminal lawyers. The Article describes the 2021 focus group and survey responses to four key questions and concludes with next steps for the TF, including the creation of a robust tool kit and efforts to achieve systemic endorsement of Ten Principles for Gender Equity in Criminal Law, first within the ABA and then among the larger justice community.

March 1, 2022 in Courts, Gender, Women lawyers | Permalink | Comments (0)

Thursday, February 17, 2022

New Book: "Civil Rights Queen: Constance Baker Motley" -- the First Black Woman Appointed to the Federal Judiciary

New Book, Tomiko Brown-Nagin, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality

The first major biography of one of our most influential judges—an activist lawyer who became the first Black woman appointed to the federal judiciarythat provides an eye-opening account of the twin struggles for gender equality and civil rights in the 20th Century.

“A must read for anyone who dares to believe that equal justice under the law is possible and is in search of a model for how to make it a reality.” —Anita Hill

Born to an aspirational blue-collar family during the Great Depression, Constance Baker Motley was expected to find herself a good career as a hair dresser. Instead, she became the first black woman to argue a case in front of the Supreme Court, the first of ten she would eventually argue. The only black woman member in the legal team at the NAACP's Inc. Fund at the time, she defended Martin Luther King in Birmingham, helped to argue in Brown vs. The Board of Education, and played a critical role in vanquishing Jim Crow laws throughout the South. She was the first black woman elected to the state Senate in New York, the first woman elected Manhattan Borough President, and the first black woman appointed to the federal judiciary.
    
Civil Rights Queen captures the story of a remarkable American life, a figure who remade law and inspired the imaginations of African Americans across the country. Burnished with an extraordinary wealth of research, award-winning, esteemed Civil Rights and legal historian and dean of the Harvard Radcliffe Institute, Tomiko Brown-Nagin brings Motley to life in these pages. Brown-Nagin compels us to ponder some of our most timeless and urgent questions--how do the historically marginalized access the corridors of power? What is the price of the ticket? How does access to power shape individuals committed to social justice? In Civil Rights Queen, she dramatically fills out the picture of some of the most profound judicial and societal change made in twentieth-century America.

February 17, 2022 in Books, Courts, Judges, Legal History | Permalink | Comments (0)

Thursday, February 3, 2022

Study Shows that Women and Non-White Judges are Substantially More Likely to Rule in Favor of Plaintiff Reaching Discovery

Stephen Burbank & Sean Farhang, Politics, Identity, and Pleadings Decisions on the U.S. Courts of Appeals, U Penn. L. Rev. (forthcoming

 We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal. ***

In our random sample of cases, we find that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample.

The results are different when the panel is making law. In precedential cases, we find that Democratic panels were significantly more likely to decide in favor of plaintiffs in non-civil rights claims. We also find that panels with one woman were more likely to decide precedential other civil rights claims in favor of plaintiffs, and that panels with two women (but not one) were more likely to do so in non-civil rights claims.

Our results for gender contradict conventional wisdom in the literature that women judges’ preferences differ from men’s only in cases implicating discrimination. They add to evidence suggesting the possibility that procedural law affecting access to justice may itself be a policy domain in which women have different (more pro-access) preferences that extend beyond discrimination claims. Gender, alone among the judge characteristics we study, is significant in both random sample and precedential-only models, and in both civil rights and non-civil rights models, revealing a distinctive propensity among women on the Courts of Appeal to support plaintiffs’ access to discovery.

Finally, significant variation in our results across the random sample and precedential cases highlights the risk of error in drawing general inferences from either significant or null results in precedential cases—general inferences that are widespread in the literature on the Courts of Appeals.

February 3, 2022 in Courts, Gender, Judges, Race | Permalink | Comments (0)

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)

Monday, January 24, 2022

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)

Wednesday, January 19, 2022

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)

Wednesday, January 12, 2022

Women's Rights Advocacy Groups File Amicus Brief in Equal Rights Amendment Litigation

Amicus Brief in Virginia v. Ferriero (D.C. Cir.)

SUMMARY OF ARGUMENT

The fight for constitutional equality is a long-term project, andprogress has been painfully slow. For the first 144 years of our Nation’s history, women were denied the most basic right of citizens in a democracy: the right to vote. Women who otherwise met all criteria for voting found themselves barred from the polls, simply because of their sex. Their absence from the polls contributed to the development of laws and institutions that persistently discriminate against women.

Today, women serve with distinction in the C-suite, on the floor of Congress, on the soccer field, in the White House, and in combat. Yet women still face persistent inequality in nearly every sphere. Women are consistently underrepresented in positions of power and overrepresented among those in poverty. Women are still paid only 82 cents for every dollar paid to men—and, for women of color, even less than that. Women also face an epidemic of domestic and sexual violence. These problems are particularly acute for Black women, Latinas, indigenous and Native American women, immigrants, lesbians, trans women, and single mothers.

In the face of this persistent inequality, the Equal Rights Amendment is as relevant today as it ever was. The ERA declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Drafted by Alice Paul and other suffragists in the 1920s, the ERA passed through Congress in 1972 with broad, bipartisan support. After the number of state ratifications stalled at thirty-five in the late 1970s, the fight for equality pressed forward, achieving steady progress on many fronts, including in public opinion. Today, Americans overwhelmingly support including an ERA in our Constitution. Three quarters of the States have now voted to ratify the ERA—satisfying the constitutional threshold—and there are active ratification efforts in every one of the unratified States. Yet the Archivist asks this Court to send the fight for constitutional equality back to square one.

This Court should reject that argument. The painfully slow progress toward equality makes it particularly important in this context to respect the plain text of Article V, which establishes a process for amendment that leaves no room for time limits. The ERA satisfied Article V’s amendment process in January 2020, when Virginia became the thirty-eighth State to ratify. Now that the ERA has been adopted, federal law requires the Archivist to publish it. See 1 U.S.C. § 106b. The seven-year time frame that Congress imposed in 1972 does not and cannot alter the process in Article V. The ERA’s time frame does not appear in the amendment itself; Congress placed it only in the resolving clause of its joint resolution. At a minimum, that choice means that Congress reserved for itself the power to change the time frame in a subsequent joint resolution—as it did in 1978.

More fundamentally, however, a time frame imposed unilaterally by Congress cannot stand in the way of an amendment that has met all the requirements for ratification under Article V. The validity of an amendment depends on the plain text of Article V, which provides that an amendment becomes “valid to all intents and purposes . . . when ratified by the legislatures of three fourths of the several States.” Although the Framers did not recognize women as equal, they created a process for amending the Constitution that could reflect changes in our Nation’s understanding of equality, even when those changes evolve over many years. The ERA reflects such a change.

Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V. But the Archivist’s current refusal to publish the ERA is itself an inappropriate intrusion of the Executive Branch into the ratification process. One of the practical consequences of that refusal is its impact on the ongoing efforts by activists to press for revision of state statutes that continue to discriminate on the basis of sex. Although some States may be willing to make those revisions even without federal recognition of the ERA, others will not. In that respect—among others—the district court was wrong to assume that publication by the Archivist will make no difference.

 

January 12, 2022 in Constitutional, Courts, Legal History, Legislation | Permalink | Comments (0)

Tuesday, January 11, 2022

Career, Gender and Political Bias in Pretrial Decisions on Gender Violence: Evidence from a natural experiment in Spain

Career, Gender and Political Bias in Pretrial Decisions on Gender Violence: Evidence from a natural experiment

Joan-Josep Vallbé and Carmen Ramírez-Folch

The aim of this paper is to provide an explanation of the variation in lower pretrial court judicial decisions over gender-violence cases, under a civil-law system. Despite the typical anonymity of lower-court judges in such legal systems, we are able to exploit a natural experiment in Spain that allows us to estimate the effect of judges’ gender, career incentives, and policy preferences on decisions on restraining orders for victims of gender violence. Although the literature has found ample evidence of gender and ideology effects on judicial behavior when women’s rights are at stake, we argue that due to career and promotion dynamics, career incentives moderate the effect of gender and policy preferences on such decisions. We find that the probability to grant a restraining order to a victim is higher among female judges than male judges, and that left-leaning judges also tend to grant restraining orders at higher rates. However, we also observe that these mechanisms are moderated by career incentives, to the point of blurring their effects when career pressures are high. These findings are a relevant contribution to the understanding of the mechanisms behind judicial inequality under civil-law systems, where judges’ attributes tend to be unobservable by institutional design.

January 11, 2022 in Courts, Gender, International | Permalink | Comments (0)

Tuesday, January 4, 2022

Do Reason-Based Abortion Bans Prevent Eugenics?

Do Reason-Based Abortion Bans Prevent Eugenics?

By: Sital Kalantry

Published in: Cornell Law Review, Vol. 107, No. 1, 2021

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.

January 4, 2022 in Abortion, Constitutional, Courts, Family, Gender, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, January 3, 2022

Vacated Sentence for MSU Gymnastics Coach Accused of Making False Statements in Nassar Case

The Michigan Court of Appeals vacated Kathie Ann Klages' conviction for making a false statement in the investation of Larry Nassar's sexual abuse. Michigan Radio provides context to the case: 

A jury convicted Klages last year of two counts of giving a false statement to a peace officer after determining she lied to investigators in 2018 when she told them she had no memory of two teenage gymnasts telling her in 1997 that Nassar's so-called treatment involved genital penetration.

 

A judge sentenced Klages to 90 days in jail and 18 months probation, but Klages earned early release from probation at the request of her supervisors who described her as cooperative.

The full case can be accessed here.  The opinion summary previews: 

The Michigan Attorney General charged Kathie Ann Klages with making a false statement to a peace officer investigating Michigan State University’s knowledge of the sexual abuse perpetrated by Dr. Larry Nassar. Klages made the allegedly false statement in 2018, after Nassar had been convicted, sentenced, and imprisoned. The statement concerned Klages’s memory of conversations with two gymnasts that had taken place 21 years earlier, in 1997. Klages denied any recollection of having been told by the gymnasts that Nassar’s “treatment” had included digital-genital penetration. A jury disbelieved this testimony and convicted her of two counts of lying to a peace officer, MCL 750.479c.

Klages raises several challenges to her convictions. We find one dispositive. No evidence supported that Klages’s false statement regarding the 1997 conversations was material to the criminal investigation conducted in 2018. We vacate her convictions and remand for dismissal of the charges.

January 3, 2022 in Courts, Sports | Permalink | Comments (0)

Wednesday, December 15, 2021

Third Circuit Denies Asylum Claim on Grounds that Women are Not a Particular Social Group

Chavez-Chilel v. US (3d Cir. Dec. 6, 2021)

Finding substantial evidence supported the BIA’s conclusion that “Guatemalan women” is not a particular social group (“PSG”) for asylum or withholding purposes, we will deny the petition.***

 

At her merits hearing, Chavez-Chilel testified that she was raped as a teenager in Guatemala, the police did not take any action when she reported this crime, and the same man later threatened to rape her again. She explained that she feared she would be sexually assaulted or killed if she was removed to Guatemala. The IJ denied Chavez-Chilel’s applications for asylum and withholding of removal, finding that, while she was credible and that her rape qualified as past persecution, her proposed PSG, “Guatemalan women,” did not constitute a PSG for asylum or withholding of removal purposes. The IJ concluded that this PSG was not “sufficiently particular” because there was no evidence that Guatemalan women share a “unifying characteristic” or present a “unified target” for persecution. ***

 

Substantial evidence supports the BIA’s and IJ’s finding that “Guatemalan women” is not a cognizable PSG. A PSG must be: “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” S.E.R.L., 894 F.3d at 540 (quotation marks and citation omitted). Particularity “addresses the outer limits of a group’s boundaries and is definitional in nature, whereas social distinction focuses on whether the people of a given society would perceive a proposed group as sufficiently separate or distinct.” Id. (quotation marks omitted). To satisfy the particularity requirement, “an alleged social group [must] have discrete and . . . definable boundaries that are not amorphous, overbroad, diffuse, or subjective, so as to provide a clear standard for determining who is a member.” Id. at 553 (quotation marks and citation omitted).

 

Chavez-Chilel’s proposed PSG lacks particularity. “[N]ot every immutable characteristic is sufficiently precise to define a [PSG],” id. at 552, and courts have concluded that a proposed PSG of all women in a particular country “is overbroad[] because no factfinder could reasonably conclude that all [of a country’s] women had a well-founded fear of persecution based solely on their gender,” Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (addressing Iranian women). Reasons to depart from this general rule are not present here. For example, in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Court of Appeals for the Eighth Circuit recognized the PSG of all Somali women because “all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of” female genital mutilation. Id. at 518; see also Mohammed v. Gonzales, 400 F.3d 785, 797–98 (9th Cir. 2005) (same); In re Kasinga, 21 I. & N. Dec. 357, 365–66 (B.I.A. 1996) (recognizing PSG of “young women” in a particular tribe in Togo due to pervasive practice of female genital mutilation). Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. Cf. A.R. 170–73, 182 (Chavez-Chilel’s testimony that she knew of no other women who suffered sexual or domestic violence); A.R. 232 (report explaining that one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay). Accordingly, while the size of the group standing alone would not disqualify a group from being a PSG, Cece v. Holder, 733 F.3d 662, 674–75 (7th Cir. 2013), ChavezChilel has failed to demonstrate that her proposed PSG is sufficiently particularized. Thus, her alleged fear of persecution based upon membership in such a group does not provide a basis for asylum. 

 H/t Brian Soucek

 

December 15, 2021 in Courts, Gender, International, Theory, Violence Against Women | Permalink | Comments (0)