Tuesday, September 10, 2019
Jenna Sapiano & Beverley Baines, Feminist Curiosity about International Constitutional Law and Global Constitutionalism, Journal of the Oxford Centre for Socio-Legal Studies, Issue 1, 2019
Cynthia Enloe’s theory of feminist curiosity inspired us to ask whether feminist International Constitutional Law (ICL) scholars and their Global Constitutionalism (GC) counterparts apply the same concept of gender to the internationalization/globalization of constitutional norms. We analyzed ICL scholarship on substantive rights to security and equality (Hilary Charlesworth and Christine Chinkin), freedom from violence (Catharine A. MacKinnon), and parity (Ruth Rubio-Marín) and GC scholarship on processes of contestation (Antje Wiener), proportionality (Anne Peters), and democratic iterations (Seyla Benhabib). Our findings, in the form of a hypothesis, are that gender specificity infuses the former and gender inclusivity, the latter. In other words, these scholars take competing approaches to protecting (ICL) and empowering (GC) women. This hypothesis sets the stage for the conversations we imagine these feminist scholars might have: Charlesworth and Chinkin with Wiener about the rule of law; MacKinnon and Peters about the separation of powers; and Rubio-Marín and Benhabib about democracy. Their collective insights could yield constructive connections that advance women’s protection and empowerment domestically, internationally, and globally.
Tuesday, July 23, 2019
Kaci Bishop,"Unconventional Actors," North Carolina J. International L. L & Commercial Regulation (2019)
Asylum cases involving domestic violence or gang-related violence already had high burdens to overcome, but in the summer of 2018, their underlying theories were inverted and pulled out from underneath them with Matter of A-B-. The case involved a woman who had sought asylum in the United States for persecution by her ex-husband on account of her being a member of the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Matter of A-B- narrowed the possible protected grounds for asylum and overruled BIA precedent that recognized certain survivors of gender-based domestic violence as meriting asylum. This decision also departed from precedent to severely restrict who would be recognized as persecutors.
United States’ asylum law was originally designed to protect against persecution committed by a government actor. However, it has long included that someone fleeing harm by a nongovernment actor could be granted asylum, assuming she met the other elements of asylum, if she could demonstrate that her home country’s government was unable or unwilling to protect her from this nongovernmental harm. Matter of A-B- purportedly raised that “unable or unwilling” standard to require that a government had “condoned” the nongovernmental or private harm or had demonstrated a “complete helplessness” to protect against it.
This Article challenges Matter of A-B-’s claims and suggests ways to demonstrate when actions and harms by nongovernment actors are not individual private crimes but products of systemic and cultural norms that are at the very least tolerated by the home country’s government. A central question in evaluating whether a government was unable or unwilling to control a nongovernment actor is whether the nongovernment actor has some de facto power of the state. For applicants, advocates, and adjudicators to analyze when a nongovernment actor has some de facto state power, this Article provides a robust set of factors to evaluate both when a nongovernment actor has usurped that power and when the government delegated or abdicated that power.
Wednesday, July 17, 2019
Farnush Ghadery, "#MeToo – Has the ‘Sisterhood’ Finally Become Global or Just Another Product of Neoliberal Feminism?" , Transnational Legal Theory (vol. 02, 2019)
The article discusses the #MeToo movement by reflecting on its origins and recent developments to consider its position within feminist theory. On the one hand, the cross-border proliferation of this hashtag revived the question once posed by liberal feminist Robin Morgan: Has the ‘sisterhood’ finally become global? Others questioned the deeper meaning of the ‘me’ as part of #MeToo, wondering whether the need for individual responsibility to come forward indicates that the movement fits only too well with what has been coined neoliberal feminism. Disagreeing with both categorisations, the article positions #MeToo as a transnational feminist consciousness-raising endeavour which can be traced across different places worldwide. Referring to some of these contextualised uses of #MeToo, the article argues that #MeToo has been able to manifest itself as a transnational feminist phenomenon, as it has allowed groups in distinct spaces and localities to take ownership of the varying manifestations of #MeToo.
Tuesday, June 11, 2019
Interpreting the Reasonable Expectation of Sexual Privacy in Canada's Digital Technology Criminal Laws
Moira Aikenhead, A '"Reasonable" Expectation of Sexual Privacy in the Digital Age, 41 Dalhousie L.J. 274 (2018)
Two Criminal Code offences, voyeurism, and the publication of intimate images without consent, were enacted to protect Canadians’ right to sexual privacy in light of invasive digital technologies. Women and girls are overwhelmingly targeted as victims for both of these offences, given the higher value placed on their non-consensual, sexualised images in an unequal society. Both offences require an analysis of whether the complainant was in circumstances giving rise to a reasonable expectation of privacy, and the use of this standard is potentially problematic both from a feminist standpoint and in light of the rapidly evolving technological realities of the digital age. This article proposes a feminist-inspired, technology-informed approach to the reasonable expectation of privacy standard in relation to these offences, and examines the extent to which the Supreme Court of Canada’s recent voyeurism decision, R. v. Jarvis, aligns with this approach.
Thursday, April 25, 2019
Kathryn Stanchi, Bridget Crawford, & Linda Berfer, Why Women: Judging Transnational Courts and Tribunals, Connect. J. of Int'l Law (forthcoming)
Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges. Instead, judges with diverse perspectives and life experiences, regardless of their gender, will make a difference in the substance and form of judicial decisions.
This essay makes two contributions to the dialogue about judicial diversity. First, the essay posits that the overall justice project would be better served by abandoning binary categories like “men” and “women” in favor of recognizing that there is great diversity in both sex (however measured) and gender identity (however expressed). Framing any policy discussion in terms of “men” and “women” will fail to account for biological variety, individual difference, diverse gender identities, multiple sexual orientations, and the significant role that law and society play in constructing these identifiers.
The essay’s second intervention employs an expansive view of feminism as a broad justice project to consider that multiple facets of a judge’s lived experience, identity and perspective inform decision-making. Bias and elitism in legal education and the legal profession occlude the judicial pipeline. Instead of carrying a flag for more “women” in the judiciary, advocates for more diverse courts and tribunals should focus on elevating those with the least professional capital: people of color, low-income people, immigrants, graduates of non-elite schools, professionals from rural areas, and people with non-cisgender identities, to name a few groups. Adding more women to the bench may seem to be an immediate solution, but it will not achieve the goal. Attaining true diversity will be more difficult.
Tuesday, April 9, 2019
Silvia Suteu, Gender in Comparative Constitutional Change, Forthcoming in Xenophon Contiades and Alkmene Fotiadou eds., Routledge Handbook on Comparative Constitutional Change (2019)
This chapter seeks to bridge the gap between the expanding literatures on comparative constitutional change and gender and constitutionalism. Starting from an inclusive definition of gender, the chapter maps and evaluates areas of recent intense constitutional activity in the field of gender equality and non-discrimination, as well as the formal and informal mechanisms used for bringing about reform. The chapter looks in particular at the continued fight for women’s rights, especially access to abortion and gender quotas, and to gender and sexual minority rights, in particular marriage equality and the recognition of a non-binary conception of gender. The chapter contextualises these issues and concludes that the framing of these debates will be very important, as will be the promotion of a change in societal attitudes alongside any constitutional and legislative change.
Tuesday, February 26, 2019
Upskirting has been made a specific criminal offence after a Bill to ban the cruel craze received Royal Assent in the House of Lords.
People convicted of taking an image or video of a victim’s groin or buttocks under their clothing face being jailed for two years and being put on the sex offenders’ register.
Gina Martin, who campaigned for the law change after being upskirted at a festival in 2017, welcomed the move and said it was a “long time coming”.
Prime Minister Theresa May, who was in the House of Commons as cheers rang out when the Bill received Royal Assent in the Lords, said she was “very pleased to see the degrading practice of upskirting become a criminal offence after the tireless work of victims and campaigners.”
Victims called for the creation of a specific law after becoming frustrated with a lack of options to prosecute perpetrators.
While some people were able to seek a conviction under harassment, voyeurism or outraging public decency laws, the creation of a specific offence means suspects can be prosecuted where they sought to obtain sexual gratification or cause humiliation, distress or alarm.
Monday, February 18, 2019
Are women’s appeals for judicial remedies more likely to be successful if there are more women on the bench? Examinations of this question have mostly been confined to the North American context. This article evaluates this question in the European Court of Human Rights using a new dataset that incorporates both the gender of judges and applicants to the Court. Using matching within judgment, the analysis confirms findings from the U.S. context that female judges are more favorably disposed towards discrimination cases filed by women. Yet, female judges are not more likely than male judges to support rights claims filed by women on other legal issues. There is, however, strong evidence that female judges are more favorably disposed towards male and female applicants who allege physical integrity rights violations, such as torture. This is consistent with the attitudinal theory of judging. Thus, gender composition affects issues beyond those traditionally thought to be women’s rights issues. Moreover, the analysis reveals that women disproportionally file property rights claims, an issue that has gotten very little attention in the literature on gender and courts
Thursday, January 24, 2019
Non-physical and economic abuse are to be included in the first legal definition of domestic abuse as part of a landmark overhaul of the law.
Under the draft laws, a wide range of measures will also include domestic abusers being banned from cross-examining victims in family courts.
The home secretary said the changes would "bolster protection for victims".
Campaigners say the measures are a "once in a generation" opportunity to combat the impact of abuse.
Dr Nicola Sharp-Jeffs, the director of the charity Surviving Economic Abuse, said adding economic abuse to the legal definition was "highly significant" and would give victims "more confidence" when they came forward.
The draft bill going before MPs will also:
Create new powers to force perpetrators into behaviour-changing rehabilitation programmes
Make victims automatically eligible for special protections when they are giving evidence in criminal trials
Set up a national "domestic abuse commissioner" tasked with improving the response and support for victims across public services
The definition of domestic abuse will specifically recognise that it goes beyond crimes of violence and includes victims who are psychologically coerced and manipulated, as well as those who have no control of their finances.
The legislation will also clarify the workings of "Clare's Law" - a measure introduced four years ago to permit police to tell a member of the public if there are concerns over about previous violence committed by their partner.
Tuesday, December 4, 2018
The Case of Edith Haynes Denied Admission to the Bar in 1900 Australia Because Women Were not "Persons"
Margaret Thornton, Challenging the Legal Profession A Century On: The Case of Edith Haynes, 44 Univ. West. Australia L. Rev. (2018)
This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.
Wednesday, November 28, 2018
Last year, 137 women across the globe were killed every day by intimate partners or relatives.
According to the 2018 report on the killing of women and girls released Sunday by the U.N. Office on Drugs and Crime, about 87,000 were killed worldwide in 2017, 58 percent of them victims of domestic or family violence.
Many of these deaths could have been prevented.
Jean-Luc Lemahieu, director of policy analysis and public information at the U.N. Office on Drugs and Crime, told The Washington Post that more than 30,000 of those deaths were the result of domestic abuse.
Domestic homicides are “the tragic end of a cycle of abuse and violence,” Lemahieu said. “When a female loses her life, it is not without predictions — you see incidences of verbal and other forms of violence. The pattern is established long before the homicide.”***
The report found that the likelihood of women being slain by relatives or intimate partners has increased by more than 10 percent since 2012; women in the Americas and Africa are now the most at risk.
The report also called for a coordinated response from law enforcement that empowers and protects victims and holds their abusers accountable. Several countries have launched initiatives and training to combat gender-based violence.
“Underreporting of domestic abuse highlights the justice system as one area in need of much work,” Lemahieu said. He cited figures from Italy, which reported that 31,500 women out of every 100,000 ages 16 to 70 will experience physical and sexual violence, according to a lifetime survey. Domestic homicides occur in 0.4 percent of those cases, while 35 will report domestic abuse to authorities.
Thursday, November 15, 2018
Women have taken to social media to share photos of their underwear after a 27-year-old man was acquitted in a rape trial during which the woman's 'thong' was brought up in court.
The criminal court case ended with the man being found not guilty of raping a 17-year-old in the city of Cork in Ireland.
But the defence barrister's argument garnered widespread attention after she told the jury to take into account what the teenager was wearing.
"You have to look at the way she was dressed. She was wearing a thong with a lace front," she said, according to the Irish Examiner newspaper on 6 November.
This prompted Irish MP Ruth Coppinger to show blue lacy underwear in the Dáil (Irish parliament) and share a powerful message to her colleagues.
"It might seem embarrassing to show a pair of thongs here... how do you think a rape victim or a woman feels at the incongruous setting of her underwear being shown in a court?"
Since the media attention, many women have turned to social media and post photos of their underwear accompanied by the hashtag 'This Is Not Consent'.
For the original report of the trial and the alleged incident, see Irish Examiner, Counsel for Man Acquitted of Rape Suggested Jurors Should Reflect on Underwear Worn by Teen Complainant
Sharon Thompson, Feminist Relational Contract Theory: A New Model for Family Property Agreements, 45 J. Law & Society 617 (2018)
In this article, a new model named Feminist Relational Contract Theory (FRCT) is explained, justified, and applied to the context of family property agreements and specifically nuptial agreements. Most nuptial agreements are created amidst a complex web of power relationships and the dynamic of these relationships often evolves over time. However, the courts in England and Wales have not yet found a way to recognize this without adopting a paternalistic approach. This article proposes an alternative that could, in practice, recognize issues of power between parties entering family property agreements, exploring a recent Australian case on nuptial agreements which adopts a more contextual understanding of contract law.
Tuesday, November 13, 2018
Ronagh McQuigg, Is it Time for a UN Treaty on Violence Against Women?, 22 Int'l J. of Human Rights 305 (2018)
Violence against women is one of the most prevalent human rights abuses at the global level. However, no specific mention of this issue is made in any of the UN treaties. This article begins by discussing why any express reference to violence against women was excluded from the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and then proceeds to examine existing efforts at the UN level in this area. However the key focus of this article is on the new and important question of whether it is now time for a specific treaty on violence against women to be adopted at the UN level. The article analyses the arguments surrounding the adoption of a global treaty on violence against women, and aims to provide a detailed examination of this highly significant area of law, while seeking to offer original insights on this issue. It is ultimately concluded that, despite the undoubted challenges which would be involved, it is nevertheless time for the development and implementation of a UN treaty on violence against women.
Wednesday, November 7, 2018
The single greatest antidote to poverty and social stagnation is the emancipation of women. Wherever this has been tried, wherever women have been empowered to do as they wish, the economy and the culture have been radically improved.
A new book by Augusto Lopez-Claros, a senior fellow at the School of Foreign Service at Georgetown University, and Bahiyyih Nakhjavani, an Iranian writer and novelist, is among the first to comprehensively test this proposition by surveying data from 189 countries. Titled Equality for Women = Prosperity for All, the book shows how gender inequalities — in education, income, law, employment, and wages — lead to instability and chaos at almost every level of society.
A conversation with the author follows.
Wednesday, October 17, 2018
It was not until Lenahan v. United States that many U.S. domestic violence advocates incorporated the human rights framework in a conscious and organized way. Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan case is then discussed. Part III addresses needed change within the U.S. civil law systems if the country is to affectively adopt a human rights perspective in matters of domestic violence and other human rights abuses.
Monday, October 1, 2018
A policy takes effect on Monday that could increase the risk of deportation for undocumented immigrant victims or witnesses of crimes. The agency that considers visa applications will begin to refer immigrants for deportation proceedings in far more cases, including when a person fails to qualify for a visa. The policy would also constrain officers' discretion.The new US Citizenship and Immigration Services policy specifically applies to visas designed to protect victims of violent crime and trafficking, including some created under the Violence Against Women Act. Those visas will give legal status to victims who report or testify about crimes.The result: Victims who apply for the special visas but fall short, including for reasons like incomplete paperwork or missing a deadline, could end up in deportation proceedings. Previously, there was no guidance to refer all visa applicants who fall short to immigration court for possible deportation. Under the new policy, it'll be the presumption. Advocates for immigrants worry the risk will be too great for immigrants on the fence about reporting their crimes.Other policies that especially impact women and victims include:
- The now-reversed "zero tolerance" prosecution policy that separated thousands of parents and children who crossed the border illegally, many who said they were fleeing violence at home.
- Anti-sanctuary city efforts and arrests of immigrants at courthouses, which local police and immigrant advocates say has already had a chilling effect on immigrant victims reporting crimes.
- Reversing a policy to automatically seek the release of pregnant immigrants from detention, allowing the government to detain more of them.
- Seeking to keep teens in immigration detention from obtaining abortions.
- Dramatically lowering the number of refugee admissions to the US.
- Another Sessions ruling that would restrict immigration judges' ability to close or suspend deportation proceedings while the immigrant is still waiting for the government to rule on their visa application. Some victims' visas have years-long backlogs.
- Tightening asylum thresholds that advocates fear diminish officers' latitude to consider trauma as an explanation for certain behaviors. The concern is traumatized individuals could come across as noncredible when they are rather exhibiting symptoms of their trauma.
- An expected move to stop issuing work visas to the spouses of high-skilled immigrants, which would impact immigrant spouses' ability to have some independence in the marriage.
- Regulations being drafted that would try to prevent immigrants from gaining asylum if they enter the US illegally.
Wednesday, September 19, 2018
The UK's highest court is to have a female majority hear a case for the first time in 600 years.
Almost one hundred years after a law was passed allowing women to practice as barristers, three women and two men will decide a case in the highest court in the country.
Three of the five judges who are set to hear a Supreme Court case on October 3 about a 16-year-old with Asperger's Syndrome and learning difficulties are female.
Lady Hale, the court's first female president, has previously spoken out about the need for more women at the top of the judiciary. Earlier this year she said women were "seriously underrepresented" among senior judges, warning that women were forced to move into the public sector because of the difficulty of combining high-flying legal jobs with family and caring responsibilities.
Wednesday, August 29, 2018
Every year, thousands of people are accused of witchcraft and face persecution, abuse, and even death. Now the United Nations is organizing to defend victims of witch hunts.
According to the UN, reports of witch hunts are on the rise, and cases are becoming more violent and prevalent across the globe. Experts and academics hope that the conference will raise awareness of the phenomenon so that it can be better understood as a human rights problem and integrated into the UN's approach to humanitarian issues.
"Witchcraft beliefs are encountered on virtually all continents," explains Dr. Charlotte Baker, who launched the upcoming meeting with funding from Lancaster University. "Globally, witchcraft accusations and persecution have resulted in serious violations of human rights including beatings, banishment, cutting of body parts, amputation of limbs, torture and murder."
The UN has identified women, children, the elderly, and people with disabilities as those most at risk of witch-related abuse. Foxcroft says that the violence can look different from country to country, from "elderly women being beaten, tortured, and killed in places like Kenya, Papua New Guinea, and India" to abuse in Nigeria and the Democratic Republic of Congo, where it is "mainly children who are targeted." According to the WHRN, those with albinism, autism and Down's syndrome have been targeted by such accusations, while a claim against an older woman is often used as an excuse to acquire her land and property.
What these cases share in common, however, is the startling lack of response from local judicial systems and the resulting impunity for the perpetrators. Branding someone a witch has historically been used to justify abuse, particularly by patriarchal religious leaders (see: the infamous Salem witch trials of the 1690s), and experts like Foxcroft believe that the spread of witchcraft-related human rights abuses is exacerbated once more by faith leaders who spread malevolent beliefs in witchcraft to exploit people or extract money from the fearful public.
Sara Dehm & Jenni Millbank, Witchcraft Accusations as Gendered Persecution in Refugee Law, Social & Legal Studies (2018)
Witchcraft-related violence (WRV), in particular directed towards women and children, has become a source of increasing concern for human rights organisations in the current century. Yet for those fleeing WRV this heightened attention has not translated across into refugee status. This research examines how claims of WRV were addressed in all available asylum decisions in English, drawn from five jurisdictions. We argue that WRV is a manifestation of gender-related harm; one which exposes major failings in the application of refugee jurisprudence. Inattention to the religious and organisational elements of witchcraft practices, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges, or family or community disputes, such that they were not cognisable harms within the terms of the Refugee Convention; or they were simply disbelieved as far-fetched. The success rate of claims was low, compared to available averages, and, when successful, claims were universally accepted on some basis other than the witchcraft element of the case. This article focuses in particular upon cases where the applicant feared harm as an accused witch, while a second related article addresses those fearing persecution from witches or through the medium of witchcraft
Jenni Milbank & Anthea Vogl, Adjudicating Fear of Witchcraft Claims in Refugee Law, J of Law & Society (2018)
This research examines claims of witchcraft related violence (WRV) in asylum decisions. In refugee applications involving WRV those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. We argue that WRV is a manifestation of gender-related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of Religion, combined with gender insensitivity in analysis, meant that claims were frequently re-configured by decision-makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside of what is understood to be objective, verifiable, or Convention-related. Male applicants struggled to make their claims comprehensible as a result of the feminised and ‘irrational’ characterization of witchcraft fears and beliefs.
Domestic Violence as a Form of Torture: A Feminist Expansion of the Theory of the Prohibition of Torture
Natalie Davidson, The Feminist Expansion of the Prohibition of Torture: Towards a Post-liberal International Human Rights Law, Cornell Int'l L. J. (forthcoming)
International human rights law (IHRL), discourse and activism have been the subject of well-known critiques. Two categories of critique are closely linked to the liberal ideology underlying the human rights project, and point to the project's limited ability to further profound change. The "critique of justification" exposes the field's formalist argumentative practices, which struggle to justify proposed normative solutions. The "critique of representation" highlights the narrow ways in which injustice and violence are portrayed, denounced and addressed in international human rights discourse. These weaknesses are all the more troubling in the contemporary populist authoritarian era. Yet contrary to many critical scholars who advocate abandoning the human rights discourse, this article argues that it is possible to transform the discursive practices of IHRL so as to be more convincing and better address structural inequalities. It does so by analyzing the discursive practices of the feminist campaign to frame domestic violence as a form of torture, an explicit attempt to release the prohibition of torture, a central norm of IHRL, from the constraints of liberalism. While the discourse of domestic violence as torture reproduces some of the problematic features of better-known feminist engagements with international law, it also suggests IHRL's potential for profound reform, both at the level of justification and representation.