Gender and the Law Blog

Historian's Study Uncovers Newspaper Reports of Abortion in the US from 1820 to 1860

Patricia Cohen, Married Women and Induced Abortion in the United States, 1820-1860 

Results of a study of 225 publicized abortion cases in US newspapers from 1820 to 1860; with attention to married women who comprise a small fraction of the set.

From the conclusion: 

My search for married women exercising reproductive choice produces glimpses of such women—in Luceba Parker’s and Mme Restell’s rooms and in Horatio Storer’s fevered brain. A series of inferences lend support to the trend. We know the birth rate was falling in this period, first and fastest in New England; some, maybe most of that was due to contraception, equally shunned by Storer. We know that missed menstrual periods were common and were thought to require treatment, including uterine penetration. My newspapers stories show that some doctors were willing to perform abortions, so similar to menstrual regulation techniques. And we know that early pregnancy was hard to detect and hard to prove. When done successfully and discretely, an abortion left few clues. Finally, there had to be some degree of activity by married women for Storer’s outsized claims to seem plausible.

What I am most struck by now, after having amassed all this material, are the crucial differences between then and now. In both eras, legal doors are closing. But back then, those new laws were rarely enforced. Few were prosecuted; fewer still convicted. It is clearly a very different world today, one shaped by powerful tools of surveillance, modern regulatory bureaucracy, unyielding religious beliefs, and determined enforcement.

Pink's New Women's Rights Protest Anthem, "Girls Just Wanna Have Rights, so Why Do We Have to Fight?"

My new work out song:

Pink's New Protest Anthem, "Irrelevant"

When the Supreme Court released its opinion in Dobbs v. Jackson on June 24, overturning Roe v. Wade, shock waves were felt across the U.S.—including from singer-songwriter P!nk, who took to Twitter to voice her outrage.

Abortion opponents swarmed P!nk’s account with hateful and violent messages, warning her to “shut up and sing.” Challenge accepted. 

On July 13, P!nk tweeted in response, “Woke up. Got heated. Wrote song. Coming Soon.” A day later, her new song, “Irrelevant,” dropped—since deemed a ‘protest anthem.’ Marking her first collaboration with songwriter and producer Ian Fitchuk, the surprise track has been praised by critics.

“As a woman with an opinion and the fearlessness to voice that opinion, it gets very tiring when the only retort is to tell me how irrelevant I am,” the singer explained. “I am relevant because I exist and because I am a human being. No one is irrelevant. And no one can take away my voice.”

The song’s accompanying video, released on July 18, a few days after the song’s initial release, marries footage of protests and activism with clips of P!nk recording the song in the studio.

Click to full article to the video.

Feminism's Problematic Connection with Celebrity Culture

Susan Faludi, Op-ed, NYT, Feminism Made a Faustian Bargain with Celebrity Culture. Now Its Paying the Price

 

The ruination of Roe and the humiliation of Ms. Heard have been cast as cosmic convergence, evidence of a larger forced retreat on women’s progress. “Johnny Depp’s legal victory and the death of Roe v. Wade are part of the same toxic cultural movement,” a Vox article asserted. “These examples may seem disparate, but there’s an important through line,” a USA Today reporter wrote, citing academics who linked the Alito draft opinion, the Depphead mobbing and, for good measure, the “public consumption” of cleavage at the Met Gala (held the same night the Supreme Court draft leaked): “This is backlash.”

 

Backlash it may be. Even so, putting the pillorying of Ms. Heard in the same backlash-deplorables basket as the death rattle of Roe is a mistake. Lost in the frenzy of amalgamation lies a crucial distinction. There’s a through line, all right. Both are verdicts on the recent fraught course of feminism. But one tells the story of how we got here; the other where we’re headed. How did modern feminism lose Roe v. Wade? An answer lies in Depp v. Heard.***

 

Using celebrity and hashtag feminism is a perilous way to pursue women’s advancement because it falls victim so easily to its own tools and methods. In Ms. Heard’s case, her ex-husband turned #MeToo’s strategy against itself. Mr. Depp claimed victimization because he’s a money-generating personality — he could be de-famed because he’s famous. And his massive (and vicious) fan mobilization on social media (nearly 20 billion views for #JusticeForJohnnyDepp on TikTok by June 2) was overwhelming, even by #MeToo standards. By contrast, #JusticeForAmberHeard had about 80 million views on TikTok in the same period.

 

Celebrity representation of feminism is a double-edged sword. If an individual embodies the principle, the principle can be disproved by dethroning the individual. In that way, Ms. Heard became both avatar and casualty of celebrity feminism. When she took the stand, she brought the modern incarnation of the women’s movement into the dock, too, and mobilized those who would see it brought down. If an ambassador for women’s rights wasn’t credible, Ms. Heard’s mob of haters was quick to conclude, then the movement wasn’t, either. No need to fret over those legions of unfamous women who may now think twice before reporting domestic violence.

Coupling the fortunes of feminism to celebrity might have been worth it if it had led to meaningful political victories. But such victories are hard to achieve through marketing campaigns alone, as the right wing understands.

New Federal Bill Proposed to Curb Mass Collection of Privacy Data from Period Tracking Apps

Period-tracking apps gather intimate data. A new bill aims to curb mass collection

The “My Body, My Data Act” would require that companies only collect and retain reproductive health information that is “strictly needed” to provide one of their services, unless they otherwise obtain explicit consent from a user. And it would give users the right to demand that their information be deleted or for companies to disclose how they are using the data.***

 

The legislation would give the Federal Trade Commission the power to enforce the new standards but also give consumers the ability to launch their own lawsuits against companies in violation and allow states to implement privacy laws that build on the bill’s protections. ***

 

Given broad Republican opposition to expanding abortion protections and an evenly split Senate, Jacobs’s proposal is unlikely to become federal law. But she argued there’s momentum behind the effort that could inspire state-level action.

 

“We think this can be a model for states as they're trying to figure out how they can best protect people's right to abortion,” she said.

Revenge Porn and the First Amendment: Prioritizing the Victim's Autonomy

Roni Rosenberg & Hadar Dancig-Rosenberg, Revenge Porn in the Shadow of the First Amendment, 24 U. Penn J. Con. L. (forthcoming 2022)

Millions of people around the world, most of them women, have been victims of revenge porn and have suffered intense pain and distress as a result. By 2021, almost all US states had criminalized revenge porn, defining it primarily as an infringement of privacy, as obscenity or as harassment. US courts have recently considered the constitutionality of criminalizing revenge porn in view of the potential conflict with freedom of speech. Contrary to the courts’ decisions, we argue that revenge porn is a sex offense and therefore justifies limiting the disseminator’s freedom of speech to a significant degree. Empirical evidence indicates that victims experience revenge porn as an erasure of their personal autonomy, one that radically disrupts their lives, alters their sense of self and identity, and dramatically affects their relationship with themselves and with others. Insofar as the rationale of freedom of speech relies on the protection of autonomy, the protection of the disseminator’s autonomy should not be at the expense of erasing the victim's autonomy. Thus, our argument highlights the necessity for US state legislators to redefine the boundaries of the revenge porn offense accordingly.

How Comedy TV Downplays Sexual Harassment and Desensitizes Jurors

Molly Pratt, "'He Took It Out.' How Comedic Television Shows Shape Jurors' Perceptions of Workplace Sexual Harassment," 90 U.M.K.C. L. Rev. (2022)

This Comment analyzes the ways in which depictions of sexual harassment in media, specifically situational comedic ("sit-com") television series, affect potential jurors' understanding and evaluation of workplace sexual harassment claims. Part I begins by explaining the "cultivation theory," which hypothesizes that television shapes viewers' beliefs about the world around them. This section also considers social science evidence that exemplifies how people are influenced by different forms of media, especially media depictions that sexually objectify women. Next, Part II describes the elements of the two different types of harassment claims to provide a backdrop of what real humans, not characters on television, endure every day at work. Part III compares two major sensationalized claims of sexual harassment that have occurred over the past thirty years. Part IV summarizes various episodes of Seinfeld, Veep, and Curb Your Enthusiasm that include scenes of sexual harassment in order to analyze how prospective jurors might consider the illegal harassment shown on television almost every night. Finally, Part V proposes actions that can be taken by the legal and entertainment industries to ameliorate the harmful effects that comedic depictions of sexual harassment can have on juries.

Comedic television episodes which downplay workplace sexual harassment situations that would otherwise make for valid claims under Title VII may cause jurors to become desensitized to the severity of real-world harassment experienced by real-world victims. While this Comment aims to illustrate how media consumption affects the breadth of the legal industry, its underlying goal is to shed light on how inaccurate depictions of legal issues can be harmful to a viewer who is untrained in the law.

New Musical "Suffs" Captures History, Complexity, and Feminism of the Women's Suffrage Movement

With a Powerhouse All-Women Cast, "Suffs" Explores Activists Who Made Voting Rights Happen

Live theater has returned and among the blockbusters launching this season is Suffs, which opens on April 6 at the venerable Public Theater in New York City.

 

Full disclosure: As a writer of all things feminist policy and politics, I’m not a theater reviewer. But I have to report that after experiencing Suffs (still in previews), it is a modern marvel of a musical. With its impeccable period costumes and powerhouse all-female cast, Suffs explores the women who drove the 19th Amendment across the finish line a century ago—and whose tactics and strategies continue to shape the fight for social and political equality.

 

Unlike the limited lessons of women’s suffrage many learn—Seneca Falls and Susan B. Anthony—Suffs digs deep into the gamesmanship wielded by the movement’s early 20th century leaders. Among those are Carrie Chapman Catt, stalwart of the National American Woman Suffrage Association, who favored winning the vote state-by-state while wielding elite, inside influence to push for a federal amendment; Alice Paul and Lucy Burns, next-gen radicals of the day, whose National Women’s Party crafted the playbook for civil disobedience; and Chicago journalist Ida B. Wells and activist Mary Church Terrell whose call out of the unique plight of Black women framed the fight for universal suffrage.***

 

How little the general public has absorbed about this movement and its myriad players is not an accident, suggests Lucy Beard, director of the Alice Paul Institute, in a 2020 interview. Activists like Alice Paul and Inez Milholland, as well as many of the others portrayed in Suffs—Doris Stevens, Ruza Wenclawska, and Dudley Malone, hardly household names—“represented the radical part of the suffrage movement,” said Beard, “[and] history generally gets written by the moderates.”

 

Suffs may be just the medium to change that. And a bonus, it also manages to impart a dose of pragmatic wisdom for today’s activists: that radical and moderate strategies need not forever be locked in conflict but rather can be combined to force-multiply and win seismic change. 

See also NYT, Friendship, Betrayal, and the Fight: "Suffs" Tells the Suffragist Tale in Song

“Suffs” is opening in the same theater where “Hamilton” — and America’s runaway romance with the roguish “ten dollar founding father” — was born. Are audiences open to seeing Taub’s feminist founding mothers as similarly three-dimensional heroes, shaded by their flaws rather than simply damned by them?

“Suffs” may be about women. But their long fight for the vote, Taub said, can stand in for any of the great social movements in American history, all of which were also messy, fractious, imperfect — and unfinished.

A Legal History of Women's Prosecutions in Pennsylvania as Common Scolds for Their Unruly Speech

Richard Kielbowicz, Women as Common Scolds in Law and Popular Culture: Pennsylvania 1824 to 1872, Gender & History (Mar. 2022)

Women faced prosecution as common scolds for their unruly speech in US jurisdictions until 1972, with Pennsylvania playing an outsized role in this history. Pennsylvania's treatment of common scolds reveals how the interplay of the law and the press perpetuated a construct of women's speech as gossipy, quarrelsome and disruptive of social order. Prosecutions occurred so frequently and continued for so long in Pennsylvania because of English common law's grip on the state's jurisprudence, reinforced by popular culture representations that stigmatised women's speech. Common law furnished formal legal precedents, while the press, driven by its own imperatives, readily propagated, amplified and validated the law's characterisation of scolds. Reports about scold cases, which fit easily into journalistic and cultural frames, often appeared as humorous vignettes that served as illustrations – if not warnings – about women's transgressive speech. Judges wondering about the continued legitimacy of this gender-specific offense could take comfort from stories about prosecutions of scolds across the state and around the nation. The ordinariness of common scold cases also sheds light on community rules that regulated women's everyday speech – evidence about a fleeting activity nearly invisible to scholars before the digitisation of newspapers and obscure legal texts.

Feminism and Free Speech

Mary Anne Franks, Speaking of Women: Feminism and Free Speech, Signs J. (2022)

***

 

It is no less important to ask of First Amendment law what Finley asks about law generally: “If the law has been defined largely by men, and if its definitions, which are presumed to be objective and neutral, shape societal judgments as to whether a problem exists or whether a harm has occurred, then can the law comprehend and adequately redress women’s experiences of harm?”[5] The answer, of course, is that it cannot.  The theory and practice of free speech is suffused with pretensions to universality that obscure the gendered nature of power and the particularities of women’s lived experience. The protections and exceptions of the First Amendment that are presented as neutral and abstract are almost inevitably determined by men’s interests.   When First Amendment law fundamentally ignores or misunderstands women’s speech, “free speech for all” can only ever mean “free speech for men.” ***

 

Feminist analysis of the First Amendment, on the other hand, reveals that freedom of speech is a reality only for certain people—in particular, white men.[12] Women’s free speech rights, while eventually formally acknowledged in theory, do not yet fully exist in practice. For more than a century in this country, women were barred from exercising one of the most basic forms of political expression, the vote. For even longer, they were legally prohibited from accessing political, employment, and educational opportunities available to men, which meant that their voices were literally excluded from public spaces, workplaces, and schools. For even longer than that, and continuing to the present day, women have been silenced by domestic violence, sexual assault, workplace discrimination, street harassment, stalking, rape threats, and other forms of abuse disproportionately targeted at them. The threat of male violence anywhere chills women’s speech everywhere—in public, in private, at work, at home, in the street, online.

Uncovering the Misogyny of Attacks on the Press

Lili Levi, Racialized, Judaized, Feminized: Identity-based Attacks on the Press  

The press is under a growing and dangerous form of attack through identity-based online harassment of journalists. Armies of online abusers are strategically targeting non-white and non-male journalists to intimidate and silence their voices using a variety of rhetorical tools (including references to lynching, the Holocaust, rape and dismemberment). Such expressive violence is matched by the mounting physical dangers faced by reporters, both in the United States, as evidenced during Black Lives Matter protests in summer 2020, and around the world. Unsurprisingly, identity-based online harassment of reporters has increased at the very moment that news organizations attempt to enhance the diversity of the professional press.

The ‘double whammy’ of online harassment and physical danger goes far beyond harming individual journalists, although those damages ought not be understated. The scale and intensity of these online identity-based attacks collectively undermine all journalists and the press as a whole. While prior accounts, especially by media studies scholars, have recognized the threat to the press writ large, this Article is the first to identify these attacks as one of three reinforcing tactics designed to hobble journalism at critical inflection points in its lifecycle. The refrain of ‘fake news’ is designed to undermine public faith in press output, critiques of libel law seek to roll back press-protective judicial outcomes, and identity-based verbal violence works to undercut and paralyze the journalistic process. Thus, racial and misogynistic vitriol, while generated ‘bottom up’ by members of the audience, is also an element of elite press-delegitimating strategies that presidential change has not derailed.

The Article analyzes the factors that most contribute to growing peril for our democracy, including the professional self-monitoring and self-censorship inevitable in conditions of harassment; the likely effects of reporter intimidation on news organization diversity; and the particularly ‘sticky’ character of identity-based vitriol for the audiences exposed to it.

Finding realistic ways to stem and counteract online identity-based abuse is an imperative next step if the press is to perform its constitutionally-recognized role under current conditions of existential threat. Traditional legal responses are insufficient for such non-traditional devices. The Article develops and advocates a variety of ameliorative moves directed to a spectrum of actors: news organizations, journalism schools, press-protective organizations, social media platforms, and social science researchers. Collective, rather than individual, solutions across a range of constituencies offer the only realistic hope of stemming this tide.

Legal Report Finds Systemic Gender Inequity at NCAA Against Women's Basketball and Recommends Organizational Reforms

NPR, A Report Found the NCAA Undervalues Women's Basketball, Prioritizes Men's Team

A highly anticipated external review has found that the NCAA has treated women's games unfairly, both undervaluing and underfunding them for years.

 

Led by New York law firm Kaplan Hecker & Fink LLP, the report recommends reforms to the NCAA's basketball programs. It calls for a combined Final Four tournament and changes to the organization's leadership structure, media contracts, and revenue calculations.

 

The review was prompted in March, when the NCAA came under fire after a video of the minimal equipment in the women's weight room at the organization's championships was posted by University of Oregon basketball player Sedona Prince. The video, which immediately gained traction on TikTok, showed that the NCAA did not provide the women's Division I basketball teams the lavish amenities that it did for the men's tournaments. The NCAA commissioned the review shortly afterward.

 

Now, the 113-page report has found evidence of "systemic gender inequity issues" at the NCAA.

 

"With respect to women's basketball, the NCAA has not lived up to its stated commitment to 'diversity, inclusion and gender equity among its student-athletes, coaches and administrators,' " the report states.

 

The report describes the undervaluing of women's teams as "perpetuating a mistaken narrative that women's basketball is destined to be a 'money loser' year after year. Nothing could be further from the truth."

 

It notes increasing television audiences and female players' "huge followings on social media," and says the NCAA could negotiate far higher fees for coverage of the women's games.

Documentary Preview, PBS ThinkTV, Let Ohio Women Vote

Documentary Preview, ThinkTV, Let Ohio Women Vote

Let Ohio Women Vote tells the story of the long fight for women’s suffrage in our state – a fight which created unpredictable alliances as well as surprising connections to national events. The documentary will premiere in the fall of 2021.

"As Ohio goes, so goes the nation."

A Feminist Rethinking of Applying Negligent Infliction of Emotional Distress to Nonconsenual Sex Videotaping

Lisa Pruitt, Commentary on Boyles v. Kerr (Texas 1993) for Feminist Judgments: Rewritten Torts Opinions,  
Commentary on Cristina Carmody Tilley's Rewritten Opinion in Boyles v. Kerr (Feminist Judgments: Rewritten Torts Opinions, Cambridge University Press 2020, Forthcoming)

This paper comments on Professor Cristina Tilley's rewritten feminist opinion in Boyes v Kerr (Texas 1993). The Texas Supreme Court in Boyles v. Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr.,), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But the feminist rewrite of Professor Tilley (writing as Justice Tilly) makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.

Hemingway, Women, and Gender

I had always hated Hemingway.  He was, after all, the classic misogynist. 

It seemed I was forced to read Hemingway every year in school.  Farewell to Arms, The Sun Also Rises, For Whom the Bell Tolls, The Snows of Kilimanjaro, The Old Man and the Sea.  I read them all, against my will.  To me they were boring stories about men.  The words were short, cold, and devoid of beauty or lyricism.  The topics were harsh and violent -- masculine topics of war, bullfighting, and big game hunting.  Moreover, the works were filled with hateful depictions of women. Women were crazy harpies, tempting devils, or dead mothers.  In Hemingway’s semi-autobiographical accounts, women were merely the women objects of antipathy, perhaps like the many wives that he continually traded in like cars.

So when I heard that PBS was featuring a new documentary series on Hemingway, I rolled my eyes and thought, “how tone deaf.”  How misguided to hear yet again about a privileged white man, and one who had already received his acclaim.  In this time of intense public debate of race and gender, in this time when so many women and people of color have not yet been recovered, why return to the same old story.  For indeed, I had not encountered even famous writers like Zora Huston Neale or Daphne du Maurier until my own independent reading, long after school.  But, like so many things that one dismisses, I discovered more complexity and nuance in Hemingway’s story, particular in the realm of gender.

The film reveals Hemingway not as a model of masculinity, but as a man battling with his own masculinity.  Understanding this as toxic masculinity, changed the narrative for me.  We learn of Hemingway’s Freudian early years with a mother who wrote him a rejection letter, and dressed him like a twin to his sister.  We then understand his early attraction to two older woman, maternal figures, one of whom becomes his first wife.  We see the author constrained by family demands--fighting for the time to write and feed his creative muse, diverted by screaming babies, marital demands, and unpaid bills until he can get alone, on the road or with his thoughts.  This is all juxtaposed against the raucous pull of the popular writing crowd, with their carousing and attention-seeking affairs.

The film also shows us a broader range of topics that occupied Hemingway’s mind beyond bulls, bullets, and booze.  One of his earliest stories, Up in Michigan, was about date rape.  A shocking story that barely saw the publishing light, writer Edna O’Brien explains as actually told from the woman’s perspective, which is why it was so powerful.  He wrote about abortion, suicide, STDs, childbirth, Caesarean sections, and death in childbirth – grim accounts of women (and men’s) reality.  A later work, published posthumously, engages with transgender and same-sex attraction.

The short words took on new meaning for me as well.  Rather than just a mimic of his journalism years, the short words were explained as a revolution in writing that left behind conventional indicators of writing prowess.  I discovered the beauty of the short form, in the repetition of the same words that function as the action itself, as when repeating words form the march of the soldiers.  Right, left, right, left, right, left.  Like lawyers learning the impact of plain, unaffected writing, I could now appreciate the power of the staccato, and what the film describes as musical. The film reveals these words slowly on the screen, literally showing us the beauty of the typed word as Jeff Daniels' voice-over reads aloud.

This all came together for me in the discussion of the short story, Hills Like White Elephants.   In this story, a man pressures his lover, “the girl,” to get an abortion.  Most of the story is the man controlling the conversation, working through various points to win the argument, eventually gaslighting his partner, claiming, “I only want what you want.” He is dismissive of the way in which the young woman sees the world, whether its her vision of the looming white elephants overshadowing their lives or the personal and relational consequences of the abortion.  Eventually, the young woman demands: "Would you please please please please please please please stop talking?" 

See also:

PBS, Video, Hemingway, Gender and Identity

NYT, They Are Giving Hemingway Another Look. So You Can Too.

Esquire, Ken Burns and Lynn Novick Reveal Ernest Hemingway's Private Fascination with Gender Fluidity

Case Behind SCOTUS Walmart Decision on Class Actions for Gender Discrimination to be Netflix Show

Walmart Legal Saga to Become Netflix Show Starring Amy Adams

A legal fight against Walmart Inc. that became the largest employment class-action lawsuit in history will become a series at Netflix Inc. from actress Amy Adams and “The Big Short” director Adam McKay.

 

“Kings of America” will follow three women involved in the lawsuit, which went to the Supreme Court in 2011: a Walmart heiress, an executive and a saleswoman at the retail chain. Adams stars as one of the women, and McKay will direct the first episode of the series.

 

The case involved female employees suing Walmart for alleged gender discrimination -- including pay disparities and favoring male workers -- on behalf of potentially more than a million employees. That made it the largest lawsuit of its kind. Walmart is the biggest private employer in the U.S. and the world’s largest company based on revenue.

 

With billions of dollars at stake for Walmart, the Supreme Court blocked the suit from proceeding as a class action in a 5-4 vote in June 2011. The late Justice Antonin Scalia argued there was no “convincing proof of a companywide discriminatory pay and promotion policy.”

Rape Without Women - The Legal History of Public Rape Narratives and the Reinforcement of Masculinity

Sharon Block, Rape Without Women: Print Culture and the Politicization of Rape, 1765-1815, 89 J. American History 849 (2002) [also available on JStor]

The first section of this article shows how Americans made the very personal sexual interaction of rape publicly palatable by removing women from its retelling. Stories of rape, then, could accomplish what the newly popularized stories of seduction could not: by emphasizing men's interactions with one another, rape stories could provide an unequivocal assignment of right and wrong, unencumbered by concern over women's sexual desires and acts. Focusing attention on men's protection of women's virtue allowed authors to minimize the thorny issue of women's role in promoting their own morality. The absence of women allowed narratives of rape to categorize competing visions of masculinity. Through this masculinized transformation, rape could be deployed in political battles.

 

In the second section, I examine the politicization of rape in revolutionary rhetoric. Rather than invoking rape as a symbol of general savagery or as simply the marker dividing honorable from dishonorable masculinities, revolutionary-era narratives increasingly presented rape as an explicitly political trope. By replacing women's experiences of their own bodies with men's experiences of witnessing the victimization of women, rape-related stories opposed upstanding American male citizenry to corrupt British rule. ***

 

In stories such as this, rape reiterated a transhistoric aspect of patriarchy that attached importance to rape as an assault against men. Feminists have often argued that women have been denied subjectivity in many historical discourses. And we might not be surprised by the elision of women in print; after all, women were rarely a common feature in public life, and scholars have begun to trace the specific problematics of women's public speech. By the second quarter of the eighteenth century, women had seen their often vocal roles in public court sessions decrease with the increasing formalization of the legal system. But unlike most topics, rape necessarily involved women, its very existence hinging on what the historian Cornelia Hughes Dayton has rightly called "woman's word"-her ability to put forward a believable accusation.

 

Yet even though women were necessarily present in the act of rape, printed stories eclipsed women's retellings of sexual attacks by suggesting that the ultimate victims were men. Instead of making men the physical victims (which might risk an unacceptable feminization of their bodies), stories of rape made men the emotional, economic, and social victims of the rape of their female dependents. Thus, the offense of rape was more than an attack on a man's property, as it had been conceptualized in early modern prosecutions for forcible marriage or heiress stealing. For eighteenth-and nineteenth-century Americans, the offense of rape was an attack on a man's patriarchal identity as the protector of his dependent women.

Sharon Block is the author of Colonial Complexions: Race and Bodies in Eighteenth-Century America (University of Pennsylvania Press, 2018) and Rape and Sexual Power in Early America (University of North Carolina Press, 2006). Her latest essay "Erasure, Misrepresentation and Confusion: Investigating JSTOR Topics on Women’s and Race Histories," Digital Humanities Quarterly (2020) exposes racism and sexism in a popular academic scholarly database.

h/t from Kimberly Hamlin's (Miami U) #MeToo Course

Legal Scholars Weigh in on the Harvey Weinstein Sexual Assault Verdict

Slate, The Weinstein Verdict is Both a Victory and a Disappointment

On Monday morning, a Manhattan jury found Harvey Weinstein guilty of two of the five charges prosecutors brought against him: criminal sexual act in the first degree and rape in the third degree. The jury also acquitted Weinstein of two counts of predatory sexual assault, the most serious charges prosecutors had brought against him, which would have required the jury to conclude that Weinstein had committed first-degree sex crimes against two or more victims. In other words, the verdict is a mixed bag: Harvey Weinstein has now been convicted of rape. The counts that he was acquitted on, however, seem at odds with the number of allegations that have publicly surfaced against him.

 

This was just one trial, set up to evaluate a specific set of crimes and circumstances. But it has been impossible to think of it as anything other than a referendum on the entire contemporary #MeToo movement. Weinstein was the person whose long-ignored abuses and alleged assaults spurred thousands of women to reassess their own experiences. Donna Rotunno, Weinstein’s lead attorney, has spent her weeks in the spotlight accusing rape survivors of failing to take responsibility for their own mixed signals and explaining how the #MeToo movement has denied men their due process rights, even as her own client was enjoying his in the courtroom. Since the fall of 2017, when dozens of women first shared their stories about Weinstein, countless defenses and dismissals of the sexual misbehavior of other men have rested on the conviction that if sexual offenses don’t rise to the level of Weinstein’s misbehavior, they don’t merit consideration under the purview of #MeToo. Weinstein’s trial morphed into the ultimate #MeToo test: If a jury couldn’t convict Weinstein, the benchmark against which all other alleged abusers are now measured, what hope does any other survivor have of holding a rapist accountable in the criminal justice system?

The Weinstein Verdict is a Complicated Win for Survivors

On Monday, the system worked.

 

Jurors found Harvey Weinstein, a disgraced media mogul who has been accused of assault or harassment by at least 100 women, guilty of sexual assault and rape. His verdict, along with that of comedian Bill Cosby in 2018, sends a strong message that the jurors are capable of believing survivors over powerful men. A legal process in which less than 1% of sexual assault cases lead to convictions sided with survivors over a millionaire whose sexual misconduct has been an open secret for decades.

 

It was empowering. But while Weinstein’s guilty verdict is progress, it won’t fix a deeply broken system. 

 

Many experts and survivors told HuffPost they thought the conviction was important but ultimately, and unfortunately, symbolic. While high-profile cases help shift cultural attitudes toward sexual assault, that doesn’t always change how the legal system treats average victims whose cases may not get the widespread media attention, the high-profile legal representation or the support of multiple accusers that the Weinstein trial did. ***

 

“A high-profile conviction just says that, in this case, there was enough to convict this person,” said Leigh Goodmark, the director of the gender violence clinic at the University of Maryland Carey School of Law. “But it doesn’t make any grand pronouncements for me about the system’s friendliness to people who’ve been raped and sexually assaulted.”***

 

There is silent, everyday violence and suffering committed against women that just don’t meet the threshold of public interest,” said Aya Gruber, a law professor at the University of Colorado.

 

“And Harvey Weinstein going to jail isn’t going to do anything for them.”

Suzanne Goldberg, #MeToo is Just Beginning, Wash Post

In the swirl surrounding Harvey Weinstein’s mixed conviction and acquittal on rape and related charges, it can be easy to overlook what hasn’t changed in the wake of #MeToo. The movement has put a spotlight on the starkly divergent views that Americans hold about what kinds of behaviors cross the line into unwanted — and, at times, criminal — acts, and about what should happen when they do.***

 

 

But Weinstein’s trial and all the other changes #MeToo has brought won’t put an end to the roiling debates about what counts as consent and how we should judge long-ago assaults. We’ll continue to disagree, too, about what legal and social sanctions should apply to conduct that is “bad but not as bad” as Weinstein’s.

 

This is a good thing. As uncomfortable and frustrating as these conversations can be, we cannot afford to stop talking about what we expect from each other when it comes to sex and to workplace interactions.

Weinstein Settlement Shows Not Much Has Changed

Meghan Twohey & Jodi Kantor, Weinstein and His Accusers Reach Tentative $25M Deal

After two years of legal wrangling, Harvey Weinstein and the board of his bankrupt film studio have reached a tentative $25 million settlement agreement with dozens of his alleged sexual misconduct victims, a deal that would not require the Hollywood producer to admit wrongdoing or pay anything to his accusers himself, according to lawyers involved in the negotiations.

 

The proposed global legal settlement has gotten preliminary approval from the major parties involved, according to several of the lawyers. More than 30 actresses and former Weinstein employees, who in lawsuits have accused Mr. Weinstein of offenses ranging from sexual harassment to rape, would share in the payout — along with potential claimants who could join in coming months. The deal would bring to an end nearly every such lawsuit against him and his former company.

 

The settlement would require court approval and a final signoff by all parties. It would be paid by insurance companies representing the producer’s former studio, the Weinstein Company. Because the business is in bankruptcy proceedings, the women have had to make their claims along with its creditors. The payout to the accusers would be part of an overall $47 million settlement intended to close out the company’s obligations, according to a half-dozen lawyers, some of whom spoke about the proposed terms on the condition of anonymity.

Slate, The Weinstein Settlement Reveals Nothing Has Changed

The $25 million, down from a $90 million victims fund that was contemplated at one point, would be paid by an insurance company for the Weinstein Company, which is now in bankruptcy proceedings because of everything Weinstein did. The agreement further stipulates that another $12 million would go toward legal fees for Weinstein, his brother, and other board members. It would also protect Weinstein and the board from future suits. In short: Besides not having to pay a dime himself, or admit to any wrongdoing, the millions of dollars it cost for the legal jiujitsu that made this extraordinary outcome possible will also be covered—by the company Weinstein’s own actions helped bankrupt. The victims, 18 of whom can get a maximum of $500,000 under this agreement, will be among other creditors trying to collect from the embattled company.

Revenge Porn Lawyer Weighs in on Rep. Katie Hill's Resignation

Revenge Porn Lawyer Carrie Goldberg Weighs in on Katie Hill's Resignation

Rep. Katie Hill (D-Calif.), 32, is one of the youngest female members of Congress and the first-ever openly bisexual member of the House. She arrived in Washington in January, part of a historic wave of women, winning a longtime Republican seat.

 

Hill resigned on Sunday after a series of nude photos, published online without her consent, led her to disclose a romantic relationship with a former campaign staffer. In the days since, people have asked: If Hill was a middle-aged man — and not the woman behind “the most millennial campaign ever” — would she still be in Congress?

 

I posed that question to Carrie Goldberg, a lawyer who specializes in sexual privacy violations and is the author of “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls.” Goldberg has decades of experience working with women — and it is overwhelmingly women — who are victims of revenge porn, which is defined as sexually explicit photos of someone shared online without their consent. The images often come from a former partner “hell-bent on their destruction,” Goldberg says, as looks likely in Hill’s case. ***

 

Caroline Kitchener: Whoever sent these photos to Red State — were they breaking the law?

Carrie Goldberg: Absolutely. In the last five years, we’ve gone from having three states with criminal non-consensual porn laws to having 46 states, plus D.C. These laws apply to situations where naked images or videos are disseminated online or offline without the subject’s permission. A lot of the laws do have an exception for newsworthiness. But the sexual humiliation of a person, even a public figure or celebrity, should never be newsworthy.

 

CK: What counts as an exception for newsworthiness?

CG: The newsworthy exception derives from the idea that there are certain images that are so powerful — images from the Holocaust, from the Vietnam War. We’re talking about images where the image itself is newsworthy, the nudity is not.***

 

CK: Was Red State breaking the law when they published these photos?

CG: You hear a lot about section 230 of the Communications Decency Act, which usually shelters platforms from liability for content that individual users post. However, if the platform itself is making the decision to publish naked pictures, as Red State did here, they don’t benefit from that immunity. And therefore, the platform should be held liable.

 

CK: So is there a case for Hill going after Red State?

CG: Without giving legal advice, I would say, hell yes.

Melinda Gates Commits $1 Billion to Gender Equality

Melinda Gates, Here's Why I'm Committing $1 Billion to Gender Equality

Here’s what keeps me up at night: I imagine waking up one morning to find that the country has moved on. That the media has stopped reporting on systemic inequalities. That diversity remains something companies talk about instead of prioritizing. That all of this energy and attention has amounted to a temporary swell instead of a sea change.

 

There is too much at stake to allow that to happen. Too many people—women and men—have worked too hard to get us this far. And there are too many possible solutions we haven’t tried yet.

 

That’s why, over the next ten years, I am committing $1 billion to expanding women’s power and influence in the United States.

 

I want to see more women in the position to make decisions, control resources, and shape policies and perspectives. I believe that women’s potential is worth investing in—and the people and organizations working to improve women’s lives are, too.

 

Gender equality in the U.S. has been chronically underfunded. Data from Candid’s Foundation Directory Online suggests that private donors give $9.27 to higher education and $4.85 to the arts for every $1 they give to women’s issues. What’s more, 90 cents of each dollar donors spend on women is going to reproductive health. As absolutely essential as reproductive health is, we also need to fund other unmet needs.