Wednesday, October 20, 2021
Carrie Baker, California Eliminates Spousal Rape Exemption
On Thursday, California Governor Gavin Newsom (D) signed a bill mostly eliminating an antiquated distinction in California law between “spousal rape” and rape, which has for years resulted in more lenient penalties for perpetrators who rape their spouses.
“From the beginning of our efforts, we have been clear that rape is rape. A marriage license is not an excuse for committing one of society’s most violent and sadistic crimes,” said Assemblymember Christina Garcia, chair of Legislative Woman’s Caucus. “The first question a rape victim is asked should not be whether or not they are married.”
Assembly Bill 1171 eliminates section 262 on spousal rape in the California Penal Code to ensure perpetrators convicted of raping a spouse are subject to the same mandatory imprisonment and sex offender registry requirements as those convicted of raping someone who is not their spouse. The previous law had allowed spousal rapists to plea bargain their sentence down to probation and gave judges discretion as to whether to list them on the state’s sex offender registry.
“The rape of a spouse was probation-eligible in every case, even those involving force or violence, compared to rape of a non-spouse, which involved a three-year mandatory sentence to prison. That created all kinds of inequalities and unfairnesses,” said Michele Dauber, a Stanford law professor and chair of Enough is Enough Voter Project, who led the effort to pass the bill.***
The previous law also did not allow prosecution for rape when a spouse was unable to give legal consent because they were under the influence or unconscious, when a perpetrator threatened their spouse with retaliation, or when a perpetrator fraudulently represented the situation. A.B. 1171 law removes these spousal exemptions.
Tuesday, October 19, 2021
By: Sania Islam
This research examines the reasons why and the circumstances in which Pakistani women began a common-law relationship against their will, and the role played by their families. A recent national survey shows that 4.1 percent of indigenous women were obliged to marry and 4.8 percent were sold. This practice is conceptualized as an expression of both family and partner violence against women, but it is not often labelled and recognized as such. Forced marriage is associated with women’s transgression of traditional gender roles and rape, as well as traditions and practices that consider women’s opinions and consent as unnecessary. Forced marriages are less common now than they were in the past because of the greater awareness of women’s rights. But the practice persists. The link between non-consensual marriages and intimate partner violence is discussed, and public policy implications are presented. Forced marriage is frequently portrayed as an issue which only affects South Asian women and girls, however, this is not correct. Forced marriage affects a wide range of communities, including Irish Traveller, Turkish, Roma, Afghan, South Asian, Kurdish, Iranian, Arab and African communities. There are no religions which support or advocate the practice of forced marriage. Forced marriage can happen to anyone from any background, regardless of social class, financial status and sexuality, which include people who identify as lesbian, bi-sexual, gay and transgender, or are perceived as such. In a UK context, the needs and experiences of some affected groups are often less visible, and only specific groups are highlighted. It is important to be aware that forced marriage disproportionately impacts women and girls and is therefore recognized as a form of violence against women and girls. When a forced marriage occurs, several human rights are breached. Women’s experience of abuse often does not end with the pressure to marry. Many women are also subjected to different forms of abuse within the context of their marriage. This can range from emotional, psychological and financial abuse to sexual and physical violence.
Wednesday, October 13, 2021
As anger grew in Britain last week over the justice system’s approach to violence against women, the public discourse has turned to a new question: Should misogyny be considered a hate crime?
The debate comes amid a broader national outcry over gender-based crimes after the murder of Sarah Everard, whose abduction and killing by a London police officer shocked Britons and forced renewed scrutiny of how the police and the courts handle such cases.
Activists, criminal justice experts and opposition lawmakers have called for legislation to expand the definition of a hate crime to ensure greater punishments for such crimes as harassment, domestic abuse and stalking and signal the seriousness of these types of offenses. But the government has so far ruled that out.
Prime Minister Boris Johnson says that there is already “abundant” legislation to combat violence against women but that it is not being properly enforced. In an interview during the annual Conservative Party conference last week, he acknowledged that the way the justice system handles these crimes is “just not working,” but said he felt “widening the scope” would increase the burden on the police.***
The activists point to some bracing data. One in four women in Britain have experienced sexual assault, according to government statistics. Almost one in three women will face domestic abuse in their lifetime. And on average, a woman is killed by a man every three days in the country, with many cases involving domestic violence, according to data from Femicide Census.
Wednesday, September 29, 2021
New Book and Reviews: Anita Hill's "Believing" Sees Sexual Harassment and Gender-Based Violence as a Cultural and Structural Problem That Hurts Everyone
“An elegant, impassioned demand that America see gender-based violence as a cultural and structural problem that hurts everyone, not just victims and survivors… It’s at times downright virtuosic in the threads it weaves together.”—NPR
From the woman who gave the landmark testimony against Clarence Thomas as a sexual menace, a new manifesto about the origins and course of gender violence in our society; a combination of memoir, personal accounts, law, and social analysis, and a powerful call to arms from one of our most prominent and poised survivors.
In 1991, Anita Hill began something that’s still unfinished work. The issues of gender violence, touching on sex, race, age, and power, are as urgent today as they were when she first testified. Believing is a story of America’s three decades long reckoning with gender violence, one that offers insights into its roots, and paths to creating dialogue and substantive change. It is a call to action that offers guidance based on what this brave, committed fighter has learned from a lifetime of advocacy and her search for solutions to a problem that is still tearing America apart.
NYT Review, Anita Hill Has Some Perspective to Offer
Anita Hill still speaks in the measured tones she did while being questioned before an all-white, all-male panel before the Senate in 1991 — a young law professor in a blue linen suit who would give the nation an overnight education in workplace sexual harassment.
Thirty years later, she is more academic than activist, focusing on pathways to progress, and continuing to teach law as a professor of social policy, law and gender studies at Brandeis University.
But to be honest, Hill’s patience is waning. “I really am running out,” she said in a video interview from her home in Massachusetts earlier this month.
Her new book, “Believing: Our Thirty-Year Journey to End Gender Violence,” due out on Tuesday from Viking, aims to channel that impatience into something more substantive — a manifesto of sorts.
Believing: Our Thirty-Year Journey to End Gender Violence is not a book about Anita Hill. Yes, it has plenty of her personal stories and, yes, it references her role at the center of the Supreme Court hearing firestorm that first acquainted many Americans with the concept of "sexual harassment." ***
The book first attempts to show how massive problems like harassment and assault are affecting everyone from the smallest children to adults, from the lowest-wage workers to the highest-paid celebrities. Then, Hill shows both the effects of the problem — the ways it not only hurts individuals but hampers political change and economic growth — and the myriad barriers to solving it. To try to tackle something so complex, she says, feels like trying to "boil the ocean."
Monday, September 27, 2021
A Loudon County, Virginia judge has held a domestic violence victim in contempt after she testified as a witness in the criminal case. The stated reason for the contempt ruling and subsequent incarceration was the judge's belief that the witness appeared intoxicated. The judge concluded that the witness "rocked back and forth in the witness stand" and that “her speech was lethargic and rambling, and at times unnaturally alternating between high and low tones.” The witness admitted to having smoked marijuana earlier in the day.
She was sentenced to ten days in jail. In a motion seeking to vacate the ruling, however, several witnesses contradicted the judge's perception. The victim's lawyer sought to vacate the contempt ruling, arguing that the judge had no basis for the citation and that she was denied her due process rights. The judge denied this motion.
The Washington Post reports that this jailing has "angered women's rights groups" who already face stark challenges in getting domestic violence victims to testify against their abusers. The victim's lawyer indeed explains that the witnessed appeared "agitated because she was facing her alleged abuser at trial and testifying on a difficult subject matter."
Monday, September 20, 2021
U.S. gymnasts testified in Congress last week seeking greater accountability for all of the failures in institutions and oversight that allowed Larry Nassar to abuse so many.
Dr. Amanda Potts and I previously analyzed the Victim Impact Statements (VIS) in the Michigan criminal case to consider these larger issues of accountability. Our article, The Language of Harm: What the Nassar Victim Impact Statements Reveal About Abuse and Accountability came out last year in the Pittsburgh Law Review. Last week's testimony resurrects the relevance of the conclusions of this linguistic analysis.
This Article uses corpus-based discourse analysis to examine this impactful collection of VIS for their larger lessons in law, policy, and society. This analysis reveals several takeaways for further analysis and examination. It reveals the challenges that rape, sexual assault, and abuse survivors face in naming the crime and describing the harms. These challenges are particularly fraught and complex when powerful systems and institutions allow abusers to flourish, resulting in systemic and interconnected betrayals and failures. The VIS call for better platforms for survivors to heal, to speak, and to voice their harms beyond these episodic and rare moments offered by the #MeToo Movement, or, as in the Nassar case, made available due to the specific facts and judicial management of a case. The VIS reveal that, while Nassar has been held accountable, the larger limits of language, law, and accountability ensure that future cases will surface, absent better preventative policies. These VIS broadly call for powerful law and policy reformation that will hold perpetrators and their enablers accountable and meet the full range of victims’ needs outside of the criminal justice system.
Wednesday, September 15, 2021
The California State Legislature this week approved a measure that would make the state the first to outlaw stealthing, the act of removing a condom during sex without a partner’s consent.
The bill, which was approved unanimously on Tuesday, awaits the signature of Gov. Gavin Newsom, a Democrat, who has until Oct. 10 to sign it into law. A spokesman for the governor said his office did not comment on pending bills.
If approved, the measure would amend the state’s civil definition of sexual battery and make stealthing a civil offense, meaning victims could sue their assailants for damages.***
Ms. Garcia, a Democrat, said that she had tried to pass legislation criminalizing stealthing since 2017, when a Yale University study brought widespread attention to it. But she ran into considerable opposition.
The bill that was approved this week that would make stealthing a civil offense “is a good first step,” Ms. Garcia said. She said she hoped it would lay the groundwork to eventually add stealthing to the state’s criminal code.
A study published in the National Library of Medicine in 2019 reported that 12 percent of women said that they had been a victim of stealthing. Another study that year found that 10 percent of men admitted to removing their condom during intercourse without their partner’s consent.
Alexandra Brodsky, who wrote the 2017 Yale study and is the author of “Sexual Justice,” a book that addresses various forms of institutional response to sexual harassment and assault, said that the measure approved this week could bring “political and personal power” to victims. She said that it would remove any ambiguity surrounding stealthing — which tends to begin with the consensual act of sex — by defining it as illegal.
Monday, September 13, 2021
Jennifer M. Miller and Susan Rensing have published Integrating National Violent Death Reporting System Data into Maternal Mortality Review Committees in the Journal of Women's Health. The abstract explains that:
With the Maternal Mortality Review Information Application (MMRIA) data system, the Centers for Disease Control and Prevention (CDC), alongside Maternal Mortality Review Committees (MMRCs), are developing comprehensive and uniform data collection to eradicate preventable maternal deaths. However, MMRIA is primarily focused on pregnancy-related deaths, and not pregnancy-associated deaths. Currently, the National Violent Death Reporting System Restricted Access Data (NVDRS-RAD) on pregnancy-associated homicides and suicides are not included in MMRIA and by extension the work of most MMRCs. This study examined the NVDRS-RAD data from 2014 to 2017 and argues that the data for pregnancy-associated maternal deaths should be integrated into the work of MMRCs. * * *
Their findings indicate that:
pregnancy and the postpartum period show increased risk for homicide and suicide. Pregnant women were found to be five times more likely to die by homicide than their nonpregnant peers who died by violent means. The relationships between periods of pregnancy and manner of death were all found to be significantly associated although the association was weak.
Wednesday, August 25, 2021
New Book: Sexual Justice, How Colleges Can Handle Sexual Misconduct Cases More Fairly, Supporting Victims and Ensuring Due Process
Alexandra Brodsky, SEXUAL JUSTICE: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash
Alexandra Brodsky’s “Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash” seems, at first, as if it is going to be a work of soul-searching about the campus anti-rape movement.
In 2013, Brodsky, then on her way to law school, was a founder of Know Your IX, a student group that fought to use Title IX of the 1972 Civil Rights Law, which prohibits sex discrimination in education, to get schools to do more to protect students from sexual assault. Now a civil rights lawyer, she’s been at the center of the long battle about how campus sexual misconduct allegations should be resolved. And the introduction to her book suggests she’s had some second thoughts.
Some Title IX advocates, she writes in the first pages, “abandoned complexity, dismissing concerns about due process out of hand, or rejected reasonable reforms because they came from ‘the other side.’ Some used low rates of false reporting to excuse mistreatment of the accused, or were cavalier about the stakes for a student facing suspension.” She described spending a year in law school reviewing lawsuits from students who claimed they were wrongly suspended or expelled for sexual assault. She struggled to balance her empathy for them with her wariness of what the philosopher Kate Manne has called “himpathy,” outsize concern for male perpetrators at the expense of victims.
I was eager to read more about this struggle, but most of “Sexual Justice” isn’t a book about gray areas or ambivalence. It’s something less interesting but potentially more useful: a treatise from a committed activist laying down broad guidelines for fair adjudication processes. “My focus is the steps by which people can vet an accusation of sexual harassment, rather than the matter of what constitutes sexual harassment,” she writes.
Wednesday, August 4, 2021
Karen Engle, Vasuki Nesiah & Dianne Otto, Feminist Approaches to International Law
This chapter offers accounts of three feminist “success stories,” each of which has invoked a sense of crisis to call for carceral and militarized international legal responses. We argue that these projects have reinforced many dangerous aspects of both feminism and international law, as they have used a focus on harm to women – particularly sexual harm – to aid in the legitimization and extension of legal, military and economic institutional arrangements that exacerbate the precarity of marginalized individuals, communities, and states. Their use of crisis has participated in the crowding out of a variety of alternative feminist (and other) perspectives, particularly those that take aim at the often quotidian forms of violence based in the overlapping structures of colonialism, racism, gender normativity, and gross economic inequality. We contend that anti-imperial and sex-positive feminisms as well as queer theory offer important vehicles for challenging the dominant approaches. We gesture toward how they might even consider invoking crisis (such as the often everyday and unnoticeable crises of neocolonial, neoliberal, carceral, and militarized dimensions of global governance) to foster transformative feminist, queer, and redistributive ends.
Thursday, July 22, 2021
Anna High, Sexual Dignity in Rape Law, 33 Yale J. Law & Feminism (2021)
Dignity is a famously contested concept, suggesting its deployment as a legal principle should be closely scrutinized. This Article sets out a functional and contextual analysis of dignity as an organizing principle underpinning rape law, which I term “sexual dignity”. Based on sexual violence theory, I trace the “democratization” of sexual dignity over time, as dignity and attendant rights of autonomy and equality have gradually extended from man to the (qualified) woman to women as a group, and identify an emerging contemporary feminist consensus on the meaning of sexual dignity. This framework is then applied to a critical review of how judges across common law jurisdictions understand and use dignity in decisions on rape. The caselaw of sexual dignity illustrates that dignity is a usefully capacious concept for exploring and condemning the multiplicity of rape’s harms and wrongs. However, uncritical engagement with sexual dignity can be harmful, with implications both for rape law and for the regulation of sexual behaviour generally. As such, I argue that robust and reflective engagement with sexual dignity is both necessary and productive.
Justine Dunlap, Harmful Reporting, 51 New Mexico L.Rev. (2021)
Title IX is used in many ways; perhaps most prominent and controversial is its use to address issues of sexual harassment and sexual assault on college campuses. The regulations governing that use have just been changed, with the Department of Education issuing new final regulations on May 6, 2020. The recent spotlight aside, an aspect of Title IX that has gotten too little attention has been the move towards having all or nearly all university employees categorized as “mandatory reporters.” A mandatory reporter is one who must report an allegation of sexual assault to the university’s Title IX coordinator. This report must be made even if it is against the wishes of the student who discloses that she or he was the victim of the assault. This widespread use of mandatory reporters, perhaps counterintuitively, confers harm on the individual disclosing the assault. It also does not achieve the intended goals, one of which is often stated as making it known that the institution takes sexual assault very seriously. Anointing all employees, including nonsupervisory faculty members, as mandatory reporters actually drives down student desire to disclose. This in turn prevents student survivors from getting the support they need in order to have equal education opportunities regardless of sex, which is the core purpose of Title IX. Therefore, having a widespread mandatory reporting requirement not only inhibits disclosure but itself may be a violation of Title IX. Other phenomena presently influence the willingness to disclose and/or report sexual assault. The #MeToo Movement and the Harvey Weinstein trial reveal much about the challenges and trauma associated with disclosing and reporting. Further, some state legislatures have codified mandatory reporting and others have considered or will consider it. There are better ways to comply with Title IX and protect survivors. Those ways must become more widespread.
Tuesday, July 20, 2021
[M]ale violence against women....is a tool designed, as Jacqueline Rose writes in her new book, On Violence and On Violence Against Women, “to remind the girl or woman of what she is”—to gender her as female. For Rose ..., gender-based violence is not caused by sexual difference—neither attributes aggression to, for example, an excess of testosterone—rather it establishes the hierarchy of sexual difference.
Rose would ... add that ... violence is not the expression of a power they have, but of power they lack. ... As Rose would put it, he hits her to shore up his “fraudulent authority.”
Psychoanalysis has a word for this behavior, and it is “narcissism.” “Narcissism starts with the belief that the whole world is at your feet, there solely for you to manipulate,” explains Rose.
What is “fraudulent” about the authority of Stanleys everywhere is that it is rooted in denial. Women can and do commit acts of violence. But male violence interests Rose because it expresses the fundamental psychoanalytic mechanism of shame, projection, and denial. Boys and men are taught that masculinity means an absurd omnipotence, mastery, comfort, and prowess. They fail—how could they not?—to live up to that ideal. Many cannot tolerate their own vulnerability, which is coded as weakness, so they project vulnerability onto others, usually women; having disowned and disavowed it, they then try to destroy the woman who has come to represent (or embody) that vulnerability, through harassment, abuse, assault, rape, bullying, blows. The state colludes with this psychological and social project in policies that limit reproductive freedom, cruelly degrade asylum-seekers, and refuse trans people self-determination, to name only a few examples.
Harassment and sexual abuse are not, therefore, “the unadulterated expression of male power and authority”; quite the opposite. Violence against women has a frantic quality; it is something that one can only resort to; it protests too much. Which is not to say that it doesn’t hurt to be hit. Fraudulent authority is often deadly.
Those who have read Rose’s previous books will be somewhat familiar with the contours of this analysis. On Violence and On Violence Against Women takes up a subject she has not covered before—the dynamic that has lately been termed “toxic masculinity”—but it does so according to a conceptual approach she has been refining for decades.
Wednesday, June 30, 2021
On Monday, Connecticut governor Ned Lamont signed into law Senate Bill 1091, which is the latest and perhaps most comprehensive law in the United States protecting people who are subject to coercive control by their partners and ex-partners.
The bill includes nearly a dozen new statues relating to domestic abuse. Among them, for the first time Connecticut will consider coercive control a form of domestic violence. The coercive control definition includes controlling, regulating or monitoring a household or family member’s movements, communications, daily behavior and economic resources, depriving them of basic necessities or isolating them from family or loved ones. The law allows coercive control survivors to file restraining orders against their abusers rather than requiring that they wait for physical violence severe enough to be acknowledged by a court as a threat.
Thursday, May 27, 2021
Ronald Levant & Shana Pryor, The Tough Standard: The Hard Truth about Masculinity and Violence
Men are commonly expected to act “masculine” (e.g., unemotional, self-reliant, tough, dominant, and fixated on sex) while avoiding stereotypically “feminine” traits (e.g., emotional expressivity, empathy, compassion, and nurturance). Few, however, realize that these qualities—when taken to the extreme—can cause emotional constriction, substance abuse, depression, poor physical health, aggression, and violence in men. Further, even though most men are not violent, decades of research have shown that masculinity is directly and indirectly related to sexual and gun violence and men’s poorer health. Considering how girls and women have benefitted from conversations on how to navigate their gender in a changing world, similar processes are urgently needed for boys and men. The Tough Standard connects the dots between masculinity and the present moment in American culture (defined by high-profile movements such as #MeToo, #MarchForOurLives, and #BlackLivesMatter), synthesizes over four decades of research in the psychology of men and masculinities, and proposes solutions to corresponding social problems.
Table of Context
- Masculinity and the Present Cultural Moment
- Theories of Gender and How Masculinity Is Measured
- Consequences of Masculinity
- Summaries of Research on Masculinity’s Harmful Linkages
- Masculinity’s Role in Gun and Other Physical Violence
- Masculinity’s Role in Sexual Violence
- Men’s Health and Experiences of Trauma
- Many Masculinities
- What Can Be Done?
Monday, May 17, 2021
Study on Military Sexual Assaults Concludes that Rate of Assaults is Lower, Rate of Prosecution Higher, and Victims Report More Often than in Civilian Society
David Schlueter & Lisa Schenck, National, Military, and College Reports on Prosecution of Sexual Assaults and Victims' Rights: Is the Military Actually Safer Than Civilian Society, 56 Gonzaga Law Review (2021)
In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states; and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, the authors conclude that the rate of sexual assaults in the military is lower than other civilian jurisdictions. Military victims report offenses at a higher rate than the jurisdictions examined. The military conviction rate for founded or cleared offenses available for prosecution is higher than in the jurisdictions examined. The military prosecutes a higher percentage of sexual assault crimes as compared to the total number of crimes than civilian jurisdictions. They recommend that Congress take careful and very deliberative steps in deciding what, if any, major changes to make to the American military justice system.
Monday, April 12, 2021
Ninth Circuit Rules Woman Eligible for Asylum Because Domestic Abusers Persecuted her for Feminist Opinions
woman who was persecuted by domestic abusers because of a feminist political opinion is eligible for asylum in the United States, a federal appeals court ruled Monday.
Asylum applicant Maria Luisa Rodriguez Tornes didn’t have to show that her feminist opinions played the sole or predominant role in her domestic abuse, according to the 9th U.S. Circuit Court of Appeals at San Francisco. Rather, she only had to show that her political opinion was “one central reason” in the abuse.
Judge Susan Graber, an appointee of former President Bill Clinton, wrote the April 5 panel opinion.
The Department of Justice’s Board of Immigration Appeals had found that Rodriguez Tornes was protected under the Convention Against Torture. But the immigration appeals board ruled against her on the feminism claim, holding that there were no findings that Rodriguez Tornes was abused for reasons unrelated to the relationship.
The 9th Circuit disagreed on the feminism claim, finding that Rodriguez Tornes had presented evidence to show that she was persecuted because of her political opinion.
“The record contains episode after episode of men stating, quite plainly, that they were beating, burning, raping and strangling her because she sought an equal perch in the social hierarchy,” Graber wrote.
An immigration judge had found that the Mexican government would acquiesce in Rodriguez Tornes’ torture, which means that the government would also be unwilling to stop future persecution by domestic abusers, the appeals court said.
Rodriguez Tornes had alleged that she was first beaten by her mother, partly to prepare her for future beatings by her husband. Her husband also beat her, according to the appeals court. On one occasion, he stuck a lit cigarette into her arm at 1 a.m. and ordered her to cook. When she refused, he dragged her by her hair into the kitchen. On another occasion, he burned her face with a cigarette because she refused to leave her teaching job.
[See rest of article]
Friday, February 12, 2021
This article considers how the law of sexual assault in Canada addresses cases involving intoxicated complainants. There are two main aspects to the law of capacity to consent to sexual touching in the context of intoxicated women. The first involves the evidence of intoxication courts typically require in order to prove lack of capacity. The second pertains to the legal standard to which that evidence is applied. The nature of the evidence required to establish incapacity turns on the level of capacity the law requires. A comprehensive review of Canadian caselaw involving intoxicated complainants reveals a legal standard that is too low and an evidentiary threshold that is too high. The result: no matter how severely intoxicated a woman was when the sexual contact occurred, courts are unlikely to find that she lacked capacity to consent unless she was unconscious during some or all of the sexual activity.
Hannah Brenner Johnson, Standing in Between Sexual Violence Victims and Access to Justice: The Limits of Title IX, 73 Oklahoma L. Rev. (2020)
Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by the Supreme Court to provide a private right of action by which victims can hold institutions accountable.
In the most typical cases, one enrolled student accuses another enrolled student of sexual assault. The university investigates, perhaps holds a hearing panel, issues a determination after applying the relevant evidentiary standard, and, where warranted, imposes appropriate sanctions. If a student victim is dissatisfied with the institutional response, they have the right to sue the school in federal court. Not all cases follow this typical example, however, raising the question of who, specifically, is entitled to avail themselves of the protections of Title IX. Sometimes victims are visitors or "outsiders" who have been raped or assaulted on campus by enrolled students. Their right to sue educational institutions has been called into question by courts that have denied them standing to sue the schools in federal court.
Historically, some judges have used the standing doctrine to deny access to the courts to certain minority groups. Victims of sexual violence represent a new addition to this cohort of excluded parties. A growing number of federal district courts have barred this class of victims from pursuing their grievances against colleges and universities based ostensibly on their "outsider" or "non-student" status, and federal appellate courts have, to date, been reluctant to take a stand either way. A new case that has emerged along these same trend lines is currently percolating in the Sixth Circuit, brought by a woman who was sexually assaulted in a dormitory at the University of Kentucky (UK). The plaintiff in this case was not actually enrolled at UK but resided in campus housing while attending a community college per a formal agreement between institutions. When she sued UK under Title IX for its deliberate indifference in responding to her reported rape, the trial court dismissed her case without reaching the merits. Instead, the court used a narrow interpretation of standing, finding that in order to sue a school under Title IX, an individual must be formally enrolled as a student or enrolled in a program or activity of that institution.
This distinction between insider and outsider rape victims is wholly problematic. Colleges and universities, while reliant on the presence of and tuition generated by their enrolled students, cannot entirely depend on insiders to succeed. They actively solicit, depend on, and profit from engagement with outsiders every single day as a means to fulfill their educational mission. This Article will use Doe v. University of Kentucky as a point of contemporary illustration (filled in by the decisions of other similar cases) to argue that individuals who are sexually assaulted on college campuses should be afforded equal access to Title IX protections and, specifically, should be granted standing to sue regardless of their enrollment status.
Thursday, February 4, 2021
The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?