Gender and the Law Blog

Reclaiming Part 2 of the Power and Control Wheel for Domestic Violence

Tamara Kuennen, Uncharted Violence: Reclaiming Structural Causes in the Power and Control Wheel" 
55 Az. St. L. Rev.; Forthcoming

For thirty years the “Power and Control Wheel” has been the predominant model for understanding domestic violence, shaping the development of law and policy in the U.S. and abroad. On a single vivid page, it captures multiple layers of abuse in intimate relationships. Activists and experts use the model to explain in a nutshell the complexity of domestic violence to survivors, professionals, judges, jurors and the public at large. The Wheel has been translated into scores of languages and adapted to multiple cultural contexts around the globe.

What the world does not know is that, as it is used now, the Wheel is incomplete. When created by anti-domestic violence activists in the early 1980s, the Wheel was accompanied by a second image, called the “Institutional and Cultural Supports for Battering Chart.” This second analytical tool focused on structures outside the relationship that increase one partner’s capacity to abuse the other. Women in consciousness-raising groups in the early 1980s would connect an intimate partner’s tactics (pictured in the Wheel) to institutions, cultural values, and beliefs (listed on the Chart).

This Article is the first in the legal scholarship to excavate the history of the Wheel-Chart dyad. Relying on primary sources, including interviews of the creators of the dyad, the Article demonstrates that the Wheel, as used in its current form, has been sanitized of its original radical, grassroots political vision. The creators’ vision was 1) to name “battering,” and how it manifested in individual, intimate relationships; 2) to connect individual manifestations of battering to larger structural and cultural causes of it; and 3) to design and execute “direct action” plans to resist and challenge these structural and cultural causes. Today it appears that only the first of the above three parts of this vision for social change remains in place.

The Article argues that the current use of the Wheel sheds light on three essential movement challenges that feminist activists and scholars have long identified. One is the lack of focus on structural causes of domestic violence; second is the set of problems that flow from the professionalization of social movements; and third is the tendency of movements to rely on law — in the case of the battered women’s movement, criminal law — to achieve its progressive goal of ending violence against women. In larger context, the loss of this single document — the Institutional and Cultural Supports for Battering Chart—provides a case study demonstrating how a social movement can fall prey to conservative forces.

Originalism is Going to Get Women Killed

 Madiba Dennie, Originalism is Going to Get Women Killed, The Atlantic

American law has not historically been good to women, and whatever progress there once was is now vulnerable to regression. This return is being midwifed into the world by the theory of constitutional interpretation known as originalism—the idea that a law’s constitutionality today is dependent on the Constitution’s purported “original public meaning” when the relevant constitutional text was enacted. Its adherents market originalism as fair and free from favor or prejudice—but its effects are not and will not be fair at all. By its very nature, originalism threatens women and other minority groups who were disempowered at the time of the Constitution’s adoption. We must instead develop a new constitutional interpretative method that protects all Americans as equal members of our democratic society.

The Fifth Circuit Court of Appeals demonstrated as much when it relied on originalism in United States v. Rahimi, a case about a law restricting the gun rights of domestic-violence offenders, last week. The central legal issue in Rahimi was not whether protecting women and children from gun violence is good; the court conceded that it is. Rather, the question before the court was whether protecting women and children from gun violence is constitutional. And the court concluded that it is not.

A three-judge panel unanimously ruled that the Second Amendment was violated by a federal statute that made possessing a gun unlawful for a person who is subject to a restraining order in protection of an intimate partner or child. Its explanation for this dangerous ruling was a straightforward application of originalism. The Founders mentioned a right to keep and bear arms in the Constitution. They did not, however, mention women, who are disproportionately victimized by domestic violence. And although today’s lawmakers may care about women’s rights, they cannot deviate from the Founders’ wishes without a formal constitutional amendment. This will almost assuredly have very real, potentially fatal consequences for women in America: The presence of a gun in a domestic-violence situation increases the risk of femicide by more than 1,000 percent. Originalism is going to get women killed.

5th Circuit Opinion Strikes Down Federal Law Prohibiting Individuals from Possessing Guns if Subject to a Domestic Violence Restraining Order

The Fifth Circuit issued an opinion in United States v. Rahimi. It ruled that the Second Amendment protects the right to possess a gun even for those subject to a restraining order for domestic violence relying heavily on the Supreme Court's 2022 decision in New York Rifle & Pistol Association v. Bruen. 

It held that: 

The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” * * *  As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

* * * 

Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier[] that our ancestors would never have accepted.” * * * Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.

Ben A. McJunkin on "Rape as Indignity"

Ben A. McJunkin has posted a draft of an article, Rape as Indignity, forthcoming in the Cornell Law Review. The abstract states: 

Rape law has a consent problem. The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially. It is now widely taken as axiomatic that nonconsensual sex is paradigmatic of rape. But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law in sexual nonconsent has also proven both over- and under-inclusive, too often leaving the law inadequate to vindicate some sexual harms and distorted in attempts to reach others. Increasingly, the very concept of consent is being questioned by scholars, who desire a rape law that more accurately reflects the lived experience of both victims and perpetrators. Consent is even potentially dangerous. The structure of consent reinforces problematic gender roles in sexual relations and fuels troubling narratives that have led to widespread violence against women.

This Article proposes a novel grounding for rape law—not as a matter of consent, but as a matter of human dignity. Human dignity has been perhaps the premier value in both political and moral thought over the past two centuries. As the Article documents, dignity’s relatively straightforward moral imperative—respect for persons—has a long tradition of being operationalized legally, making it ripe for use as the basis of a criminal prohibition. Building upon both federal and state efforts to combat the indignities of sex trafficking, the Article outlines a proposed framework for punishing as rape the infliction of indignity through certain means of compelling sex, namely force, fraud, and coercion. Centering human dignity, rather than consent, would more closely align rape law with the fundamental tenets of criminal law theory and has the potential to disrupt gendered social scripts that increasingly animate violence. In a time of mass incarceration, recognizing rape as indignity would also set the stage for a much-needed shift toward restorative justice and incarceration alternatives.

Injustice Watch Investigation of U Visa Denials in Chicago

Injustice Watch reported on Chicago police denied scores of undocumented crime victims a path to citizenship. 

 

An Injustice Watch investigation found that the department has denied hundreds of U visa certification requests from undocumented crime victims this year, many of them at odds with federal certification standards and some that appeared to violate state law.

Two Chicago police sergeants, Brandon Ternand and John Poulos, issued most of the denials reviewed by Injustice Watch. Both sergeants have fatally shot civilians and had serious questions raised by investigators about their credibility. Both also faced termination, but in 2018 the Chicago Police Board allowed them to keep their jobs. The city has paid out more than $3 million in settlements and judgments relating to the two sergeants.

Police watchdogs said the decision to designate Ternand and Poulos as U visa certifiers raises questions about CPD’s selection process for the job.

* * *  

[A]fter Injustice Watch started reporting this story and following weeks of complaints from immigration attorneys to officials in Mayor Lori Lightfoot’s office, sources said that CPD said it would revise its policies on U visa certifications. The most significant change will require the department’s Office of Legal Affairs to review all denials as well as handle appeals of previously denied requests.

The City Council is also considering calling for hearings on this issue seeking more transparency.  

Federal Court Strikes Down Ban on Possessing Guns While Subject to a Domestic Violence Protective Order Based on History and Tradition

The case is here: US v. Perez-Gallan (W.D. Tex. Nov. 10, 2022)

Yet it wasn’t until the mid- to late-1970s before states enacted laws enabling civil protection orders barring domestic abusers from further abusing the victim.33 And it wasn’t until the mid-1990s—around the time Congress created § 922(g)(8)—that every state had some sort of civil protection order statute.

Protective orders for domestic violence then, are also a recent legal invention. And because they are so recent, a much deeper historical inquiry is needed to satisfy Bruen’s historical requirement. Thus, the Court’s straightforward historical analysis digs deeper to uncover how this Nation has historically punished domestic abusers. 

This straightforward historical analysis, however, reveals a historical tradition likely unthinkable today. Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.

A reason for that was how infrequently domestic abusers were prosecuted. For example, the Plymouth Colony court records from 1633 to 1802 represent the only jurisdiction where the prosecution of domestic violence has been studied over a long time frame.

And during that almost 200-year period, only 12 cases involving wife beating were prosecuted.36 Zero complaints during that time were for child abuse.37 Another study of the six New England colonies from 1630 to 1699 confirmed the same—only 57 wives and husbands were tried on charges of assault. One explanation for such low prosecution numbers is that “a second judicial system, the church court, existed alongside the magistrate’s court.” And church courts relied more on public shaming than anything else.

That said, religious communities handed out the most severe consequences. Indeed, colonial New England, dominated by Puritans, imposed the harshest punishments on domestic violence offenders. For instance, a 1672 court sentenced a man convicted of abusing and beating his wife to be whipped with ten stripes or pay a five pounds monetary
fine to the court.***

The Puritan’s moral law, however, was not the British common law. And as society moved into the eighteenth century, Puritan morality dissipated. Indeed, like domestic violence historian Elizabeth Pleck stated, any prosecution of domestic violence charges at that point “were remnants of a much more extensive form of social policing that ended with the demise of the Puritan experiment.”

This is not to say society encouraged or turned a blind eye toward spousal abuse. Quite the opposite. One judge in 1914 stated that “wife-beating is one of the most contemptible of crimes.” Or as another scholar recounts, private citizens sometimes rebuffed abusers. Indeed, railroad workers in 1886 responded to the sounds of an assault from a nearby home by accosting the husband and taking him to the stationhouse. Or the woman who fended off a would-be abuser with a shotgun while harboring the battered wife in her home. Or the tarring and feathering of abusive husbands. Stories like these appear to have been common.

But glaringly absent from the historical record—from colonial times until 1994—are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence.

See Duke Center for Firearms Law: Federal Judge Strikes Down Ban on Possessing Guns While Subject to a Domestic Violence Restraining Order

The Supreme Court's New Second Amendment Test is Off to a Wild Start

On Guns, This Maniacal Focus on Constitutional Originalism is Insanity

New Book: Anthropological Study of Female Alliance as Protective for Domestic Violence

Q&A with Prof. Diana Rosenfeld, What Our Primate Ancestors Can Teach Us About Dismantling the Patriarchy

Women’s organized resistance to male dominance continues to make headlines around the world, from young women leading an uprising against the restrictive policies of the theocratic regime in Iran, to feminist activism in the U.S. in response to the Dobbs decision that overturned Roe v. Wade. 

A new book shines an intriguing new light on the possibilities for alliances among women in the ongoing struggle to end men’s violence against women by examining the social organization of one of our closest primate relatives. In The Bonobo Sisterhood, Harvard Law School professor Diane Rosenfeld shows how we have much to learn from the bonobos about how to eliminate male sexual coercion.  

Diane Rosenfeld: It blew my mind when I learned from my friend and colleague Richard Wrangham, the renowned anthropologist, about how bonobos protect one another from male aggression. I saw how this connects directly to my work on domestic violence and sexual assault law.

For those who don’t know, bonobos are primates that look like but are a separate species from chimpanzees. They share 98.7 percent of our DNA, like chimpanzees, but have a completely different social order. If a female bonobo is aggressed upon, she lets out a special cry and all the other females within earshot come rushing to her aid, forming an instantaneous coalition to defend her. They come whether they know her, like her, or are related to her. We can take a critical lesson from that as humans! Evolutionarily, they have eliminated male sexual coercion.

The Problematic Treatment of Sex Exceptionalism in Criminal Law

Aya Gruber, Sex Exceptionalism in Criminal Law, 75 Stanford L. Rev. (forthcoming)

 Sex crimes are the worst crimes. People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work. Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate. However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law. Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance—an account that undergirds contemporary calls for broader criminal regulations and higher sentences. In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy. Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity. Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional. Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy. Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation. Sex dazzles theorists of all types. For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones. Critics of mass incarceration selectively abandon their principled stance against expanding the penal state. Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation. 

Where the MeToo Movement Stands 5 Years Later

Where the #MeToo Movement Stands, 5 Years After Harvey Weinstein

It was five years ago this month that the very first article by journalists Jodi Kantor and Megan Twohey broke the story of Hollywood producer Harvey Weinstein's decades of sexual misconduct.

Later that month, actress Alyssa Milano tweeted, "If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet."

This post, referencing the #MeToo Movement created by Tarana Burke years earlier, went viral. So, too, did the allegations against Weinstein. Dozens of women stepped forward to publicly share the extent of the powerful producer's bad acts. Actresses Ashley Judd and Rose McGowan's initial allegations were later followed by Cate Blanchett, Lupita Nyong'o and many others speaking publicly about Weinstein's harassment or assault.

As with Weinstein, many formerly powerful men have similarly been accused of sexual assault and harassment in the years since #MeToo went global. But more broadly, the movement also helped launch a wider examination of society's treatment of women in everyday life, at the workplace and in Hollywood.***

The #MeToo Movement was created by Burke in 2006 as a way to empower people who had been sexually assaulted and harassed.

Kimberly Hamlin, a feminist history scholar at Miami University, said women and other assault survivors are continuing to speak out, five years after the Weinstein story broke the long-standing seal on silence.

"The generations-long culture of silence is over," Hamlin said. "The tide has turned from giving abusers a free pass, to listening to and believing survivors and silence breakers. I really feel that we cannot overestimate how big of a shift this is culturally, psychologically, legally. For generations, women have been told, 'Suck it up. Keep it to yourself. That's just how things are. It's your fault.'"

"We are no longer raising our children to just be nice," she said. "[Or to think] 'just don't say anything.' And this is a watershed change."

The Under-Enforcement of Crimes Against Black Women

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

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

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

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

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Alternative Remedies for Survivors of Sexual Violence Both Inside and Outside the Legal System

Jill C. Engle, Sexual Violence, Intangible Harm, and the Promise of Transformative Remedies, 79 
Washington and Lee Law Review (2022)

This Article describes alternative remedies that survivors of sexual violence can access inside and outside the legal system. It describes the leading restorative justice approaches and recommends one of the newest and most innovative of those—“transformative justice”—to heal the intangible harms of sexual violence. The Article also discusses the intersectional effects of sexual violence on women of color and their communities. It explains the importance of transformative justice’s intersectional approach to redress sexual violence. Transformative justice offers community-based, victim-centric methods that cultivate deep, lasting healing for sexual violence survivors and their communities, with genuine accountability for those who have caused harm. Although transformative justice has developed outside the legal system, its principles and methods are targeted toward the unique, often intangible harms experienced by sexual violence survivors. Therefore, transformative justice remedies should be available alongside and inside the legal system so survivors, their impacted communities, and those who cause harm can benefit from them

Federal Trial in Purdue Sexual Assault Case Continues this Week

Purdue Sexual Assault Investigation Trial Starts Monday

A trial against two Purdue administrators for suspending a student after she made sexual assault allegations, which Purdue determined to be false, starts Monday.

The student, called Nancy Roe in court documents, claims in the federal lawsuit that Purdue’s sexual assault investigation procedure is gender discriminatory because it suspends students who don’t prove assault allegations to Purdue’s standards.

Purdue is also accused of violating the Fourteenth Amendment Due Process and Equal Protection clauses by reportedly not giving Roe any prior notice or an opportunity to respond before suspending her in 2017, the pretrial order reads.

 

See also Federal Suit Against Purdue Hinges on Texts, Recordings, Credible Claims in Sexual Assault Case

In the second day of testimony in a former student’s federal lawsuit against Purdue – Crux of the case: Did Purdue retaliate against her when it suspended her for two years after investigating her sexual assault claim, while having the person she accused write a 10-page term paper on consent as punishment for recording their dorm room encounter? – the word of the day was “incapacitated.”

Things hinged on Purdue’s determination that Nancy Roe – as the then-19-year-old student is identified in court documents – might have been intoxicated, but she wasn’t incapacitated when a fraternity member walked her to her residence hall on the Monday night of Grand Prix week in 2017 and wound up having sex with her.

On Tuesday, Purdue Dean of Students Katie Sermersheim said on the witness stand in a federal courtroom in Hammond that she stood by determination that the student lied about the incident, dragging another student into an investigation over something consensual.

 

In a related case  brought by the accused man in the incident, Justice Amy Coney Barrett (pre-SCOTUS), wrote the opinion flagging Title IX for its potential "male bias."  See Understanding Judge Barrett's Opinion in Doe v. Purdue

The case is here: Doe v. Purdue

Purdue students John and Jane had consensual sexual intercourse 15-20 times. Jane’s behavior became erratic. Jane attempted suicide. Weeks later, John reported Jane’s suicide attempt to an advisor. Jane was upset and distanced herself from John. Months later, during Sexual Assault Awareness Month, Jane alleged that while sleeping with John, she woke to him groping her over her clothes. Jane says she reprimanded John. John then purportedly confessed that he had digitally penetrated her while she was sleeping weeks earlier. Jane told the university that John had gone through her underwear drawer, chased her through a hallway while joking about tasering her, gone to her room unannounced, and lost his temper in front of her. Purdue pursued Jane’s allegations although Jane did not file a formal complaint. John was suspended from Navy ROTC, banned from buildings where Jane had classes and from his dining hall. John submitted a denial, noting that after the alleged incidents, Jane texted him over the holidays, sent his family cookies, and invited him to her room. Investigators neither gave him a copy of the report nor shared its contents. Moments before his committee appearance, he learned that it falsely claimed that he had confessed and failed to describe Jane’s suicide attempt. Jane neither appeared nor submitted a written statement. The panel refused John permission to present witnesses. John was found guilty by a preponderance of the evidence. Purdue suspended him for a year and imposed conditions on his readmission. The ROTC program terminated his scholarship. John sued, asserting Purdue used flawed procedures and violated Title IX by imposing a punishment infected by sex bias. A magistrate dismissed. The Seventh Circuit reversed. John adequately alleged violations of both the Fourteenth Amendment and Title IX

A Study of the Comments to the Devos Title IX Rulemaking of 2018-20 Shows Overwhelming Opposition

Thomas Dircks, Lindsey LaForest, Timothy O'Shea, Alice Parks, Brittany Van Ryder, Nancy Chi Cantalupo, Overwhelming Opposition: the American Public’s Views on the Devos Title IX Rulemaking of 2018-2020 

On November 29, 2018, then Secretary of Education Betsy DeVos and the U.S. Department of Education (“ED”) published a notice of proposed rulemaking (“NPRM”) regarding Title IX of the Education Amendment of 1972, 20 U.S.C. §§1681 et seq. (“Title IX”), particularly ED enforcement regarding sexual harassment and gender-based violence (“SH-GBV”). This report discusses data collected by a crowd-research project in which hundreds of volunteers read and collected information from 117,358 of the 124,000+ comments filed in response to the NPRM into a “Big Comment Catalog” (“Catalog”). First, the report reviews the number and percentage of comments that supported or opposed the NPRM’s proposals, including by identified subgroup and topic. It then analyzes the themes of the comments filed, first the common concerns of the less than one percent of commenters who supported the NPRM and next of the more than 99 percent who opposed it. The Catalog is available in Appendix B of the report.

Of the 117,358 cataloged, organized, and examined by the research team (see the Methodology section for an explanation of why the Catalog does not include all 124,000+ comments that ED says were filed in the proceeding), 115,670 comments took a definitive position on the proposals. Of those comments that took a definitive position, more than 99 percent (n: 114,817) opposed the proposed rules while less than one percent (n: 853) supported them.

The predominant theme in the 853 supporters’ comments was the belief that ED’s Title IX enforcement methods for SH-GBV should imitate the criminal law. These comments favored the NPRM for correcting what supporters alleged were biased procedures that had been tolerated by ED in the past and approved of the NPRM’s requirements for live hearings with cross-examination, a heightened evidentiary standard, and protection of the accused’s—but not the victim’s—"due process” rights.

In part due to how many more commenters opposed the NPRM than supported it, the list of objections was also significantly longer. First, opposers objected to the NPRM’s narrowed scope of Title IX protections, including those limiting the types of SH-GBV that would qualify as violating Title IX, reducing the number and type of employees obligated under Title IX to assist a victim-survivor, and decreasing the obligations on funding recipients to address reports in an efficient manner. Of particular concern to opposers were the NPRM’s narrowed definitions for various terms, as well as the elimination of Title IX protections with regard to online harassment and off-campus SH-GBV. Second, those who opposed the NPRM addressed the potential harm to survivors, educational institutions, and students’ rights caused by the NPRM’s criminal law-imitative requirements for internal investigations, disciplinary systems, and a higher standard of evidence. Third, opposers objected to the NPRM’s adoption of broad religious exemptions from Title IX and for its disparate impacts on student populations already vulnerable to discrimination, including K-12 students and students who face intersectional discrimination.

This report’s authors thank the many volunteers who participated in this project over the last three years (see the Methodology section and Appendix A for a list of volunteers). Without their efforts, the Catalog and this report would not have been possible.

A Proposal for Vicarious Liability for Sexual Violence

Jennifer Brobst, Vicarious Liability for Risks of Sexual Violence in the United States: Not a Modest Proposal, 99 U. Detroit Mercy L. Rev. 233 (2022)

The author considers the intractability of legal remedies to the public health crisis of sexual violence in the United States, including the criminal justice system and federal anti-discrimination laws. She proposes, instead, as a systemic solution to a systemic problem, continued support for common law agency and tort theories of vicarious liability for businesses, municipalities, and the many leaders who create the spaces where sexual violence persists. Analysis includes a focus on the heightened duty of protection placed on common carriers, such as taxis and trains, and recent litigation in several states challenging the economically-motivated statutory exemptions for rideshare companies, despite the risk of sexual violence inherent in this mode of transportation.

CFP Centering Family Violence in Family Law

Call for Papers

Centering Family Violence in Family Law

Abstract Submission Deadline: July 22, 2022

from the Family Law Center, UVA School of Law and National Family Violence Law Center, GW Law School

We invite submissions to contribute to a roundtable about the place of domestic violence in family law and scholarship. Submissions should consist of a proposed abstract under 300 words. The roundtable will be held on January 20, 2023 at the University of Virginia School of Law.

Although evidence shows that family violence is endemic, family law continues to design doctrines and procedures around an image of families in which violence is exceptional. Significant new empirical research indicates that, despite extensive law reforms designed to require courts to address family violence, mothers in custody litigation who seek to protect their children from paternal abuse typically face resistance from judges, if not outright hostility. Moreover, most family lawyers are ill-equipped to effectively represent protective parents and at-risk children, especially in an unreceptive family court culture. Cf. Meier, Denial of Family Violence:  An Empirical Analysis and Path Forward for Family Law, 110 Geo. L. J. 835 (2022).

 

How would family law practice, scholarship, and teaching change if each centered the reality of family violence instead of treating it as exceptional? 

This roundtable will bring together a group of diverse participants to explore how the realities of family violence and judicial intransigence should affect core doctrines and practices in family law, such as allocating custody and establishing parenthood. Participants will also consider how concern for family violence should inform discussions of systemic reforms such as decriminalization, abolition of the child welfare system, and parenting after incarceration. The roundtable’s goal is to carve out new ways to think about how family law can respond to the failure of the law, scholarship, and the courts to appropriately deal with violence within American families. 

We offer the following “provocations” for new thinking about how to place family violence at the center of family law:

• Shared Parenting:  How might we talk about shared parenting and its appropriate place in child custody if we acknowledged the history of intimate partner violence and child maltreatment among many (possibly most) separating parents, both those that litigate and those that do not?
• Functional Parenting:  As we seek to expand parenting rights and recognition to functional parents, how can we ensure that abusive partners are not empowered to extend their abuse through parenting litigation (a well-documented problem among biological parents)?
• Pedagogy: How should we best integrate the realities of family violence in our teaching, particularly in broad courses such as Family Law, Criminal Law, and Child, Family & State?
• Formerly Incarcerated Parents:  As we work to reintegrate formerly incarcerated parents into the community and their families, how can we ensure that reintegration maximizes and protects healthy and caring parent-child relationships?
• The Child Welfare System:  As we work to reform the child welfare system and its known racial and class injustices, how can we best integrate the realities of family violence into such reforms to ensure they do not exacerbate the victimization of children or safe parents?
• A Supportive State:  As we develop state tools to affirmatively support familial stability and security, how should such policies change if family violence is pervasive rather than an aberrant imperfection? 

We are delighted to report that the Virginia Journal of Social Policy & the Law has agreed to publish eight short (5,000-word) papers from this gathering. We will be requesting drafts (3,000-5,000 words) one week in advance of the conference so they can be circulated and read by all participants. 

We plan to host the event in person, although the format may change depending on public health considerations. We will supply meals, and we have some funding available. If you need funding to attend, then please provide an estimate of your travel costs.  

Thank you.  Please submit abstracts to centeringfamilyviolence@gmail.com.  And please let us know if you have any questions!

Federal Legislation Proposed to Prohibit "Stealthing" (Nonconsensual Condom Removal) as Sexual Assault

Proposed Federal Law Prohibits Nonconsensual Condom Removal

Legislation introduced last week would create a new federal civil rights violation of “condom stealthing”—the removing of a condom during sex without verbal consent from a partner, which forces someone to have unprotected sex without their consent. Introduced by U.S. Representatives Carolyn B. Maloney (D-N.Y.), Norma J. Torres (D-Calif.) and Ro Khanna (D-Calif.), the proposed law recognizes the right to sexual self-determination including the right to choose what conditions are placed on consent to sex.

 

“Stealthing is a grave violation of autonomy, dignity and trust that is considered emotional and sexual abuse,” said Maloney. “Congress has an obligation to address stealthing at the federal level and allow survivors to hold those that have stealthed them accountable. Stealthing is a horrific act of sexual violence and must be put to an end.”

 

“Stealthing or nonconsensual condom removal is a violation of trust and dignity and a dangerous form of sexual assault,” said Khanna. “We need to do more to protect victims.”

 

Maloney, Torres and Khanna have introduced two bills:

•  The Stealthing Act of 2022 would create a federal civil right of action for survivors of nonconsensual condom removal.

• The Consent is Key Act would encourage states to voluntarily pass laws authorizing civil damages for survivors of nonconsensual condom removal by increasing funding levels for federal domestic violence prevention programs in states that pass these laws.

 

“Consent is key, it is that simple,” said Torres. “Nonconsensual condom removal is sexual violence that can have lifelong consequences, and survivors of such violence deserve to have their voices heard, and deserve justice. This legislation will ensure survivors can turn to the courts for relief and will boost federal domestic violence programs to help as many survivors as possible. Everyone deserves to have their autonomy respected.”

 

Both pieces of legislation were inspired by a California law passed last October, making it a civil sexual battery offense for someone to remove a condom during sex without verbal consent from their partner. The law allows victims of stealthing to sue their perpetrators for damages and relief. California was the first state to pass a law against condom stealthing.

The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

David Horton, The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act  
132 Yale Law Journal Forum (2022 Forthcoming)

In March 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Ending Forced Arbitration Act). The bill voids pre-dispute arbitration clauses in cases with allegations related to sexual misconduct. The legislation—which earned bipartisan support—was a stunning victory for the #MeToo movement and critics of forced arbitration.

However, this Essay explores a design choice that limits the impact of the new law. Previously, Congress has restricted forced arbitration through standalone statutes that apply with the full force of its legislative power. Conversely, federal lawmakers inserted the Ending Forced Arbitration Act within the FAA. Thus, the Ending Forced Arbitration Act only governs if the FAA governs. But the FAA is subject to several exceptions. In turn, when a case falls through the cracks of federal arbitration law, state law applies. Counterintuitively, the Essay demonstrates that many states require arbitration where federal law now does not. Thus, to truly achieve the goal of preventing allegations of sexual misconduct from being sent to private dispute resolution, either Congress must separate the Ending Forced Arbitration Act from the FAA or states should revise their arbitration statutes.

Decriminalizing Domestic Violence in the Context of Housing and Nuisance Law

Siya Hedge, "I Am Not a Nuisance": Decriminalizing Domestic Violence Across New York's Civil Housing & Criminal Justice Systems, 29 Georgetown J. on Poverty, Law & Policy (2021)

  This Article examines how the treatment of domestic violence in New York’s civil and criminal legal systems places survivors and alleged abusers at risk of homelessness—on the one hand, it has been underplayed as a ‘bothersome’ nuisance offense to landlords, while also serving as a basis for state-sanctioned evictions through the issuance of Orders of Protection. Section I incorporates client anecdotes to display how this issue has affected Bronx tenants during the pandemic, explaining theoretical re-framings of domestic violence and providing context on how domestic violence rates in New York City have affected the homelessness epidemic. Section II conducts a deeper dive into nuisance doctrine and the ways that New York tenants affected by domestic violence are entangled in civil judicial and administrative housing disputes. Section III discusses domestic violence prosecutions in criminal courts and the pitfalls that Orders of Protection present in curtailing alleged abusers’ housing rights. Section IV offers policy recommendations to combat the impacts of local nuisance laws and Orders of Protection on survivors and alleged abusers, further acknowledging the importance of transformative justice as an advocacy method to decriminalize domestic violence across the civil and criminal legal spectrum.

Trauma as Inclusion

Raquel E. Aldana, Patrick Marius Koga, Thomas O’Donnell, Alea Skwara, and Caroline Perris have posted a forthcoming article, Trauma as Inclusion, on SSRN. The article is forthcoming in Summer 2022 in the Tennessee Law Review.  It "brings together a historian and law, public health, psychiatry, psychology, and neuroscience faculty and researchers to document how trauma is understood across disciplines and how it has developed in U.S. immigration law largely to exclude but increasingly to include migrants whose lives have been uprooted or otherwise impacted by borders." It describes, for example, how refugee and asylum law "largely fail to protect individuals and groups facing persecution by private actors, such as women and LGBTQIA+ individuals, even when private violence has become indistinguishable from state sponsored persecution." It then explores how the Violence Against Women Act has more potential for a model of "trauma as inclusion": 

Unfortunately, several obstacles, including evidentiary barriers impede the full potential of the VAWA self-petition process. Proving trauma for domestic violence victims is difficult, even in cases involving physical abuse, given the barriers to reporting. Moreover, when the alleged hardship is based on “extreme cruelty,” an immigrant’s narrative alone can be deemed insufficient to establish eligibility. For immigrants who can afford it, sometimes psychological evaluations can help document psychological trauma that is not otherwise documentable. However, even these types of evidence may not help overcome the Western clinical conceptualizations of trauma that undermine the lived experiences of more resilient women, especially when one considers the different ways that victims respond to trauma. Worse yet, these types of psychological evaluations can be used against immigrants to deny relief, such as when documented depression and suicidal thoughts trigger mental health grounds of inadmissibility.

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

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

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