Friday, June 10, 2022

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.

June 10, 2022 in Legislation, Pregnancy, Reproductive Rights, Violence Against Women | Permalink | Comments (0)

Wednesday, June 8, 2022

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.

June 8, 2022 in Business, Equal Employment, Violence Against Women, Workplace | Permalink | Comments (0)

Monday, May 23, 2022

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.

May 23, 2022 in Violence Against Women | Permalink | Comments (0)

Monday, May 16, 2022

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.

May 16, 2022 in Human trafficking, Legal History, Legislation, Theory, Violence Against Women | Permalink | Comments (0)

Monday, May 9, 2022

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

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

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

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

Monday, April 25, 2022

Military Sexual Assault Accountability

Mariel Padilla of the 19th News published an article titled "Military sexual assault survivors and advocates demand accountability in a 'world of predators." The article describes a campaign titled "Red, White, and Bruised." 

The campaign launched during National Sexual Assault Prevention and Awareness Month, and  includes seven concrete demands: the resignation of high-profile officers who they say have obstructed justice; for Congress to open investigations into U.S. Army Forces Command, Army Reserve Command and Fort Bragg; passage of the Military Justice Improvement and Increasing Prevention Act of 2021; allow service members and veterans to sue the federal government for accountability; bar “credibly accused” perpetrators of domestic violence, child abuse or sexual assault crimes from being employed with the Defense Department; charge and prosecute people with obstruction of justice for interfering with the reporting of sexual and domestic abuse; and improve transparency in investigations of military sexual misconduct.

 

April 25, 2022 in Violence Against Women, Workplace | Permalink | Comments (0)

Wednesday, April 13, 2022

An Argument for Equitable Tolling in Sexual Harassment Cases

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

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

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

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

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

Monday, April 11, 2022

16th Annual Domestic Violence Counts Report

The National Network to End Domestic Violence has published its annual count of domestic violence services utilization.  

The annual report documents the number of people who sought domestic violence services in a single 24-hour period, as well as the types of services requested and the number of service requests that went unmet due to a lack of resources.

 

The 16th Annual Domestic Violence Counts Report found that on September 9, 2021, 70,032 adult and child victims of domestic violence received lifesaving services, including 38,608 victims who found refuge in emergency shelters, transitional housing, hotels, motels, or other housing; and 31,424 victims who received non-residential assistance and services, including counseling, legal advocacy, and children’s support groups. On that same day, local programs were unable to meet 9,444 requests for services—primarily requests for housing or emergency shelter—because they lacked sufficient resources.

April 11, 2022 in Violence Against Women | Permalink | Comments (0)

Thursday, April 7, 2022

Best Practices for Prosecutors in Smaller Jurisdictions to Address Intimate Partner Violence

Maybell Romero, Jon Tunheim & Chantelle Williams, Intimate Partner Violence: A Best Practices Guide for Prosecutors in Smaller Jurisdictions 

Intimate partner violence (IPV) impacts people irrespective of income, education, and geography. In the United States, one in five homicide victims are killed by an intimate partner, and over half of female homicide victims are killed by a current or former male partner. Over 10 million women and men continue to experience IPV each year. IPV is an age-old social concern that continues to torment millions of people across the nation.

With this sobering reality in mind, the IIP’s Beyond Big Cities members came together to discuss their experiences with IPV cases. These conversations highlighted successful approaches to combating IPV in smaller communities, revealed unique challenges that rural communities face relating to IPV, and explored innovative responses to IPV. This document provides a survey of IPV prosecution in smaller jurisdictions, particularly rural ones, based on research and information that Beyond Big Cities members provided to the authors.

April 7, 2022 in Violence Against Women | Permalink | Comments (0)

Monday, March 21, 2022

Maybell Romero on "Ruined"

Maybell Romero has posted the forthcoming article "Ruined" on SSRN. This article will be published in the Georgetown Law Review. The abstract previews: 

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

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

March 21, 2022 in Healthcare, Violence Against Women | Permalink | Comments (0)

6th Cir. Rules Sexual Assault of H.S. Student by Campus Police Officer On Campus Does Not Fall Under Title IX

The Sixth Circuit decided the case of Arocho v. Ohio University. The facts of the case are as follows: 

Arocho was a student at Federal Hocking High School during the 2005–2006 school year. Parsons was an Ohio University police officer, and the “designated liaison to Federal Hocking High School.” During the 2005–2006 school year, Arocho attended a career day that Ohio University provided in partnership with the high school. Parsons represented the Ohio University Police Department at the career day. He met Arocho during the event and made “inappropriate communications of a sexual nature” to her. He then “made plans to have sex” with her “later that evening.”

“Over a period of many months” during the 2005-2006 school year, Parsons sexually assaulted Arocho on multiple occasions during “work hours and at work-related locations,” including in his Ohio University police cruiser. He sexually assaulted her “[o]n at least one occasion ... on or around the premises” of Ohio University.

The court considered the extent to which this conduct occurred in connection with an "educational program or activity" under Title IX:

She alleges that Parsons sexually assaulted her during his “work hours and at work-related locations,” and in his Ohio University police cruiser. The only “education activity or program” that Arocho alleges is the career day that she attended at Ohio University. To determine whether Arocho can maintain a Title IX claim based on her allegations about career day, we consider the relationship between Arocho and Ohio University, and the relationship between Ohio University and Arocho’s high school * * *.  Arocho alleged that career day was an “Ohio University and Ohio University Police Department sanctioned event.” * * * She also alleges that it was a “vocational career development activity through the Ohio University/Ohio University Police Department and Federal Hocking High School.” When Arocho went to career day, Parsons made “inappropriate communications of a sexual nature” to her and “made plans to have sex with [her] ... later that evening.”

The court concluded that: 

Arocho was not paying Ohio University for its services, nor does she allege that she participated in or planned to participate in education programs such as taking Ohio University classes as a high school student “to receive college credit.” The amended complaint provides little to no information about the “educational opportunities” and “vocational training activities” of Ohio University that Arocho was deprived of participating in. Based on the amended complaint, the full extent of Arocho’s relationship with Ohio University was her participation in career day. Arocho also does not allege that she intended to partake in any Ohio University education program or activities in the future. * * * At bottom, Arocho’s complaint does not allege her connection to an Ohio University “education program or activity” and fails to show that she “is so closely tied to [the] university that [she] is essentially a student of [Ohio University].” * * *  

March 21, 2022 in Violence Against Women | Permalink | Comments (0)

Tuesday, March 8, 2022

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

"Ruined"

Maybell Romero

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

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

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

Monday, February 28, 2022

Equal Protection Claim to Proceed After Law Enforcement Failed to Respond to Self-Harm Reports Involving Officer's Fiancé

In Hayes v. Town of Dalton, et. al., the District Court of Massachusetts denied defendants' motion to dismiss an equal protection claim arising from alleged police inaction following reports of self-harm involving the fiancé of an officer after their argument.  The complaint asserts: 

In the aftermath of her daughter Sherilyn’s tragic suicide, Plaintiff Patricia Hayes (“Plaintiff”) filed suit seeking damages from the Town of Dalton and members of its police department, as well as from Sherilyn’s fiancé, Kyle Nutting, who was employed as a police officer by the Town of Peru, and the Town of Peru (collectively, “Defendants”). Plaintiff alleges that Defendants were notified that Sherilyn intended to kill herself and their failure to intervene to try to prevent her death violated Sherilyn’s civil rights and various state laws.

The court considered a motion to dismiss requiring the court to consider all facts in favor of the plaintiff.  The court summarized the facts as follows (internal citations removed):  

Tyler Hamilton called the Dalton police department’s communications center on November 23, 2019, at approximately 6:16 P.M. to report that his “buddy [Nutting] and his girlfriend [Sherilyn] just got into an argument” concerning Nutting’s alleged infidelity. Hamilton notified Dalton police dispatcher Defendant Frank M. Speth, III, that Nutting was a Peru police officer who had left his North Street residence and was having dinner with the Peru police chief, but Sherilyn remained at the apartment that she shared with Nutting. Hamilton indicated that Nutting “had ‘... been calling [him] and texting [him] saying that he’s worried about [Sherilyn]’ ” who had threatened suicide during their argument. Hamilton requested a “wellness check” and urged the police to “hurry” because Sherilyn had failed to respond when Hamilton knocked at her door. After Hamilton reaffirmed that Sherilyn said she was going to harm herself, Speth told Hamilton that he would dispatch officers to her residence.

* * *  According to Marley, Nutting told him that during his and Sherilyn’s “verbal argument,” she made “a comment about wanting to hurt herself,” but Nutting did not “think she was going to hurt herself” and “there was no need for police to conduct a well-being check based on [her] statements”.  

Extensive back and forth ensued between the various officers regarding how to respond. One officer indicated that "he did not want to provide all of the information about a “domestic dispute” involving a police officer over an open radio channel." Another officer stated that he did not want to interfere with the career of his fellow officer. Policy policy required an immediate response to a threat of suicide. No response occurred "[b]ased on Nutting’s “opinion” that a well-being check was not necessary." The police closed out the call to service without entering the dwelling. Marley and Nutting later entered together and called for medical assistance reporting that Sherilyn had "just taken her life."

The court considered a motion to dismiss an equal protection claim on these facts, arguing that the officers selectively denied protective services in bad faith or malice. The court concluded that the plaintiff:   

has adequately alleged that Marley acted with discriminatory intent by withholding assistance from Sherilyn when he would have responded appropriately to a call for assistance for a similarly situated individual who was not involved in a domestic confrontation with a police officer. * * * Marley’s failure to comply with a Dalton police department regulation requiring an immediate response to a suicide threat and his knowledge of Nutting’s status as a police officer coupled with his apparent reluctance to provide police assistance to Sherilyn raise a reasonable inference that Marley treated Sherilyn differently from others who were similarly situated. * * * Plaintiff has adequately alleged that Marley withheld assistance from Sherilyn to avoid negatively impacting the career of a fellow police officer. Such a motive has been found sufficient to support a viable equal protection claim. * * *  Marley’s assertion that he had no such improper motive would require reading the allegations in the complaint in the light most favorable to him and is unavailing at this stage.  

February 28, 2022 in Violence Against Women | Permalink | Comments (0)

Monday, February 14, 2022

Intimate Partner Violence Through the Eyes of the Military "Dependent" Spouse

Xander Franklin and Tamara Kuennen have published Intimate Partner Violence Through the Eyes of the Military "Dependent" Spouse in volume 100 of the Oregon Law Review. The article's conclusion is excerpted here: 

Within this Article, we analyzed the military’s response to IPV through the lens of the civilian partners who experience it daily. Using their perspectives as a starting point, in which intimate abuse is not a discrete incident but rather a continuing process, the structural conditions contributing to abuse become salient. Isolation, economic coercion, and exploitation of gender and other privileges are not merely discrete tactics that one partner uses against another, but ongoing practices that are institutionalized within the structures of the military community. Thus, to get a full picture of IPV, we must assess not only the dynamics particular to the individual couple but also how structural conditions support those dynamics.

 

Shifting perspectives in addressing IPV is particularly challenging because the primary response to the problem of IPV is to use criminal law, which currently detaches context from IPV in order to prosecute it as discrete episodes of physical violence. Reframing the narrative of abuse to the person experiencing it, and not the perspective of law enforcement responders or the military aggressor, represents a necessary correction of this approach. Furthermore, structural conditions that facilitate IPV are so embedded in the fabric of everyday life that they often fade into the background of most analyses, complicating current reform efforts within the military and civilian communities. This is most apparent in the military’s typical approach to resolving social problems, which favors standardized solutions for unique problems. Thus comes the importance of intentionally, explicitly asking people who experience abuse to identify the institutional and cultural norms that support personalized abusive tactics, so as to create a reformist framework that properly addresses these structural conditions.

 

Because analysis of structural conditions has largely been lost in the movement to end IPV, we used the military setting to throw them into sharp relief. As a subculture of American society, the military, with its explicit insularity and rigidly codified norms, was an ideal point of reference to develop an analytical methodology for approaching IPV within discrete social subgroups. In analyzing and exposing fundamental faults within the military’s approach to domestic violence, as well as proposing some direct procedural solutions to shift this approach, we sought to create and then validate a newly contextualized framework for future reformative solutions. It is therefore our sincere belief that the ensuing analytical methodology--starting from the perspective of the person experiencing abuse, assessing both individual and structural conditions underpinning that abuse, then using that assessment to inform reformist efforts directed at resolving those specific underlying conditions--is broadly applicable to the global effort of combatting Intimate Partner Violence.

February 14, 2022 in Violence Against Women | Permalink | Comments (0)

Monday, January 31, 2022

Concurring Opinion in Felony-Murder Conviction Highlights Femicide in U.S.

The Massachusetts Supreme Court published Commonwealth v. Paige in December 2021. The case involved the 1987 killing of Dora Brimage for which the defendant had been indicted in 2016. The defendant and his brother drove Dora home from a party. She was found murdered the next day at a construction site where defendant's brother worked. She died of blunt force injuries to her head and strangulation. The case remained unsolved until 2013 when federal funding supporting the use of DNA testing to solve "cold cases" was used to test sperm located on the victim. The defendant was subsequently charged with felony-murder in the first degree with a predicate offense of aggravated rape. The Supreme Court upheld the conviction after considering several issues on appeal. The case is quite remarkable for the concurring opinion written by Justice Elspeth B. Cypher contextualizing the case as femicide within a larger epidemic of violence again women. The opinion is heavily excerpted below with citations and footnotes largely omitted: 

I write separately to more firmly reject our reasoning in Commonwealth v. Scesny, 472 Mass. 185, 34 N.E.3d 17 (2015), and to address the continuing epidemic of violence against women, including femicide. We have not used the term “femicide” in our case law, but I think it should be recognized as a distinct phenomenon.

Femicide is the intentional killing of a woman because she is a woman. Because the victims of femicide are targeted based on their sex, femicide may be understood as a type of hate crime. The violence of these offenses serves to terrorize the victims and, thus, to subjugate women as a group. As such, hate crimes exact a greater toll on society and women, both individually and as a group, than isolated incidents of violence. 

Femicide also exists on a continuum of sexual violence, including sex trafficking, rape, aggravated rape, and sexual harassment. When any one of these forms of sexual violence results in death, a femicide has been committed. Femicide is thus “the most extreme form of sexist terrorism, motivated by hatred, contempt, pleasure, or a sense of ownership of women.” J. Caputi & D.E.H. Russell, Femicide: Sexist Terrorism against Women, in Femicide: The Politics of Women Killing 13, 15 (J. Radford & D.E.H. Russell eds., 1992). Where, as here, the jury apparently found that the victim’s murder stemmed from the same criminal episode as her aggravated rape, I believe it is appropriate to refer to her killing as a femicide.

[Omitted discussion of the legal treatment of women historically as context for femicide, including the legality of marital rape and doctrines like the "heat of passion," which implies that the victim, by committing adultery, is partly to blame for the defendant’s violence, and that the defendant was excused in the killing."]  


To use the term “femicide” also acknowledges its prevalence in our society at large. Reliable data on the incidence of femicide is unfortunately lacking. No official sources directly study male-on-female homicide or its motivations. An analysis of cross-sex homicide rates generally, however, suggests that femicide is on the rise in the United States. See Violence Policy Center, When Men Murder Women: An Analysis of 2019 Homicide Data 2 (Sept. 2021) (“Since reaching its low ... in 2014, the rate [of women murdered by men in incidents with one victim and one offender] has increased, with 2019’s rate ... up nine percent since 2014”).

The Federal Bureau of Investigation (FBI) Uniform Crime Reporting (UCR) Program provides the primary source of data on such homicides. * * *  The UCR shows that in the year 2019, there were 1,647 known killings of women committed by men, compared to 477 killings of men by women. The year before, there were 1,731 killings of women committed by men. While these statistics paint a blurry portrait of femicide in the United States, they demonstrate that its occurrence is significant.

The paucity of statistics is partly to blame for femicide’s lack of recognition. More importantly, femicide also is ignored because of its finality. As Jill Radford appropriately notes, “When a woman is killed, there may be no survivor to tell her story.” Radford, Introduction, Femicide: The Politics of Women Killing at 4. While there may be valid reasons for society’s reluctance to relive the violent murders of women, the failure to do so risks femicide being forgotten or denied.

It is in the context of this finality that I wish to make clear that I reject the reasoning in Commonwealth v. Scesny, 472 Mass. at 193-194, 34 N.E.3d 17. In both Scesny and the present case, the evidence tended to establish that in each case, the sexual encounter with and the killing of the victim were contemporaneous. While it is certainly true that a killing may follow a consensual sexual encounter, that does not appear to have occurred in either case; each woman was apparently murdered so immediately after her rape that neither woman even had the chance to stand up after the assault. Id. at 189-190, 34 N.E.3d 17. Nonetheless, in Scesny, we concluded that there was insufficient evidence of rape because its traditional indicia, such as torn clothing or injured genitalia, were absent. Id. at 193, 34 N.E.3d 17.

This reasoning obscures the context in which the rape occurred: femicide. When a killing takes place following a rape, the victim no longer can testify about the absence of consent in the sexual encounter. She effectively has been silenced. In cases such as these, the jury must be permitted to infer from the evidence of a killing that the sexual encounter was nonconsensual. This is not a “piling [of] ‘inference upon inference’ ” or “conjecture and speculation.” * * * These are reasonable inferences that the jury are entitled to draw. 

Additionally, such inferences wholly are in line with our previous holdings that consent is not a defense to serious injuries allegedly inflicted during sexual encounters. Analogously, consent is not present where the jury find that the sexual encounter took place at the same time as a violent killing.

I also wish to address directly the implication that prostituted women are more likely to consent to a sexual encounter before being killed. A prostituted woman is no more likely to do so than a nonprostituted woman. Even outside the context of homicide, evidence that a woman is prostituted does not decrease the likelihood that she was raped. Rather, studies suggest that prostituted women are more likely to be raped than others. * * * Additionally, evidence suggests that homicides occur with similar frequency alongside prostitution as they do alongside rape.  

Regardless whether the victims in Scesny and the present case were prostituted, I agree with the court that the jury should be permitted to infer that a sexual encounter was nonconsensual where it occurred contemporaneous with a killing. Permitting the jury to make such a finding acknowledges that femicide and rape both exist on a continuum of sexual violence.

January 31, 2022 in Courts, Violence Against Women | Permalink | Comments (0)

Can Criminal Justice Reform Measures Help Halt Police Sexual Assault on Black Women?

Michelle S. Jacobs has published Sometimes They Don't Die: Can Criminal Justice Reform Measures Help Halt Police Sexual Assault on Black Women in Volume 44 of the Harvard Journal of Law and Gender. Here is the abstract: 

In the eighteen months between March 2019 and August 2020, at least eight Black women were murdered by the police. Breonna Taylor was one of them. Officer Brett Hankison, one of the three officers who murdered Breonna Taylor, was eventually discharged from the Louisville Police Department. In the memo discharging him, the police chief cited behavior that amounted to an extreme indifference to the value of human life: Hankison blindly fired ten rounds into the home of Ms. Taylor's neighbor. Additionally, in the aftermath of Ms. Taylor's death, two women came forward and accused Hankison of sexually assaulting them while he was in uniform. Breonna Taylor's case highlights the intersection of police violence and sexual violence against Black women. Police who are accused of brutal violence often have histories of misconduct, with numerous complaints from civilians. For many women, the police misconduct is sexual assault. The women don't die, but the assault strips away their dignity and sense of security.

This paper will challenge the belief that police sexual misconduct is an infrequent, hidden crime. In fact, it is a common occurrence and is allowed to continue in most police departments. Both adult women and children are victims of police sexual misconduct. The unwillingness of federal and state authorities to tackle this issue forced researchers and journalists to create their own databases of police officers who commit crimes, including sexual misconduct.

Our nation is primed to tackle the issue of police reform in a way it has not been in recent years.This paper will argue that unless police reform efforts look beyond a narrow, male-centered understanding of police violence, the opportunity to create reform that helps protect Black women from police sexual misconduct will be lost.

January 31, 2022 in Race, Violence Against Women | Permalink | Comments (0)

Wednesday, January 26, 2022

Assessing the Impact of the Violence Against Women Act

Leigh Goodmark, Assessing the Impact of the Violence Against Women Act, 5 Annual Rev. of Criminology 115 (2022) 

 The Violence Against Women Act (VAWA) has been hailed as the federal government's signature legislation responding to gender-based violence. VAWA, passed in 1994 and reauthorized three times since then, has created several new programs and protections for victims of gender-based violence. VAWA is, however, primarily a funding bill and what it primarily funds is the criminal legal system. But the criminal legal response to gender-based violence has not been effective in decreasing rates of gender-based violence or deterring violence. A VAWA that discontinued funding for the criminal legal system and instead focused on economics, prevention, and community-based resources—a noncarceral VAWA—could better meet the needs of victims of gender-based violence and target the underlying causes of that violence.

January 26, 2022 in Legislation, Violence Against Women | Permalink | Comments (0)

Tuesday, January 25, 2022

Senators are pushing to reauthorize the Violence Against Women Act. Will it help Indigenous communities?

Senators are pushing to reauthorize the Violence Against Women Act. Will it help Indigenous communities?

On any given day, Annita Lucchesi might be ordering casket sprays, prepping food for a wake, buying school supplies for a child with a missing parent or booking a motel for a woman escaping domestic violence.

Some days, she said, she will drive up to 300 miles through southeastern Montana and the surrounding areas in her work as the executive director of Sovereign Bodies Institute, a grass-roots organization that does community-based research on gender and sexual violence against Indigenous people as well as provides services to those affected.

Her grim professional docket is a reflection of the scale of the crisis of violence facing Indigenous people, as well as long-standing negligence by the federal government and law enforcement when it comes to Indigenous people’s safety, she said.

“The reality is that the only people doing any of this work are grass-roots folks,” Lucchesi said. “If we as community members didn’t step up to do it, it literally wouldn’t get done.”

Lucchesi, who is of Cheyenne descent, said that as a survivor of domestic violence, sexual assault and trafficking who has loved ones who are missing or murdered, this work has never felt like a choice. She said that just in her small community of about 3,000 people, she has tracked more than 100 unsolved cases of missing and murdered people in the last couple of decades by following news reports and talking to community members. This winter alone, she said, there have been three murders she has tracked using these methods.

“It’s personal to me,” said. “At what point does our local cemetery become a mass grave?”

. . .

Lucchesi’s experiences with violence are not uncommon. More than 84 percent of Indigenous women have experienced violence in their lifetime, according to a 2016 National Institute of Justice report. In some counties, the U.S. Department of Justice found, Indigenous women are murdered at a rate 10 times higher than the national average. Indigenous men face disproportionately high rates of violence, and while data collection on transgender and two-spirit Indigenous people is often lacking, Lucchesi said they too face overwhelmingly high rates of violence.

Lucchesi added that these shocking numbers, however, are probably undercounts — of the oft-cited statistic that one in three Indigenous women have been raped, she said she has an aunt who says skeptically: “Show me the other two.”

The majority of sexual assault cases in the United States go unreported, according to an analysis by the Justice Department. Poor data collection on gender-based violence among Indigenous people, including misclassifications of homicides as suicides or accidents, paired with a difficult-to-access legal system probably make this worse for Indigenous people, women’s rights experts say. Last year, Deb Haaland, the first Native American sworn in as U.S. interior secretary, announced a new Missing & Murdered Unit (MMU) within the Bureau of Indian Affairs to try to tackle some of these issues.

It is a problem that a bipartisan group of lawmakers says they’re also hoping to address this month by pushing to reauthorize the 1994 Violence Against Women Act for the first time in almost a decade. The updated version of the bill, led by Sens. Lisa Murkowski (R-Ala.), Dianne Feinstein (D-Calif.), Joni Ernst (R-Iowa) and Richard J. Durbin (D-Ill.), would include provisions expanding tribal jurisdiction over gendered violence.

January 25, 2022 in Family, Gender, Legislation, Violence Against Women | Permalink | Comments (0)

Wednesday, January 19, 2022

How Judges Should Apply the Exceptions to the Hague Abduction Convention to Protect Victims of Domestic Violence

Merle Hope Weiner, You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence, 28 UCLA Women's L. J. 223 (forthcoming)

This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return. The trial judge decides whether a child is returned to the place from which the domestic violence victim fled or whether a child is allowed to remain in the United States pursuant to an exception to the Hague Convention’s remedy of return. This Article canvases the arguments that attorneys make to defeat the application of article 13(b), and refutes them by drawing upon social science, the Guide to Good Practice, its sanctioned Australian Bench Book, case law, and common sense. The Article also argues that if a trial judge cannot grant the article 13(b) exception solely because of unwarranted legal obstacles, the judge should disregard the law. This part of the Article builds upon Jeffrey Brand-Ballard’s book, Limits of Legality: The Ethics of Lawless Judging

January 19, 2022 in Courts, Family, International, Violence Against Women | Permalink | Comments (0)

Monday, January 17, 2022

Sexual Exploitation and the Adultified Black Girl

Mikah K. Thompson has published Sexual Exploitation and the Adultified Black Girl in volume 94 of the St. John's Law Review (2022). The abstract is here: 

Blue Ivy Carter, daughter of entertainers Sean “Jay Z” Carter and Beyoncé Knowles Carter, celebrated her eighth birthday in January of 2020. To commemorate the occasion, Blue’s grandfather, Matthew Knowles, posted a picture of Blue on Instagram. Fans and journalists alike marveled that Blue looked so much like her famous mother, and many noted that she looked much older in the photograph. E! News tweeted Blue’s picture along with a question: “Can someone please explain to us when Blue Ivy became an adult?” The post went viral, and many people criticized E! News for referring to eight-year-old Blue as an adult, with some arguing that blurring the line between childhood and adulthood “ ‘perpetuates pedophilia.’ ” Others asserted that referring to a Black girl as an adult is especially dangerous because it reinforces the perception that Black girls are adult-like. E! News eventually deleted the tweet.

A recent research study confirms that society tends to view Black girls as older and more adult-like than they actually are. Thus, E! News’ description of Blue Ivy may reflect a larger problem that can have devastating effects for Black girls. This piece asserts that a two-tiered justice system exists for victims of sexual exploitation depending on their race. As we commemorate the one hundredth anniversary of the passage of the Nineteenth Amendment, which granted white women the right to vote but kept Black women disenfranchised, we must address the racial disparities that persist among girls and women today.

Part I of this piece describes adultification bias, a societal phenomenon that can result in the unfair treatment of Black girls who experience sexual exploitation, including statutory rape. Part II discusses the traditional and contemporary policy reasons that underpin the nation’s statutory rape laws. Part II also defines reasonable mistake of age, an affirmative defense to a charge of statutory rape, and addresses the effectiveness of the defense where the alleged victim is an adultified Black girl. Part III of this piece examines the policy reasons that support the continued use of the mistake of age defense when the alleged victim is a teenager and the alleged offender a minor or a young adult. Part III concludes with my proposal for the enactment of a limited mistake of age defense that would be available to young defendants who may be more likely to overestimate the age of any sexual partner but unavailable to defendants who are significantly older than their alleged victims. This proposal increases protections for the adultified Black girl while recognizing the sexual autonomy of teen girls and avoiding the potential weaponization of statutory rape laws against young Black defendants.

January 17, 2022 in Race, Violence Against Women | Permalink | Comments (0)