Thursday, January 17, 2019
Questioning the Required Cross-Examination of the Proposed Dept of Ed Guidelines on College Sexual Assault Cases
Suzanne Goldberg, Keep Cross-Examination Out of College Sexual Assault Cases
Requiring cross-examination in campus sexual-misconduct proceedings is among the key features of the Department of Education’s proposed Title IX reforms currently open for public comment. The department, relying on an oft-cited 1904 legal treatise, calls cross-examination "the greatest legal engine ever invented for the discovery of truth." Although this new mandate might seem at first like a good idea, a closer look shows otherwise.
The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions. But campuses are not courtrooms, and the reality at most colleges and universities would look quite different if the proposed regulations take hold.
But the new regulations would change this by requiring colleges to allow each student’s adviser to do the questioning of the other student or anyone else involved in the case — not as a neutral party but as an adversary. This means that parent-advisers would have government-sanctioned authority to question their child’s accuser or alleged assailant, and a student could wind up cross-examining another student, even on the same small campus.
Tuesday, January 15, 2019
Behind the bar at Shooters II Saloon, a poster declares: "Innocent From the Beginning! Innocent Now!! Innocent Forever!!!"
Signed by Duke University’s 2006 men’s lacrosse team, the poster reflects the strong emotions and hints at the deep scars that remain from a scandal that cast a harsh national spotlight on the university more than a decade ago, when several players were falsely accused of rape.
Hoping to recast its reputation in the aftermath, Duke’s president at the time, Richard H. Brodhead, said it was "going over all our procedures to see what we can learn from our experience."
Duke revised its sexual-assault policies and spent large sums on prevention. Four years ago, the university hired a Title IX director who’d spent nearly two decades working in the U.S. Department of Education’s Office for Civil Rights. Since 2014, it has filled eight new positions focusing on sexual assault.
By most measures, Duke professionalized its sexual-assault investigations. In college and university legal circles, it gained a reputation as "cutting edge" in the field of Title IX, the federal law governing those cases, according to Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University.
Students took note of the university’s new stance. A former student who founded a group called Duke Students Against Gender Violence recalled that a longtime student-affairs vice president, Larry Moneta, had told her, "You tell me how much you need, and I’ll write a check."
And yet, despite all that has changed at Duke, despite its revamped policies and deep pockets, the university faces a credibility problem on sexual assault. A Duke student survey, released in 2017, showed that most female undergraduates don’t trust the administration to hold rapists accountable. Only 35 percent of them said the university properly investigates sexual assault. Only about a third believed that "students found responsible for sexual assault are punished appropriately."
But sometimes Duke makes it harder. In the years since the lacrosse case, Duke has been accused in multiple sexual-assault investigations of violating its own procedural rules — or being more concerned with protecting its reputation than protecting students. A few cases have led to lawsuits by students who have been victims of sexual assault, or have been accused of it. Duke’s student newspaper has repeatedly called out the university for procedural missteps.
The Chronicle identified several cases with significant red flags. Sexual-assault cases are tricky — at colleges nationwide they are a legal and ethical minefield. But Duke’s recent history prompts some uncomfortable questions: Has the university really turned a corner on the issue? And if it hasn’t, even after significant effort and spending, what realistic chance does the rest of higher education have?
Monday, January 14, 2019
“The Round House,” by Louise Erdrich (Harper)
Erdrich’s 2012 novel explores the complicated search for justice and the roots of violence after a sexual assault on a reservation in North Dakota. This powerful National Book Award winner will linger in your heart.
“Not That Bad: Dispatches from Rape Culture,”edited by Roxane Gay (Harper)
These devastating personal essays from survivors of sexual violence cover a range of topics connected to rape culture. The result is both eye-opening and insightful.
“The Way I Used to Be,” by Amber Smith (Margaret K. McElderry Books)
This young adult novel is an unflinching look at the struggles of a rape victim to process her trauma and find the strength to rebuild her life.
“Queering Sexual Violence: Radical Voices from Within the Anti-Violence Movement,” edited by Jennifer Patterson (Riverdale Avenue Books)
This is an important collection that expands traditional conversations about sexual violence to include victims and survivors who are queer, transgender and gender nonconforming.
“Missoula: Rape and the Justice System in a College Town,” by Jon Krakauer (Doubleday)
Krakauer takes a deep dive into the culture of sexual violence that permeates college campuses and the daunting challenges faced by victims who seek justice.
Monday, December 3, 2018
Moving Beyond MeToo to Fix the Workplace with a Formal Model of Worker-Drive Collaboration with Consumers
Gillian Thomas, MeToo Hasn't Fixed the Workplace. Here's a Playbook that Can.
The #MeToo reckoning triggered by the Harvey Weinstein scandal last year can cause whiplash. There have been emotional highs: The movement unleashed a cacophony of voices — women telling their stories, lifting others’ up, all of them mad as hell that men were still getting away with abuse, almost 30 years after “I Believe Anita,” the analog version of #MeToo.***
But the dispiriting reality is that the past year has seen only baby steps in the right direction. Women (and men) might be speaking their truth in record numbers, but the same (mostly) guys who for years have done nothing to stop harassment at companies large and small — and in fact have been retaliating against accusers, forcing them into secret arbitration hearings and absorbing the cost of settling their claims — are still the ones in charge. ***
The article goes on to recommend the following:
A formal model of worker-driven collaboration with consumers could do incalculable good if adopted more widely. The Fair Food Program, launched in 2011 in the tomato fields of Florida by the Coalition of Immokalee Workers, targets degrading work conditions, including brutal sexual abuse. (Some studies have found that 80 percent of female farmworkers have faced harassment, including rape and other assault.) It enlists the consumers of big agriculture — namely, the fast-food restaurants and supermarket chains that spend hundreds of millions of dollars on Florida tomatoes every year, such as Taco Bell, Whole Foods and Walmart — as enforcers against such abuses. The buyers pledge to pull their business from farms that violate a worker-authored code of conduct, and the workers themselves are the monitors. An independent body conducts investigations and unannounced audits of participating farms, with 80 percent of complaints resolved in less than a month. The consequences of violations are swift and strict: Harassers are fired and temporarily banned from reemployment at participating farms, while growers that fall consistently short face probation or suspension from the program.
The results are stunning. Since the program’s inception, no cases of rape or attempted rape have been reported, and only one supervisor has been found to have engaged in physical harassment since 2013. During last year’s growing season, not a single sexual harassment complaint was lodged at more than 70 percent of participating farms. What’s more, only 15 percent of the farms where complaints arose saw evidence of retaliation against accusers. Progress like this would be noteworthy for any industry, but given the exploitative starting point of big agriculture, the transformation is nothing short of miraculous.
Wednesday, November 28, 2018
Last year, 137 women across the globe were killed every day by intimate partners or relatives.
According to the 2018 report on the killing of women and girls released Sunday by the U.N. Office on Drugs and Crime, about 87,000 were killed worldwide in 2017, 58 percent of them victims of domestic or family violence.
Many of these deaths could have been prevented.
Jean-Luc Lemahieu, director of policy analysis and public information at the U.N. Office on Drugs and Crime, told The Washington Post that more than 30,000 of those deaths were the result of domestic abuse.
Domestic homicides are “the tragic end of a cycle of abuse and violence,” Lemahieu said. “When a female loses her life, it is not without predictions — you see incidences of verbal and other forms of violence. The pattern is established long before the homicide.”***
The report found that the likelihood of women being slain by relatives or intimate partners has increased by more than 10 percent since 2012; women in the Americas and Africa are now the most at risk.
The report also called for a coordinated response from law enforcement that empowers and protects victims and holds their abusers accountable. Several countries have launched initiatives and training to combat gender-based violence.
“Underreporting of domestic abuse highlights the justice system as one area in need of much work,” Lemahieu said. He cited figures from Italy, which reported that 31,500 women out of every 100,000 ages 16 to 70 will experience physical and sexual violence, according to a lifetime survey. Domestic homicides occur in 0.4 percent of those cases, while 35 will report domestic abuse to authorities.
Thursday, November 15, 2018
Women have taken to social media to share photos of their underwear after a 27-year-old man was acquitted in a rape trial during which the woman's 'thong' was brought up in court.
The criminal court case ended with the man being found not guilty of raping a 17-year-old in the city of Cork in Ireland.
But the defence barrister's argument garnered widespread attention after she told the jury to take into account what the teenager was wearing.
"You have to look at the way she was dressed. She was wearing a thong with a lace front," she said, according to the Irish Examiner newspaper on 6 November.
This prompted Irish MP Ruth Coppinger to show blue lacy underwear in the Dáil (Irish parliament) and share a powerful message to her colleagues.
"It might seem embarrassing to show a pair of thongs here... how do you think a rape victim or a woman feels at the incongruous setting of her underwear being shown in a court?"
Since the media attention, many women have turned to social media and post photos of their underwear accompanied by the hashtag 'This Is Not Consent'.
For the original report of the trial and the alleged incident, see Irish Examiner, Counsel for Man Acquitted of Rape Suggested Jurors Should Reflect on Underwear Worn by Teen Complainant
Tuesday, November 13, 2018
Ronagh McQuigg, Is it Time for a UN Treaty on Violence Against Women?, 22 Int'l J. of Human Rights 305 (2018)
Violence against women is one of the most prevalent human rights abuses at the global level. However, no specific mention of this issue is made in any of the UN treaties. This article begins by discussing why any express reference to violence against women was excluded from the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and then proceeds to examine existing efforts at the UN level in this area. However the key focus of this article is on the new and important question of whether it is now time for a specific treaty on violence against women to be adopted at the UN level. The article analyses the arguments surrounding the adoption of a global treaty on violence against women, and aims to provide a detailed examination of this highly significant area of law, while seeking to offer original insights on this issue. It is ultimately concluded that, despite the undoubted challenges which would be involved, it is nevertheless time for the development and implementation of a UN treaty on violence against women.
Wednesday, October 31, 2018
Brenda Cossman, #MeToo, Sex Wars 2.0 and the Power of Law, Asian Yearbook of Human Rights and Humanitarian Law (Forthcoming)
In this essay, I explore these contestations between and among feminists within the #MeToo movement. Some feminists have expressed discomfort and disagreement with elements of the #MeToo. This critique was quickly framed as a generational one, with media reports focusing on the conflict between millennials and second wave feminists. I argue that it is more productive to situation the disagreements and contestations of #MeToo within the context of what I refer to as Sex Wars 2.0 – that is, the return of the feminist sex wars of the 1970s and 1980s. I also explore the controversies around role of law in the #MeToo movement. #MeToo critiques, including some feminist voices, have denounced the absence of the rule of law, with individual men losing their livelihoods without the due process of law. I argue that this critique is itself symptomatic of the broader role of law in the legal regulation of sexual violence. Law has long been the arbiter of sexual violence, both defining and harms and deciding whether that harm has occurred. Even in its apparent absence, law is I argue deeply present. It is this power of law that casts a long shadow over #MeToo and helps explain the due process critiques and some of the feminist contestations around the overreach of law.
Wednesday, October 17, 2018
It was not until Lenahan v. United States that many U.S. domestic violence advocates incorporated the human rights framework in a conscious and organized way. Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan case is then discussed. Part III addresses needed change within the U.S. civil law systems if the country is to affectively adopt a human rights perspective in matters of domestic violence and other human rights abuses.
Thursday, September 20, 2018
The College of New Jersey is among a small but growing number of institutions that now offer alternatives to trial-like investigations that critics say can be traumatic for everyone involved. The U.S. education secretary, Betsy DeVos, has indicated, through Title IX guidance issued in 2017 and then in draft regulations obtained and reported last month by The New York Times, that the Trump administration welcomes alternative ways of handling sexual-misconduct disputes.
Approaches that start with the offender admitting responsibility and agreeing to repair the harm appeal to some students who aren’t interested in seeing someone suspended or expelled. Proponents see alternative resolution agreements as a way to cut down on Title IX investigations, save colleges money, and potentially be fairer to the accused.
But skeptics worry students will feel pressured to bypass a formal investigation and will regret it later on if offenders get off too easily. And asking a student to sit down with an assailant and work out an agreement is not only unrealistic, they argue, but possibly retraumatizing.
The agreement reached by the two students at the New Jersey college didn’t require face-to-face conversations, but they did have to agree on certain stipulations. He would attend a workshop on consent and alcohol-education classes. She wanted him to know how different people’s bodies react to alcohol and how it affects their ability to consent to sex. He would view an online seminar on the neurobiology of sexual assault. The seminar, by Rebecca Campbell, a professor of psychology at Michigan State University, had helped her make sense of her confusing emotional reaction to what she later considered an assault.
Both students had a few days to view and suggest changes in the two-page agreement.
"We don’t want this to be seen as a get-out-of-jail-free card," said Jordan L. Draper, dean of students and Title IX coordinator. "It’s an educational opportunity."
Draper is a proponent of what’s known as restorative justice, an umbrella term that covers a variety of interventions aimed at healing rather than assessing blame and punishing.
Tuesday, September 18, 2018
Martha Chamallas, Will Tort Law Have its #MeToo Moment?, Journal of Tort Law (forthcoming)
Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.
Title IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in policy review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through investigation and decision-making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This article addresses change considering campus sexual assault allegations, and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay limits discussion to sexual harassment and sexual discrimination Title IX claims only, particularly, sexual assault.
The primary topic of ongoing concern is how Title IX investigations and hearing processes are conducted. Review, and in some cases revision, of campus policies was prompted by two interconnected influences. The first was the referenced letter from the Department of Education, and the second was due process and other criticisms raised by those who advocate within the criminal justice framework. This essay explores the impact that criminal law and criminal lawyers have had on Title IX processes. Part of this exploration will include the ABA Criminal Justice Section’s recommendations on how Title IX sexual harassment complaints should be handled. Unknown at the time of this writing is whether the administration will be influenced by these recommendations, although to date it has not. As of this publication, Secretary of Education, Betsy DeVos, met with representative survivors and their advocates, as well as those who claim to have been wrongfully accused. The Secretary also accepted comments on deregulation, which included a review of Title IX regulations. The proposed regulation review was part of the administration’s “Enforcing the Regulatory Reform Agenda.” We can anticipate change, although when and what change is undetermined now. To date, the primary action taken by Secretary DeVos was the rescission of the Obama Era “Dear Colleague” letter discussed early in this article. Incorporated throughout this discussion are the changes, as well as the complications, that develop when the Title IX process is viewed through a criminal justice lens. Particularly explored, is how stereotypes regarding women’s credibility forms the foundation of challenges faced by survivors of sexual assault who seek relief. The last section of this essay addresses proposed recommendations to address the needs of those accused as well as protecting the harmed student.
More changes from the Secretary of Education are expected, which makes consideration of the concerns addressed in this article vital.
In cities across America, calling 911 can get you evicted. This week, a city less than 10 miles outside of St. Louis agreed to stop enforcing this inhumane policy as part of an extensive settlement.
Last year, we filed a federal lawsuit on behalf of Rosetta Watson, a domestic violence survivor who was kicked out of her home and city because she called the police. Under a local ordinance in Maplewood, Missouri, anyone making more than two calls to the police for domestic violence was designated a “nuisance,” with no exception for victims. Ms. Watson called the police four times, when her ex-boyfriend kicked in her front door, punched her, and strangled her. Based on those calls, Maplewood revoked her occupancy permit, and she was banished from living in Maplewood for six months. For years afterwards, she struggled with fear of her abuser, distrust of law enforcement, and the inability to keep a stable home. * * *
The case against Maplewood is just the latest in our fight against nuisance ordinances. The Metropolitan St. Louis Equal Housing & Opportunity Council found 69 similar ordinances in the St. Louis region, and we estimate there are thousands across the country. For example, the ACLU published a report with the New York Civil Liberties Union last month, showing how different cities in New York often enforced these kinds of ordinances in communities of color and where poor people live, imposed harsh penalties for low-level offenses, and harmed domestic violence survivors and those in need of emergency aid.
Wednesday, August 29, 2018
Domestic Violence as a Form of Torture: A Feminist Expansion of the Theory of the Prohibition of Torture
Natalie Davidson, The Feminist Expansion of the Prohibition of Torture: Towards a Post-liberal International Human Rights Law, Cornell Int'l L. J. (forthcoming)
International human rights law (IHRL), discourse and activism have been the subject of well-known critiques. Two categories of critique are closely linked to the liberal ideology underlying the human rights project, and point to the project's limited ability to further profound change. The "critique of justification" exposes the field's formalist argumentative practices, which struggle to justify proposed normative solutions. The "critique of representation" highlights the narrow ways in which injustice and violence are portrayed, denounced and addressed in international human rights discourse. These weaknesses are all the more troubling in the contemporary populist authoritarian era. Yet contrary to many critical scholars who advocate abandoning the human rights discourse, this article argues that it is possible to transform the discursive practices of IHRL so as to be more convincing and better address structural inequalities. It does so by analyzing the discursive practices of the feminist campaign to frame domestic violence as a form of torture, an explicit attempt to release the prohibition of torture, a central norm of IHRL, from the constraints of liberalism. While the discourse of domestic violence as torture reproduces some of the problematic features of better-known feminist engagements with international law, it also suggests IHRL's potential for profound reform, both at the level of justification and representation.
Tuesday, July 31, 2018
New Zealand will grant victims of domestic violence paid leave from work, in a move that activists say will give people the time to move out and seek shelter for themselves and their children without losing their jobs.
Members of Parliament approved a bill allowing the change by a vote of 63 to 57 on Wednesday night, giving domestic abuse survivors, as well as those caring for young victims, 10 days off from work in addition to their regular paid vacations.
The measure, known as the domestic violence victims’ protection bill, will take effect next April, making New Zealand the second country in the world to pass such legislation, after the Philippines. * * *
New Zealand gave all women the right to vote in 1893, the first self-governing country in the world to do so, and its prime minister, Jacinda Ardern — currently on parental leave — is the third woman to hold the job. But its domestic and sexual violence rates are among the highest in the world.
A 2011 United Nations report said that 30 percent of women in New Zealand had suffered domestic abuse in the previous decade, with 14 percent experiencing sexual violence. A 2017 report in The New Zealand Herald said that the country had “the worst rate of family and intimate-partner violence in the world,” estimating that 525,000 New Zealanders were harmed every year.
New Zealand has passed legislation granting victims of domestic violence 10 days paid leave to allow them to leave their partners, find new homes and protect themselves and their children.
MPs clapped and cheered as bill passed on Wednesday night with 63 votes to 57. It is the result of seven years of work by Green MP Jan Logie, who worked in a women’s refuge before she became a politician.
Thursday, July 26, 2018
Nermeen Arastu, Janet Calvo, and Julie Goldscheid, What Jeff Sessions' Efforts to Deny Asylum to Domestic Violence Victims Look Like, Slate
Last week, the Department of Homeland Security released a policy memorandum providing guidance on how United States Citizenship and Immigration Services officers should implement Attorney General Jeff Sessions’ decision last month to do away with asylum for most domestic violence survivors. Sessions’ decision in Matter of A–B–, a case involving a domestic violence survivor’s application for asylum, overturned a prior ruling that explicitly recognized that those fleeing domestic violence may qualify for asylum. With the A–B– decision and accompanying guidance, the administration aims to reject decades of reform by flatly stating that these claims “in general” will not be grounds for asylum relief. These steps confirm the administration’s efforts to thwart our country’s prior commitments to end gender violence and support survivors, and to place the United States outside the global consensus, flouting international law.
Caroline Bettinger-López and Rachel Vogelstein, Sessions' Draconian Asylum Decision, Foreign Affairs Mag.
U.S. Attorney General Jeff Sessions made a radical decision that will undoubtedly result in death or significant harm to some of the world’s most vulnerable women: victims of domestic violence who live in countries that do not, or cannot, protect them from their abusive partners. Over the past two decades, the United States has provided a safe haven to many of these women through its asylum laws. In a heartless move that flouts established U.S. law and international human rights standards, Sessions found that a domestic violence victim from El Salvador—perhaps the most dangerous country on earth in which to be a woman—would not qualify for asylum, even though her own country had utterly failed to protect her.
In previous years, whether the United States was under a Republican or Democratic president, such a decision would have been unthinkable. The State Department’s human rights reports routinely criticize other countries for their lack of protections for domestic violence survivors, and U.S. asylum laws have evolved over the years to account for the multiple forms of persecution that victims may suffer—including persecution at the hands of a private actor—when their governments fail to provide protection.
Asylum protections for victims of gender-based violence have been well established for decades—not only in the United States but also under the international human rights system. The United Nations’ 1951 Refugee Convention established the right to claim asylum on the basis of gender-based persecution and crimes. Historically, nations treated domestic violence as a private matter to be resolved between partners and families. But in modern times, violence against women has come to be understood as a human rights violation—a form of gender-based discrimination that subordinates and oppresses women.
Wednesday, June 27, 2018
Deborah Epstein has spent her professional life fighting for victims of domestic violence. But protecting such victims is also what Epstein says led her to step down from a commission meant to tackle the issue of domestic violence in the National Football League.
The NFL's Players Association Commission on Violence Prevention was formed after several NFL players were accused of violence against their domestic partners, including Ray Rice of the Baltimore Ravens, who knocked his fiancée unconscious in an elevator.
In 2014, Epstein, director of the Georgetown University Law Center's Domestic Violence Clinic, was asked to serve on the commission. She and research psychologist Lisa Goodman were authorized to conduct a national study of players' wives, collecting the women's suggestions for handling domestic violence and supporting its victims.
As she tells NPR, her decision to resign came after troubling "pattern emerged" in her communications with the NFLPA.
"I brought a number of ideas to the commission about ways in which they could deal with the domestic violence problem in the NFL," she says. The report compiled short-term and long-term recommendations.
The NFLPA heard her out, she says, but since filing the report in June 2016, "it has sat on the shelf."
"The Player's Association contacts that I have would welcome those ideas, tell me they were eminently doable, but that they had to get kicked down the road because 'It was the Super Bowl, it was the draft, it was the season,' " she says. "And I would come back and reiterate my suggestions, and eventually I found that communication would just die on the vine."
"I realized very little, if anything, was going to happen."***
Esptein, who signed a confidentiality agreement with the NFLPA, says she can't divulge what recommendations she provided in the report. Ostensibly, the confidentiality protects the anonymity of spouses and partners of NFL players from retribution, allowing them to speak freely.
In a Washington Post op-ed earlier this month, Epstein says, "I simply cannot continue to be part of a body that exists in name only," and what, she believes is "a fig leaf."
Wednesday, June 13, 2018
Attorney General Jeff Sessions on Monday made it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence, in a ruling that could have a broad effect on the flow of migrants from Central America.
Mr. Sessions’s decision in a closely watched domestic violence case is the latest turn in a long-running debate over what constitutes a need for asylum. He reversed an immigration appeals court ruling that granted it to a Salvadoran woman who said she had been sexually, emotionally and physically abused by her husband.
Relatively few asylum seekers are granted permanent entry into the United States. In 2016, for every applicant who succeeded, more than 10 others also sought asylum, according to data from the Department of Homeland Security. But the process can take months or years, and tens of thousands of people live freely in the United States while their cases wend through the courts.
Mr. Sessions’s decision overturns a precedent set during the Obama administration that allowed more women to claim credible fears of domestic abuse and will make it harder for such arguments to prevail in immigration courts. He said the Obama administration created “powerful incentives” for people to “come here illegally and claim a fear of return.”
Asylum claims have expanded too broadly to include victims of “private violence,” like domestic violence or gangs, Mr. Sessions wrote in his ruling, which narrowed the type of asylum requests allowed. The number of people who told homeland security officials that they had a credible fear of persecution jumped to 94,000 in 2016 from 5,000 in 2009, he said in a speech earlier in the day in which he signaled he would restore “sound principles of asylum and longstanding principles of immigration law.”
“The prototypical refugee flees her home country because the government has persecuted her,” Mr. Sessions wrote in his ruling. Because immigration courts are housed under the Justice Department, not the judicial branch of government, he has the authority to overturn their decisions.
“An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family or other personal circumstances,” he added. “Yet the asylum statute does not provide redress for all misfortune.”
His ruling drew immediate condemnation from immigrants’ rights groups. Some viewed it as a return to a time when domestic violence was considered a private matter, not the responsibility of the government to intervene, said Karen Musalo, a defense lawyer on the case who directs the Center for Gender and Refugee Studies at the University of California Hastings College of the Law.
“What this decision does is yank us all back to the Dark Ages of human rights and women’s human rights and the conceptualization of it,” she said.
Attorney General Jeff Sessions recently issued a ruling denying asylum to female victims of domestic abuse and gang violence. His decision, which ruled against a Salvadoran woman who had been severely abused by her husband, concludes that such victims "generally" don't qualify for asylum under a federal law that grants asylum to any refugees who is "unable or unwilling to return to [her home country], and is unable or unwilling to avail . . . herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The decision overrules two prior Justice Department Board of Immigration Appeals decisions, which granted asylum to female victims of domestic abuse in Guatemala and El Salvador. Sessions' ruling is legally problematic. But, perhaps even more importantly, it highlights the arbitrary injustice of a policy that denies asylum to victims of horrible persecution as bad as that which falls within the scope of the rules.
The key legal question in the case is whether Salvadoran victims of domestic violence qualify as people with "a well-founded fear of persecution" based on their "membership in a particular social group." The phrase "particular social group" is far from precise. But, as Sessions recognizes, courts have generally defined it as a group "composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." It should be obvious that women qualify as a group that shares "a common immutable characteristic," and that they are also a group that is "socially distinct" and "can be defined with particularity." It is true that gender is not completely immutable in an age of sex change operations. But it is surely sufficiently so to qualify under the rules. And you don't have to be a radical feminist to recognize that, in highly sexist societies like El Salvador and Guatemala, which have a "culture of machismo and family violence" (as one of the BIA decisions overruled by Sessions puts it), domestic violence against women flourishes in large part because of gender bias. And such bias helps account for the failure of the authorities to effectively curtail such abuse. Recognizing that does not require us to assume that all Guatemalan and Salvadoran men are sexist or violent, or that all law enforcement officials in those countries are misogynists, merely that such attitudes are sufficiently widespread in those countries that they account for much of the danger faced by female victims of domestic violence.
Friday, May 11, 2018
Vicki Schultz, Reconceptualizing Sexual Harassment, Again
Twenty years ago, I published an article in the Yale Law Journal entitled “Reconceptualizing Sexual Harassment.” Five years later, I published a follow-up article in YLJ. These two pieces anchored a body of writing that proposed a new theory of sexual harassment.
Recent events reveal the work still depressingly relevant. Still relevant, because sexual harassment remains far too widespread, despite forty years of activism and legal reform. And still relevant, because the need for an adequate theoretical framework to guide action remains as pressing as ever, twenty years later.
Now is the time to reinvigorate theory. With the election of Donald Trump and the rise of the #MeToo movement, we are witnessing an extraordinary cultural moment of resistance against sexual harassment — one that could enable real change. I am heartened by the courage, tenacity, and smarts of the women and men who have come forward to challenge harassment in an effort to change the status quo. I include here not only the survivors who have risked so much to share their stories, but also the reporters who have worked to expose long-held secrets in the entertainment, technology, media, and other important industries. Most reports have focused on workplace or career-related harassment, a focus that is unsurprising given the centrality of work and workplace inequality to women’s lives. For that reason, this essay will focus on workplace harassment (though much of the analysis would apply also to sexual harassment on campus, a sphere that is important in its own right and as a training ground for professional life).
Jamie Abrams, The #MeToo Movement: An Invitation for Feminist Critique of Rape Crisis Framing, 52 Richmond L. Rev. (forthcoming)
This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded underreporting, underutilization, and recurring risks of budgetary cuts. This model and terminology have gone virtually unchanged for nearly half a century. Crisis language denotes urgency, decisiveness, judgment, action, and mobilization, all leading to closure. These descriptions can be problematic when mapped onto the lived experiences of certain communities.
The #MeToo Movement presents modern feminists with a powerful, productive, and timely opportunity to critique the existing crisis model of service provision and support. This article invites feminists to begin this dialogue. It presents three critiques of the current framing. First, the crisis framing risks resurrecting troublesome legal relics relating to statutes of limitations and evidentiary hurdles. Second, it risks being perceived as exclusionary and limited, thus cabining its impact. Particularly, campus sexual assault victims and marginalized communities generally may not universally connect to an opaque crisis framing. Third, crisis framing risks distorting the scope of sexual assault. It limits the expansive range of harms that are associated with rape and sexual assault and the systemic longevity of the problem of rape and sexual assault in society. While the language of crisis seems to invoke an urgent call to action, which is to be applauded, this language risks blurring the long history of sexual assault and erasing a legacy of inaction in countless institutional and political and social settings. It also suggests a beginning and an end to a victim’s recovery journey. It suggests that closure is attainable when in reality, ongoing monitoring, responsiveness, and engagement are critically necessary.