Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, April 12, 2021

Ninth Circuit Rules Woman Eligible for Asylum Because Domestic Abusers Persecuted her for Feminist Opinions

ABA Journal, Woman is Eligible for Asylum Because Domestic Abusers Persecuted her for Feminist Opinions, 9th Circuit Says

 woman who was persecuted by domestic abusers because of a feminist political opinion is eligible for asylum in the United States, a federal appeals court ruled Monday.

Asylum applicant Maria Luisa Rodriguez Tornes didn’t have to show that her feminist opinions played the sole or predominant role in her domestic abuse, according to the 9th U.S. Circuit Court of Appeals at San Francisco. Rather, she only had to show that her political opinion was “one central reason” in the abuse.

Judge Susan Graber, an appointee of former President Bill Clinton, wrote the April 5 panel opinion.

The Department of Justice’s Board of Immigration Appeals had found that Rodriguez Tornes was protected under the Convention Against Torture. But the immigration appeals board ruled against her on the feminism claim, holding that there were no findings that Rodriguez Tornes was abused for reasons unrelated to the relationship.

The 9th Circuit disagreed on the feminism claim, finding that Rodriguez Tornes had presented evidence to show that she was persecuted because of her political opinion.

“The record contains episode after episode of men stating, quite plainly, that they were beating, burning, raping and strangling her because she sought an equal perch in the social hierarchy,” Graber wrote.

An immigration judge had found that the Mexican government would acquiesce in Rodriguez Tornes’ torture, which means that the government would also be unwilling to stop future persecution by domestic abusers, the appeals court said.

Rodriguez Tornes had alleged that she was first beaten by her mother, partly to prepare her for future beatings by her husband. Her husband also beat her, according to the appeals court. On one occasion, he stuck a lit cigarette into her arm at 1 a.m. and ordered her to cook. When she refused, he dragged her by her hair into the kitchen. On another occasion, he burned her face with a cigarette because she refused to leave her teaching job.

[See rest of article]

April 12, 2021 in International, Violence Against Women | Permalink | Comments (0)

Friday, February 12, 2021

Defining Incapacity to Consent in Sexual Assault Cases Under Canadian Law

Elaine Craig, Sexual Assault and Intoxication: Defining (In)Capacity to Consent" 
Canadian Bar Review 98(1) 2020

This article considers how the law of sexual assault in Canada addresses cases involving intoxicated complainants. There are two main aspects to the law of capacity to consent to sexual touching in the context of intoxicated women. The first involves the evidence of intoxication courts typically require in order to prove lack of capacity. The second pertains to the legal standard to which that evidence is applied. The nature of the evidence required to establish incapacity turns on the level of capacity the law requires. A comprehensive review of Canadian caselaw involving intoxicated complainants reveals a legal standard that is too low and an evidentiary threshold that is too high. The result: no matter how severely intoxicated a woman was when the sexual contact occurred, courts are unlikely to find that she lacked capacity to consent unless she was unconscious during some or all of the sexual activity.

February 12, 2021 in Courts, Violence Against Women | Permalink | Comments (0)

Campus Sexual Assault, Standing, and Title IX

Hannah Brenner Johnson, Standing in Between Sexual Violence Victims and Access to Justice: The Limits of Title IX, 73 Oklahoma L. Rev. (2020)

Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by the Supreme Court to provide a private right of action by which victims can hold institutions accountable.

In the most typical cases, one enrolled student accuses another enrolled student of sexual assault. The university investigates, perhaps holds a hearing panel, issues a determination after applying the relevant evidentiary standard, and, where warranted, imposes appropriate sanctions. If a student victim is dissatisfied with the institutional response, they have the right to sue the school in federal court. Not all cases follow this typical example, however, raising the question of who, specifically, is entitled to avail themselves of the protections of Title IX. Sometimes victims are visitors or "outsiders" who have been raped or assaulted on campus by enrolled students. Their right to sue educational institutions has been called into question by courts that have denied them standing to sue the schools in federal court.

Historically, some judges have used the standing doctrine to deny access to the courts to certain minority groups. Victims of sexual violence represent a new addition to this cohort of excluded parties. A growing number of federal district courts have barred this class of victims from pursuing their grievances against colleges and universities based ostensibly on their "outsider" or "non-student" status, and federal appellate courts have, to date, been reluctant to take a stand either way. A new case that has emerged along these same trend lines is currently percolating in the Sixth Circuit, brought by a woman who was sexually assaulted in a dormitory at the University of Kentucky (UK). The plaintiff in this case was not actually enrolled at UK but resided in campus housing while attending a community college per a formal agreement between institutions. When she sued UK under Title IX for its deliberate indifference in responding to her reported rape, the trial court dismissed her case without reaching the merits. Instead, the court used a narrow interpretation of standing, finding that in order to sue a school under Title IX, an individual must be formally enrolled as a student or enrolled in a program or activity of that institution.

This distinction between insider and outsider rape victims is wholly problematic. Colleges and universities, while reliant on the presence of and tuition generated by their enrolled students, cannot entirely depend on insiders to succeed. They actively solicit, depend on, and profit from engagement with outsiders every single day as a means to fulfill their educational mission. This Article will use Doe v. University of Kentucky as a point of contemporary illustration (filled in by the decisions of other similar cases) to argue that individuals who are sexually assaulted on college campuses should be afforded equal access to Title IX protections and, specifically, should be granted standing to sue regardless of their enrollment status.

February 12, 2021 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Thursday, February 4, 2021

How Much Process is Due for Sexual Misconduct? Inconsistent Standards Based on Place

Nicole B. Porter, "#MeToo and the Process That's Due: Sexual Misconduct Where We Live, Work, and Learn" 

The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?

February 4, 2021 in Courts, Equal Employment, Violence Against Women, Workplace | Permalink | Comments (0)

New Book Women, Intimate Partner Violence, and the Law

Heather Douglas, Women, Intimate Partner Violence, and the Law (Oxford Press 2021)

Countless women who have experienced intimate partner violence are enmeshed in overlapping, complex, and often inconsistent legal processes. They have both fleeting and longer-term connections with the legal system. Women, Intimate Partner Violence, and the Law explores how women from many different backgrounds interact with the law in response to intimate partner violence, over time. Drawing on their experiences of seeking help from the law, this book highlights the many failures of the legal system to provide safety for women and their children. The women's stories show how abusers often harness aspects of the legal process to continue their abuse. Heather Douglas reveals women's complex experiences of using law as a response to intimate partner violence.

Douglas interviewed women three times over three years to reveal their journey through the legal process. On occasion, the legal system allowed some women closure. However, circular and unexpected outcomes were a common experience. The resulting book showcases the level of endurance, tenacity, and patience it takes women to seek help and receive protection through law. This book shows how the legal system is failing too often to keep women and their children safe and how it might do better.

February 4, 2021 in Books, Violence Against Women | Permalink | Comments (0)

Friday, December 4, 2020

Tracing the Development of Gendered Violence as an Issue of Global Constitutional Law

Judith Resnik, Susanne Baer & Marta Cartabia, Women, Gendered Violence, and the Construction of the "Domestic" in Seeking Safety, Knowledge, and Security in a Troubling Environment: Global Constitutionalism 2020

This Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a Part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School.

This Chapter begins with an examination of the centuries-long assumption that gender-based violence was a “private” issue meant that legislatures, law enforcement agencies, and courts were unresponsive. It then maps how social movements and critical lawyering reframed gendered violence as one form of subordination that is in fact a marker of inequality and provides examples of national and transnational law that debate the bases, contours, and implications of rights to be free from such oppression. Having explored what affirmative obligations governments have toward their own populations to protect against gendered violence, this Chapter considers whether international refugee law, humanitarian law, and jurisdictions’ own constitutional law require offering a haven for people escaping gendered violence. Across the world, many courts have read constitutions to require that law aim to provide protection against and safety from gendered violence. Such mandates for an active state presence (often through criminalization) contrast with traditional approaches in which courts have insisted that law not interfere when acts are marked as private, intimate, or domestic. This Chapter explores the demands on the state and the repertoire of remedies deployed when governments work towards achieving substantive equality.

December 4, 2020 in Constitutional, International, Violence Against Women | Permalink | Comments (0)

Using Social Science to Understand Why Family Courts Discount Women's Testimony in Domestic Violence Cases

Amelia Mindthoff, Deborah Goldfarb, Kelly Alison Behre, How Social Science Can Help Us Understand Why Family Courts May Discount Women's Testimony in Intimate Partner Violence Cases, 53 Family Law Quarterly, No. 3, 2019.

Thirty years ago, legal scholars and social scientists began to note the legal systems’ skepticism of women in general and victims of gender-based violence in particular. Despite increased public awareness about domestic violence, female victims of intimate partner violence (IPV) continue to find their credibility discounted. Deborah Tuerkheimer coined the term “credibility discount” to describe how the criminal legal system responds to women’s reports of sexual violence by discounting their credibility at every step of the process, from initial reports to law enforcement and prosecutorial discretion through judicial and jury decisions. Deborah Epstein and Lisa Goodman expanded the dialogue on credibility discounting to include the experiences of female victims of IPV in legal and social service settings. IPV victims often access family courts for injunctive relief, child custody and visitation orders, and financial relief following separation from an abusive partner, a time period during which they are at a heightened lethality risk. Consequently, credibility discounting by family courts may prove particularly dangerous for victims of IPV.

This Article builds upon the work done thus far on the intersection of gender and credibility in the family courts by reviewing both psychological research and legal scholarship examining factors that may contribute to the perseverance of credibility discounting of IPV victims. As part of this discussion, we raise potential psychological misperceptions or assumptions that underlie the discounting of people’s credibility, including factors that may be particularly pertinent to women reporting IPV. We further consider the implications of these misperceptions in family court settings. We hope this advances the discussion on remedies for credibility discounting to ensure that victims receive just treatment as they navigate the legal system.

Part I of this Article reviews the family court’s role in IPV cases and how it can perpetuate credibility discounting. Part II discusses gender biases in the legal system that have the potential to propagate credibility discounting of IPV victims navigating the family court system. Part III explores general psychological theory and associated empirical evidence and considers how theory can shed light on why credibility discounting may persist in family courts. Part IV provides suggestions for ways to mitigate gender bias demonstrated in the credibility discounting of IPV victims in family courts.

December 4, 2020 in Courts, Family, Violence Against Women | Permalink | Comments (0)

Friday, October 16, 2020

Paper Reports Statistics on Military Sexual Assaults, Showing Lower Rate of Assaults, Higher Rates of Reporting, and Additional Available Rights as Compared to Civilian and Collegiate Jurisdictions

David Schlueter & Lisa Schenck, A White Paper on National, Military, and College Reports on Prosecution of Sexual Assaults and Victims’ Rights 

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, the authors conclude that the rate of sexual assaults in the military is lower than for other civilian jurisdictions. Military victims report offenses at a higher rate than the jurisdictions examined.

October 16, 2020 in Education, Legislation, Violence Against Women | Permalink | Comments (0)

Tuesday, October 13, 2020

SCOTUS Hears Arguments on Statute of Limitations for Prosecuting Military Rape

Jordan Rubin, Supreme Court Considers Limits on Prosecuting Military Rape, Bloomberg

The U.S. Supreme Court heard arguments Tuesday in a case involving time limits on prosecuting rape in the military, as the justices wondered aloud how the U.S. Constitution impacts the armed forces’ separate justice system.

 

The government’s lawyer framed the stakes as whether three convicted rapists “go scot free.” Their lawyer said the service-members should receive the same protections that civilians do from cruel and unusual punishment.

 

Congress eliminated the statute of limitations for military rape in 2006. The high court is considering in this case whether a five-year limitations period applies to assaults committed earlier. The answer determines whether the rape convictions of Air Force members Michael Briggs, Richard Collins, and Humphrey Daniels are reinstated and whether other older cases can be prosecuted, too.***

The case is United States v. Briggs , U.S., No. 19-108, oral argument 10/13/20 , United States v. Collins , U.S., No. 19-184, 10/13/20 .

 

In 1977, the Supreme Court outlawed capital punishment for the rape of an adult woman under the Eighth Amendment, which prohibits cruel and unusual punishment. The military justice code separately prohibits such punishment. But even after that high court ruling, rape was “punishable by death” under military law and there’s no limitations period for prosecuting death-punishable crimes.

 

Questions from Chief Justice John Roberts during the telephone argument illustrated a potential tension in the case. He asked acting U.S. Solicitor General Jeffrey Wall why that 1977 ruling, Coker v. Georgia, doesn’t affect military prosecutions? But Roberts likewise asked the lawyer arguing for the men, University of Texas law professor Stephen Vladeck, why Congress would want to make it impossible to prosecute military rapes after five years, no matter how heinous.

 

The Court of Appeals for the Armed Forces cited the Supreme Court’s prohibition on capital punishment in rape cases in 2018 when it said pre-2006 rapes couldn’t be tried outside a five-year statute of limitations. Following that ruling, the appeals court vacated the convictions of Briggs, Collins, and Daniels, who were all charged more than five years after their crimes, committed in 2005, 2000, and 1998.

 

Unclear Outcome

The justices’ tough questions to both sides of the dispute left the outcome unclear. Arguments were heard before an eight-member court while confirmation hearings for Judge Amy Coney Barrett are underway. A tie vote would affirm the armed forces court’s ruling in favor of the men. A ruling is expected by late June.

 

Fighting to reinstate their convictions, the Trump administration cast its appeal against the backdrop of the military’s sexual assault problem. “It’s critical to be able to go after these crimes outside of what would otherwise be the five-year window in order to make progress on rape and sexual assault in the military,” Wall told the justices.

 

Responding to Justice Stephen Breyer’s query why Coker shouldn’t apply, Wall said the goals of criminal law “are served very differently in the military because of the military environment, the need to maintain trust and discipline, the need to achieve institutional equality, the need not to damage foreign relations.”

October 13, 2020 in SCOTUS, Violence Against Women | Permalink | Comments (0)

The Unconscionability of Requiring a Domestic Violence Survivor to Pay Alimony to her Abuser

Amanda Nannarone,  Comment, Adding Insult to Injury: The Unconscionability of Alimony Payments from Domestic Violence Survivors to their Abusers,  69 American U. L. Rev. 253 (2019)

In 2017, the #MeToo movement took social media by storm when individuals from all walks of life began openly sharing their experiences with sexual violence and gender-based harassment for the first time. Starting in the employment space and moving to other areas, the movement encouraged legal changes that improve gender equality. Alimony, which has received little scholarly attention in recent years, became of interest to #MeToo reformers who discovered current laws failed to adequately serve survivors’ interests by forcing them to pay spousal support to their abusive ex-spouse. Instead of a uniform system that removed the possibility of survivors being required to pay spousal support to their abusers, lawyers and clients face a patchwork of statutes that vary wildly from jurisdiction to jurisdiction. Some jurisdictions prohibit considering any evidence of marital misconduct, while others leave it solely to the court’s discretion. California is the only state that has affirmatively enacted legislation disqualifying alimony payments from survivors to abusers.

As state legislatures continually fail to implement proper laws, survivors’ only hope in having alimony provisions in divorce settlements invalidated lies in judges’ hands. Courts have used contract law for centuries to protect vulnerable people from being taken advantage of in their dealings with more powerful individuals. Particularly, the doctrine of unconscionability began as an equitable doctrine that courts invoked as a way to restrict enforcement of harsh, biting, and unreasonably one-sided agreements. Judges today can continue to use the doctrine of unconscionability as a way to deny enforcing divorce settlements that require survivors of domestic violence to pay spousal support to their convicted abusers because those payments represent a continuation of abuse and control. Survivors’ freedom from abuse should not be obtained at such an unreasonably steep price and judges have the power to end that once and for all. Allowing this practice to go on creates fresh wounds on top of barely healed flesh, adds insult to indescribable injury, and prevents survivors from ever truly being free. In the #MeToo era, that is not acceptable.

October 13, 2020 in Family, Violence Against Women | Permalink | Comments (0)

Monday, October 12, 2020

President Signs Two Laws Addressing Violence Against Native American Women

Trump Signs 2 Laws Addressing Missing and Murdered Indigenous Women

President Donald Trump signed two bills into law Saturday night that will finally do something about a terrifying and largely invisible crisis in America: Hundreds of Indigenous women are simply disappearing or being murdered.

 

The first bill, Savanna’s Act, will help law enforcement better respond to a devastating situation in which nobody can say what, exactly, is going on. At least 506 Native women and girls have gone missing or been murdered in 71 U.S. cities, including more than 330 since 2010, according to a November 2018 report by Urban Indian Health Institute. And that’s likely a gross undercount given the limited or complete lack of data being collected by law enforcement agencies.

 

Ninety-five percent of these cases were never covered by the national media, and the circumstances surrounding many of these deaths and disappearances are still unknown.

 

Savanna’s Act, authored by Sen. Lisa Murkowski (R-Alaska), is as much an attempt to put attention on the issue as it is to understand the severity of it. The new law will boost coordination and data collection between tribal, local, state and federal law enforcement in cases involving missing and murdered Native women. It will require federal agencies to get recommendations from tribes on how to enhance the safety of Native women, and require new guidelines for responding to these cases, in consultation with tribes.

 

Lots of these disappearances and murders stem from domestic violence, sexual assault and sex trafficking. Eighty-four percent of Indigenous women experience violence in their lifetime, and in some tribal communities, Native women are murdered at rates that are 10 times the national average.***

 

The other bill Trump signed, the Not Invisible Act, would make the federal government step up its response to Indigenous women going missing, being murdered or being forced into sex trafficking.

October 12, 2020 in Human trafficking, Legislation, Violence Against Women | Permalink | Comments (0)

Wednesday, October 7, 2020

COVID and Access to Justice for Survivors of Domestic Violence in Canada

Jennifer Koshan, Janet Eaton Mosher, Wanda Anne Wiegers, COVID-19, the Shadow Pandemic, and Access to Justice for Survivors of Domestic Violence, Forthcoming, Osgoode Hall Law Journal

The COVID-19 pandemic has co-existed alongside a far less visible “shadow pandemic” of violence against women, with COVID-19 impacting the number and complexity of domestic violence cases and enabling new tactics for coercive control. This article provides a preliminary assessment of the extent to which Canada’s responses to the COVID-19 pandemic have prioritized the safety of women and children, with a focus on the courts and women’s access to justice. We examine court directives and judicial decisions triaging which cases would be heard as “urgent,” as well as courts’ decisions on the merits in cases involving domestic violence and COVID-19, spanning the areas of family, child welfare, criminal law, and civil protection orders. In the sixty-seven reported decisions in our sample, we find very little awareness overall of the heightened risks for survivors during COVID-19, in keeping with the pre-pandemic tendency of decision makers to focus on incident-based physical violence instead of patterns of coercive control. Our analysis also suggests that survivors’ ability to prove domestic violence and secure court orders that would help to ensure their safety was hampered not only by procedural complexity but also by the reduced availability of a range of services—health, counselling, housing, and supervised access centres, for example— as a result of COVID-19. The cases further reveal significant differences in judicial interpretation of the risks of COVID-19 relative to the risks of domestic violence, often depending on the area of law in question. This again aligns with observations of the judicial treatment of domestic violence prior to the COVID-19 pandemic, with different and sometimes conflicting norms and assumptions prevailing in different legal contexts. We conclude that despite some positive government responses and judicial decisions, COVID-19 has further exposed many of the gaps in knowledge about domestic violence and in the supports and resources necessary to make women and children safe that long pre-dated COVID-19. In addressing the ongoing pandemic of violence against women, we offer some suggestions of measures to improve access to justice during this and future disasters.

October 7, 2020 in International, Violence Against Women | Permalink | Comments (0)

Tuesday, September 29, 2020

Books: Sexual Citizens: A Landmark Study of the Social Roots of Campus Sexual Assault

Jennifer Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power and Assault on Campuses

A groundbreaking study that transforms how we see and address the most misunderstood problem on college campuses: widespread sexual assault.

The fear of campus sexual assault has become an inextricable part of the college experience. Research has shown that by the time they graduate, as many as one in three women and almost one in six men will have been sexually assaulted. But why is sexual assault such a common feature of college life? And what can be done to prevent it? Drawing on the Sexual Health Initiative to Foster Transformation (SHIFT) at Columbia University, the most comprehensive study of sexual assault on a campus to date, Jennifer S. Hirsch and Shamus Khan present an entirely new framework that emphasizes sexual assault’s social roots—transcending current debates about consent, predators in a “hunting ground,” and the dangers of hooking up.

Sexual Citizens is based on years of research interviewing and observing college life—with students of different races, genders, sexual orientations, and socioeconomic backgrounds. Hirsch and Khan’s landmark study reveals the social ecosystem that makes sexual assault so predictable, explaining how physical spaces, alcohol, peer groups, and cultural norms influence young people’s experiences and interpretations of both sex and sexual assault. Through the powerful concepts of “sexual projects,” “sexual citizenship,” and “sexual geographies,” the authors offer a new and widely-accessible language for understanding the forces that shape young people’s sexual relationships. Empathetic, insightful, and far-ranging, Sexual Citizens transforms our understanding of sexual assault and offers a roadmap for how to address it.

September 29, 2020 in Books, Education, Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, September 22, 2020

A More Nuanced Legal History of the Feminist Success of US Criminal Rape Law Reform

Katharine Baker & Michelle Oberman, Consent, Rape and the Criminal Law, The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds.), Oxford University Press, 2021 (Forthcoming)

The story of US criminal rape law reform tends to be told as one of remarkable feminist success (between 1970–1990, feminist-led coalitions changed state laws so that rape ceased to be a crime requiring force and resistance and became instead a crime that only required sex without consent) followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates and conviction rates for rape increased only slightly. This essay resists that binary account of success and failure by offering a more nuanced assessment. First, it explores the full range of factors hindering the reporting, prosecution and conviction of rape crimes, including the role played by social norms. Second it argues that, by changing rape’s definition to an inquiry focused upon whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. In short, the law’s message that unwanted sex is wrong matters. It is naïve to think that a change in law would, on its own, end rape culture. But there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.

September 22, 2020 in Legal History, Violence Against Women | Permalink | Comments (0)

Using Federal Human Trafficking Law to Redress Gender-Based Violence Including MeToo Claims

Julie Dahlstrom, Trafficking to the Rescue?, 54 UC Davis L. Rev. (forthcoming)
 

Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. In 2017, for example, victims of sexual assault filed federal civil suits under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) against Hollywood producer Harvey Weinstein. Plaintiffs argued that the alleged sexual assault conduct amounted to “commercial sex acts” and sex trafficking. Other plaintiffs’ lawyers have similarly invoked trafficking law against a range of defendants, such as fundamentalist leader Warren Jeffs, Olympic Taekwondo coach Jean Lopez, and well-known photographer Bruce Weber. These efforts have largely succeeded, as federal district courts signal broader judicial acceptance of such federal trafficking claims.

This Article traces federal human trafficking law from its origins to these recent innovative cases. It then considers how civil litigators are turning to human trafficking statutes to overcome decades-old systemic problems with legal responses to gender-based violence. The Article explores how the TVPRA offers unique, pragmatic advantages for plaintiffs. Yet, this trend involves risks, as the expanding deployment of trafficking statutes may lead to constitutional challenges, disproportionate criminal penalties, and confusion about the meaning of trafficking as a legal concept. This Article examines what these efforts signal about the future of human trafficking law as well as the field of gender-based violence.

September 22, 2020 in Equal Employment, Human trafficking, Violence Against Women | Permalink | Comments (0)

Wednesday, September 9, 2020

The Invisible Older Victims of Sexual Violence

Ruthy Lowenstein Lazar, Me Too? The Invisible Older Victims of Sexual Violence, 26 Mich. J. L. & Gender 209 (2020)

A review of legal research on violence against women and elder abuse reveals a disturbing picture. There is hardly any American legal research examining sexual abuse of older women and its conceptualization in legal literature and treatment in the legal system.

This Article attempts to fill the abovementioned gap and to bring the hidden issue of sexual violence against older women to light. Scholars writing on rape, violence against women, and elder abuse tend to analyze age and gendered sexual violence separately from each other, without accounting for their interplay. This Article proposes a conceptual framework of sexual abuse of older women that integrates age and gender in the analysis.

To achieve this end, this Article examines 109 publicly available American cases involving sexual violence against women over the age of 60, between the years 2000 and 2018, which are based on a search of 1,308 American cases. Based on this new empirical database, this Article offers an opportunity for analyzing the social and legal “taboo” regarding sexual abuse of older women.

Despite findings indicating that sexual abuse of older women (and older people in general) is a significant issue creating serious consequences for victims, the Article shows that legal actors, social workers, health professionals, family members, and society miss its signs. Sexual abuse of older women is being noticed and treated by the criminal justice system only when it reflects a “real rape” scenario. The obstacles to effective prosecution and to full access to the criminal justice system are distinctive in the case of older victims because of the effect of age, the way age shapes the experience of older victims of sexual violence, the effects of sexual violence on the victims, and its interplay with gender.

Although sexual violence against older women is a form of elder abuse, it should be viewed separately from other forms of elder abuse and should be understood as part of a wider context of gender-based violence. There is a need for a holistic approach to sexual violence of older women, which perceives the sexual violence as a unique phenomenon and provides older women with legal and social mechanisms that fit their needs and experience both as women and elderly people.

September 9, 2020 in Equal Employment, Violence Against Women | Permalink | Comments (0)

Tuesday, September 8, 2020

The Anti-Rape and Battered Women's Movement of the 1970s and 80s

Leigh Goodmark, The Anti-Rape and Battered Women’s Movements of the 1970s and 80s  
The Oxford Handbook on Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds., Forthcoming)

The anti-rape and battered women’s movements of the 1970s and 1980s grew out of the women’s liberation movement of the late 1960s and early 1970s. Early grassroots organizing around responding to rape and domestic violence relied heavily on community-based strategies, including the creation of shelters and safe houses and feminist self-defense classes. Using the new vocabulary of the women’s liberation movement, feminist advocates soon began to highlight the ways existing rape and domestic violence law shored up the patriarchy, characterized women as the property of their fathers and husbands, and enabled the state to sidestep responsibility for violence. Reacting to a legal system whose responses to gender-based violence included official policies of non-interference, skepticism about women’s credibility, and what they saw as inappropriate concern for the privacy of the family, some anti-violence advocates moved away from the grassroots community-based strategies of the early anti-rape and battered women’s movements. Instead, they pushed for greater state intervention in rape and domestic violence via the criminal legal system. But the movement was not united in embracing such strategies. Feminist organizing of the 1970s and 80s around changing rape and domestic violence law reflected the tensions between competing visions of the role of the state in addressing gender-based violence, visions shaped by race, class, and professional status. By the end of the 1980s, culminating in the passage of the Violence Against Women Act in 1994, pro-state intervention feminists had successfully implemented their carceral agenda—a policy choice that is being reexamined today.

September 8, 2020 in Legal History, Violence Against Women | Permalink | Comments (0)

Monday, July 27, 2020

The Woman Who Invented the Rape Kit and Forced Police to Starting Treating Sexual Assault Like a Crime

The Rape Kit's Secret History: The Story of the Woman Who Forced the Police to Start Treating Sexual Assault Like a Crime

MARTY GODDARD’S FIRST FLASH OF INSIGHT CAME IN 1972. It all started when she marched into a shabby townhouse on Halsted Street in Chicago to volunteer at a crisis hotline for teenagers.

 

Most of the other volunteers were hippies with scraggly manes and love beads. But not Marty Goddard. She tended to wear business clothes: a jacket with a modest skirt, pantyhose, low heels. She hid her eyes behind owlish glasses and kept her blond hair short. Not much makeup; maybe a plum lip. She was 31, divorced, with a mordant sense of humor. Her name was Martha, but everyone called her Marty. She liked hiding behind a man’s name. It was useful....

 

She began to formulate questions that almost no one was asking back in the early ’70s: Why were so many predators getting away with it? And what would it take to stop them?

 

Ms. Goddard would go on to lead a campaign to treat sexual assault as a crime that could be investigated, rather than as a feminine delusion. She began a revolution in forensics by envisioning the first standardized rape kit, containing items like swabs and combs to gather evidence, and envelopes to seal it in. The kit is one of the most powerful tools ever invented to bring criminals to justice. And yet, you’ve never heard of Marty Goddard. In many ways she and her invention shared the same fate. They were enormously important and consistently overlooked.***

 

As soon as I began to investigate the rape kit’s origins, however, I stumbled across a mystery. Most sources credited a Chicago police sergeant, Louis Vitullo, with developing the kit in the 1970s. But a few described the invention as a collaboration between Mr. Vitullo and an activist, Martha Goddard. Where was the truth? As so often happens in stories about rape, I found myself wondering whom to believe....

 

Little did I know that I would have to hunt for six months before I finally solved the mystery. I would learn she had transformed the criminal-justice system, though her role has never been fully acknowledged. And I would also discover that Louis Vitullo — far from being the inventor of the rape kit — may have taken credit for Ms. Goddard’s genius and insisted that his name be put on the equipment.

July 27, 2020 in Violence Against Women | Permalink | Comments (0)

Thursday, July 23, 2020

Federal Judge Rejects Weinstein Settlement, Saying it Fails to Adequately Compensate Victims and Creates Inequality Among Victims

NPR, Federal Judge Rejects Harvey Weinstein's $19 Million Settlement with Alleged Victims 

A federal New York judge has thrown out a proposed $18.9 million settlement between convicted rapist and former movie producer Harvey Weinstein, and several women.

 

U.S. District Judge Alvin Hellerstein said the offer failed to adequately compensate many of the victims who allege they were sexually assaulted or raped by Weinstein.

 

He also faulted the money included in the settlement that would help pay Weinstein's legal bills.

 

In a telephone hearing, Hellerstein said it was unfair to include women who'd merely met Weinstein with those making more grievous charges, Reuters reported.

 

"Not every woman was captured in the same way," Hellerstein said. "Your settlement would create inequality among all of those people."

 

Under the proposal, which was drafted after years of negotiation, each woman would have been entitled to file a claim for up to $750,000. A sum attorneys representing alleged victims say doesn't come close to covering the pain, suffering and legal costs many of the women have faced.

 

Weinstein would not have admitted any wrongdoing under the settlement.

See also Wash Post, Judge Rejects Tentative $19M Weinstein Deal with Accusers

July 23, 2020 in Courts, Equal Employment, Violence Against Women | Permalink | Comments (0)

The Law's Historic Unwillingness to Shield Black Girls from Acts of Sexual Violence

Mikah Thompson, Just Another Fast Girl: Exploring Slavery’s Continued Impact on the Loss of Black Girlhood,  
Harvard Journal of Law and Gender, Forthcoming

A troubling legacy of American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black girls and women based not only on the fact that they were considered property but also on stereotypes about their sexuality. Even though the law now criminalizes the rape of Black girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. Survivors experience negative reactions not just from White society but also from their own African-American community. Stereotypes about Black girls also influence the players in the justice system, including police officers, prosecutors, defense attorneys, and jurors. In light of the recent shift in societal attitudes ushered in by the #MeToo and #TimesUp movements, it is important to consider whether our culture can now move away from the stereotypes that have left Black girls unprotected for centuries.

July 23, 2020 in Legal History, Race, Violence Against Women | Permalink | Comments (0)