Gender and the Law Prof Blog

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

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)

Tuesday, July 14, 2020

How Policing Became the Go-To Response for Domestic Violence

Aya Gruber, How Police Became the Go-To Response for Domestic Violence

In response to widespread demands to “defund the police,” a specific question repeatedly crops up: “What about domestic and sexual violence?” These “what about” questions imply that defunding, reducing, and reforming the aggressive street policing currently under public scrutiny will leave people without vital protection and trigger a tidal wave of crime.

 

As prominent prison abolitionist Mariame Kaba has explained, the police have never been the solution to violence against women. Few women actually report rapes to police, and when they do, officers disbelieve and mistreat them. Kaba and others point out that police officers frequently commit domestic and sexual violence themselves, often using their authority to get away with it.

 

Still, some argue that this reality calls for more policing. Laws and policies could require officers to believe women and make arrests in their cases. This may, in turn, increase reporting and victim satisfaction. Some policies like this already exist in the form of special victims units where officers are trained to be victim-centered and trauma-informed and to pursue cases to arrest. One letter to the editor responding to Kaba suggested that we could change the face of policing: “I disagree that we should abolish the police. Instead, we should simply replace male policemen with more women.”

 

It is tempting to see aggressive rape and domestic violence policing as the solution to violence against women, especially as the coronavirus lockdown is increasing such violence. But we have been down that road before, and it just led to more harm for marginalized people, including women.

 

Beginning in the late 1970s, battered women’s activists launched a remarkably successful campaign for states and police departments to adopt laws and policies that encouraged, even required, police officers to arrest in domestic violence cases. Before the policies, officers who responded to “domestic disputes” often did not arrest, instead choosing to mediate between the parties or temporarily remove the suspect from the scene. Department policies even encouraged police not to arrest.

 

In the early days of the movement, many feminists also rejected strict law enforcement. Black activists within the movement vociferously opposed increasing police presence in the lives of people of color. Social scientists warned that arrest “initiates a judicial process which, experience tells us, has little chance of a productive outcome,” as researcher Morton Bard observed.

 

Consequently, much of the early battered women’s movement was oriented not around policing but around services like helping women obtain housing, employment, and public benefits

July 14, 2020 in Race, Violence Against Women | Permalink | Comments (0)

Wednesday, May 20, 2020

Papers from the Feminist Legal Theory Research Network at Next Week's Law & Society Association Virtual Meeting

I am probably one of the few people in the world who is thrilled that the Law & Society Annual Conference is virtual -- since I will now be able to attend.  In general virtual conferences open up access to some barriers to participation due to finances,  travel, family, disability, and health issues.

You can register for the virtual conference here at the Law & Society Association website.  

Scheduled papers to be presented from the Feminist Legal Theory Research Network:

 

Time

Title

Type

Wed, 5/27
1:00 PM - 2:45 PM

#MeToo: The Narrative of Resistance Meets the Rule of Law

Plenary Session 

Thu, 5/28
11:00 AM - 12:45 PM

Moving Rules: Struggles for Reproductive Justice on Uneven Terrain

Paper Session 

Thu, 5/28
11:00 AM - 12:45 PM

Sexual Harassment: Victims and Survivors

Paper Session 

Thu, 5/28
1:00 PM - 2:00 PM

CRN07: Feminist Legal Theory Business Meeting

Business Meeting 

Thu, 5/28
2:15 PM - 4:00 PM

Families, Laws, and Institutions

Paper Session 

Thu, 5/28
2:15 PM - 4:00 PM

The State and Violence: New Proposals for Stopping the Cycle

Paper Session 

Fri, 5/29
11:00 AM - 12:45 PM

Normativity in Men, Women, and Bodies

Paper Session 

Fri, 5/29
11:00 AM - 12:45 PM

The Politicization of Safety: Critical Perspectives on Domestic Violence Responses

Roundtable Session 

Fri, 5/29
1:00 PM - 2:15 PM

Sexual Harassers, Sex Crimes, and Accountability

Paper Session 

Fri, 5/29
4:00 PM - 5:45 PM

Women's Rights in the Shadow of the Constitution

Paper Session 

Sat, 5/30
11:00 AM - 12:45 PM

Perspectives on Sex, Work and New Legal Orders

Paper Session 

Sat, 5/30
1:00 PM - 2:45 PM

Trans and Queer Life in Private and Public

Paper Session 

Sat, 5/30
4:00 PM - 5:45 PM

Human Rights in an Unequal World: Autonomy, Status, and Other Stories

Paper Session 

Sun, 5/31
11:00 AM - 12:45 PM

Feminist Legal Theory in a Public/Private World

Paper Session 

Sun, 5/31
11:00 AM - 12:45 PM

Laws of Social Reproduction

Paper Session 

Sun, 5/31
1:00 PM - 2:00 PM

Intimate Lies and the Law

Author Meets Reader (AMR) Session 

Sun, 5/31
2:15 PM - 4:00 PM

Feminist Judgments on Reproductive Justice and Family Law

Roundtable Session 

Sun, 5/31
2:15 PM - 4:00 PM

Women and Gender in Private, Public, and Places in Between: Old Doctrines Meet New Realities in the Twenty-First Century

Paper Session 

May 20, 2020 in Conferences, Constitutional, Equal Employment, Family, Masculinities, Reproductive Rights, Theory, Violence Against Women | Permalink | Comments (0)

Strategies for Global Responses to the Increase in Domestic Violence in the Age of COVID-19

Caroline Bettinger-Lopez & Alexandra Bro  A Double Pandemic: Domestic Violence in the Age of COVID-19, Council on Foreign Relations

How have lockdowns influenced rates of domestic violence?

Data from many regions already suggests significant increases in domestic violence cases, particularly among marginalized populations. Take for example the Middle East and North Africa, which have the world’s fewest laws protecting women from domestic violence. An analysis by UN Women [PDF] of the gendered impacts of COVID-19 in the Palestinian territories found an increase in gender-based violence, and warned that the pandemic [PDF] will likely disproportionately affect women, exacerbate preexisting gendered risks and vulnerabilities, and widen inequalities. In Latin American countries such as Mexico and Brazil, a spike in calls to hotlines in the past two months suggests an increase in domestic abuse. Meanwhile, a drop in formal complaints in countries such as Chile and Bolivia is likely due to movement restrictions and the inability or hesitance of women to seek help or report through official channels, according to the United Nations and local prosecutors.
 
In China, police officers in the city of Jingzhou received three times as many domestic violence calls this past February as in the same time in 2019. Some high- and middle-income countries, such as Australia, France, Germany, South Africa, and the United States, have also reported significant increases in reports of domestic violence since the COVID-19 outbreak.

 

What can countries do to protect those at risk of domestic violence amid the pandemic?

As the Inter-American Commission on Human Rights and the United Nations have emphasized, countries must incorporate a gender perspective in their responses to the COVID-19 crisis. Several countries and nongovernmental organizations (NGOs) have already taken innovative steps in this direction. New campaigns also use social media to spread awareness of resources available to survivors, including hotlines, text message–based reporting, and mobile applications.

 

Social distancing has increased people’s reliance on technology and changed the way mental health, legal, and other social services are provided to survivors unable to leave their homes. With disruptions to the criminal justice system, countries have shifted to virtual court hearings, facilitated online methods for obtaining protection orders, and communicated their intentions to continue to provide legal protection to survivors.

 

Moving forward, it is critical that states support the development of alternative reporting mechanisms; expand shelter options; strengthen the capacity of the security and justice sectors; maintain vital sexual and reproductive health services, where domestic and sexual violence victims are often identified and supported; support independent women’s groups; finance economic security measures for women workers, especially those serving on the front lines of the pandemic or in the informal economy, and other groups disproportionately affected by the pandemic, such as migrant, refugee, homeless, and trans women; and collect comprehensive data on the gendered impact of COVID-19.

May 20, 2020 in International, Violence Against Women | Permalink | Comments (0)

Wednesday, May 6, 2020

Dept of Education Announces New Rules on Title IX for Campus Sexual Assault, Requiring a More Judicial Like Process and Granting More Rights to the Accused

Betsy DeVos Announces New Rules on Campus Sexual Assault, Offering More Rights to the Accused

Education Secretary Betsy DeVos on Wednesday released a sweeping new directive governing how schools must handle allegations of sexual assault and harassment, giving new rights to the accused and giving colleges a clear but controversial road map to navigating these highly charged investigations.

 

The final regulation bars universities from using a single official to investigate and judge complaints, a popular model, and instead creates a judicial-like process in which the accused has the right to cross-examine accusers and to a live hearing.

 

It also offers a narrow definition of sexual harassment, requiring that it be severe, pervasive and objectively offensive.

 
“Today we release a final rule that recognizes we can continue to combat sexual misconduct without abandoning our values,” DeVos told reporters. The regulation is scheduled to take effect in August.
 

Her approach has come under fire from women’s rights groups and Democrats, who said it would allow assailants and schools to escape responsibility and make college campuses less safe for women. It was welcomed by advocates for the accused, who say the existing procedures are unfairly biased against them.

 

Even before the regulation was released, opponents were vowing to challenge it in court, hoping to halt or at least stall the new rules.

 

“We will fight this rule in court, and we intend to win,” said Emily Martin, a vice president at the National Women’s Law Center, an advocacy group. She said the core of the challenge would be that the department was “arbitrary and capricious” and in violation of the Administrative Procedure Act, and that the agency has ignored evidence showing that the rules would harm survivors of sexual violence.

May 6, 2020 in Education, Violence Against Women | Permalink | Comments (0)

Friday, March 27, 2020

Domestic Violence During the Coronavirus Crisis: Getting the Criminal Justice Response Right

Aya Gruber & Leigh Goodmark, Domestic Violence is Also a Virus: During the Coronavirus Crisis We Need the Right Criminal Justice Response to the Crime 

As COVID-19 spreads across the nation, many are voicing alarm that sickness and social distancing will spark an epidemic of domestic violence. The alarm is merited. Social and economic stressors like job loss, discrimination, community dislocation and trauma correlate with increased domestic violence. The fact that families are cooped up together may make matters worse.

 

As domestic violence scholars and victims’ advocates, we are heartened that the media and public commentators have shifted from describing domestic violence solely as something individual criminals do to a phenomenon deeply connected with social marginality and economic precarity — conditions that will be exponentially aggravated by the virus.

 
However, we are concerned that having identified the potential for increased violence, the solution will be increased arrests and prosecutions. Police and prosecutors’ offices have assured the public that they are open for “business as usual” when it comes to domestic violence.

 

The pandemic has put a spotlight on the perils of the United States’ decades-long addiction to using criminal law as a primary solution to social problems. 

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

Thursday, March 19, 2020

Analyzing Feminist Theories of the Silencing Function of Pornography, Constraining Women's Sexual Refusal

Kate Greasley, Silencing Without Uptake, in B. Leiter and L. Green eds., Oxford Studies in Philosophy of Law, Vol 4 (forthcoming)

In the argument over pornography’s censorship, feminist theorists of certain stripes have argued that one of the ways pornography might harm women is by silencing them. First suggested by Catharine MacKinnon, the silencing claim has since been considerably developed, most notably by Rae Langton and Jennifer Hornsby. Taking their cue from J.L. Austin’s speech act theory, these scholars have argued that pornography is capable, in principle, of silencing women in the ‘illocutionary’ sense, that is, by robbing them of a speech act power — as a case in point, the power of sexual refusal. Langton refers to this as the silencing of ‘illocutionary disablement’. The illocutionary disablement claim has met with plenty of resistance, especially concerning its reliance on an ‘uptake’ condition for illocutionary success, also attributed to Austin. Pursuant to this uptake condition, certain speech acts — meaning, acts constituted in the uttering of certain words in a certain context — depend, for their very performance, on the addressee’s recognition of a particular speaker intention.

Among other misgivings, critics of the silencing claim have found it implausible that the performance of a speech act such as sexual refusal could possibly depend on the happenstance of the speaker’s intention getting through to the addressee. Sympathetic to these complaints, I will try to relay how the illocutionary disablement claim can do without the uptake condition as Hornsby, Langton, and others have heretofore formulated it. I am aligned with their critics in thinking that performing the speech act of sexual refusal cannot depend on any individual addressee’s recognition of illocutionary intent. Nevertheless, I will argue, ‘reciprocity’ of a certain kind is a condition of women’s ability to engage that illocution. The speech act of sexual refusal depends, for its very survival, on the existence of semantic and pragmatic conventions that recognisably signal refusal to competent auditors. To the extent that pornography works to destabilise these conventions, it will effectuate illocutionary disablement with regard to that speech act power. Moreover, I argue, if porn did such a thing in the way Langton and others have envisaged, it would indeed be ‘silencing’ women in a distinctive and distinctively disquieting way.

March 19, 2020 in Theory, Violence Against Women | Permalink | Comments (0)

Analyzing Feminist Theories of the Silencing Function of Pornography, Constraining Women's Sexual Refusal

Kate Greasley, Silencing Without Uptake, in B. Leiter and L. Green eds., Oxford Studies in Philosophy of Law, Vol 4 (forthcoming)

In the argument over pornography’s censorship, feminist theorists of certain stripes have argued that one of the ways pornography might harm women is by silencing them. First suggested by Catharine MacKinnon, the silencing claim has since been considerably developed, most notably by Rae Langton and Jennifer Hornsby. Taking their cue from J.L. Austin’s speech act theory, these scholars have argued that pornography is capable, in principle, of silencing women in the ‘illocutionary’ sense, that is, by robbing them of a speech act power — as a case in point, the power of sexual refusal. Langton refers to this as the silencing of ‘illocutionary disablement’. The illocutionary disablement claim has met with plenty of resistance, especially concerning its reliance on an ‘uptake’ condition for illocutionary success, also attributed to Austin. Pursuant to this uptake condition, certain speech acts — meaning, acts constituted in the uttering of certain words in a certain context — depend, for their very performance, on the addressee’s recognition of a particular speaker intention.

Among other misgivings, critics of the silencing claim have found it implausible that the performance of a speech act such as sexual refusal could possibly depend on the happenstance of the speaker’s intention getting through to the addressee. Sympathetic to these complaints, I will try to relay how the illocutionary disablement claim can do without the uptake condition as Hornsby, Langton, and others have heretofore formulated it. I am aligned with their critics in thinking that performing the speech act of sexual refusal cannot depend on any individual addressee’s recognition of illocutionary intent. Nevertheless, I will argue, ‘reciprocity’ of a certain kind is a condition of women’s ability to engage that illocution. The speech act of sexual refusal depends, for its very survival, on the existence of semantic and pragmatic conventions that recognisably signal refusal to competent auditors. To the extent that pornography works to destabilise these conventions, it will effectuate illocutionary disablement with regard to that speech act power. Moreover, I argue, if porn did such a thing in the way Langton and others have envisaged, it would indeed be ‘silencing’ women in a distinctive and distinctively disquieting way.

March 19, 2020 in Technology, Violence Against Women | Permalink | Comments (0)