Gender and the Law Blog

Publication of Gender & Law 2024-2025 Volume

Thomson Reuters has published its 2024-2025 volume of Gender & the Law. The volume was edited by Aníbal Rosario Lebrón, Daniela Kraiem, and Jamie R. Abrams. The Editorial Board that selected the featured scholarship included the volume editors as well as April G. Dawson (North Carolina Central University School of Law), Elizabeth R. Kukura (Drexel University Thomas R. Kline School of Law), Laura Lane-Steele (University of South Carolina School of Law), and Neoshia R. Roemer (Seaton Hall Law School) .

The Foreward to the book is available here. The Foreward frames the books themes as follows: 

Dobbs v. Jackson Women’s Health Organization, decided in mid 2022, dominated Gender and the Law scholarship in 2023 and early 2024. Like a tidal wave, the reversal of the 50-year-old precedent transformed the legal landscape. While the decision was not unexpected, the implications were far-reaching and fast moving.

 

The Editorial Board looked in depth at the wide range of scholarship produced in this immediate aftermath and found ourselves with overflowing lists of articles. We had to make hard choices about what to include in this volume because of the many outstanding pieces published and the vast implications of Dobbs. The articles we selected represent not only excellence in the scholarship produced in this area but also we hope they will lead our readers to consider angles or aspects of the many issues raised by the Dobbs decision that might otherwise have been overlooked.

 

In addition to these articles, which make up over half of the volume, the Editorial Board was also struck by how scholars are rethinking and exploring new ground in topics that feminist and queer scholars have been exploring for decades, such as sex discrimination, gender-based violence, the importance of legal pedagogy, and the meaning of equality. This field of law remains vibrant and is attracting new voices and approaches.

 

It is also worth noting that a striking number of articles in the Gender and the Law area were published this year in flagship law reviews and journals. For years, gender-focused journals have played an enormous role in keeping gender and the law scholarship vibrant and moving forward. Adding the voices of gender and the law scholars to flagship journals shows the maturity of the scholarship and the (long-overdue) recognition that the interaction of gender and law is not a peripheral topic, but rather at the heart of both legal scholarship and the lived reality of everyday people. There was a time, not long ago, when junior scholars were pulled aside and cautioned not to write about reproductive rights before tenure, lest their scholarship be under-valued. This volume proves that the legal academy has finally centered gender issues, and it has done so at a particularly critical time. As we send this volume to the press, regressive legal movements threaten the very autonomy of women, the diversity of the academy, and the academic freedom of progressive scholars. We hope that this momentum toward centering Gender and the Law topics continues and withstands any backlash.

 

Women’s equality, trans rights, and LGBTQ+ advocacy are all at the core of legal and political debates, and the articles we have selected reflect their enormous salience in today’s world.

 

The Foreward frames the book's organization as follows: 

This volume opens with the scholarship produced in the wake of Dobbs. The incredible breadth of this work required us to break the scholarship into three categories. The first section examines the historical and constitutional issues immediately raised by the decision. The second one turns to works centering on the effect of Dobbs on the reproductive experiences of people often absent from mainstream conversations about abortion such as Native Americans and people with disabilities. The final section illuminates how Dobbs is not narrowly confined to abortion. It will engender massive changes to the core relationship between people and the state. The Dobbs discussion closes with a look at how new technologies combined with this new precedent should ring alarm bells for people, regardless of whether they will ever become pregnant.

 

* * *

The second part of this volume bridges the discussion on Dobbs with discrimination based on pregnancy and pregnancy loss.

 

* * * 

We continue the theme of how technology poses a threat to rights but shift away from Dobbs and reproductive health care to think through the violent and gendered implications of two other kinds of technologies: cyber abuse and the technologies of war.

 

* * *

We move to our next section with several outstanding articles addressing developments in the movement for LGBTQ+ Equality. We lead with two articles addressing a pressing–and often tense–conflict among some scholars within the feminist and queer academy, with critical implications in courtrooms and legislatures worldwide: to what degree can biological differences justify sex discrimination? We then follow with two articles that explore the practical implications of calculating and calibrating gender identities in the realm of the administrative state and within legal education.

 

The full Table of Contents is here. 

Meredith Esser on "Who Bears the Burden When Prison Guards Rape?"

Meredith B. Esser has published Who Bears the Burden When Prison Guards Rape? in the Iowa Law Review Online. The abstract is excerpted here: 

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons (“BOP”). Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution (“FCI”) Dublin, also known as the “rape club,” resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years. In response to these patterns of misconduct, the Federal Sentencing Commission’s new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early release or sentence reductions based on that assault. However, the Sentencing Commission’s reform in this regard comes with a caveat: to be eligible to move a sentencing court for early release, the assailant’s misconduct must have been established in a separate civil, criminal, or administrative proceeding.

 

Although the new guideline is commendable, a requirement that misconduct be substantiated in this way effectively places an impossible burden of proof onto incarcerated victims—in a manner inconsistent with other federal early release provisions—and in a context in which the incarcerated movant is in a particularly disadvantaged position to meet and litigate that burden. For example, lack of access to counsel or discovery tools for survivors, and the need to litigate for one’s early release within a prison setting, make the effective litigation of the substantiation requirement impracticable in many circumstances. Further, this Essay argues that this substantiation requirement counterproductively minimizes the experiences of survivors, discounts their accounts of sexual abuse, and elevates the adjudication of the assailant above the immediate needs of victims.

A Published Interview with Loretta Ross

The online periodical, Feminist Approaches in Culture and Politics, has published On Global Reproductive Justice: An Interview with Loretta J. Ross. The interview was conducted by Seda Saluk. Two powerful passages of Ross's remarks are excerpted below: 

When we talk about a global scale, I invite people to take a meta-view. The people who oppose human rights only have two things to their advantage: lies and violence. On our side are truth, evidence, history, and, most of all, time. I don’t believe that as powerful as these authoritarians see themselves, they don’t have the power to roll back time, deny the truth, bury all the evidence, or make people forget their history. They are trying their best to negate those existential forces that they cannot control.

* * *

 

One thing we say in the civil rights movement is that don’t imagine that you are the entire chain of freedom. The chain of freedom stretches backward toward all of your ancestors and forward toward all of your descendants. Your only job at this moment is to make sure the chain of freedom doesn’t break at your link. Don’t give up. Don’t lose hope. Don’t fail to step up to the challenge of keeping the chain of freedom intact, even though you may not be alive to see the outcome. 

Yvette Butler on "Silencing the Sex Worker"

Yvette Butler has published "Silencing the Sex Worker" in Volume 71 of the UCLA Law Review. The abstract is excerpted here. 

This Article argues that sex workers are silenced when they attempt to contribute to lawmaking processes. As a result, they are unable to contribute their knowledge in a meaningful way. The consequence is that laws reflect only one perspective of life in the sex trades: the prostitution abolitionist position that all sex work is inherently a form of violence against women. Without the ability to help shape this narrative, sex workers will continue to be silenced by the allegation that they are a danger to the feminist movement, courts will make harmful rulings, and legislatures will continue to enact laws that put sex workers in danger.

 

This Article makes several contributions. Firstly, it contributes to feminist philosophical literature by coining the “Cycle of Epistemic Oppression” as a tool to excavate silencing within the law. It then examines how this cycle operates in the context of sex work policy making. Finally, this examination demonstrates the wide applicability of the Cycle of Epistemic Oppression to diverse areas of law.

Police Minimalism in Domestic Violence

Michal Buchhandler-Raphael, Police Minimalism in Domestic Violence, 57 Arizona State Law J (forthcoming 2025)

The United States Supreme Court’s June 2024 decision in U.S. v. Rahimi upheld the constitutionality of the federal ban on gun possession for individuals under domestic violence restraining orders. This ruling underscores the question: is armed police response always warranted in domestic violence incidents? As primary responders to most emergencies, police dedicate much of their time to handling domestic incidents. Data suggests that calls related to such incidents form the majority of police call-outs, ranging from fifteen to potentially over fifty percent, depending on the jurisdiction. And yet, police are unequipped and ill-suited for this work. As with law enforcement’s recent involvement in dismantling encampments on college campuses, police response, with its tactics of arrests and the use of force, is questionably suited to complex social issues. In the context of domestic violence, properly responding requires expertise and training in mediation, social work, and victim assistance–qualifications that police officers typically lack.

The police’s role as default first responders stems not from their suitability for managing family crises but from a lack of other viable strategies. While many jurisdictions are experimenting with novel programs that incorporate trained civilian responders to address emergencies like mental health crises and drug overdoses, such initiatives do not yet cover domestic violence incidents.

This Article advocates for jurisdictions to explore alternative responses. It proposes the integration of civilian responders, either as co-responders or independent actors, depending on the specific safety risks of each case as determined by risk assessment tools. These diversified responder models are designed to recognize that while police involvement in domestic violence situations can sometimes be inevitable, it should be reduced to the necessary minimum to protect against potential violence. The Rahimi decision further bolsters the non-police response to domestic violence, as survivors have access to a civil remedy to ensure their protection. Further, this remedy increases the viability of diversified responder models; as fewer abusers possess firearms, the rationale for armed police response to domestic violence weakens.

Eighth Circuit in Case of First Impression Rules Employee Does not Have to Arbitrate Claims She was Sexually Harassed and Raped by Chipotle Co-Worker

Chipotle Can't Force Arbitration of Workplace Rape Claim, US Court Rules

A U.S. appeals court on Monday said a former Chipotle Mexican Grill employee does not have to arbitrate claims that she was sexually harassed and raped by a coworker, because she sued the restaurant chain after a federal law took effect banning agreements to keep such claims out of court.

 

A unanimous three-judge panel, opens new tab of the St. Louis-based 8th U.S. Circuit Court of Appeals said the law that passed Congress with bipartisan support in 2022 applies to any lawsuit filed after it was enacted, rejecting Chipotle's claim that it only covers conduct that occurred after that date.

 

The ruling is the first of its kind by a federal appeals court and could salvage some pending cases and invite new ones involving conduct that occurred prior to the adoption of the law. A California state appeals court in January also said the federal ban applies based on the date a lawsuit is filed and not when the underlying conduct occurs.

 

The plaintiff says a coworker raped her in the bathroom at a Rochester, Minnesota, restaurant in 2021 after verbally harassing her for months, and that Chipotle failed to investigate or respond after she told a manager about the assault. She had signed an agreement to arbitrate employment-related disputes when she was hired, and initially sued Chipotle a few months after the federal law took effect. ***

 

Chipotle denied wrongdoing and moved to send the case to arbitration, citing the agreement the plaintiff had signed. But U.S. District Judge Donovan Frank in St. Paul last year said the agreement could not be enforced because of the federal ban on mandatory arbitration of harassment and assault claims.

 

The 8th Circuit on Monday affirmed. The law applies to "disputes" that arise on or after its effective date, and that term applies to an actual "conflict or controversy," such as a lawsuit, the court said.

 

Suzanne A. Kim on "Bringing Visibility to AAPI Reproductive Care After Dobbs"

Suzanne A. Kim has published "Bringing Visibility to AAPI Reproductive Care After Dobbs" in Volume 71 of the UCLA Law Review Discourse (2024). The article abstract is excerpted here: 

Dobbs’ impact on growing AAPI communities is underexamined in legal scholarship. This Essay begins to fill that gap, seeking to bring together an overdue focus on the socio-legal experiences of AAPI communities with examination of the effects of reversing Roe and Casey on women of color. It does so by prompting a research agenda that connects diverse AAPI women’s experiences, abortion access, and Dobbs’ impact.

 

SCOTUS Upholds Gun Ban for Domestic Violence Restraining Orders

Supreme Court Upholds Gun Ban for Domestic Violence Restraining Orders

The Supreme Court on Friday upheld a federal law that prevents people who are subject to domestic-violence restraining orders from having firearms in its first major Second Amendment decision since a 2022 ruling that expanded gun rights.

The court said the Constitution permits laws that strip guns from those deemed dangerous, one of a number of firearms restrictions that have been imperiled since the conservative majority bolstered gun rights in its decision two years ago known as New York State Rifle & Pistol Association v. Bruen.

In an 8-1 decision, Chief Justice John G. Roberts wrote that “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

Bruen required the government to point to historic analogues when defending laws that place limits on firearms, leading to a spate of court challenges against limits on possessing firearms — including the one in this case, United States v. Rahimi.

The opinion is here: US v. Rahimi.

Justice Thomas was the lone dissent. He dissented on the grounds of history and tradition:

After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a
single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent

Robin R. Runge on "Safe Leave from Work Post-Dobbs"

Robin R. Runge published Safe Leave from Work Post-Dobbs in Volume 28 of the Employee Rights and Employment Policy Journal.  The abstract is excerpted here: 

Given the increasing restrictions on how and where a person who becomes pregnant may seek abortion care, and the large number of workers who experience reproductive coercion including birth control interference, and/or pregnancy related abuse, who may need to seek abortion related services, it is important to examine their rights as workers to take leave from work to seek these services without fear of job loss.

 

Domestic violence impacts a high percentage of working women and people who become pregnant every year. Pregnancy-related abuse, reproductive coercion, birth control sabotage, and interference with abortion-related decisionmaking are common forms of gender-based violence and harassment that may lead a survivor to seek abortion-related medical care. Without access to leave from work for this purpose, many victims of domestic and sexual violence may not seek the services necessary to ensure their health and their safety. Survivors should be able to take job guaranteed time off from work, ideally paid, to seek medical care for a dangerous pregnancy and/or seek other pregnancy related health care including abortion care, which may require travel to another state if their state prohibits abortions, without fear of job loss.

 

This essay examines how state laws providing leave from work to victims of gender-based violence and harassment may be utilized to obtain necessary medical services, including abortion care, to address pregnancy-related abuse and reproductive coercion, birth control sabotage, and interference with abortion-related decision-making that is increasingly necessary post-Dobbs.

The Gendered Violence of Asylum Reporting Requirements

Amelia Steadman McGowan, The Gendered Violence of Asylum Reporting Requirements, Columbia Human Rgts L Review (forthcoming)  

In the past two decades, some U.S. courts have created and imposed hardline, or “per se,” reporting requirements that bar protection to asylum applicants who did not first report persecution from non-state actors to the authorities before fleeing. These requirements provide no exceptions, even in the face of undisputed evidence that reporting would have been futile, dangerous, or even impossible. While prior legal scholarship has addressed the dangers of reporting requirements generally, this Article explores the unique burdens that these requirements place on applicants with gender-based claims.

This Article applies feminist theory and an interdisciplinary approach to explore the reasons why reporting is often futile, dangerous, or impossible for women and girls fleeing gender-based violence in Guatemala, Honduras, and El Salvador—three of the top countries of origin for applicants seeking protection in the United States. This Article contends that the same misogyny that fuels gender-based violence also infuses the very government structures charged with providing protection from that violence. It argues that when U.S. courts minimize or ignore an applicant’s reasons for not reporting gender-based violence, they condone and perpetuate the same violence that the applicant fled. By using both English- and Spanish-language sources and centering the voices and experiences of Latin American scholars and advocates from and in the focus countries, this Article also challenges the hegemony of U.S. government reports in establishing country conditions in U.S. asylum proceedings. For both reasons, this Article will provide an important contribution to refugees, academics, practitioners, and policymakers working to challenge the application of reporting requirements and to fortify gender-based refugee protections.

 

Ohio (Finally) Eliminates Archaic Common Law Marital Rape Exception

Ohio Senate Unanimously Passes Bill to Eliminate Loophole on Spousal Rape in State Law

After decades of efforts to change a provision of state law shielding people who rape their spouses from prosecution, the Ohio Senate has voted unanimously to remove that loophole.

House Bill 161 would eliminate exceptions in the law on rape, sexual battery and other sexual offenses that apply when the victim and the attacker are married.

Efforts to close the spousal rape loophole go back to 1985, with a minority of lawmakers over the years expressing concerns about rape allegations being used as wedges in divorce cases.

Sen. Stephanie Kunze (R-Hilliard) said the gap in the law has suggested that either spousal rape isn’t taken as seriously as other sexual violence or that it doesn’t ever happen.

“This is especially concerning, as a spouse should be the most trusted person in a marriage," Kunze said on the Senate floor. "And it is even more egregious to think that in our state in 2024, it is lawful to to rape your spouse.”

Senate Minority Leader Nickie Antonio (D-Lakewood), the bill's joint sponsor who’s introduced measures to close the spousal rape loophole twice before, said the state has taken "a step forward in eliminating this archaic loophole."

“I recall it first coming to my attention that Ohio needed a spousal rape bill and to address that actually in the early nineties. And while Ohio addressed parts of the law, then this loophole remained," Antonio said.

After passing the House in November with only one “no” vote – from Rep. Bill Dean (R-Xenia) – the bill now goes to Gov. Mike DeWine for his signature.

A New Look at Tort Law's Categorization of Wrongdoing in Non-Collaborative Sex

Cristina Tilley, Impaired, in Pairs, 73 DePaul L. Rev. (2024)

Rape, like many other one-on-one aggressions, can be treated as both a crime and a tort. But neither body of law responds effectively to these aggressions. Criminal rape prosecution is notoriously difficult, and civil rape suits are notoriously rare. Today, as private law theorists have begun to study tort’s potential to drive social justice on issues of race, gender, and class, it is an ideal time to reassess the terms of civil liability for intimate injury. Culture has long limited “real rape” to premeditated, stranger-on-stranger, aggression. Consequently, tort has long categorized what this Essay terms “non-collaborative sex” as an intentional tort in which a predator strategically targets a plaintiff whose autonomy will be negated. The modern reality – that many, if not most, rapes take place between drunken acquaintances whose cognition and judgment have been dulled – is underaccounted for in modern tort doctrine. This Article urges a new look at tort’s categorization of wrongdoing in non-collaborative sex. The reflexive assumption that sexual wronging is intentional has placed the weight of sexual assault adjudication on the question of female consent. And while tort doctrine appears willing to acknowledge that sex often goes wrong when drugs and alcohol are involved, it takes a curiously gendered approach to the role that impairment plays. How so? The Restatement of Tort fixates on holding women responsible when they drunkenly, but mistakenly, signal consent. But it does not consider whether to hold men responsible when they drunkenly, but mistakenly, conclude they have consent. When both parties are cognitively dulled in this fashion, it may be doctrinally unprincipled to say that either has the capacity to intend their actions. If so, the Article suggests, physical oppression associated with non-collaborative, intoxicated, sex might be better placed in the tort categories of negligence or strict liability, where cognitive purpose is not the sine qua non of wrongdoing.

Maybell Romero on "Shamed"

Maybell Romero has posted a draft work-in-progress on SSRN titled "Shamed." The abstract previews: 

Victims of rape, sexual assault, and sexual abuse have long had to contend with victim blaming and victim shaming. While legal scholars have had fruitful and theoretically engaging debates regarding the validity and merits of using shaming sanctions and shaming criminal defendants, there has been precious little written about the shame that victims face, let alone a recognition that their interaction with shame as both a social force and emotion is multidimensional. In a previous piece titled “Ruined”, I examined the language judges use during sentencing hearings in sexual assault cases to describe victims, such as pronouncing them “broken,” “ruined,” or “destroyed.” This Article serves as a continuation of the inquiry I started in “Ruined” by expanding in focus. It seeks to differentiate between the related concepts of shame and stigma and explain why shaming of rape victims is so common. I propose a novel typology with which to examine a rape victim’s experience and separate the shame that victims are made to feel by the criminal adjudicative process, the shame victims are supposed to perform, and the shame victims are supposed to feel into discrete components to consider, revealing that shame in relation to such victims is multilayered and much more complex than legal scholarship has made it out to be.

I share my own experiences with each of these manifestations of shame to demonstrate the usefulness of my new typology, but I also relate how I have felt ashamed to come forward with my story as a practicing attorney as well as my experiences of being shamed in the legal academy. I conclude, however, with a note of optimism, reflecting on the positive things to have come with my very public self-disclosure of being a rape and sexual abuse victim and hoping to encourage others to employ personal narrative and autoethnographic methods in their own scholarship, as well.

Why Digitized Violence is the Newest Category of Gender-Based Violence

Rangita de Silva de Alwis, A Rapidly Shifting Landscape: Why Digitized Violence is the Newest Category of Gender-Based Violence, SciencesPo L. Rev. (forthcoming)  

This paper proposes that new research on technology-facilitated violence must shape lawmaking on gender-based violence against women. Given the AI revolution, including large language models (“LLMs”), and generative artificial intelligence, new technologies continue to create power disparities that help facilitate gender-based violence both online and offline. The paper argues that the veil of anonymity provided by the digital realm facilitates violence; and the automation capabilities offered by technology amplify the scope and impact of abusive behavior. Although the direct physical act of sexual violence is different in offline violence, there are similarities. Firstly, both acts share the structural gender and intersectional inequities that lie at the root of such conduct. Secondly, the defense that women and girls are free to exercise the option to leave an abusive online environment denies women’s and girls’ free exercise of rights to assembly and expression in the online public square. In the final analysis, although not all isolated acts of online violence meet a legal threshold, we need to see these acts as a part of a continuum of offline violence that call for new forms of discourse and a dynamic application of international women’s human rights norms into evolving categories of violence.

Caroline Davidson on "Femicide as Gender Persecution"

Caroline Davidson published Femicide as Gender Persecution in Volume 46 of the Harvard Journal of Law & Gender.  Excerpts of the Introduction are here: 

This Article argues that not only are femicide and other gendered killings grave, discriminatory human rights violations, but, in some cases, they may constitute crimes under international criminal law (“ICL”). Further, it contends that femicide is best approached in ICL, at least at the International Criminal Court (ICC), under existing international crimes. Further, it argues that, although the appropriate international charge will depend on the particular factual circumstances involved, the crime against humanity of gender persecution goes a long way in capturing the gendered dynamics at the heart of femicide.

* * *        

This Article endeavors to situate femicide within the rubric of ICL and argues that the ICC can best address femicide through existing international crimes, particularly the crime of gender persecution. * * *This Article argues that there is value—expressive and strategic—in the ICC taking up the issue of femicide through existing crimes, including the crime against humanity of gender persecution. The ICC is uniquely positioned to draw attention to the issue of femicide and other gendered killings and to communicate the gravity of the crimes. The ICC is also well-equipped to provide assistance to domestic jurisdictions struggling with the issue and to motivate state officials to take action on neglected crimes through the threat of an ICC prosecution.

ABA Program on "Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns"

The ABA is hosting a program on "Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns." The event is from 2 p.m. - 3:30 EST on December 8th. 

The Asian Pacific Institute on Gender-Based Violence and the American Bar Association Commission on Domestic & Sexual Violence cordially invite legal service providers and advocates supporting survivors and victims of domestic violence and sexual assault to join us for a panel discussion on Enhancing Language Access for Victims of Domestic and Sexual Violence in Rural, Urban, and Border Towns.

 

This panel discussion is designed for legal services providers to address the challenges and promising practices in providing language access to victims of domestic and sexual violence who are limited English proficient or use different modes of communication, including those who speak indigenous languages. The panel will explore the unique considerations and approaches required based on the geographic location of the providers, focusing on rural, urban, and border towns. By sharing experiences and expertise, participants will gain valuable insights to improve their language access services and support for these vulnerable populations.

Register here. 

Domestic Violence and the Functional Parent Doctrines

Courtney Joslin & Douglas NeJaime, Domestic Violence and Functional Parent Doctrines, 30 Virginia J. Soc. Pol'y & Law 67 (2023)  

Today, approximately two-thirds of the states have a functional parent doctrine. Under these doctrines, a court can extend parental rights based on the conduct of forming a parental relationship with a child, regardless of whether the person is the child’s biological or adoptive parent. In recent years, these functional parent doctrines have garnered significant attention. Some critics fear that perpetrators of domestic violence will misuse functional parent doctrines to abuse, harass, and coerce their victims. These critics often imagine a paradigmatic case — one involving a former nonmarital different-sex partner who has a limited relationship with the child and uses the doctrine in a post-dissolution custody action as a way to continue to harass and control his former partner, the child’s mother.

Drawing upon relevant findings from our empirical study of all electronically available decisions issued in the last forty years applying functional parent doctrines, this Article sheds light on these fears by reporting what we know about allegations of domestic violence in cases decided under these doctrines. Ultimately, our findings reveal that the paradigmatic case that critics envision is quite rare. Former nonmarital different-sex partners constitute only a small share of the functional parent claim-ants. Instead, the population of claimants is characterized by diversity. Indeed, our study includes more than twice as many relatives — a group routinely overlooked in conversations about functional parent doctrines — than different-sex nonmarital partners. Even as allegations of domestic violence are more common in cases involving intimate partners, they are hardly a common feature. Moreover, even the small share of cases that would seem to be of most concern — those involving allegations of domestic violence against only the functional parent — rarely present the straightforward facts that structure objections to functional parent doctrines.

Rather than finding that functional parent doctrines are routinely used in ways that disrupt children’s lives, we find that the doctrines often function to provide stability and security for children. Our account raises questions about opposing functional parent doctrines altogether based on fears that male ex-partners will use the doctrines for abusive ends. Instead, given the important benefits of functional parent doctrines for children, we conclude that concerns about domestic violence, which are in-disputably serious and must be taken into consideration, should be addressed within functional parent doctrines, as some states recently have done.

A Theory of Perversity as an Outer Bound of Rational Basis Review

Professor Boone's theory discussed, and then applied to the contexts of abstinence-only sex education, mandatory arrest laws in domestic violence, and targeted regulation of abortion providers.

Meghan Boone, Perverse & Irrational, 16 Harv. Law & Policy Rev. (2022)  

In our system of representative democracy, legislatures are given a great deal of latitude to select and pass laws that they deem to be in the public interest. Assuming that no suspect class or fundamental right is involved, the Constitution has been interpreted to only require legislative action to satisfy rational basis review—a highly deferential standard that requires only that a legitimate purpose exist and the means adopted to achieve that purpose are rationally related to that purpose. Under rational basis review, legislatures can and do enact laws that are significantly over- or underinclusive to the identified problem. They can enact laws that do not even accomplish their intended purpose in most instances. They can even enact laws which are unsupported by any evidence, much less high-quality evidence. And yet . . . courts insist that rational basis review still means something. That it is something other than a blank check for legislatures to do as they will.

This Article explores one example of the outer bounds of rationality—demonstrated perversity. That is, a law that clearly contravenes the overarching legislative intent because the law is solely or primarily responsible for producing the opposite result of that intent. Although often unnamed as such, perversity presents itself across the legislative landscape, from mundane local ordinances to sweeping federal legislation. And while not explicitly recognized as a basis for finding a law unconstitutional, Supreme Court precedent clearly hints at the possibility that demonstrated perversity could be a basis for invalidating laws.

By defining perversity, identifying when and how it occurs, and exploring how it might be used to challenge the constitutionality of various government actions, this Article aims to illuminate an undertheorized corner of the already robust literature on rational basis review. It argues that current rational basis review precedent already employs a type of perversity analysis, although courts fail to explicitly acknowledge it as such. Moreover, it argues that modern changes in scientific and empirical methodologies and the explosion of the information economy demonstrate the need for this type of analysis; without it, rational basis review is meaningless. Ultimately, the Article concludes that while rational basis scrutiny gives legislatures wide latitude, courts must set a constitutional limit by striking down statutes which cause outcomes clearly counterproductive to legislative goals.

Reconstructing the Myth of the Perfect Victim in Rape Crimes Through the Use of Experts

Deborah Tuerkheimer, Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm, U. Illinois L. Rev. (forthcoming)  

The “perfect victim” embodies enduring misconceptions about how victims behave during and in the wake of sexual violence. However misguided, these myths are sufficiently pervasive to pass for common sense—the same common sense that jurors in sex crimes trials are instructed to deploy when judging the credibility of accusers. One obvious corrective is expert testimony. But expertise in rape cases has mostly been anchored to an odd syndrome—the “rape trauma syndrome,” which, quite apart from its questionable scientific underpinnings, suffers from two conceptual defects: the syndrome individualizes the structural, and it pathologizes the normal. As #MeToo has brought into sharp focus, sexual violence is not aberrant; nor is it possible to abstract rape and its aftermath from a social context defined by steep social hierarchies. Expert testimony should account for these realities, reconstructing the victim accordingly. This move can reverberate beyond rape trials to other parts of the criminal justice system and—most urgently—to the cultural realm, where quotidian credibility judgments dictate the path forward for countless survivors. The paradigm that emerges promises to upend entrenched understandings of who counts as a victim and what constitutes rape.

Reconceptualizing Domestic Violence as "Patriarchal Violence"

Rona Kaufman Kitchen, Patriarchal Violence, 71 Buffalo L.Rev. (2023)  

For over a century, feminist theorists and activists have sought equality for women. They have aimed their efforts at the many distinct and related causes of women's inequality, among them gendered violence, sexual violence, domestic violence, and violence against women. Recognizing the need to understand problems in order to solve them, feminist theorists have devoted decades to conceptualizing various manifestations of such violence, ranging from private acts, such as sexual assault and intimate partner abuse, to public acts, such as the incarceration of mothers and the criminalization of pregnancy. In this article, I argue in favor of conceptualizing the many discrete types of violence that subjugate girls, women, and all gender-oppressed people as part of one comprehensive system of ''patriarchal violence." Further, I introduce an organizational framework that will allow scholars, teachers, and activists to more effectively and efficiently theorize, teach, and eradicate patriarchal violence. Through this framework, various manifestations of patriarchal violence can be better identified, organized, and understood at micro and macro levels.