Gender and the Law Blog

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.

Toward a Socio-Legal Theory of Male Rape

Orna Alyagon-Darr and Ruthy Lowenstein Lazar published Toward a Socio-Legal Theory of Male Rape in volume 113 of The Journal of Criminal Law & Criminology (2023). The abstract is excerpted here: 

In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender.

 

The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. It collates the various studies on male rape in these settings, classifies the main elements of male rape, and points to the interrelations between the various scholarly works.

 

Based on the comparison, the Article develops a sixfold framework containing three recurring and three missing themes. The recurring themes are otherness—the construction of male rape as something that occurs to others, at the margins of society; masculinity—pivotal for the understanding of male rape; and the embeddedness of male rape in social power relations. The three missing themes are consent—possibly the most discussed aspect in current theories of female rape but hardly elaborated with respect to male victims; racial aspects of male rape in the community; and female perpetrators of male rape. The burgeoning literature on male rape dwells mostly on the first three themes.

 

The Article argues that a meaningful theory of male rape requires further study of the missing themes. The sixfold analytical framework suggested in this Article can assist in identifying blind spots in the academic discourse, accurately conceptualizing this phenomenon, and offering a better general understanding of it. It is also a first step toward the creation of a more inclusive and general theory of rape that accounts for sexual abuse of all victims, regardless of gender, race, sexual orientation, or other social traits.

Finding a Constructive and Fair Way to Frame the Rhetoric of Rape

Kathryn Stanchi, The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz, International Journal for the Semiotics of Law (Forthcoming)

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change.

This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Reconciling Domestic Violence Protections and the Second Amendment

Natalie Nanasi, Reconciling Domestic Violence Protections and the Second Amendment, Wake Forest L. Rev. (forthcoming)  

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which the Supreme Court will review in the 2023-24 term, highlights the unworkability of the Bruen test. Women’s rights were virtually nonexistent when the Second Amendment was ratified. Domestic violence was tolerated, and it was not until nearly 200 years later that protective order statutes were enacted across the United States. Looking to the past to justify modern-day gun safety laws gravely threatens women’s rights and safety.

But Bruen does not require such a narrow reading. Significant historical and legal precedent exists for disarming dangerous persons, and those who have had protective orders entered against them undoubtedly fall into that category. This article’s feminist critique of Bruen demonstrates why its holding is deeply problematic, but it also shows that it is possible to both hew to Second Amendment jurisprudence and protect survivors of intimate partner violence.

I. India Thusi Reviews Maybell Romero's "Ruined"

I. India Thusi has published a review of Maybell Romero's article, Ruined, 111 Geo. L.J. 237 (2022). Thusi's review is titled Un-Marking Rape Victims. Thusi writes: 

[Romero's] vulnerability in this piece is laudable, but her positionality as someone who has experienced the trauma of rape makes her especially qualified to assess how a rape victim might experience judges marking them as ruined. And labeling someone as ruined is a marking. Ruined means “the physical destruction or disintegration of something or the state of disintegrating or being destroyed.” Ruined reflects a permanence. A complete destruction of the person. It is an irrevocable status, and when the highest authority within a courtroom – the judge – labels a victim ruined, it is a permanent marking of the person’s disintegration. Romero experienced the harm of this labeling as she sat in courtrooms listening to judges repeatedly mark rape victims ruined. She was able to identify the issues with this labelling because of her subjective position in society, and she is using the tools of the law, which include legal scholarship, to address this harm that might otherwise have gone unnoticed.

* * * 

Romero’s piece invites judges to embrace a language that rejects a narrative that reduces rape victims to the permanent status of ruination. Given the legal history of rape, the direct harm that might flow from labeling someone permanently destroyed, and Maybell’s personal account of how she experienced the use of the term, I am persuaded that judges should avoid this term. I hope others in the legal academy are similarly moved by this remarkable article.

Romero's full article is available here. 

Rona Kaufman on "Patriarchal Violence"

Rona Kaufman has posted Patriarchal Violence on SSRN. This work was published in volume 71 of the Buffalo Law Review. 

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.

Sexual Violence and Gender-Based Harm in Women's Prisons

Jenny-Brooke Condon, #MeToo in Prison, 98 Wash. L. Rev. (forthcoming 2023)  

For American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment. For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison. Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root.

PREA and reform discourse treats this harm, however, as an unwanted byproduct of an otherwise constitutional system of criminal justice. And the treatment of people in women’s prisons remains largely an afterthought in the response to the broader carceral sexual violence crisis. Those responses treat prison sexual abuse as a “conditions” problem capable of being remedied, no matter how persistent and endemic. This Article rejects that prevailing account and describes the ways in which women’s prisons create and exploit gender subordination resulting in more sexual violence and gender-based harm. As traced in this Article, Edna Mahan Prison in New Jersey serves as a dramatic example of the sordid history of women’s prisons in the United States. At one time, the facility operated as women-led radical prison without bars and locks. But once it operated like a traditional prison, sexual abuse plagued the facility for decades. New Jersey’s Governor announced plans to finally shutter the prison in 2020 after a sexual abuse crisis dominated headlines—the final blow to the progressive vision of its former reform-minded supervisor and namesake.

Women’s experiences are often ignored in conversations about mass incarceration even though women are the fastest-growing segment of the incarcerated population and experience the highest rates of prison sexual violence as a group. The harm inflicted in women’s prisons differs from the crisis affecting men in that incarcerated women experience sexual abuse nearly exclusively at the hands of male correctional officers and staff. It thus mirrors the gender subordinating nature of sexual abuse and violence in the world outside of prisons even while it also thrives on the power dynamics constructed by prisons. This Article foregrounds those often overlooked concerns and identifies lessons from #MeToo that are necessary to end these sites of gender-based harm.

The Continued Invisibility of Cyber Gender Abuse

Danielle Keats Citron, The Continued (In)visibility of Cyber Gender Abuse, Yale Law Journal Forum, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2023-57

For too long, cyber abuse has been misunderstood and ignored. The prevailing view is that cyber abuse is not “really real,” though in rare cases authorities take it seriously. Justices of the U.S. Supreme Court, for instance, demanded and received extra protection for themselves after facing online threats, but, in oral argument, dismissed a woman as “overly sensitive” for reporting hundreds of threatening texts to law enforcement. In other words, protection for me (the powerful) but not for thee. For everyday women and minorities, cyber abuse is unseen and unredressed, due to invidious stereotypes and gender norms. Empirical proof now exists that makes non-recognition difficult to justify. Studies show that cyber abuse is widespread, the injuries profound, and disproportionately borne by women, who often have intersecting disadvantaged identities. (Hence, the moniker cyber gender abuse). After years of advocacy and scholarship, it pains me to acknowledge the continued invisibility of cyber gender abuse, but progress is possible if we recognize our failings and commit to structural reform. Internet exceptionalism must end for the businesses best situated to prevent destructive cyber gender abuse. Congress should condition the immunity afforded content platforms on a duty of care to address cyber gender abuse and eliminate the legal shield for platforms whose business is abuse. Companies must commit to safety by design as a core principle.

New Systemic Approaches to Understanding Gender Violence

Deborah M. Weissman, Gender Violence as Legacy: To Imagine New Approaches, 20 UC Law SF J. Gender & Justice 55 (2023)  

This essay considers gender violence as a consequence of systemic problems rooted in patriarchal structures, transacted through poverty and inequality, and embedded in a historically conditioned political economy. It advances anti-violence scholarship to suggest the need to reconceptualize gender discrimination, poverty, and inequality as cause and consequence of social ills, and, moreover, to contribute to social theories about harm. That is, to understand the political economy as the structural environment from which the social pathology of inequality originates--a factor inextricably related to IPV--as a legacy of colonialism and slavery and suggests that these matters are best considered in historical context and addressed through tools and approaches offered by restorative and transformative justice approaches (RJ/TJ). RJ/TJ.

It is useful to contextualize the origins of social ills as outcomes of historical relationships associated with colonialism. Colonial systems summoned into existence racial hierarches and patriarchal forms through which they exerted power and have shaped the current political economic landscape, including the character of the harms endured by communities, families, and individuals. The consequences of wealth extraction, labor exploitation, and the attending ideological rationale contributed to the immiseration of vast numbers of people as a matter of racial and gender categories. Stratification economics debunks the notion that subordination is a consequence of individual or group failings or self-defeating behaviors and demonstrates the durability of the harms of the theft of wealth and resources in its many forms. William Darity explains that the “existence--indeed persistence--of income, but especially wealth [] inequalities” is “the central problem” that affects social disorders.

An examination of the workings of colonialism has added a new understanding of oppressive gender hierarchies and the violence that may follow gender inequality. For instance, patriarchy derived from colonial invocations of the absolute authority of a monarchy created deep gender divisions manifested in the subordination of women. Colonialism shaped ideologies of masculinities to “produce[] a cultural consensus in which political and socio-economic dominance symbolizes the dominance of men and masculinity over women and femininity.” Colonialism also has resulted in “the enforcement of gendered and racial differences from the most intimate of circumstances--within households and families--to the most public.” Expansion of colonialism in the United States extended patriarchal norms on many indigenous communities through the imposition of “male dominance in societal arrangements” Settler colonialism often disenfranchised Native American women from previously established matriarchal systems and practices that were demonstrated to mitigate IPV.

The historical sources of inequality and the shaping of gender hierarchies traced to systems of colonialism suggest new ways for advocates to address the structural sources of these harms. RJ/TJ approaches are well-positioned to deploy historical analyses to address the systemic factors to which carceral responses ignore. RJ/TJ strategies can address the more immediate harms of IPV while seeking structural changes related to past harms.

Gender Violence as a Penalty of Poverty

Deborah Weissman, Gender Violence as a Penalty of Poverty, 54 Miami Inter-Amer. L. Rev. 29 (2022)

The matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when seeking housing and employment and encounter other economic difficulties due to their legal status. These circumstances interfere with the tasks of mitigating gender violence.

Economic difficulties are not only after–the–fact–occurrences. Decades of research demonstrate causal relationships between poverty, economic strain, and inequality, on the one hand, and survivor status, on the other. Moreover, studies confirm that economic instability contributes to the very factors that often culminate in offenders’ transgressions. Notwithstanding the IPV discourse that recognizes the entanglement between structural economic conditions and consequences to families and communities, too little economic support either on the front end or the back has been allocated to address these issues.

This essay will address the various economic factors related to survivors and offenders. It critically assesses the ways in which the responses to IPV insufficiently acknowledge economic concerns as a function of a neoliberal economic system that fails to support meaningful social change It offers a brief comparative review of circumstances in Ciudad Juárez, Mexico following the signing of the North American Free Trade Agreement and a hyped–up period of economic liberalization and free trade with a model to address gender violence developed in Cuba after the period of Cuba’s post 1959 revolution through the first decade of the twenty–first century based on a political economy built upon principles of social justice and gender equality. These disparate economic circumstances illustrate the ways in which political economies contribute to or mitigate gender violence.

SCOTUS to Hear Major Guns Case Involving Domestic Violence

Adam Liptak & Glenn Thrush, NYT, Supreme Court to Hear Major Guns Case Involving Domestic Violence

The Supreme Court agreed on Friday to consider whether the government may forbid people subject to domestic violence orders from having guns, setting up a major test of its ruling last year vastly expanding people’s right to arm themselves in public.

The case will turn on the scope of a new legal standard established in that decision, one whose reliance on historical practices has sown confusion as courts have struggled to apply it, with some judges sweeping aside gun controls that have been on the books for decades.***

In March, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, said that new standard required it to strike down a federal law prohibiting people subject to domestic violence orders from possessing firearms because there was no historical support for it.

The case, United States v. Rahimi, No. 22-915, concerns Mr. Rahimi, a drug dealer in Texas with a history of armed violence, according to court records. In 2019, Mr. Rahimi assaulted his girlfriend and threatened to shoot her if she told anyone, leading her to obtain a restraining order. The order suspended Mr. Rahimi’s handgun license and prohibited him from possessing firearms.***

But the appeals court reversed course after the Bruen decision last June.

The Fifth Circuit rejected a variety of old laws identified by the government as possible historical analogues, saying they did not sufficiently resemble the one concerning domestic violence orders. Many of them, Judge Cory T. Wilson wrote for the panel, “disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves and Native Americans.” That was different, he wrote, from domestic violence orders, which make case-by-case judgments about a particular individual’s dangerousness.

SCOTUS is Really Considering Whether Domestic Abusers Should Have Guns

SCOTUS is Really Considering Whether Domestic Abusers Should have Guns, Slate

So let’s be clear: the U.S. Supreme Court decision last week to consider the case of United States v. Rahimi, determining whether someone with a history of domestic violence may own a gun, is about far more than domestic abuse and its victims. It’s about America’s national security. Our national security.***

Then last February, the U.S. 5^th Circuit reversed the decision, based on new Supreme Court rulings that expanded rights to gun ownership to those “consistent with the Nation’s historical tradition of firearm regulation.” Since the Founding Fathers hadn’t specifically mentioned domestic violence, they argued, alleged domestic abusers should be free to own the weapons of their choice.

In response, the Biden administration objected, noting that historically, government has refused arms to people who pose a public danger.

So now it is up to the Supreme Court . . . to decide. It is also the same Supreme Court that has loosened gun restrictions already, and that so mercilessly overturned Roe v. Wade, putting the lives of countless American women at risk.

But the point is not the women, or that two-thirds of women killed by a partner are murdered by gun—nearly two every day in America, or that, according to the Educational Fund to Stop Gun Violence, “a woman is five times more likely to be murdered when her abuser has access to guns.”

SCOTUS Ruling on Online Harassment Outrages Advocates

I have to say, I agree with Justice Amy Coney Barrett's dissent on this one. Threats are not protected speech. Period.

Wash Post, Supreme Court Harassment Ruling on Online Harassment Outrages Victims, Advocates

On Wednesday, victims of that harassment and their advocates reacted with dismay at the court’s 7-2 ruling, written by Justice Elena Kagan, that found that while true threats of violence aren’t protected by the First Amendment, other harassing online speech is, unless prosecutors prove a defendant acted recklessly and “disregarded a substantial risk that his communications would be viewed as threatening violence.”

“The majority of the court simply can’t even imagine what stalking is like,” said Mary Anne Franks, a professor of law at the University of Miami, who filed an amicus brief on behalf of the victim in the Supreme Court case. “They have no idea about the terror these victims are living in.”

 

The Supreme Court Just Legalized Stalking

Mary Anne Franks, The Supreme Court Just Legalized Stalking, Slate

The Supreme Court majority describes its holding last week in Counterman v. Colorado as a vindication of the First Amendment and a principled defense of free speech. Indeed, influential civil libertarian organizations were quick to celebrate the decision. ACLU attorney Brian Hauss praised the court for guaranteeing that “inadvertently threatening speech cannot be criminalized” and for “provid[ing] essential breathing room for public debate.” ***

To be clear, the “freedom of speech” protected by the Counterman majority and valorized by civil libertarian organizations is the freedom to engage in objectively terrifying conduct that leads victims to withdraw from their professions, censor their communications, and restrict their movements. Given that the majority of stalkers are male and the majority of stalking victims are female, the thrust of the opinion can be put more bluntly: The First Amendment does not protect “speech,” but men’s speech at the expense of women’s speech; men’s delusions at the expense of women’s lives.

In Counterman v Colorado SCOTUS Justices Show Dismissal of Victims' Harms from Stalking

Mary Anne Franks, Chief Justice Roberts' Mocker of Stalking Victims Points to a Deeper Problem, Slate

Stalking is so closely correlated with lethal violence that experts refer to it as “slow motion homicide”: More than half of all female homicide victims in the U.S. were stalked before they were killed. Despite the terrifying and dangerous consequences, many victims of stalking do not report the abuse to law enforcement for fear they will not be taken seriously.

The reasonableness of that fear was vividly illustrated by the Supreme Court oral arguments in Counterman v. Colorado on Wednesday morning, as members of the highest court of the land joked about messages sent by a stalker to his victim, bemoaned the increasing “hypersensitivity” of society, and brushed aside consideration of the actual harm of stalking to focus on the potential harm of stalking laws.***

The justices’ message was clear: Stalking is not the problem; sensitivity is. To them, stalking is quite literally a state of mind: If the stalker didn’t mean for his conduct to be frightening, then it isn’t. All the target has to do is understand that; she just needs to lighten up, take a joke, accept the compliment, grasp the lesson. Just because someone has made objectively terrifying statements is no reason to overreact and get law enforcement involved; victims should wait for the stalker to do something really frightening before they jump to conclusions.***

The court’s discussion was so disconnected from the reality of stalking, so contemptuous of the victims targeted by it, and so awkwardly punctuated with culture-war buzzwords with no obvious bearing to the topic at hand, that it was sometimes hard to believe it was taking place within the Supreme Court and not a Fox News talk show. Perhaps nothing else could be expected from a far-right dominated court that has made its hostility to women and racial minorities abundantly clear. But the progressive justices did little to push back against the chief justice’s snickering tone, or to critique these efforts to turn an oral argument about stalking into a referendum on the supposed crisis of “hypersensitivity.”

Conn Supreme Court Allows Defamation Suit by Defendant in Yale Sexual Assault Case to Go Forward Citing Lack of Procedures in Title IX Hearing

Aaron Keller, Conn. Justices Nix Absolute Immunity In Yale Hearings, Law360

In a stinging high court indictment of Yale University's internal sexual misconduct hearings, the Connecticut Supreme Court on Friday unanimously held that the elite college's proceedings are not quasi-judicial in nature and that absolute immunity does not immediately protect an accuser from an accused student's defamation and tortious interference claims.

Answering several certified questions from the Second Circuit, Connecticut's highest state court said a lower form of privilege, qualified immunity, does apply to the private college's internal hearings. However, the accused student who challenged those proceedings, Saifullah Khan, defeated that lower immunity and should have survived a federal district court judge's dismissal of his claims against his accuser, according to the opinion.***

The opinion reopens a path for Khan, who was acquitted of criminal sexual assault charges, to pursue claims against his accuser, the college and its administrators.

"We are mindful of these concerns and sensitive to the need to encourage alleged victims of sexual assault to report their abuse to the appropriate authority at any institution of higher education, free from fear of intimidation and retribution," [Judge] Mullins wrote.

But the court also said investigations without "adequate procedural safeguards" can lead to unfair outcomes, noting a "competing public policy that those accused of crimes, especially as serious a crime as sexual assault, are entitled to fundamental fairness before being labeled a sexual predator."

Aaron Keller, Conn Court Ruling May Force Colleges to Rethink Title IX Hearings, Law360

A Connecticut Supreme Court opinion critical of a Yale University sexual misconduct proceeding will likely cause colleges to scramble to examine whether criminal-law-style adversarial processes should be added to Title IX hearings where they typically don't appear and arguably don't belong, several experts told Law360.

The Connecticut Supreme Court's opinion, issued Friday, held that a student accused of sexual assault, Saifullah Khan, could pursue a defamation lawsuit in Connecticut federal court because the underlying Yale proceeding was not quasi-judicial. The state Supreme Court, answering certified questions from the Second Circuit, said absolute immunity did not apply to Yale's proceeding due to its lack of procedural safeguards. ***

Anne M. Coughlin, a professor at the University of Virginia School of Law, said the Connecticut high court's opinion will "be studied and cited by every university in the country." "It was just astonishing to me," she said. "The very thing the court singles out as flaws … are the very reforms that people wanted to put in place in order to encourage women to report in the university setting."

Coughlin suggested that some colleges might even "panic" to check their Title IX procedures and send them "back to the drawing board" in light of the decision.

Stanford Law School professor Michele Dauber called the decision "terrible." "This court, comprised of five men and just two women, will chill reporting of campus sexual assault in Connecticut and perhaps beyond," she said. "Around the country, students alleging assault are being terrorized by the very real fear that they can be sued for defamation when they make a report of sexual assault to their colleges," Dauber said. "Title IX procedures are already humiliating and grueling for complainants. Now, thanks to this decision, reporting can result in a complainant being dragged through years of litigation by their accused perpetrator."***

Nancy Chi Cantalupo, an associate dean and professor at Wayne State University Law School who was the primary drafter of American Bar Association recommendations for improving student misconduct hearings, said social science research suggests the opposite of what the Connecticut Supreme Court found necessary.

"Adversarial proceedings do not result in better fact-finding in these cases," she said. "This assumption that adversarial proceedings are more fundamentally fair — I don't think those are borne out by the research. It's an indication that the court is relying on platitudes that have been unquestioned in the legal system for centuries." She said the presumption favoring cross-examination is rooted in "stereotypes about victims lying."***

Tracy A. Thomas, the Seiberling chair of constitutional law at the University of Akron School of Law, agreed that the opinion might spur colleges to treat sexual misconduct hearings like adjudications.

Some schools may struggle, she said, because many perceive their educational mission as one of guidance and mentorship, not of retribution and punishment. The opinion is "really going to hold the process to a higher standard, more like a judicial standard," she said.

Thomas said the Connecticut decision was "probably the right decision," but she, like many others, feared that it may open the door for unscrupulous defendants or their surrogates to abuse cross-examination techniques.

But getting the process right in the eyes of the courts will protect accusers, she noted. "It actually helps victims," she said. "A good process is good for everybody. It would have helped more facts come out." [And, according to the CT Supreme Court, a quasi-judicial proceeding would have immunized the victim against a defamation claim].