Gender and the Law Prof Blog

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

Wednesday, December 4, 2019

A Story of Mediation and Restorative Justice in a Rape Case

My Justice Dream

This past summer, I sat in an eight-hour mediation circle with the man who raped me. My mom and sister also participated as impacted community members. Two mediators held the space and actively worked to safeguard triggers. They asked us only one question: What brought you here today? 

All of this occurred after several months of therapy and extensive education in consent and patriarchy for my assailant. It was the outcome that I fought for.

This was an exercise in restorative justice (RJ)—and my mediation circle marked one of the first times in North America that a sexual assault case in the legal system concluded with one.***

When I was subpoenaed for a criminal trial, I considered dropping the charges completely—but I was still holding onto my justice dream. At the urging of a friend, I began researching ways to make it happen. I connected with an RJ-aligned lawyer, and we called a meeting with the crown; my proposal was met with a condescending assumption that I didn’t understand how bad rape is.

My response? “I believe that rape is so bad that we have to consider alternative options. We know that incarceration often leads to recidivism and that acquittals are too common. Rates of sexual assault are not declining. It’s time to try something different.” Despite the push back from prosecutors aligned with the punitive system, we eventually got a yes.

December 4, 2019 in Courts, Violence Against Women | Permalink | Comments (0)

Monday, November 25, 2019

Book on Domestic Violence "No Visible Bruises," One of NY Times Top 10 Books of 2019

NYT, The 10 Best Books of 2019

NO VISIBLE BRUISES
What We Don’t Know About Domestic Violence Can Kill Us
By Rachel Louise Snyder

Snyder’s thoroughly reported book covers what the World Health Organization has called “a global health problem of epidemic proportions.” In America alone, more than half of all murdered women are killed by a current or former partner; domestic violence cuts across lines of class, religion and race. Snyder debunks pervasive myths (restraining orders are the answer, abusers never change) and writes movingly about the lives (and deaths) of people on both sides of the equation. She doesn’t give easy answers but presents a wealth of information that is its own form of hope.

Full Review: An Epidemic of Violence We Never Discuss

***As Rachel Louise Snyder argues in her powerful new book, domestic violence has reached epidemic proportions in the United States. Fifty women a month are shot and killed by their partners. Domestic violence is the third leading cause of homelessness. And 80 percent of hostage situations involve an abusive partner. Nor is it only a question of physical harm: In some 20 percent of abusive relationships a perpetrator has total control of his victim’s life. (Countries including Britain and France have laws to protect against this kind of abuse, but the United States does not.)

 

A professor of creative writing at American University, Snyder exposes this hidden crisis by combining her own careful analysis with deeply upsetting and thoughtfully told accounts of victims. She rounds out the reporting by interviewing advocates working on the front lines and, even, the abusers themselves.

November 25, 2019 in Books, Violence Against Women | Permalink | Comments (0)

Wednesday, November 20, 2019

SCOTUS Grants Cert in Military Rape Case Regarding the Statute of Limitations

CNN, Supreme Court to Take Up Military Rape Case

The US Supreme Court on Friday accepted a Justice Department appeal to review the cases of three men in the Air Force whose rape convictions were overturned last year -- including one whose confession the Air Force recorded -- when the top military appeals court found a five-year statute of limitations existed for military sexual assault before 2006.

The Supreme Court arguments will be scheduled for next spring and a ruling is likely by the end of June.
This will be the first time the justices consider a sexual assault issue in the #MeToo era, wading into a years-long controversy over how the military addresses sexual misconduct in its ranks as service branches continue to face scrutiny over their lack of progress countering the problem.***
 
At the heart of the dispute is a ruling made last year by the Court of Appeals for the Armed Forces, the military's top appeals court, in a separate alleged rape case called US v. Mangahas.
 
The Mangahas decision prohibited prosecutors from bringing charges for rape that happened before 2006 unless the offense had been reported and charged within five years.
 
The Supreme Court will now interpret whether a five-year statute of limitations or no time limit should exist for the prosecution of military sexual assault for cases between 1986 and 2006.
 

The U.S. Supreme Court has agreed to hear the federal government’s case against a military court ruling that reversed several military rape convictions for crimes committed more than a decade or two ago.

The controversial decision by the U.S. Court of Appeals for the Armed Forces, based on previous court decisions, placed a 5-year time limit on prosecuting crimes of rape that occurred between 1986 and 2006.

The case, United States v. Briggs, is a consolidation of filings named for Air Force Lt. Col. Michael Briggs who, in 2014, was convicted of raping a staff sergeant in 2005. The case came to light after Briggs called the victim in 2013 to confess — a conversation the victim recorded.

“I will always be sorry for raping you,” he told her, according to court documents.

The recording was key to bringing Briggs to trial and he was prosecuted under the assumption that there was no statute of limitations for pursuing rape cases in the military. He was found guilty, sentenced to five months confinement and dismissed from the service.

Years before the Briggs case, the Uniformed Code of Military Justice held that rape was a crime punishable by death and therefore had no time limit for prosecuting the crime. But in 1998, the U.S. Court of Appeals for the Armed Forces, or CAAF, ruled that some rape charges were not punishable by death, and the standard five-year limit for prosecuting most crimes was instated.

In 2006, however, Congress amended Uniformed Code of Military Justice to ensure that the time limit for rape cases was abolished. Briggs’s conviction, as well as others, came after the law was changed.

But in February 2018, the military appeals court affirmed the statute of limitations for cases that occurred in a gray area under the law, from 1986 to 2006.

 
 

November 20, 2019 in Legislation, SCOTUS, Violence Against Women | Permalink | Comments (0)

Wednesday, October 23, 2019

SororityToo: Using Systems Change Theory to Reform High-Risk Greek Life

Tanya Cooper, #SororityToo, Michigan State L. Rev. (forthcoming)

Sexual violence is an epidemic affecting millions of students, and those who participate in collegiate Greek life are especially vulnerable. As social societies bent on secrecy, Greek life hides violence in its midst. Laws and campus policies when accessed offer little help to victims, and often secondarily traumatize them. Publicized scandals on campus and social media campaigns, however, have raised awareness and sparked public outrage against the widespread problem of sexual violence and high-risk Greek life. Systems change theory offers a useful framework to reform high-risk Greek life from many angles: education, reporting, litigation, and collective action of its system actors. Effective strategies exist to create safer Greek organizations for students but without reform, we will continue to jeopardize the education and health of millions of students.

October 23, 2019 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, October 8, 2019

A Feminist Critique of Legal Interventions Against Sexual Violence

Sharon Cowan, Sense and Sensibilities: A Feminist Critique of Legal Interventions Against Sexual Violence" 
Edinburgh Law Review. 23. 22-51, January 2019

Feminists have spent decades trying to reform laws and evidential procedures relating to sexual assault. Using the current Scottish context as a case study, I will argue in this article that while efforts to reform the text of the substantive as well as evidential and procedural aspects of the law have been largely successful, in practice the impact of these reforms has not always been felt. Drawing on contemporary examples from Scotland, and setting these within the broader context of similar problems and arguments in other jurisdictions such as England and Wales, and Canada, I will examine the ways in which the ‘laws on the books’ have not always translated smoothly through to ‘law in action’. Ultimately, I argue that our all too frequent failures to punish sexual violence in a meaningful way suggests that we need to think again about how we deal with issues of sexual violence in contemporary society.

October 8, 2019 in International, Violence Against Women | Permalink | Comments (0)

Tuesday, October 1, 2019

Re-norming Sport to Change a Toxic Culture of Harassment and Abuse

Melissa Breger, Margery Holman & Michelle Guerrero, Re-Norming Sport for Inclusivity: How the Sport Community Has the Potential to Change a Toxic Culture of Harassment and Abuse" 
Journal of Clinical Sport Psychology, 2019, 13, 274–289.

Traditional sport norms and gender-based biases that are prevalent in the sport environment, both explicit and implicit, have contributed to a culture where sexual harassment and abuse is commonplace. This article examines how sport tolerates the development of this culture, and more importantly, how practices and policies can be utilized to transform sport’s culture to one that is inclusive and safe. Reform is needed in attitudes and norms towards gender bias and sexual violence that primarily, but not exclusively, targets girls and women in sport and is perpetrated by boys and men. The application of various theories from psychology is recommended as one strategy to rid sport of both a culture of misogyny and of those who resist change to achieve this objective.

October 1, 2019 in Manliness, Masculinities, Sports, Violence Against Women | Permalink | Comments (0)

Thursday, September 26, 2019

New Books: Stanford Victim from the Brock Turner Case Tells Her Story

NPR, Chanel Miller Says "Know my Name" as She Reflects on her Assault by Brock Turner

Her name is Chanel Miller.

 

For four years, she has been known publicly as Emily Doe, "an unconscious woman" or simply "Brock Turner's victim." In her memoir Know My Name, she wants to set the record straight: "I am a victim, I have no qualms with this word, only with the idea that it is all that I am," she writes. "However, I am not Brock Turner's victim. I am not his anything."

 

In 2015, Miller was sexually assaulted by Turner on Stanford University's campus. Two Swedish graduate students were passing by on bikes and chased Turner off an unconscious Miller. Turner was convicted of three felonies but served only three months of a six-month sentence in county jail. The case became notorious for its illustration of the race and wealth gap in sentencing, and for the stinging eloquence of Miller's victim statement, which went instantly viral when it was published by BuzzFeed.

 

Know My Name is a devastating, immersive memoir of her sexual assault and its aftermath. We live with Miller minute by minute, thinking and feeling with her. At points, particularly during the account of her testimony, it is hard to read it and breathe at the same time.

"Know My Name" A Sexual Assault Survivor Tells the World

“Know My Name” is an act of reclamation. On every page, Miller unflattens herself, returning from Victim or Emily Doe to Chanel, a beloved daughter and sister, whose mother emigrated from China to learn English and become a writer and whose father is a therapist; a girl who was so shy that, in an elementary school play about a safari, she played the grass. Miller reads “Rumi, Woolf, Didion, Wendell Berry, Mary Oliver, Banana Yoshimoto, Miranda July, Chang-rae Lee, Carlos Bulosan.” She rides her bike “through the Baylands … across crunchy salt and pickleweed.” She fosters elderly rescue dogs with names like Butch and Remy and Squid. She rages against a form that identifies “victim’s race” as white. “Never in my life have I checked only white. You cannot note my whiteness without acknowledging I am equal parts Chinese.”

 

“Know My Name” is one woman’s story. But it’s also every woman’s story — the story of a world whose institutions are built to protect men; a world where sexual objectification is ubiquitous and the threat of sexual violence is constant. Before Turner assaulted her, Miller had already survived one act of deadly misogyny near her college, the University of California at Santa Barbara, when Elliot Rodger, a privileged young man enraged that he’d never had a girlfriend, went on a spree and killed six people.

 

After the assault, Miller enrolls in art school in Rhode Island. But the East Coast proves no safer. Walking back from class, “I passed three men sitting on a car who fastened their eyes on my legs, clicked their tongues and smacked their lips, performing the sounds and hand gestures one might use if attempting to summon a cat. … I trained myself to tuck my head down, avoiding eye contact, feigning invisibility.”

 

Miller takes us through the trial, her steadfast, supportive attorney, the humiliation of testifying, her rage when Judge Aaron Persky sentences Turner to just six months in county jail and probation, because a longer sentence would have a “severe impact” on the onetime Olympic hopeful. She quotes Turner’s father’s complaints that “these verdicts have broken and shattered” his son, who can no longer enjoy the rib-eye steaks he once loved. Turner himself says that he wants to “speak out against the college campus drinking culture and the sexual promiscuity.” “He had lived shielded under a roof where the verdict was never accepted, where he would never be held accountable,” Miller writes.

 

And then there was Stanford. “Their apathy, their lack of apology I could live with, but what troubled me most was their failure to ask the single most important question: How do we ensure this does not happen again?

 

Eventually, there’s a hint of justice, a tiny rebalancing of the scales. Judge Persky is recalledTurner’s appeal is denied. Miller writes an incandescent, awesomely angry victim impact statement that blazes across the internet, beginning, “You don’t know me, but you’ve been inside me, and that is why we’re here.” While Turner registers as a sex offender, Miller signs a book contract. She texts her mother a picture of herself in New York City, enjoying a celebratory dessert of grilled peaches. Her mother texts back, “You are mommy’s dream.”

September 26, 2019 in Books, Education, Violence Against Women | Permalink | Comments (0)

Thursday, August 29, 2019

New York Legislation Allows Domestic Violence Victims to Terminate Telephone and Cable Contracts

Governor Cuomo Signs Legislation Requiring Companies to Allow Victims of Domestic Violence to Terminate Contracts Without Penalty

Legislation Allows Victims of Domestic Violence, Who Are Under a Multi-year or Bundled Contract with a Telephone, Cable, or Satellite Company, to Terminate Their Contract Without Penalty

Builds on New York State's Nation-Leading Protections for Victims of Domestic Violence and Sexual Assault

Governor Andrew M. Cuomo today signed legislation (A.5318/S.2356) requiring companies to allow victims of domestic violence, who are fleeing their batterers and have received an order of protection, to terminate their multi-year or bundled contract with a telephone or cable or satellite company at a location they have fled without penalty.

"Survivors of domestic violence should not have to handle the added stress and red tape that comes with contract termination penalties," Governor Cuomo said. "When leaving an abusive environment, a clean break is critical and in New York we will give survivors the resources they need to move onto the next chapter of their lives."

While multi-year contracts with telephone or cable companies offer consumers better price-saving options, the fees to cancel such contracts vary across providers and can be charged to victims of domestic violence who are fleeing their abusers. In many cases of domestic violence, it is necessary for victims to leave behind items of intrinsic and financial value and sever all ties with their offender. By allowing victims, who submit a written claim, to terminate their contracts at a location they have fled without penalty, we are strengthening protections for victims and providing tools to potentially ease the stress and trauma often associated with domestic violence.

August 29, 2019 in Legislation, Violence Against Women | Permalink | Comments (0)

Thursday, August 15, 2019

New Book by Attorney, "Nobody's Victim" on Cases Challenging Title IX Sexual Violence and Revenge Porn

The Lily, Wash. Post, Carrie Goldberg's New Memoir "Nobody's Victim": How Schools Fail Black Girls

The following is an excerpt from attorney Carrie Goldberg’s memoir, “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls,” which comes out Aug. 13. In 2014, Goldberg made a name for herself representing victims of sexual violence — specifically in cases of revenge porn. Her law firm, C.A. Goldberg, PLLC, specializes in handling cases of sexual harassment, sexual assault and blackmail.

 

This excerpt appears in Chapter 4, “Girls’ Lives Matter,” in which Goldberg describes her work with three clients — all middle-school-aged girls of color from New York City. In the chapter, she describes the Title IX complaint she filed with the U.S. Department of Education Office for Civil Rights on behalf of Vanessa, who alleged a classmate sexually assaulted her when she was 13.

 

“When I opened my firm, the idea of representing clients who were still in middle school wasn’t even on my radar,” Goldberg writes. “But by 2018, I’d filed seven Title IX complaints with the U.S. Department of Education Office for Civil Rights, including five on behalf of middle and high school students who were sexually violated by their peers, then shamed and blamed by the school officials who were supposed to be protecting them.”

 

In this excerpt, Goldberg outlines the stories of two other clients and discusses a larger system of bias against black girls and women who report sexual assault.

August 15, 2019 in Books, Education, Media, Violence Against Women | Permalink | Comments (0)

New NY Domestic Violence Law Includes Economic Abuse and the Right to Vote by Mail

Governor Cuomo Signs Legislation Expanding Protections for Victims of Domestic Violence

Governor Andrew M. Cuomo today signed three pieces of legislation expanding protections for victims of domestic violence. These measures broaden the definition of the crime of domestic violence to include forms of economic abuse such as identity theft, grand larceny and coercion (S.2625/ A.5608); give victims the choice to vote by mail-in ballot, even if they remain within the county where they are registered to vote (S.3232-A/A.219); and allow victims to report abuse to any law enforcement agency in New York State, regardless of where the violence originally took place (S.1243/A.4467A).

 

"Domestic violence is a quiet scourge that has the potential to leave lasting trauma on victims," Governor Cuomo said. "By signing these measures into law, we will broaden the legal definition of domestic violence so more abusers are held accountable as well as empower victims to get help faster and provide them a measure of protection from their abuser when they vote."  

August 15, 2019 in Legislation, Violence Against Women | Permalink | Comments (0)

Tuesday, August 13, 2019

ABA Postpones Contentious Debate Over Affirmative Consent Law

Contentious Resolution Seeking to Redefine Consent in Sexual Assault Cases is Postponed

The ABA House of Delegates has postponed indefinitely a resolution that would call on legislatures and courts to redefine the consent standard in sexual assault cases, after contentious debate Monday at the ABA Annual Meeting in San Francisco.

 

Resolution 114 was sponsored by the Commission on Domestic and Sexual Violence and Civil Rights and Social Justice Section and asked legislatures and courts “to define consent in sexual assault cases as the consent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, provided that nothing herein changes the Constitutionally-guaranteed presumption of innocence, or the burden of proof, which at all times remains on the prosecution to prove every element of an offense, including without limitation lack of consent, beyond a reasonable doubt.”

 

The resolution built on an earlier Resolution 115, which was adopted at the ABA Midyear Meeting in January to oppose placing upon victims of sexual assault the legal burden of demonstrating resistance to the assault.

 

The Criminal Justice Section was originally a sponsor of the resolution, but withdrew its co-sponsorship and filed the motion to postpone the resolution indefinitely.

 

Mark Schickman, chair of the Commission on Domestic and Sexual Violence, spoke in support of the resolution. He said his commission first proposed the resolution at the Midyear Meeting in Las Vegas in January, but agreed to spend more time working on its language with the Criminal Justice Section. The two groups worked together on the resolution and the accompanying report over the past few months.

 

However, Schickman said, in recent weeks, criminal defense lawyers criticized the resolution, saying it attempted to eliminate defendants’ presumption of innocence in sexual assault cases and move the burden of proof to the defense.

 

The resolution was amended to address these concerns the day before the House of Delegates meeting, Schickman said.

 

“I am asking of you today that you not focus simply on the human experience that you see today, which doesn’t stop to ask for consent, which doesn’t wait to see if there is consent,” he said. “I ask you to do what is right.”

 

Neal Sonnett, a past chair of the Criminal Justice Section, told the House of Delegates that his section agreed to work with the Commission on Domestic and Sexual Violence on the resolution. Even though there was some dissent, its council voted to approve and co-sponsor the resolution.

 

It wasn’t until later that Criminal Justice Section leadership realized they hadn’t paid enough attention to the “far-reaching implications of this resolution,” Sonnett said.

 

“This is a new paradigm,” he said. “This changes the law entirely with respect to sexual behavior.”

August 13, 2019 in Legislation, Violence Against Women | Permalink | Comments (0)

Feminist Law Professors Critique Title IX and Domestic Violence Law

Chronicle, The Revolt of the Feminist Law Professors

 In the fall of 2011, the Department of Education’s Office for Civil Rights issued informal, non-binding guidance on how colleges should treat claims of sexual assault and harassment in a document now referred to as the Dear Colleague letter. It was accompanied by public claims of an ongoing crisis of sexual violence on universities made by President Barack Obama and Vice President Joe Biden. In 2014, Gersen and three of her colleagues — Elizabeth Bartholet, Janet Halley, and Nancy Gertner — led a contingent of their peers in calling out the system of investigation and adjudication that emerged during the Obama years as “so unfair as to be truly shocking.” The four were joined by 24 of their Harvard Law colleagues in an open letter published in The Boston Globe decrying Obama’s Title IX recommendations as “overwhelmingly stacked against the accused.”

 

In a statement called “Fairness for All Students Under Title IX,”  jointly authored with Halley, Bartholet, and Gertner, Gersen noted that at many colleges, investigators are trained to start by believing the complainant. Many schools would “improperly house the functions of investigation and adjudication” in the same office, with “strong incentives” to keep the schools in the Office for Civil Rights’ “good graces.” “Some schools,” they wrote, “allow appeals only on very narrow grounds such as new evidence or procedural error, providing no meaningful check on the initial decisionmaker.” The evidentiary threshold required was the lowest one, the “preponderance of the evidence” standard, meaning anything greater than 50 percent certainty should yield a finding of wrongdoing. 

August 13, 2019 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Wednesday, July 31, 2019

ALI Podcast: Why is Defining Consent so Difficult?

Why Is Defining Consent So Difficult?

Consent is a concept at the center of criminal law and sexual assault. So, why is it so difficult to accurately define? In this episode, two experts on the topic, Criminal Law Professor Aya Gruber and Equitas Co-Founder and CEO Jennifer Long, discuss and debate the potential for success and failure of implementing an “affirmative consent” requirement, how we now understand that there is no expected behavior during or after a sexual assault, and how important is to treat every case individually.

July 31, 2019 in Theory, Violence Against Women | Permalink | Comments (0)

Law Professor Refutes False Claims that New York's Reproductive Healthcare Act Increases Domestic Violence

Julie Goldscheid,  National Advocates for Pregnant Women Issued a Statement Challenging False Claims Linking Laws Criminalizing Abortion and Related Feticide Laws with Protecting Women from Violence 

Some reports following New York’s passage of the Reproductive Health Act (RHA) asserted that the RHA somehow increases the risk of gender violence. NAPW and Professor Julie Goldscheid (CUNY Law School) authored a statement challenging those claims, and other false claims linking laws criminalizing abortion and related feticide laws with protection of women from violence.

 

Claims that laws such as the RHA pose a threat to women’s safety, and that laws criminalizing abortion somehow protect people from gender violence are dangerous and totally unfounded. We write to speak out against gender violence in all its forms and to oppose false claims about criminal abortion laws that distract attention from real threats to life and health. 

We call for laws and policies based on evidence-based research and urge all those who are truly concerned with preventing intimate partner and other forms of gender violence to oppose laws that can be used to criminalize people for seeking to control their bodies and their lives. Instead, they should support universal health care and other needed services for everyone, including survivors.

July 31, 2019 in Abortion, Violence Against Women | Permalink | Comments (0)

Monday, July 29, 2019

ALI Podcast: Distinguishing Consent and Sexual Assault in Criminal Versus Tort Law

ALI Podcast, Consent and Sexual Assault in Criminal v. Tort Law

From start to finish, criminal and tort cases differ in many ways, including how a case is initiated, in which court it is heard and decided, standards of proof, and the consequence if the defendant is found liable (punishment if defendant is convicted of a crime; payment of money damages if defendant is liable for a tort). In this episode, NYU Law’s Erin Murphy and UC Irvine Law’s Ken Simons explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations.

July 29, 2019 in Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, July 23, 2019

Recognizing Gender-Based Domestic Violence as Meriting Asylum from Nongovernmental Actors

Kaci Bishop,"Unconventional Actors," North Carolina J. International L. L & Commercial Regulation (2019) 

Asylum cases involving domestic violence or gang-related violence already had high burdens to overcome, but in the summer of 2018, their underlying theories were inverted and pulled out from underneath them with Matter of A-B-. The case involved a woman who had sought asylum in the United States for persecution by her ex-husband on account of her being a member of the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Matter of A-B- narrowed the possible protected grounds for asylum and overruled BIA precedent that recognized certain survivors of gender-based domestic violence as meriting asylum. This decision also departed from precedent to severely restrict who would be recognized as persecutors.

United States’ asylum law was originally designed to protect against persecution committed by a government actor. However, it has long included that someone fleeing harm by a nongovernment actor could be granted asylum, assuming she met the other elements of asylum, if she could demonstrate that her home country’s government was unable or unwilling to protect her from this nongovernmental harm. Matter of A-B- purportedly raised that “unable or unwilling” standard to require that a government had “condoned” the nongovernmental or private harm or had demonstrated a “complete helplessness” to protect against it.

This Article challenges Matter of A-B-’s claims and suggests ways to demonstrate when actions and harms by nongovernment actors are not individual private crimes but products of systemic and cultural norms that are at the very least tolerated by the home country’s government. A central question in evaluating whether a government was unable or unwilling to control a nongovernment actor is whether the nongovernment actor has some de facto power of the state. For applicants, advocates, and adjudicators to analyze when a nongovernment actor has some de facto state power, this Article provides a robust set of factors to evaluate both when a nongovernment actor has usurped that power and when the government delegated or abdicated that power.

July 23, 2019 in Gender, International, Violence Against Women | Permalink | Comments (0)

Monday, February 18, 2019

A Critique of the Trump Administration's Proposed Standard of Evidence for Campus Title IX Proceedings

William Kidder, (En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings 

Prevention of sexual assault and sexual harassment are major challenges at U.S. colleges and universities today. In recent years a vigorous law and policy debate emerged within the higher education community about Title IX and whether the “preponderance of evidence” or “clear and convincing” evidence represents the more appropriate standard of evidence in campus sexual violence and sexual harassment disciplinary procedures. During the Obama administration the Office for Civil Rights in the U.S. Department of Education issued a 2011 “Dear Colleague” letter recognizing that the preponderance of evidence standard was the appropriate standard for Title IX investigations. The Trump administration's Office for Civil Rights rescinded this earlier guidance and in November 2018 issued a notice of proposed rulemaking regarding Title IX regulations. The new proposed regulation reflects a “you can have more discretion, if you rachet up” policy: a college can only use the preponderance of evidence standard if it adopts that same standard across-the-board in similarly serious non-Title IX student misconduct cases and in both Title IX and non-Title IX cases where the accused/respondent is a faculty member or employee. If a campus chooses to adopt the clear and convincing evidence standard in Title IX cases, the proposed regulation would not restrict campus discretion in non-Title IX student cases.

While the relationship between the burden of proof and outcomes is complicated and dynamic, the main tendency if campuses were to shift to the clear and convincing evidence standard in Title IX adjudications would likely be a net decrease in accuracy because the rise in “false negative” errors (student or employee commits sexual misconduct but is found not responsible) would outnumber the corresponding decrease in “false positive” errors. By implication, a shift to the clear and convincing standard would also make it more difficult – other things being equal – for campuses to impose disciplinary accountability in cases of serial sexual misconduct and serial sexual harassment.

This article also aims to inform the debate about Title IX and faculty and student disciplinary cases by objectively identifying whether the preponderance of evidence or clear and convincing evidence standard is used in most domains that are reasonably analogous to faculty Title IX-related misconduct proceedings (a more stringent test than looking only at student-to-student Title IX cases). This review includes U.S. federal civil rights adjudications, faculty research misconduct cases linked to federal research grants, civil anti-fraud proceedings, attorney debarment/discipline cases and physician misconduct/license cases. In a large majority of these areas, preponderance of evidence is used as the standard of evidence. This pattern highlights concerns about the Office for Civil Rights selectively referencing cases that support its proposed Title IX regulation and questionable claims about the clear and convincing evidence standard and stigma. This article also raises questions, depending on how the notice-and-comment process unfolds, about the proposed Title IX regulation and the Administrative Procedure Act.

February 18, 2019 in Education, Violence Against Women | Permalink | Comments (0)

Thursday, February 7, 2019

Harvard Law Professors Comment on Proposed Title IX Rulemaking, Agreeing and Objecting in Part

Jeannie Suk Gersen, Nancy Gertner & Janet Halley, Comment on Proposed Title IX Rulemaking 

Jeannie Suk Gersen, Nancy Gertner, and Janet Halley, professors at Harvard Law School, have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement. The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.” They argue that “sanctions for sexual harassment should apply only under a clear definition of wrongful conduct and after a process that is fair to all parties.” With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others.

The authors agree (with some suggested amendments) with the Rule’s treatment of the burden of proof, the rejection of the single-investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants. The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant: the inquiry there should be refocused on the threat of harm and take into account the complainants’ as well as the respondents’ interests. The three professors say that they “strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.”

Gersen, Gertner and Halley have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were three of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”

February 7, 2019 in Education, Violence Against Women | Permalink | Comments (0)

Thursday, January 24, 2019

UK Proposes Changes to Domestic Abuse Laws to Include Mental and Economic Abuse

Domestic Abuse: Non-Physical and Economic Abuse Included in Law

Non-physical and economic abuse are to be included in the first legal definition of domestic abuse as part of a landmark overhaul of the law.

 

Under the draft laws, a wide range of measures will also include domestic abusers being banned from cross-examining victims in family courts.

 

The home secretary said the changes would "bolster protection for victims".

 

Campaigners say the measures are a "once in a generation" opportunity to combat the impact of abuse.

 

Dr Nicola Sharp-Jeffs, the director of the charity Surviving Economic Abuse, said adding economic abuse to the legal definition was "highly significant" and would give victims "more confidence" when they came forward.

 

The draft bill going before MPs will also:

    Create new powers to force perpetrators into behaviour-changing rehabilitation programmes
    Make victims automatically eligible for special protections when they are giving evidence in criminal trials
   Set up a national "domestic abuse commissioner" tasked with improving the response and support for victims across public services

 

The definition of domestic abuse will specifically recognise that it goes beyond crimes of violence and includes victims who are psychologically coerced and manipulated, as well as those who have no control of their finances.

 

The legislation will also clarify the workings of "Clare's Law" - a measure introduced four years ago to permit police to tell a member of the public if there are concerns over about previous violence committed by their partner.

January 24, 2019 in International, Violence Against Women | Permalink | Comments (0)

Dept of Justice Quietly Changed the Legal Definition of Domestic Violence

Natalie Nanasi, The Trump Administration Quietly Changed the Definition of Domestic Violence and We Have No Idea What For

Without fanfare or even notice, the Department of Justice’s Office on Violence Against Women made significant changes to its definition of domestic violence in April. The Obama-era definition was expansive, vetted by experts including the National Center for Victims of Crime and the National Domestic Violence Hotline. The Trump administration’s definition is substantially more limited and less informed, effectively denying the experiences of victims of abuse by attempting to cast domestic violence as an exclusively criminal concern.

 

The previous definition included critical components of the phenomenon that experts recognize as domestic abuse—a pattern of deliberate behavior, the dynamics of power and control, and behaviors that encompass physical or sexual violence as well as forms of emotional, economic, or psychological abuse. But in the Trump Justice Department, onlyharms that constitute a felony or misdemeanor crime may be called domestic violence. So, for example, a woman whose partner isolates her from her family and friends, monitors her every move, belittles and berates her, or denies her access to money to support herself and her children is not a victim of domestic violence in the eyes of Trump’s Department of Justice. This makes no sense for an office charged with funding and implementing solutions to the problem of domestic violence rather than merely prosecuting individual abusers.

January 24, 2019 in Violence Against Women | Permalink | Comments (0)