Monday, June 17, 2024

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.

June 17, 2024 in Abortion, Equal Employment, Family, Violence Against Women, Workplace | Permalink | Comments (0)

Wednesday, May 1, 2024

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.

 

May 1, 2024 in International, Violence Against Women | Permalink | Comments (0)

Thursday, April 25, 2024

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.

April 25, 2024 in Family, Violence Against Women | Permalink | Comments (0)

Wednesday, March 13, 2024

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.

March 13, 2024 in Theory, Violence Against Women | Permalink | Comments (0)

Monday, March 11, 2024

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.

March 11, 2024 in Courts, Violence Against Women, Work/life | Permalink | Comments (0)

Tuesday, January 9, 2024

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.

January 9, 2024 in Technology, Violence Against Women | Permalink | Comments (0)

Monday, December 11, 2023

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.

December 11, 2023 in Violence Against Women | Permalink | Comments (0)

Monday, December 4, 2023

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

December 4, 2023 in Courts, Gender, Healthcare, Violence Against Women | Permalink | Comments (0)

Thursday, October 19, 2023

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.

October 19, 2023 in Family, Gender, Violence Against Women | Permalink | Comments (0)

Wednesday, October 18, 2023

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.

October 18, 2023 in Abortion, Education, Reproductive Rights, Theory, Violence Against Women | Permalink | Comments (0)

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.

October 18, 2023 in Courts, Theory, Violence Against Women | Permalink | Comments (0)

Thursday, October 12, 2023

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.

October 12, 2023 in Theory, Violence Against Women | Permalink | Comments (0)

Monday, October 2, 2023

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.

October 2, 2023 in Gender, Masculinities, Theory, Violence Against Women | Permalink | Comments (0)

Thursday, September 28, 2023

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.

September 28, 2023 in Education, Theory, Violence Against Women | Permalink | Comments (0)

Tuesday, September 26, 2023

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.

September 26, 2023 in Constitutional, Legal History, SCOTUS, Violence Against Women | Permalink | Comments (0)

Monday, September 18, 2023

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

September 18, 2023 in Courts, Gender, Judges, Violence Against Women | Permalink | Comments (0)

Monday, September 4, 2023

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.

September 4, 2023 in Theory, Violence Against Women | Permalink | Comments (0)

Wednesday, August 23, 2023

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.

August 23, 2023 in Violence Against Women | Permalink | Comments (0)

Friday, August 18, 2023

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.

August 18, 2023 in Violence Against Women | Permalink | Comments (0)

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.

August 18, 2023 in Theory, Violence Against Women | Permalink | Comments (0)