Tuesday, March 29, 2022
New Article: Judging Women Who Kill Their Batterers in the United States: A Violation of Their Right to Equality Before the Law Under the ICCPR
Paulina Lucio Maymon, Judging Women Who Kill Their Batterers in the United States: A Violation of Their Right to Equality Before the Law Under the ICCPR, American University International Law Review, Vol. 37: Iss. 1, Article 3 (2022). Abstract below.
Research suggests that when women commit an offense against another’s life, they often do it in the context of domestic violence. Nevertheless, state and federal courts in the United States continue to ignore or inappropriately consider female defendants’ histories of domestic abuse and trauma in their criminal trials for killing their abusers. Many courts in the United States taint female defendants’ criminal trials by injecting gender biases and stereotypes, which often leads to miscarriages of justice. This Comment argues that the United States has violated female defendants’ rights to equality before the law under article 26 of the International Covenant on Civil and Political Rights (ICCPR) through its courts, which have discriminated against them on the basis of sex in their criminal trials for killing their abusers. National and local statistics and the criminal trials of five women convicted and sentenced for killing their batterers are analyzed to prove this violation. The Comment provides recommendations to prevent future violations and to provide redress to the women whose human rights were infringed. Although this article focuses on the United States, it outlines a pathway for women in other jurisdictions to assert their rights to equality before the law, under the ICCPR, when courts judge them based on myths and stereotypes.
Monday, September 20, 2021
Events on 9/21: ABA Listening Event on White House Gender Policy Council & Get to Know the ABA Commission on Immigration
Two ABA events are being held tomorrow that might be of interest.
First, the ABA Commission on Domestic & Sexual Violence and the White House Gender Policy Council are holding a listening event on the White House’s development of a National Action Plan to End Gender-Based Violence on Tuesday September 21, 2021, at 2:30pm ET.
- Vivian Huelgo (she/hers/ella), Chief Counsel, ABA Commission on Domestic & Sexual Violence
- Professor Andrew King-Ries (he/him), Chair, ABA Commission on Domestic & Sexual Violence
- Rosie Hidalgo (she/hers/ella), Senior Advisor on Gender-Based Violence and Special Assistant to the President, White House Gender Policy Council
- Carrie Bettinger-Lopez (she/hers/ella), Special Advisor, White House Gender Policy Council
To register and for more information on House Gender Policy Council's National Action Plan to End Gender-Based Violence, please visit https://americanbar.zoom.us/webinar/register/WN_FdBlLL-QTJ-KiwYuP7RKaA.
Second, the ABA Commission on Immigration is holding a webinar to present on the Commission’s work both nationally and locally in California and the Commission’s valuable resources available to practitioners on Tuesday September 21, 2021, at 3pm ET. Panelists include:
• Wafa Hoballah, WJH Law Group, APC
• Wendy Wayne, Commission on Immigration Advisory Committee and Director, CPCS Immigration Impact Unit
• Stephanie Baez, Pro Bono Counsel, ABA Commission on Immigration, ABA Commission on Immigration
• Adela Mason, Director, ABA Immigration Justice Project
To register and for more information on the ABA Commission on Immigration event, please visit: https://americanbar.zoom.us/webinar/register/WN_niTbTm-QQIit9RpXSVWD6A.
Sunday, May 2, 2021
Northeastern Law School's Program on Human Rights and the Global Economy (PHRGE) and Domestic Violence Institute have just released a new report that uses human rights standards to evaluate Boston's responses to DV and housing during COVID-19.
From Martha F. Davis, Co-Director of PHRGE, and Co-Editor of this blog:
Boston is a Human Rights City, and we used work of the Special Rapporteurs on Housing and Violence Against Women to inform an evaluation of Boston policies. It's not all bad, but Boston definitely falls short in developing innovative and can improve its efforts to establish effective ways for women to report abuse, to maintain disaggregated data that could help with targeted programs, and to involve those most effected in policymaking. There's much to be gained by adopting a human rights-based approach to these issues as well as drawing from comparative examples.
We hope that this will spur some new thinking and action in Boston, and also serve as a model for similar evaluations in other human rights cities around the country.
Thursday, March 11, 2021
At long last, the announcement that so many were waiting for—with either anticipation or dread. Fewer than 50 days into his administration, President Biden dropped his charge to freshly confirmed Education Secretary Cardonas: review the Title IX regulations that went into effect in May 2020 for their consistency with Title IX. Not as tautological as it may seem, since there are differing views on what Title IX means, what its provisions require, and how its enforcement may legitimately differ, depending on whether it is a court proceeding or an administrative action.
President Biden’s announcement was not a surprise. After all, Senator Biden was the sponsor of the 1994 Violence Against Women Act. Vice-President Biden chaired the 2014-17 White House Task Force to Protect Students from Sexual Assault. And his administration includes the highest ranking woman in American Politics: Vice President Kamala Harris.
Secretary Cardonas has 100 days to make recommendations on what, if anything, needs to be changed. The “if anything” is lawyerly caution. No doubt there will be changes. The post-announcement chatter includes whether the new regulations will be rescinded, with a return the Obama-era guidance, or whether the Biden Administration will put its own stamp on Title IX regulations. The latter would be wise. Although rule-making is time consuming, it is a surer way to go than the Dear Colleague letter guidance that was used in the prior two administrations. Also, the new regulations have much to dislike, but their move away from universities categorizing nearly all employees as mandatory reporters is a wise step. And although this process is very polarized now, perhaps there is a way to craft a product that is neither court-like with court-like protections nor perceived as inherently biased towards the accused. Then both “sides” would be mad and perhaps a good outcome is achieved.
Tuesday, January 26, 2021
After years of demonstrations against gender-based violence. The state of emergency, which will be in effect until June 22, 2022, responds to demands from those who protested increasing and unchallenged gender violence. The demand for a state of emergency was voiced by demonstrators following a rash of killing many women including transgender women and other trans people. One human rights activist said that transgender people were being hunted. "At least 60 direct and indirect femicides were reported in Puerto Rico in 2020, according to the local group Gender Equality Observatory. "
The Governor of Puerto Rico said "Gender violence is a social evil, based on ignorance and attitudes that cannot have space or tolerance in the Puerto Rico that we aspire to. For too long vulnerable victims have suffered the consequences of systematic machismo, inequity, discrimination, lack of education, lack of guidance and above all lack of action."
On a day when President Biden withdrew the ban on military service for transgender people, we are reminded that gender violence is on the rise everywhere. The machismo culture that Governor Pierluisi recognized as the root of gender violence has yet to challenged publicly in the mainland U.S. This machismo culture was on display on January 6th but results in the terrorization primarily of women, LGBTQ+ people, and children.
May the courage of Governor Pierluisi inspire others in the country to declare their own states of emergency to end gender violence.
Thursday, May 14, 2020
Around the globe, governments have implored residents to stay home to protect themselves and others from the new coronavirus disease, COVID-19. But for domestic violence victims—the vast majority of whom are women, children, and LGBTQ+ individuals—home is a dangerous place.
How have lockdowns influenced rates of domestic violence?
Data from many regions already suggests significant increases in domestic violence cases, particularly among marginalized populations. Take for example the Middle East and North Africa, which have the world’s fewest laws protecting women from domestic violence. An analysis by UN Women [PDF] of the gendered impacts of COVID-19 in the Palestinian territories found an increase in gender-based violence, and warned that the pandemic [PDF] will likely disproportionately affect women, exacerbate preexisting gendered risks and vulnerabilities, and widen inequalities. In Latin American countries such as Mexico and Brazil, a spike in calls to hotlines in the past two months suggests an increase in domestic abuse. Meanwhile, a drop in formal complaints in countries such as Chile and Bolivia is likely due to movement restrictions and the inability or hesitance of women to seek help or report through official channels, according to the United Nations and local prosecutors.
In China, police officers in the city of Jingzhou received three times as many domestic violence calls this past February as in the same time in 2019. Some high- and middle-income countries, such as Australia, France, Germany, South Africa, and the United States, have also reported significant increases in reports of domestic violence since the COVID-19 outbreak.
It’s important to remember that domestic violence was a global pandemic long before the COVID-19 outbreak. According to data collected by the United Nations [PDF], 243 million women and girls between the ages of fifteen and forty-nine worldwide were subjected to sexual or physical violence by an intimate partner in the last twelve months. Put a different way, one in three women [PDF] has experienced physical or sexual violence at some point in her life. LGBTQ+ individuals experience similarly high levels of violence.
Today, rising numbers of sick people, growing unemployment, increased anxiety and financial stress, and a scarcity of community resources have set the stage for an exacerbated domestic violence crisis. Many victims find themselves isolated in violent homes, without access to resources or friend and family networks. Abusers could experience heightened financial pressures and stress, increase their consumption of alcohol or drugs, and purchase or hoard guns as an emergency measure. Experts have characterized an “invisible pandemic” of domestic violence during the COVID-19 crisis as a “ticking time bomb” or a “perfect storm.”
What has been the impact on social services for domestic violence victims?
Cities around the world have seen a dramatic increase in the demand for social services and assistance, especially from people in vulnerable conditions who may not legally qualify for social welfare. Meanwhile, social, health, and legal service providers—such as shelters, food banks, legal aid offices, childcare centers, health-care facilities, and rape crisis centers—are overwhelmed and understaffed. Some shelters are full; others have been converted into health facilities.
As prisons have become hotbeds for the spread of COVID-19, some criminal justice authorities are halting arrests and releasing inmates. These are critically important public health measures that should be accompanied by alternative means to prevent and interrupt domestic violence, such as individualized risk assessments, efforts to notify victims of pending inmate releases, and safety-planning support for victims. Unless governments provide sufficient guidance, resources, and training to local authorities, people will continue to be at greater risk of domestic violence.
What can countries do to protect those at risk of domestic violence amid the pandemic?
As the Inter-American Commission on Human Rights and the United Nations have emphasized, countries must incorporate a gender perspective in their responses to the COVID-19 crisis. Several countries and nongovernmental organizations (NGOs) have already taken innovative steps in this direction. New campaigns also use social media to spread awareness of resources available to survivors, including hotlines, text message–based reporting, and mobile applications.
Social distancing has increased people’s reliance on technology and changed the way mental health, legal, and other social services are provided to survivors unable to leave their homes. With disruptions to the criminal justice system, countries have shifted to virtual court hearings, facilitated online methods for obtaining protection orders, and communicated their intentions to continue to provide legal protection to survivors.
Moving forward, it is critical that states support the development of alternative reporting mechanisms; expand shelter options; strengthen the capacity of the security and justice sectors; maintain vital sexual and reproductive health services, where domestic and sexual violence victims are often identified and supported; support independent women’s groups; finance economic security measures for women workers, especially those serving on the front lines of the pandemic or in the informal economy, and other groups disproportionately affected by the pandemic, such as migrant, refugee, homeless, and trans women; and collect comprehensive data on the gendered impact of COVID-19.
How is the pandemic likely to affect long-term progress toward ending domestic violence?
Elected officials and the general public are now more aware of this invisible pandemic than before, and the connection between physical insecurity and economic insecurity is suddenly more tangible for people who might otherwise have been less attuned to domestic violence. There is now a unique opportunity to shine light on the economic dimensions of domestic and gender-based violence, create financial safety valves for victims, and consider public health-oriented, non-carceral approaches that address prevention and root causes.
At the same time, this pandemic has the potential to continue to marginalize domestic violence survivors in dire need of support amid what could become the greatest global economic crisis in modern history. For survivors, particularly those who are marginalized or underserved, the pandemic could reinforce their mistrust in formal systems and alienate them further. Repairing those relationships would be an enormous challenge that would require an overhaul of conventional approaches to prevention, response, and treatment. Governments, NGOs, and the private sector need to incorporate a human rights and gender lens into all of their COVID-19 responses and funding structures to address this new reality.
Renu Nargund contributed to this article which was first written for the Council on Foreign Relations
Wednesday, April 8, 2020
Many articles have surfaced reporting the increase in domestic violence since the beginning of self-quarantine imposed by many countries during the pandemic. Survivors of gender violence have enforced psychological, if not physical, boundaries, dependent upon the whims of the abusive partner. Targets of intimate partner abuse are accustomed to being tracked by their abusers. Constant texting, following, and other surveillance are part of an abused partner's daily routine.
Now many survivors are trapped with their abusers. Because of lockdowns, self-quarantines and other measures designed to prevent the spread of novel coronavirus, many families experiencing abuse are now forced to be with the abuser 24 hours a day. Other additional stressors are unemployment, being with children 24 hours a day, and increased substance abuse. Calls to domestic violence hotlines have increased significantly.
The United Nations asked that countries make the safety of domestic violence survivors a priority and and few have made special accommodations part their response to the pandemic. But how? No country has made anti-domestic violence a priority beyond basic and inadequate resources and certainly have not made significant inroads into changing the cultural acceptance of abuse. Some countries have converted women's shelters into health facilities. Some shelters have introduced measures barring new victims for fear of further spreading the virus. Few replacement shelters have become available during the interim.
Chickens are coming home to roost. Governments have not been aggressive in addressing the root causes of abuse or in providing adequate remedies for those who have experienced intimate partner violence. Advocates are often only able to provide temporary relief to the abused. Legal systems may provide limited relief but are not the answer to a long term solution. The tools needed to provide independence such as sufficient financial support, housing, and education are and always have been in short supply for survivors.
Few tools are available to help under these circumstances. Police can conduct wellness checks. Neighbors can report disturbances. But those measures are stopgap, as well, unless backed up by long term remedies addressed in part above. After years of education and advocacy addressing intimate partner abuse, the current reality is evidence that we have come no closer to eradicating violence from our culture than when we started. How will this inform advocates' next steps?
Monday, November 11, 2019
By now most know of Rapper TI's disclosure that he attends his daughter's annual gynecology exam so that the doctor can perform a "virginity test" and inform TI of the results. When his daughter turned 18 the doctor informed TI and his daughter that the doctor could not give TI the results without his daughter's consent. TI told his daughter to give consent.
But this post is about the US media's coverage of the story. Every major news outlet led the story with a discussion of the physiology of the hymen, noting that a "virginity" test is a myth. Then follows a discussion of the tissue that constitutes the hymen and the ways in which it may be torn, and how hymens do not typically cover the entire vagina. This was the lead part of the story with Fox News, the New York Times, Boston Globe and others. Are we supposed to focus on TI's error and his lack accurate information on vaginas and hymens?
The appropriate lead story is "Rapper TI abuses his daughter by demanding that she be virginity tested each year and that he receive the results." Or "male supremacist believes he has the right to control women's bodies." Women are property and TI was enforcing his ownership rights. TI gave no thought to his daughter's autonomy and privacy. And apparently, neither does the US media.
Tuesday, April 3, 2018
In our third commentary on gun violence and its aftermath, Prof. Margaret Drew notes that the desire for revenge and accountability following mass shootings and other crimes often results in prosecutors charging intimate partners of the shooters.
Noor Salman was punched, verbally degraded and sexually assaulted by her husband throughout her marriage. She was kept under lock and key by her in-laws following her husband's crimes. Ms. Salman had the misfortune to be married to the Pulse Nightclub killer.
If the connection between domestic abuse and mass murder had not been clear at the time of the Pulse nightclub killings, it certainly is undeniable now. To imagine that someone so horribly abused would have an ability to persuade her husband out of his violence, or even have the ability to contact police when under the threat of death herself, defies any understanding of the impact of trauma and specifically the dynamics of intimate partner abuse.
According to the The Intercept, "the underlying phenomenon of abuse-to-criminalization is remarkably commonplace. Almost 80 percent of women who are currently in federal and state prisons were victims of physical or sexual abuse before their incarceration. And the Correctional Association of New York, which has been monitoring New York prisons since 1846, estimates that around 75 percent of incarcerated women have experienced severe abuse at the hands of an intimate partner during adulthood." Ms. Salman is not alone. Victims are charged with the crimes of their abusers more frequently than the public is aware.
Marissa Alexander was convicted in 2012 of aggravated assault for firing a warning shot at her long abusive husband. "There are other situations that lead to charges against abuse victims: Many women are charged with failure to protect their children from their abusive partners, or for failure to report the criminal activity of their abusers to authorities. Others, like Salman, are charged with aiding and abetting their abusers in crimes they didn’t commit themselves. In many of these latter cases, victims face prosecution for felony murder if they were present when abusive partners killed their children, family members, acquaintances, or strangers"
As in the Salman case, charges are often brought even when the perpetrator is dead. Conspiracy laws are used to sweep victims into the law's net for a variety of crimes, when a victim's only act was to cohabit with the perpetrator.
In these instances, prosecutorial discretion was misguided. Rather than investigate and become educated on the dynamics of abuse and the impact of trauma, the prosecutors adopt the same victim blaming stance that historically has kept abused women from receiving adequate help to become independent.
Ms. Salman''s acquittal brings some comfort that judges and juries can sort out the difference between aiding and abetting and entrapment.
But sometimes it is impossible to sort the difference between an uninformed prosecutor and those who callously overreach in the name of the state.
Tuesday, January 17, 2017
Russia has taken the first step to de-criminalize much of domestic violence. The pending bill would de-criminalize acts of abuse that do not result in "serious injury" and would apply not only to intimate partners but to children. Such matters will be treated administratively for first offenses.
The bill was introduced by attorney and member of parliament Yelena Mizulina who in the past has
sponsored anti-gay legislation and other legislation preserving "traditional" family norms. Traditional, of course, should be interpreted as anti-human rights.
While there is no central data base in Russia tracking domestic violence, one source estimates that domestic violence happens in 40% of Russian households with 36,000 women beaten daily by intimate partners. 12,000 Russian women die from domestic violence each year.
Women in the US are experiencing more than a backlash. Women report dramatically increased sexual harassment and sexual assaults post election. This is not a climate where women can expect legal protections to be either maintained or enforced. The incoming U.S. government has expressed admiration for Russia. Will this include promoting and mimicking the pending Russian anti-female legislation? You know how friends can influence friends.
Wednesday, December 28, 2016
New Bedford and Fall River, Massachusetts passed resolutions declaring freedom from domestic violence a fundamental human right.
The resolutions, passed in November, resulted from the work of UMass Law students enrolled in the school's Domestic Violence course. The students did amazing work and were divided into teams, one for Fall River and one for New Bedford. Any professors considering assigning adoption of the DV-HR resolution as a class project, will find the process a beneficial one, as will the students. Students report unexpected results, not the least of which is realizing the benefits of local action on a universal human rights project.
Some student reflections follow:
"My initial understanding of the resolution, specifically why DV should be recognized as a basic human right definitely changed. As we read more and more material, it becomes obvious that although people recognize that DV is bad, attaching a human rights label forces it into the consciousness of a wider group. Instead of being labeled as a family or local problem, it becomes a national and international issue that necessitates action."
"As we began to work on background research for our project, I felt myself becoming more interested and vested in creating the resolution. I had never worked on one prior to this course, so the task still seemed quite daunting to me. Looking back, this experience was not what I was worried it would be. I learned, I changed, and I left the meeting inspired to begin working on a similar resolution for my native city."
"This is one of my favorite projects during my law school career because I feel like we did something that will be beneficial to members of the Fall River and New Bedford communities, now and in the future."
"In order for the communities to stand up and take its rightful place, they must first be aware of the presence of domestic violence in their community and the complexity of the issue. I believe drafting the resolution is definitely taking the right step in the right direction."
Monday, July 18, 2016
The connection between domestic violence and mass public killings has not been overlooked. The New York Times published an article on the topic which opened the conversation. While the article could be read to say that the link is casual and not correlative, the connection is supported by FBI data that 57% of mass killings involved a current or former intimate partner or other family member.
Nashville saw a near elimination of domestic violence murders, when, under the leadership of Officer Mark Wynn, every domestic violence call was addressed through a SWAT team response. From the bottom up, our culture needs to shift its focus to take domestic violence as seriously Nashville did. But that is not our culture. For example, not every state requires the surrender of firearms when a restraining order enters against a defendant. Yet federal law makes it a crime for someone subject to a restraining order to be in possession of firearms. When federal gun laws go unenforced, the state is empowering violent men to do further harm. Violence prevention is not a valued path in the U.S.
The failure of civil society to aggressively and effectively address intimate partner violence does, not coincidentally, lead to broader societal violence. Failure to curb gender violence empowers those who are violent. Violent men often hate women, gays, those of different races and others who do not match their limited sex and identity characteristics. Confusion over what it means to be a "man" is a common thread for those who harm both women and those who are gender different. Think Orlando. Religion can be the disguise these men use to execute their hate. Think ISIS and its culture of sexual violence.
As a culture we do very little to intervene when we see concerning behaviors developing in our young men. Ending violence is directly related to how we raise our boys. Traumatized boys are at risk of becoming violent men. Traumatized men who are not given the medical, psycho-therapeutic and other supports they need become dangerous to themselves and many others. Think police killings. We need to rethink our notions of privacy when it comes to children. What is now considered intrusive will later be fundamental as preventative.
What if we organized the restorative and therapeutic equivalent of a SWAT team? Imagine how effective intervention might be if children were diverted from thoughts and conditions that lead to violence by a team of loving, skilled professionals and community members focused only on providing the specific needs of an at-risk child and the child's caregivers. This may sound Utopian, but until we alter our present system of crisis only intervention for children, we should expect violence to continue in more and more dangerous forms.
Sunday, February 28, 2016
Although Matter of A-R-C-G-, the landmark Board of Immigration Appeals (Board) decision, gave women fleeing domestic violence a pathway to asylum, survivors continue to be routinely denied asylum by immigration judges who interpret the decision narrowly.
To address this problem, the Harvard Law School’s Immigration Refugee Clinical Program, the Center for Gender and Refugee Studies at the University of California Hastings College of Law (CGRS), and a number of prominent NGOs and immigration law experts have encouraged the Board to designate as precedent certain unpublished decisions related to domestic violence-based asylum claims. See Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22(1) SW. J. Int'l L. (forthcoming). The Board publishes only a limited number of decisions per year. For example, last year it published only thirty-five. The Board has sought comments for this request from the lawyers of record of those unpublished cases (including one of the authors of this post), suggesting it is taking this request seriously.
We have seen first-hand the consequences of narrow interpretation of Matter of A-R-C-G- at the IJ level. Catholic Legal Immigration Network, Inc. (CLINIC) referred “Jimena” to us at Cornell Law School’s Asylum and Convention Against Torture Appellate Clinic. Jimena, is a Salvadoran woman who was repeatedly raped, beaten, and stalked by her long-term partner. The severe abuse continued even after their relationship ended and Jimena fled with her children. On several occasions, Jimena’s former partner hunted her down and even managed to find her when she went to Guatemala. Even years after Jimena left, her former partner would appear on her doorstep, attack her, and tell her that she was his property. Jimena obtained a restraining order and called the police numerous times, but her abuser was never arrested. Worse still, the police often refused to intervene, telling her this was a private matter, best resolved between the couple.
Although Jimena’s story was nearly identical to that of A-R-C-G-, the immigration judge declined to grant asylum because Jimena, unlike the respondent in A-R-C-G-, was not married to her abuser. On appeal, the Board held that Jimena still qualified for asylum on the basis of domestic violence, despite being unmarried. The Board decision further clarified that the police’s failure to intervene satisfied the state nexus requirement.
But this decision came after Jimena had already been detained for more than a year. During that time, she was sentenced to solitary confinement for 30 days for a minor infraction (without proper process), which resulted in her near-mental collapse. Because of her distress, she was unable to eat while in solitary confinement. When the guards found her uneaten meals, they threatened to confiscate her clothes and her bed. The idea of having her clothes removed caused her so much anguish that she asked us to withdraw her appeal before the Board. Fortunately, the detention center placed her back with the general population after only a few days, perhaps because they realized the punishment had been overly severe and instituted without proper process. There, in a less-distressed state of mind, Jimena reaffirmed her desire to seek asylum. The Board granted a reinstatement of her case and ultimately granted her asylum. Nevertheless, a woman with a meritorious asylum claim, who faced extreme danger if returned to El Salvador, almost gave up this claim merely because her detention was so prolonged and traumatizing.
We strongly encourage the Board to publish precedent decisions that clarify and extend Matter of A-R-C-G-. Doing so would ensure that women like our client, who have meritorious claims, do not languish in prison-like detention centers because of immigration judges who are reluctant to apply the underlying principles of Matter of A-R-C-G and who instead interpret it as only giving a pathway to asylum for married women from Guatemala. It will also promote judicial efficiency.
While designating more decisions as precedential is essential, to truly secure the pathway for domestic violence-based asylum claims, one of the authors has argued elsewhere that more drastic measures are needed. A solution this author proposes is finalizing the Department of Justice regulations that have been pending since 2001. Carolyn Wald, Does Matter of A-R-C-G- Matter that Much?: Why Domestic Violence Victims Seeking Asylum Need Better Protection, 25 Cornell J.L. & Pub. Pol'y (forthcoming).
The consequences of continuing to allow immigration judges to decide domestic violence-based asylum cases without further guidance is already apparent. It is imperative that something be done to prevent more women with meritorious cases from having to endure lengthy detention while the BIA considers their appeal.
Monday, January 4, 2016
Three Ohio legislators plan on filing a bill that would require women who miscarry or abort to cremate or bury the fetus. Significantly, the drafters made no attempt to appear gender neutral. They have placed the burden for cremation or burial exclusively on mothers. Misogyny undisguised. The legislators gave no thought to the trauma that women can experience when miscarriage occurs. Whether an abortion is spontaneous or planned, many women struggle with the often difficult decisions and emotions that surround both. Disregard toward women is exposed in this bill, as is the assumption that women alone are responsible for their pregnancies.
In what appears to be an unintended offense, the bill ignores the reality for many men, as well. Men often participate with their partners in decision making on whether or not to carry a pregnancy to term. Men also suffer when unwanted miscarriage occurs.
The legislators are not original, however, because Arkansas and Indiana have already passed similar laws. The legislators took up the cause once Attorney General Mike DeWine was proven wrong on his claims around Planned Parenthood's fetal donation program. Searching for a way to keep fetus disposal alive as a political issue, these legislators took up the cause in promoting the cremation or burial scheme. DeWine moved on to claims that Planned Parenthood is disposing of fetus in landfills. Planned Parenthood has had enough. The organization obtained an injunction against DeWine from taking any action to block its fetus disposal.
Perhaps these men are unable to see themselves as part of a global anti-female culture. The New York Times reported on the sexual and other violence against Syrian women refugees as they attempt to make a new life in another country. Women are victims of war in ways that men are not, notably because of the sexual violence they experience. Whether the abuse is sexual, physical or legislative, the ultimate impact, if not one goal, is to remove women's control over their bodies and their lives. It is all one.
Tuesday, November 10, 2015
Prof. Jill Engle reported the following: Joining a growing national movement, the Mayor of State College and the City Council declared Freedom from Domestic Violence a Fundamental Human Right and adopted a declaration that provides chilling statistics on the frequency of domestic violence. One statistic that is particularly disturbing is the range of age- 2o days to 92 years- of those who were killed because of family violence.
Prof. Engle was joined in this endeavor by Courtney Kiehl, a former student and current fellow in the Family Law Clinic directed by Prof. Engle. Courtney gives her personal account of her commitment to the project:
I came to law school because of my experience working with victim-survivors of sexual and domestic violence. I’ve seen cuts, bruises, scars, and fingers that had been broken so many times that the bones would never lay straight again. I’ve seen the emotional impact that goes far past the skin’s surface, the relentless fear, devastation, broken hearts and families. I’ve held the hands of young children as I walked them in to the courtroom and I’ve sat beside them as they testified about the violence they’d seen. For over a decade, this has been my world. I’ve dedicated myself to one mission, one goal: creating a world free from gender-based violence.
On October 12, 2015, that goal moved a little closer when my university town of State College, Pennsylvania joined the growing list of local government bodies across the country that have declared it is a fundamental human right to live free from domestic violence. These proclamations raise awareness and demonstrate support for a new, human rights-based approach to domestic violence. Further, these proclamations highlight the responsibility of local government to address domestic violence while acknowledging the important role they play in keeping their citizens safe.
The human rights proclamation was a policy project started by students in Penn State Law’s Family Law Clinic, where I’m currently doing a fellowship. In 2013 a clinic client, Tracy Raymond Miscavish, was killed by her estranged husband. This project has been deeply important to me and to each student who has worked on it.
During my second year of law school, I was fortunate enough to be a student in the Family Law Clinic
Thursday, October 29, 2015
In 2003, Alabama hairdressers were trained in domestic abuse so that they could assist their clients who found themselves in abusive intimate relationships. The program, a creation of the Women's Fund of Birmingham and the Alabama Coalition Against Domestic Violence, spread across the country thanks to the National Cosmetology Association. Training programs have reached hundreds of volunteer salon workers, training them in how to talk with and help clients experiencing domestic violence. CUT IT OUT Salons Against Domestic Abuse is, according to its website, "dedicated to mobilizing salon professionals and others to fight the epidemic of domestic abuse in communities across the U.S. by building awareness and training salon professionals to recognize warning signs and safely refer clients, colleagues, friends and family to local resources."
Now two Illinois legislators are proposing a law that would require cosmetologists to take mandatory domestic violence training as part of license retention. Setting aside the inadequacy of the proposed one hour of training, the proposed legislation is an interesting example of the soft misogyny addressed earlier this week. What began as a voluntary effort is at risk now of becoming an obligation. And who are the targets of this legislation? Primarily women. Under the law, nail technicians, hairdressers and cosmetologists would be subject to the training. Absent from the list are barbers. Once more the women are given responsibility for addressing what is a predominantly male problem. For every female survivor of abuse who frequents a hair salon, a male survivor or male perpetrator is sitting in the barber's chair.
Could these legislators think of other professionals who should be required to receive domestic violence training? Judges, doctors and lawyers come to mind. Yet, "Say No More", a Chicago organization dedicated to ending domestic violence and sexual assault, supports the bill proving Prof. Dunlap's point that sometimes advocates for survivors fail to anticipate the unintended consequences.
At hearings on the proposal, one lone representative, Chicago City Alderman Willie B. Cochran, attempted to turn the focus to the vital resources needed by survivors. No response was had. Cochran noted the complexity of domestic abuse and the financial and other supports desperately needed by survivors. In a local report of the hearings, writer Phil Kadner said that "Cochran's concerns about providing adequate support for victims of domestic violence should not be ignored. Good intentions are wonderful. But follow-through is essential and often lacking, even when government officials are well-intentioned." Soft misogyny indeed.
Monday, October 26, 2015
Domestic violence "reforms" often have results that even some advocates may not have anticipated at the time of enactment. Others, however, harm survivors of intimate partner abuse and range from patrimony to misogyny. In her new article, Soft Misogyny: The Subtle Perversion of Domestic Violence Reform, Prof. Justine Dunlap examines some of these not so helpful "reforms".
As Prof. Jane Stoever wrote in her article Stories Absent from the Courtroom, "Suggestions for reform must always ask whether a particular policy creates more harm to survivors, greater gender subordination, or other problems, and whether it makes the next step of women’s liberation harder."
For example, the definition and applicable categories of petitioners for abuse prevention orders has expanded well beyond the intimate relationship. Household members, those related by blood and various other categories of individuals may apply for protection under the statutes of many states. The consequence has been to dilute both focus and understanding of the dynamics of intimate partner abuse. The dynamics of one intimate partner abusing another is not the same as two cousins who engage in a fist fight. Both the causes and remedies are different - as is risk. How are we to convince judicial officers of the need to study the special dynamics of intimate partner abuse when a legislature has determined that many different forms of abuse can be addressed in one statute.
Another perversion, and one that appears on the upper end of the misogyny spectrum, is the misinterpretation by civil courts of criminal proceedings. For example, in civil court, a survivor's credibility is often determined on whether or not the survivor prosecuted the criminal domestic violence complaint and, if so, whether or not the defendant was adjudged guilty.
As Dunlap writes: "Another path to understanding these unfortunate consequences relies on something deeper and more challenging: the implicit bias of soft misogyny. There are of course straight-out misogynists, whose hateful screed can be dismissed or laid bare-- pure and simple. But that known hatred is easier to combat, because it is obvious." But the more difficult situations are those created by well-intended people.
The soft misogyny borne of implicit bias will be nigh on impossible to erase. Because it occurs without the conscious awareness of the part of the holder, we must first name it in order to have a chance at erasing it. Once named, an opportunity opens up. By naming it, its presence is made real. By naming it, then talking about it, we can move to a new understanding of its perverse effects. By naming it, perhaps we will create the willingness to listening honestly to survivors, rather than to twist and discount their narratives so that they fit into our (mis)understanding. By naming it, perhaps we create societal ears that can hear and acknowledge the deep roots of intimate partner abuse.
Editors' Note: Prof. Dunlap's article will be published this winter by Seton Hall Law Journal.
Tuesday, July 21, 2015
The killing of five - four marines and one Navy sailor- in Chattanooga was immediately classified as an act of terrorism for purposes of investigation.
The violence certainly was terrorism, but not of the sort government investigators had in mind. Domestic terrorism has long been a favored term of many who advocate against domestic violence. Terrorism was at the root source of the Chattanooga killings.
As described in court documents, Muhammad Youssef Abdulazeez, the shooter who also died, grew up in a home where his father severely abused the mother and abused the children as well. The children were abused directly and also by being in the home when their mother suffered horrific beatings and sexual assault.
CBS news on-line reported that Mr. Abdulazeez' mother filed for divorce in 2009. In court pleadings she stated that "there are five children in the family and her husband, Youssuf Saed Abdulazeez, had repeatedly beaten her, at times in front of them. " Rasmia said on one occasion, she was beaten so severely she fled their home and went to a crisis center. She requested a restraining order and custody of the youngest child. In the documents, Rasmia also stated that she was sexually assaulted by her husband while the children were in the home. The documents allege that, on occasion, Youssuf had also been abusive towards the children, striking and berating them without provocation or justification."
Eliminate violence in the home and the remaining terrorism may disappear.
Friday, July 3, 2015
Ohio v. Clark is a lesser reported, but as significant as any, case decided this Supreme Court term. This case raises concerns regarding an often unprotected class: children.
Three year old L.P.arrived at pre-school with bruises. When his teachers spoke with him, L.P.indicated that his mother’s boyfriend, Clark, hurt him. L.J.’s statements were admitted at trial and Clark was convicted. The fundamental issue before the Court was whether the child’s statements were properly admitted, particularly in light of Crawford v. Washington. In a 9-0 opinion, the Court held that the statements were properly admitted. In doing so, the Court relied on Crawford’s applicability only where statements are testimonial in nature and made for purposes of substituting for live witness testimony. The Crawford test presumes that the speaker is available for trial. “This Court’s decision in Crawford v. Washington, … held that the Confrontation Clause generally prohibits the introduction of 'testimonial' statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A statement qualifies as testimonial if the "primary purpose" of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”
L.P. was deemed unavailable for trial due to his young age. Neither the setting of the questioning nor the reason for the inquiry supported the responses as testimonial in nature. The use of L.P.’s statements at trial was not, then, in violation of the Sixth Amendment’s Confrontation Clause.
The opinion is important because it enhances the ability of the state to protect children through prosecution of their abusers.
However, what is significant for those who represent abused parents is the often judicially ignored connection between abuse of a woman’s children when the mother herself is abused. The Supreme Court implicitly noted the interconnectedness. Justice Alito’s opinion begins: “Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town.” L.P.’s bruises were discovered the very next day.
Forced prostitution is often a tool of intimate partner abuse. Experienced advocates have heard client disclosures of being forced into sex work by the current or former intimate partner. The culture may refer to men such as Clark as “pimp”, but to someone such as L.P.’s mother he is “boyfriend”.
To researchers, the child abuse was predictable. When a mother is abused, the chances that her children will be abused hovers around 50%. Some studies place the risk higher. How heartening it would be for the U.S. Supreme Court to explicitly acknowledge this connection, even in a footnote. Advocates for abused mothers would find their work in family court so much easier if only one SCOTUS case supported the empirical data that family courts so often ignore.
Thursday, June 11, 2015
“Trauma is not random. Its occurrence varies as a function of characteristics of the individual (e.g., racial/ethnic minority or LGBT status), peer relationships (e.g., intimate partner violence), community characteristics (e.g., poor neighborhoods), and socio-political factors (e.g., terrorism, war, and civil unrest). Additionally, these characteristics influence trauma type (e.g., women are more likely than men to be victims of intimate partner violence and unwanted sex). Outcomes of trauma are also not random, and are highly related to characteristics of the individual, peer group support, community, and socio-political factors." These are the findings of a 2014 study on the public health impact of trauma.
Despite living in an era of evidence based planning and decision making, many of our laws continue to employ standards that presume those involved in the legal system are capable of linear, non-traumatized planning and reasoning. Juvenile law is one example. Often system actors approach prosecution and sentencing as if juveniles possessed adult thought capacities. Evidence on juvenile brain development, as well as brain malfunctions following trauma, supports altered reasoning and impulsive actions by juveniles. These conditions are enhanced when the juvenile has been abused. Trying a juvenile in adult court is a scientific absurdity, particularly when the process is applied to traumatized juveniles. The status of the defendant's brain development should drive any decision on prosecution charging and sentencing. But our court systems often make the determination based on the outcome of the crime, not the capacity of the alleged offender.
Similarly judgments are made regarding traumatized adults. Those who have suffered intimate partner abuse frequently are unable to give linear testimony as a consequence of trauma. Yet court actors continue to express frustration with adult witnesses who testify in what is to them an illogical order. Both popular and academic literature describing PTSD is abundant thanks to the post-war difficulties experienced by returning war veterans. The information is readily available to those within the legal system. Yet state actors still expect those who appear before them to behave in a manner that the actor determines conveys credibility, rather than accepting the witness as s/he appears on the trauma scale.
Human rights theories are difficult to argue successfully in these settings. Triers of fact and others often disregard and disrespect traumatized individuals who appear before them. Whether this behavior results from a lack of information or a disregard of literature is irrelevant. The outcome is the assignment of blame to those who have been victimized; and to declare a party not credible based upon the very indicators that prove traumatization. Motivation is not important. State actors cannot understand human rights based legal theories if fundamentally they are unwilling to accept empirical evidence on the impact of trauma. State perpetration of re- traumatization is a violation of fundamental human rights. And it is not random.