Monday, February 29, 2016
On Wednesday when the Supreme Court hears oral argument in Whole Woman’s Health v. Hellerstedt, its first major abortion case in several years, Justice Scalia, the Court’s biggest opponent to abortion and international and foreign law will be missing. The Court is set to consider whether a Texas law that would shut down 75% of the state’s abortion clinics and leave vast swaths of the state without a legal abortion provider imposes an undue burden on women’s access to abortion. International human rights law could provide a useful perspective to aid the Court in its deliberations if the newly constituted Court is open to considering it.
As recognized in a recent post on this blog, around the world reproductive rights are recognized as an integral part of, and necessary pre-condition for, gender equality. The Supreme Court invoked equality values to support its Due Process analysis in Planned Parenthood v. Casey but has stopped short of adopting the Equal Protection clause as an independent basis for affirming women’s right to abortion. International law could help further develop and expand the Court’s equality analysis.
But, even if the Court continues to rely on the Due Process clause as the main source of women’s right to abortion, as set forth in an amicus brief submitted by the National Latina Institute for Reproductive Health (NLIRH) that CUNY Law School’s International Women’s Human Rights Clinic co-authored with NLIRH attorneys and Freshfields Bruckhaus Deringer, there are several ways that international law can provide helpful insights to inform the Court’s analysis.
Rights can’t just be theoretical. At the heart of Whole Woman’s Health is Texas’s argument that it may pass laws that shut down medical facilities that legally provide abortion without unduly burdening women’s access to abortion. The European Court of Human Rights and other human rights bodies have emphasized that where a country recognizes that a woman has a right to an abortion, it must ensure that the right can be meaningfully exercised. For instance in R.R. v. Poland, the European Court stated that when a state allows abortion in some situations “it must not structure its legal framework in a way which would limit real possibilities to obtain [an abortion].”
The Court must consider those most adversely affected. Human rights law emphasizes that the experience of the most marginalized populations should be at the center of determining whether laws violate human rights. The forced clinic closures will impose long waits for appointments, lengthy and expensive travel, including overnight stays, and increased costs for many Texas women seeking abortions. These barriers will have the greatest impact on women without the means or ability to travel. NLIRH’s brief describes the experience of Latina women working low wage jobs and in school - many of whom are mothers - who do not have access to cars, days off, child care or financial resources. Immigrant women and women in domestic violence situations will be particularly impacted because of the challenges they already face in traveling outside their communities. In determining whether the Texas law imposes an undue burden, the Court should consider the law’s impact on these women.
Impact of lack of clinical abortion services on women’s health: Another important factor for the Court to consider is the impact that the Texas law will have on women’s health. Around the world, it is well documented that when women do not have access to legal abortion services, the rate of unsupervised and unsafe abortion rises. As a result, international human rights bodies have warned that restrictive abortion laws lead to “unsafe, illegal abortions, with attendant risks to life and health.” Consistent with international experience, recent studies have found that self-induction in Texas is likely to increase if the law goes into effect and that Latinas living near the Mexico border and poor women facing barriers to reproductive health care are most likely to be affected.
Sunday, February 21, 2016
By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
Women in the United States have strived for, and achieved, equality in many areas, and have rights and freedoms unparalleled in many countries around the world. However, despite an array of legal protections, women continue to face barriers to equality.
The ways that human rights might level the playing field was the focus of the recent visit of the U.N. Working Group on discrimination against women in law and practice. The Group spent two weeks in the U.S., meeting with government representatives, lawyers, and advocates in Washington, D.C., Alabama, Texas, and Oregon. The Working Group’s conclusion: the United States “lags behind” human rights standards in protecting women’s rights. As the Working Group opined “[t]here is a myth that women already enjoy all these rights and protections under U.S. law. However, there are missing rights and protections.”
One area where the Working Group was taken aback was the degree of U.S. workplace hostility to women workers, particularly when it comes to pregnant workers and workers with caregiving responsibilities. And rightly so. There are significant gaps in protections in the arenas of gender pay equity, workplace accommodations for pregnancy, and paid leave, among others.
What does the lack of legal protection mean for American women? The answer depends, in part, on where you live.
Alabama, one of the states visited by the Working Group, demonstrates some of the harshest challenges facing women – it ranks 48th nationally with respect to support services for working parents, making it one of the worst states in which to be a caregiver of children. In Alabama, women are paid 73 cents for every dollar paid to men, with a yearly wage gap of $12,109. For women of color in Alabama, the disparity is even greater, as black women earn 57 cents for every dollar that white men make, while Latina women earn less than 41 cents.
Alabama has no state level protection requiring employers to provide accommodations for pregnant women in the workplace so that they can remain employed. Employers do not have to allow pregnant workers to carry around a water bottle or sit down when needed, for example, and can push these workers out on leave rather than allow them to work through their pregnancies. As a result of the lack of policies that ensure common sense pregnancy accommodations, pregnant women are exceptionally vulnerable to discriminatory treatment by their employers. In many cases, women in Alabama and around the country are forced to choose between a paycheck and a healthy pregnancy. With infant mortality rates above the national average in Alabama, and maternal mortality rates on the rise in the rural South, there is an urgent need for policies to ensure that pregnant workers can maintain their health.
Of course, these challenges do not end at the conclusion of pregnancy. Women with children continue to face myriad challenges in balancing workplace responsibilities and caregiving.
The U.S. is the only industrialized country that fails to ensure workers are provided paid parental leave. This is not just a global embarrassment. It is the reason that only 12 per cent of the private sector workforce is eligible for paid family leave, offered voluntarily by their employer. Yes, that means the majority of working women do not have access to paid family leave when they have a baby. This has real and tangible psychological, physical, emotional, and economic consequences.
The U.S. also fails to provide paid leave to care for ill family members and there is no national guarantee of paid sick time. Nationally, upwards of 40 million workers are not entitled to a single paid sick day, and 38 per cent of employees in the private sector have no paid sick time. In Alabama, which lacks any sick time protections, 44.6 per cent of private sector employees (more than 670,000 workers) have no ability to earn paid sick time. There are also significant implications for the approximately 700,000 children who live in families in which both parents work, or in single-parent households.
In many states, like Alabama, existing protections are a far cry from human rights standards. Yet there are cities and states that are working hard to make progress.
Human rights call for equal pay for men and women; for maternity leave with pay; for policies that enable parents to balance family obligations with work responsibilities; as well as for special workplace protections for pregnant women. These protections are laid out in CEDAW, the comprehensive treaty on women’s rights. International human rights experts have also specifically called on the U.S. to introduce paid parental leave and to address the pay gap.
There is cause for optimism that the U.S. is moving in the right direction. In the absence of federal movement on paid family leave, paid sick time, and pregnancy accommodations, three U.S. states have enacted legislation requiring employers to provide paid family leave insurance to their workersNew York began to offer paid parental leave to non-union city employees, four states, the District of Columbia, and twenty localities now have paid sick time laws insuring a minimal amount of paid sick time to most workers, and sixteen states, the District of Columbia, and four localities have protections that offer at least some accommodations for pregnant workers. Obama has used his executive authority to make incremental improvements, including by fostering transparency in wages.
These are positive steps, but further action is needed at the state and federal level. Federal legislation that has been introduced such as the Paycheck Fairness Act, the Pregnant Workers Fairness Act, the Schedules that Work Act, the FAMILY Act, and the Healthy Families Act would contribute to gender equality for working women and provide better support for families. If enacted, these laws would bring the U.S. much closer to human rights standards for fair treatment in the workplace. Standards that offer stronger support for women, children, and families.
Editors' Note: This post is based on a piece that originally appeared on HuffingtonPost, co-authored by JoAnn Kamuf Ward and Hillary Scrivani, the Kennedy Fellow at A Better Balance. A Better Balance and the Columbia Law School Human Rights Clinic drafted this submission to the U.N. Working Group.
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.
Friday, December 11, 2015
Following up on Cindy Soohoo's post earlier this week, this post examines the ongoing denial of autonomy to women. The denial is promoted by the federal and state governments.
In yesterday's post, Prof. Soohoo mentioned a particularly brave abortion provider in Alabama. This past week, representatives of the Working Group on Discrimination Against Women in Law and Practice visited Birmingham. As reported by Amy Yurkanin, Committee members made the stop to explore abortion restriction, criminalization of drug use during pregnancy and restrictions on contraception.
The committee noted that women are denied access to reproductive choice not by directly outlawing abortion, but by making access so restrictive as to create virtual abortion bans. Yurkanin quoted Frances Raday of Israel saying "America looks as though it is joining the regional plague. They are doing it by making abortion not accessible instead of illegal." This term, the Supreme Court will address restrictions that lead to abortion clinic closures in the case of Whole Woman's Health v. Cole.
As Yurkanin further reported, "Lucia Hermo of the ACLU of Alabama described the laws that have been passed to restrict abortion, including one that would assign lawyers to the fetuses of pregnant teens seeking abortion without parental consent. That law is under review by a federal judge." While Alabama seems eager to appoint counsel for a fetus an underage teen seeks to have an abortion, should that child be born, the state will not provide counsel for either the child or the child's mother when protection from an abusive father is sought or when the child is in the middle of custody dispute.
The widely accepted substitution of the medically correct term "fetus" for "unborn child" has created the climate where state prosecutors manipulate laws designed to protect living children into tools of female prosecution. Both Tennessee and Alabama are enforcing their chemical endangerment of a child statutes by arresting and prosecuting women who use drugs during pregnancy. In Wisconsin, a similar law has been in effect since 1998, and is used in cases where pregnant women with a history of drug use are arrested and confined against their will. In a phrase that rejects treating all with dignity, those women are referred to as "cocaine moms." The enforcement against pregnant women discourages them from disclosing past drug use and seeking help for current addictions.
We have sanitized the discussion. Many hold sincere religious beliefs that are the source of their moral opposition to abortion. But those beliefs do not justify laws that result in disparate gender impact and does not excuse legislators who lack the courage to oppose legislation based in the promotion and imposition of those beliefs. Likewise, community religious beliefs do not eliminate the obligation of lawyers and judges to begin any analysis with the gender discriminatory impact of laws that purport to promote health. Reproductive rights restrictions and other legislation targeted toward women, and in particular mothers, are not gender neutral and must be redefined in the broader framework of the ongoing oppression of women. Any other rationale is a disguise.
Tuesday, December 8, 2015
Has anti-choice propaganda led to an increase in violence and attacks on abortion clinics? Following last week’s tragic attack on the Colorado Springs Planned Parenthood, the news has focused on the impact of videos released by the Center for Medical Progress and political rhetoric targeting Planned Parenthood. Meanwhile, the New York Times and Washington Post have published pieces trying to figure out what motivated Robert Dear, Jr.
But, regardless of how the media depicts this latest act of violence, it’s clear that there’s a long and well-documented history of attacks on abortion clinics and providers. The Colorado shooting should remind us of the dedication and bravery of abortion providers who daily face intimidation, threats and harassment designed to prevent women from accessing health services and rob them of their right to make their own reproductive rights decisions. For their work, abortion providers are often stigmatized, but they should be acknowledged as human rights defenders.
In an op ed in the New York Times, Dr. Willie Parker describes how he gave up his OB practice in Chicago and moved to Alabama to provide abortions full-time. He explains “[i]n public health, you go where the crisis is. If there is an outbreak and you have the ability to relieve suffering, you rush to the site of the need. This is why, a year and a half ago, I returned to my hometown, Birmingham, Ala., to provide abortions.”
Despite physical threats and threats to their livelihood, abortion providers remain committed to providing care to women. A recent article in Rolling Stone profiled a doctor who was bombarded with harassing calls and “veiled threats online (‘I wonder if someone will shoot the new provider...’).” She eventually gave up her family medicine practice after anti-choice activists picketed her practice and pressured the building where the practice was located. “I wasn't about to let awful tactics like that work, because that would just encourage them to keep doing that to others. So the ultimate effect was that I became a full-time provider of abortion care.”
Mother Jones describes the heroic efforts of abortion providers to keep clinics open in the face of new and frequently arbitrary requirements and regulations imposed on them by anti-choice legislatures each year. And Pro Publica describes the constant barrage of personalized harassment providers face, including picketing of private homes and the targeting of families for harassment. To avoid harassment and threats of violence, providers register their homes in their spouses’ names; they change their path to work; they buy bullet-proof vests. All to ensure that women are able to make their own reproductive health decisions.
The international community has recognized that medial and health services professionals are human rights defenders when they provide services to ensure that women can exercise their reproductive health rights. In 2010 the Special Rapporteur on Human Rights Defenders, a U.N. human rights expert who monitors and speaks out about attacks on human rights defenders, stated that “[i]n certain countries . . . health professionals, as a result of their work, are regularly targeted and suffer harassment, intimidation and physical violence.” The report recognizes that attacks have led to “killings and attempted killings of medical professionals.”
Last month, the Special Rapporteur on Human Rights Defenders, joined by five other human rights experts, issued a statement emphasizing the need to protect sexual and reproductive rights defenders in the Americas. The statement recognized that sexual and reproductive rights defenders “face the same risks as many other activists, but they are further exposed to retaliation and violence because they challenge power structures based on patriarchy and deeply-held gender stereotypes about the role of women in society.”
For their commitment to women’s rights and the challenges that they face to provide services, abortion providers should be recognized as human rights defenders. Let’s change the dialogue and recognize them as the heroes they are.
Wednesday, October 14, 2015
Last week, the Nuestro Texas campaign—a joint project of the Center for Reproductive Rights and the National Latina Institute for Reproductive Health—issued a report documenting a women’s human rights hearing held last March in the Rio Grande Valley. Lately, Texas has made front-page headlines because a challenge to HB 2 a Texas abortion statute is making its way to the Supreme Court. Abortion access was very much an issue at the hearing, but the testimony made it clear that the human rights problems in the Valley are much broader and deeper.
I served as an expert, along with 6 other human rights experts from the U.S. and Mexico for the hearing. In addition to attending a community meeting in a colonia (an unincorporated area that lacks paved roads and other infrastructure) and touring the last remaining abortion clinic, the experts listened to a full day of women’s testimony. The testimony illustrated multiple human rights issues, including the historic lack of health care infrastructure and affordable services for poor and rural women, the profound barriers that immigrants face in accessing health care in Texas, and the impact of recent Texas laws and policies that have gutted family planning services through cuts in funding and the exclusion of Planned Parenthood from receiving state funds for preventive care. (Although the funding was reinstated during the most recent session of the Texas legislature, the facilities that served women in poor and rural communities—dozens of clinics across the state that were forced to close or severely cut back on services—will not receive this new funding).
During the hearing, women shared stories about being turned away from clinics that did not have appointments available or funding only to later learn they had cancer. They described fears about their families’ future as they live with the uncertainty of undiagnosed breast lumps. They described the lack of available and affordable family planning, and the difficulties that an unplanned pregnancy creates for a mother struggling to care for her family or a woman trying to pursue her education.
The women who took part in the hearing also conveyed their vision for Texas’s future, and their commitment to fight for change. As Lucy Felix, field coordinator for the Texas Latina Advocacy Network stated, “We are all fighting together for a different Texas—a just Texas. What we want is a Texas with human rights for all.”
Monday, September 21, 2015
Cindy Soohoo introduces one of her CUNY students, who writes the following post:
By Katy Naples-Mitchell
This year marks the 20th Anniversary of the Fourth World Conference on Women – a convening on women’s human rights that produced the landmark Beijing Declaration and Platform for Action. Recent press coverage of the anniversary has focused on the Beijing Declaration’s relationship to the new sustainable development goals. But a new campaign called GQUAL by the Center for Justice and International Law (CEJIL) is taking a different tack by focusing on women’s representation in international positions of power.
What does Beijing+20 have to do with GQUAL?
Part G of the 1995 Beijing Declaration addressed “Women in Power and Decision-making,” focusing on the strategic objective to “Take measures to ensure women's equal access to and full participation in power structures and decision-making.” Although the Declaration was primarily aimed at gender parity commitments within Member States, the Declaration also targeted obligations to bring women into the fold in the upper echelons of international decision-making. For example, in paragraph 193(a), the Declaration explicitly called on the UN to “achieve overall gender equality, particularly at the Professional level and above, by the year 2000….”
Fast-forward to today:
CEJIL’s new GQUAL campaign reveals the significant shortfalls in reaching these gender equality goals and frames the issue as a violation of states’ obligations to respect the principle of non-discrimination. According to the GQUAL campaign launch materials, as of June 2015, women occupied only 21% of all positions within the main international and regional tribunals. In most cases, member states are responsible for nominating and electing candidates for these positions. Not only are they falling short on their non-discrimination obligations, but states also continually fail to circulate transparent guidelines that respect gender parity to ensure equality in candidate nominations and voting processes.
GQUAL calls for bringing awareness to, and ultimately correcting, the severe gender imbalances in international tribunals and monitoring bodies – putting the onus on states to nominate qualified women judges to serve on international tribunals. The GQUAL campaign’s strategies will include:
Publicizing the current lack of gender parity within international mechanisms and tribunals
- Growing grassroots support for gender parity
- Disseminating information regarding available positions
- Demanding transparency behind selection processes and enforcement guidelines
The campaign launch is timely, not only because of the Beijing+20 anniversary but also because of statements out of Geneva just this week. On Tuesday at the 30th Session of the UN Human Rights Council, UN High Commission for Human Rights Zeid Ra’ad Al Hussein spoke about the lack of gender parity in UN human rights bodies and the “need to do better than our societies…to lead by example.” Mr. Al Hussein reminded Member States that at its 6th session in 2007, the Human Rights Council had encouraged states to nominate more women to human rights treaty bodies, mechanisms, and international courts and tribunals. He remarked that he pledged to undertake his own efforts to correct continuing imbalances, including refusal to take part in any panel that does not include women experts and to improve gender parity within his office, where “although women are 57% of staff graded ‘Professional’ and above, they still represented barely one-third of senior managers.”
Wednesday, May 13, 2015
Title IX is the foundation for the progress of female students on campus.
With the recent controversies around campus sexual assault, Title IX is the standard (and indeed the enforcement remedy) through which we view appropriate and effective responses. Some schools do better than others. As do some faculty.
Most schools consider faculty as responsible employers under Title IX.. This means that if a student discloses sexual harassment on campus the faculty member is required to make a report to the campus employee designated to receive Title IX complaints. But nowhere in Title IX is there an obligation to report the names of the parties when making reports. The Department of Education interprets the mandatory reporting obligation as including the obligation to name the parties involved. The Department is not insensitive to concerns of survivor autonomy. DOE suggests that faculty members warn students that faculty have an obligation to report the details, including names, of allegations of sexual harassment, including sexual assault. The Department then suggests that the faculty member refer the students to campus resources that provide confidentiality. Suggested referrals are to campus medical a counseling centers.
Most universities fail to provide faculty information on warning the student survivor early in the conversation,however, so many faculty do not know of the suggested caution. Those of us who are attorneys can claim privilege, as can faculty members who are therapists. But the majority of faculty are not so fortunate.
The lack of survivor autonomy in whether to disclose is disturbing. Nearly all university and colleges students have reached the age of majority. Yet faculty are obligated to report the most intimate details of a student experience simply because the student trusted that faculty member in disclosing what happened.
While the campus Title IX officer may decide whether or not to take the claim further, that decision is not the student's. The campus Title IX officer has a dilemma. The officer may honor student requests for anonymity and face possible public repercussions should the same perpetrator repeat the offensive behavior. Typically, protection of the employer will prevail and a complaint pursued by the Title IX investigator.
Presumably, if the student's initial thought was to pursue a complaint through the criminal justice system, s/he would report to the police in the first instance rather than engage the school's administrative process. As with domestic violence survivors, the police are often not the desired first step in disclosure or remedy. Students understand the complications that arise when a survivor reaches out for help. But most do not recognize that their trusted faculty advisor will be part of those complications.
I advocate for policy change so that faculty Title IX reporting obligations permit reporting that does not include the parties' names, if that is what the student chooses.
Monday, March 9, 2015
International Women's Day (March 8) receives little attention in the U.S. when compared with other nations. Sometimes we neglect to recognize those close to home who contribute so much to advancing human rights. I encourage you to honor the woman in front of you. In that spirit, I would like to recognize my co-editor, Martha Davis, with whom I am honored to work on this blog. Martha recently answered a series of questions on the status of women, reprinted below.
Martha F. Davis
Issues of equal pay and workplace discrimination affect a huge number of women, and make it more difficult for women to leave poverty. Violence against women also cuts across racial and class lines.
What factors, financial or otherwise, should women consider when choosing a city to live in?
I would look for women in civic leadership positions, percentages of women in the police force and other indicators that show a commitment to women's economic and civic equality.
There are also many factors that, because of gender inequality, men probably never think about, like safety (e.g., street lighting), and (for parents) access to affordable child care and after school care.
How can local health authorities better meet the needs of women?
Violence against women has huge impacts on women's health -- both directly, through the violence itself, and indirectly as it increases women's stress and may make it more difficult for them to care for themselves in other ways.
Many organizations have developed interventions for both men and women, and approaches to curtailing the violence. Violence against women includes stranger violence as well. Media images certainly play a role in opening the door to gender-based violence. Local health authorities can help through public education campaigns, partnerships with public schools and other institutions, and interventions with youth, hopefully before the violence begins.
How can local authorities encourage more women entrepreneurs and support women-owned businesses?
Equal pay initiatives would, of course, indirectly assist with this, since entrepreneurial women would have more access to the seed funds necessary to start a business.
Role models, mentoring programs and support groups, prioritizing these initiatives at the local level, can have a tremendous impact. Similar programs have been very effective in, for example, encouraging women to run for office.
A number of studies have indicated that many women are not great negotiators, that women in general are more ready than are men in general to accept an initial offer even if a better deal is available. Negotiating is a teachable skill. Local authorities could help by mediating negotiations and by offering training to women to equip them to negotiate in a wide range of settings.
What programs should local authorities develop in order to make their cities more women friendly?
San Francisco is the only city in the country that has adopted the international Convention on the Elimination of Discrimination Against Women as its local law and it has made an important difference there.
City agencies have conducted gender audits and found a lot of low-cost reforms that they can implement that make a big difference for women. For example, they expanded the hours when people could apply for various permits so that they did not always conflict with school drop-off and pick-up times; they added street lighting to enhance women's safety and job options; they created new programs to support young girls, and so on. Now, the SF Women's Commission has spearheaded the development of guidelines for city contractors to ensure that they meet international standards for women's equality. Adoption of CEDAW has been a vehicle for SF leaders to discuss, prioritize and integrate women's equality into local policies.
How can local authorities encourage more civic engagement among women, including running for political office?
Again, role models, mentors and support groups are critical. The Women in Public Policy Program at Harvard is a good model for this approach. In today's election climate, however, it's money that ends up being more important. Women can learn how to ask for money and connect with supporters, but workplace equality will also make a difference here, as women have more leadership positions and receive equal pay at a level that will enable them to consider a run for office.
Monday, March 2, 2015
Leigh Goodmark, University of Maryland Francis King Carey School of Law
Dr. Alesha Durfee, Associate Professor, School of Social Transformation, Arizona State University
Sarah Drewer had a protective order against her husband when he shot and killed her after dragging her outside their home on February 3, 2015. This, of course, was the first question that most people asked: Did she have a protection order? Did she ever try to get one?
We often talk about domestic violence homicides as if the murder could have been avoided if only the protective order had “worked.”
At the same time, in interview after interview, survivors, advocates, lawyers, judges and police officers say that protective orders are “just a piece of paper.” And a piece of paper can’t stop a bullet.
This was true in 1998, when Carlton Edwards killed Melanie Edwards (who had a valid protection order) and her two-year-old daughter Carli during a supervised visitation exchange in Seattle. It was still true 15 years later when Mike Sanders shot and killed his wife, Carol Sanders, her 16 year old daughter Audra, and her brother in Phoenix shortly after the hearing where Carol was awarded a protection order.
Time and time again, women are killed despite being granted the court’s protection.
For some women who have been abused, protective orders provide safety and essential resources, including temporary custody determinations, orders removing their partners from the home and economic support. For others, whose partners are not deterred by the threat of an arrest, protective orders are just a piece of paper.
In some cases, particularly those cases in which threats have been made but physical abuse has not yet occurred, judges are unwilling to grant the orders, despite the very real fear of the women who are asking for them. For some women, the prospect of going to court to get a protective order is daunting enough to make securing an order impossible.
So do protective orders “work”? That’s a complicated question with no easy answer.
Protective orders are not a one-size-fits-all solution. Sometimes they “work,” sometimes they don’t. Part of this is because the “protection” of a protection order is only the threat of an increased criminal justice response. A better name for them might be “enhanced response orders”—then we would have more realistic expectations about how they operate and what they can actually provide to victims. If we really want to protect victims, we need to think about how to provide the services and supports that each individual woman needs to stay safe.
Protecting victims means taking proactive steps to give victims the kinds of resources that are not often available through the legal system. In addition to an enhanced criminal justice response to violations, protection orders should provide victims with access to resources that they can use to protect themselves.
Courts should offer access to safety planning for anyone given a protection order. Orders could provide access to economic resources for victims to move to a new residence, purchase an alarm system, change the locks to their home, and/or have someone supervise visitation transfers. Police could remove firearms from the home and escort a victim home so that she is safe while she picks up her belongings to go to a safe location. These are specific, concrete things that victims can use immediately to protect themselves and their children.
Some courts are able to provide these services, often funded by federal grants or supported by local domestic violence organizations. When the grant ends, the services are gone. These more protective parts of protection orders have not been funded by the state of Arizona in any permanent, systematic way or incorporated into any statute. When grants end, we are only left with the threat of a response—and over and over again, that threat does not work.
The legal system holds out the promise of safety, but can't always deliver on that promise. And that failure to deliver leads to an even greater vulnerability for victims—and, in the most extreme cases, like that of Sarah Drewer, to death.
The expectation is still that every woman who has been abused will ask for and receive a protective order and that protective order will keep her safe from future harm—even as that order is dismissed by everyone involved in the system as just a piece of paper. There is a strange disjuncture between the solution we’ve offered to domestic violence survivors—get a protective order—and our belief in whether that solution will work. It’s as if we told people who are drowning to grab life jackets that have no flotation material, and then are surprised when these people drown, again and again.
We need to acknowledge that even when a woman does everything “right,” she can’t stop an abuser who is determined to kill her. Place responsibility for those deaths where they belong—on the abuser, not the woman who has been abused—and give her tools that she can use to achieve safety.
Editor's Note: A prior version of this post was published in the Arizona Republic.
Friday, February 27, 2015
Thank you, Patricia Arquette, for raising the issue of US women's equality. I agree. US women are in a sorry state. I remember the momentum to pass the women's equal rights amendment and the shock and disappointment when it did not. We are beyond our time for pressing this issue forward with the same intensity of the 70's feminists. And, as Martha Davis points out, this is an opportunity to breathe life into the campaign for the ratification of CEDAW.
Where Ms. Arquette lost her way was in assuming that her world view is the norm.
In her initial comments, Arquette managed to minimize the status of women who by choice or otherwise have not given birth. Presumably mothers of adopted children were also not included in this category addressed in her initial comment. In the U.S., mothers have cultural and employment barriers that others do not encounter. Organizations such as Mom's Rising bring attention to the special needs of mothers and children and the US policies that harm them.
We cannot minimize the role of childless women, including transgender women, whose leadership in the struggle for women's equality has been significant. But Arquette lumped those women, along with others, in with the general population of taxpayers and citizens which, by the way, excluded non-citizen immigrants and those women who are not working in paying positions.
And then, of course, Arquette, in her follow up remarks, called upon the LGBT community as well as people of color to support U.S. women's equality. In one sentence Arquette managed to change her earlier remarks from an "it's about time" whoop, to a view that promotes the rights and needs of straight, white women . The mistake of prior movements repeated. Far from her awareness was the recognition of thousands of lesbians, particularly lesbians of color, and brown skin women everywhere, who encounter barriers that white, cisgender, straight women never encounter.
What I find interesting in reading various responses is that many commentators responded from places that reflect their own world view. Lesbians pointed out their exclusion. Women of color did the same. Lesbians of color, well they recognized their exclusion even more deeply. A few raised the exclusion of women who have not given birth as well as women who are not paid for their work and those who are not citizens.
Here is my point: Arquette was on the right road in pressing for action on women's equality. Her world view caused her to take a wrong turn. Her critics must not do the same thing. A women is a sister, is a sister. Straight, lesbian, transgender, brown, white, religious or not, documented or native, we are all sisters. To exclude one is to offend us all. The white feminists who preceded us were courageous and successful. We can finish the job without repeating their exclusion of women of color, the gender diverse and others who live outside what many consider our cultural norm.
The feminine way is to embrace, rather than reject, those who falter. Let's thank Patricia Arquette for contributing to the cause and for igniting a new conversation. Then let's move forward together with leadership from those historically deprived of recognition.
Editors' Note: Today marks the one-year anniversary of the Human Rights at Home Law Professors' blog. Thanks to our readers and contributors for making this experiment a success! And here's to another year of commentary, analysis, resource sharing on human rights!
Tuesday, February 24, 2015
Many in social media and elsewhere have weighed in on Academy Award winner Patricia Arquette's statements at the Oscar award ceremonies, where she won Best Supporting Actress for her role in Boyhood. In her acceptance speech, she called for equality for women, and particularly for equal pay. Mega-stars Meryl Streep and Jennifer Lopez whooped their approval. But in a press conference following her award, Arquette elaborated and urged LGBTQ activists, people of color and others to get behind women's equality. Some criticized her for minimizing the equality struggles of these groups and seeming to suggest that they should wait their turn. Later, Arquette tweeted that "[w]age equality will help ALL women of all races in America. It will also help their children and society." With that, maybe this tempest can be laid to rest -- or better, taken as an opportunity to expand the conversation, as thoughtfully suggested by Imani Gandy at RH Reality Check.
Meanwhile, what has received virtually no attention is Arquette's perspective on American exceptionalism. Said Arquette during her press conference: “Equal means equal. . . . It’s inexcusable that we go around the world and we talk about equal rights for women in other countries and we don’t [address it here.]”
Arquette specifically called for passage of the Equal Rights Amendment. CEDAW ratification would, of course, also continue the pressure to achieve women's equality within the U.S. But whatever the legal vehicle for promoting greater social equality, everyone who cares about the plight of marginalized groups in the U.S. should applaud Arquette's willingness to speak out to millions of Americans with the message that human rights begins at home.
Tuesday, February 10, 2015
Building upon Cindy Soohoo's post from yesterday, The George Washington University School of Law Associate Professorial Lecturer in Law Robin Runge reflects upon U.S. policy toward women and workplace equity.
Prof. Runge writes:
The concept of using employment laws to promote specific societal behaviors and values is one that has been considerably explored in U.S. legal scholarship. For example, Title VII of the Civil Rights Act in 1964, prohibiting discrimination in employment based on race, ethnicity, color, religion, and sex is frequently described as a law intended to more broadly increase economic opportunity and promote equality for populations that had historically experienced extensive societal discrimination. The passage of the Family and Medical Leave Act in 1993 has been described as a reflection of U.S. society valuing a specific set of family and caregiving responsibilities over others by mandating employers provide unpaid, job guaranteed leave to employees for limited medical or caregiving reasons. I, among others, have criticized the FMLA for promoting behaviors that reflect the needs and experience of middle and upper class “ideal families,” to the exclusion of low income women who cannot afford to take unpaid leave and often don’t qualify for the job guarantee leave provided by the FMLA because they need to take leave for family-related reasons that don’t meet the requirements. See Robin R. Runge, Redefining Leave From Work, 19 Geo. J. on Poverty L. & Pol’y 445 (2012). Finally, recent amendments to the Fair Labor Standards Act are intended to promote breastfeeding among low income working women and help them maintain employment by requiring employers to provide break time and a private location to express milk at work. However, as Young v. UPS, currently pending before the U.S. Supreme Court demonstrates, pregnant women are still fighting for basic rights in the workplace.
Unlike Prof. Soohoo’s description of countries in East Asia, the U.S. is not facing a significant drop in birth rates or considerable concerns about a shrinking labor pool. I do not think, however, this is because our workplaces are models of equality for women. Quite the opposite. Women make up almost half the workforce, and a high percentage of mothers are working. Moreover, 40% of American mothers are the primary breadwinners for their families. So, women seem to be able to make it work in spite of a lack of pay equity, paid family leave, workplace flexibility, and rampant violence against women in some workplaces, even though the Pregnancy Discrimination Act was passed in 1978.
The employment and labor laws of the U.S. have created workplace structures and cultures that make women vulnerable to exploitation and discourage mothers from working. Just this week a headline in an article asked “When we will stop punishing women for having babies at the peak of their careers? Others have attributed a recent decrease in women in the workforce to U.S. employment policies that make it nearly impossible to have a child and maintain employment.
The Administration and several members of Congress have recently and consistently argued that passage of legislation mandating paid family leave and raising the minimum wage (women are the majority of minimum wage-earners) would promote women’s equality and economic opportunity with the Women’s Economic Agenda: When Women Succeed, America Succeeds: An Economic Agenda for Women and Families. However, this effort does not seem to be effective in getting the legislation passed.
Maybe if the U.S. did face a crisis in our birth rate, or a need to increase women’s participation in the workforce, that would result in legislation that makes our workplaces more equitable for women. Or maybe, whether there is a connection between increasing economic equality for women and government policy depends on where a woman lives, China or the U.S.
Monday, February 9, 2015
Co-Editor Cindy Soohoo writes on a shift in China's one child policy. Tomorrow's post will discuss the differences between US - China policy in both motivation and social policy in addressing women's equality.
Prof. Soohoo writes:
After years of pursuing a one-child policy, China is taking steps to try to increase its birth rate, but is finding that it’s not so easy. The current policy changes respond to demographic shifts caused by a low birth rate and aging population. The prospect of a smaller labor pool saddled with supporting an aging population has fueled fears that China will “get old before it gets rich.” Promoting women’s equality may be the key to addressing China’s labor and population problem.
China’s one child policy has been criticized for employing coercive tactics that violate women’s reproductive autonomy and for triggering a gender imbalance in the population due to a historic societal preference for sons. Human rights bodies have denounced abusive tactics employed pursuant to the policy including forced abortion and sterilization. They have also emphasized the need to address the structural causes of son preference by eliminating gender stereotypes and promoting women’s equality. The same emphasis on improving the status of women, including eliminating barriers faced by working mothers, will go a long way to support China’s current efforts to encourage births and economic growth.
Since China’s current 1.5 birth rate is substantially below the 2.1 rate needed to maintain a stable population, last year it decided to allow parents a second child if one of the parents was an only child (the prior policy allowed only two children if both parents were only children). But the number of couples that applied to have second children is much lower than expected. This is especially true in urban areas like Shanghai. At the end of 2014, only 5% of couples in Shanghai eligible to have a second baby applied to do so.
Chinese reticence to take advantage of the new policy is consistent with regional trends. East Asia has the lowest fertility rate in the world, and some demographers say that China’s birth rates would have declined even without the one child policy. There are dire forecasts about the future of Japan, where the birth rate is currently 1.4, and social security costs are projected to be 24.4% of the country’s GDP by 2026. Last summer, South Korea’s birth rate dropped to 1.19 leading a government research service to declare that at current rates, its population will be extinct by 2750.
Reports suggest for the growing middle class in these countries the cost of child-rearing, including housing, child-care and education have become prohibitively expensive. An official in Shanghai cited the high cost of raising children and the negative impact of having a child on a woman’s career development as driving the lack of interest in having a second child.
Promoting women’s equality and economic opportunity can make it easier for families to bear the costs of larger families and expand the work force. But often parents face substantial hurdles in the workplace, forcing women to choose between work and motherhood. In Japan 70% of women stop working after having a child due in part to inflexible work hours and lack of male participation in household chores and children rearing. And if they return to work they end up in low wage, part-time or contract positions. The loss of female talent has led economists to suggest that closing the gender gap could substantially improve Japan’s GDP.
Japan and South Korea have funded match-making and dating services to address their low birth rates. Adopting family friendly policies that encourage and support working parents could have a greater long term impact. Japan’s prime minister is reportedly considering a number of policies to encourage women to stay in the workforce after having children, including increasing the availability of affordable child care, changing tax rules favoring single income couples, encouraging more flexible hours in the workplace, and encouraging companies to employ more women in senior positions.
The current demographic pressures may cause China to further relax regulation of family sizes. But, if China is serious about increasing its birth rate and increasing the labor pool it must ensure that women have equal economic opportunities and working families have the support they need.
Friday, January 23, 2015
by Roger Abrams, Richardson Professor of Law, Northeastern University, guest contributor
The National Football League’s 2014-15 season is nearing its close with the Super Bowl scheduled for February 1. However that game comes out, it will be overshadowed in the history of this season by the League’s halting approach to domestic violence committed by its players. The arch villain – but certainly not the only offender – was Ray Rice, a former running back for the Baltimore Ravens.
Rice’s story has become very well known. Rice brutally attacked his fianceé in the elevator of an Atlantic City hotel. It became headline news as the League struggled to determine how it should respond to the incident. In retrospect, it seems clear that NFL Commissioner Roger Goodell did not appreciate the public impact of the misconduct. He later admitted that his initial two-game suspension of Rice was an “error.”
Shortly after Goodell administered the discipline, the full tape of what happened inside that elevator became public. That disclosure sealed the public debate. The National Football League – a ten billion dollar a year enterprise – would have to regroup. Even the most prosperous business can lose its credibility quickly.
In an effort to stem the bad publicity, Goodell reversed course. He suspended Rice indefinitely and then attempted to reform football’s image. The League had already faced the awful reality that the men who played the game were more than likely to suffer repeated concussions, leading to dementia and other causes of early death. As a result of the Rice incident, the public became aware that some NFL players were prone to commit violent domestic acts. Goodell finally – some would say belatedly – went on the public record about the evils of domestic violence. So far, he has appointed several women to the top level of the League’s administration and authorized a television campaign against domestic violence using public service advertisements. Only time will tell whether these cosmetic changes will alter the environment that produced Ray Rice.
The public furor over the events involving Rice has finally abated, but the conditions that bred the dysfunction remain much alive. In fact, some research has suggested that players suffering severe head injuries become more prone to committing domestic abuse. The policies of the National Football League are now more attuned to the public’s rightful concerns. We know, however, that incidents like Ray Rice’s will not be stopped by public service announcements and six-game suspensions.
Each year the National Football League replenishes itself through the college draft. Each club has the opportunity to evaluate potential talent on the field, but this year it must also judge how potential draftees will behave off the field. Jameis Winston, the quarterback from Florida State University, has allegedly engaged in off-field behavior that should give any club pause before using its top draft choice to add him to the squad. However, few are optimistic that the Rice incident will have any impact on the draft selections.
The National Football League – our favorite sports entertainment by far – is on probation in the public’s mind. Immense popularity is not eternal. Goodell may have saved the business for now, but future challenges await.
Thursday, January 22, 2015
It's the 42nd anniversary of Roe v. Wade, and though the central holding is still standing, it can be hard these days to find anything to celebrate as abortion access shrinks and anti-women policies proliferate.
But in the immortal words of Joe Hill, "Don't mourn. Organize!" And a great place to get organized is the 29th annual Hampshire College Civil Liberties and Public Policy Conference, April 10-12, 2015, titled "From Abortion Rights to Social Justice: Building the Movement for Reproductive Freedom."
Those who have attended in the past will know that the conference is a transformative (and sometimes exhausting) whirlwind of networking, brainstorming, movement building, creative encounters and reflection. Free for students, last year over 900 people attended. Seeing hundreds of young people organizing around women's reproductive freedom is a a great antidote to the reproductive-rights-in-the-U.S. blues.
The dynamic woman behind this 29-year-old movement building effort is Marlene Gerber Fried, professor at Hampshire College. A decorated teacher and prolific writer on reproductive rights issues, Marlene has mentored hundreds of students interested in acting on their reproductive rights convictions.
So on this 42 anniversary of Roe v. Wade, let's not only commemorate the date, but also celebrate activists like Marlene Fried and the other staff at the Center for Civil Liberties and Public Policy who are working methodically and strategically to connect young people to the movement for women's reproductive justice!
Wednesday, January 14, 2015
Among the milestones of the past year was the first ever Menstrual Hygiene Day on May 28, 2014. As a step toward bringing menstrual health out of the shadows, the global day was a great success, triggering blogs, op eds and other acknowledgments of the role that the menstrual cycle plays in the lives of women and girls. As Gloria Steinem famously wrote in her spot-on Ms. Magazine essay, "If Men Could Menstruate" the social status of menstruation would be different -- and longer and more would be something to brag about! But instead, menstruation is an obstacle to girls education and women's employment, and women everywhere understand that their dignity is undermined when menstruation is treated as shameful. No wonder that Elena Kagan, now a U.S. Supreme Court Justice, made headlines -- and won fans among female law students -- when one of her first acts as the new Harvard Law School Dean was to acknowledge the reality of menstruating students by providing free tampons in the women's bathrooms.
Now, the Society for Menstrual Cycle Research has announced a major conference, June 4-6, 2015, in Boston: Menstrual Health and Reproductive Justice: Human Rights Across the Lifespan. With human rights activist Loretta Ross as the keynote speaker, a menstrual poetry slam, and an art exhibit, as well as academic papers, the conference promises to be a lively antidote to the usual under-the radar treatment of menstrual issues. Paper proposals for the conference are due January 16. The SMCR website provides the following information about the conference:
Join us for a multidisciplinary and global conference to strengthen our research, activism, clinical service, artistic expression, and policy. We are working to achieve empowerment and social justice for women and girls everywhere by heightening menstrual health awareness, education, and services.
Menstrual health is central to women’s ability to lead lives of dignity and well being in every society and every part of the world. Without menstrual health other core rights remain in jeopardy. In fact, the UNDP and UNICEF have highlighted menstruation as “the single most important factor affecting school drop-out among girls” (2007), impeding the educational attainment that would facilitate social empowerment and financial independence around the globe. Yet, menstrual health is rarely respected, protected, or fulfilled as a human right, and has not been recognized or theorized as a reproductive justice issue.
“Stigma around menstruation and menstrual hygiene is a violation of several human rights, most importantly of the right to human dignity, but also of the right to non-discrimination, equality, bodily integrity, health, privacy, and the right to freedom from inhumane and degrading treatment from abuse and violence.”
Dr. Jyoti Sanghera, Office of the High Commissioner for Human Rights
We are now accepting abstracts—of no more than 500 words—describing papers, posters, workshops, panels or creative presentations. Proposals addressing all aspects of the menstrual cycle (physiological, sociocultural, psychological, or cross-cultural) from menarche to menopause are encouraged, including those that involve research, theory, public policy, health care, and clinical applications, art, and activism. The possibilities are endless. Suggested topics intersect menstrual health and politics at any stage of the lifespan. Download the submission guidelines and forms here! Deadline is January 16, 2015.
Tuesday, January 6, 2015
I came across an interesting article that appeared in The Guardian recently. The writer, Rebecca Solnit opines on the many ways that in 2014 women were able to voice their perspectives on violence against them. The theme of the article is that women are shifting blame where it belongs, to their attackers. For too long women have failed to speak out or report sexual assaults against them because they carried shame. Something caused a shift this year. Many long silenced survivors were able to speak publicly of their experiences. Women publicly accusing Bill Cosby of sexually assaulting them is one example, and others speaking of the crimes committed against them by Canadian radio celebrity Jian Ghomeshi is another. As this blog has reported on several occassions, women are fighting back on street harassment. Click on the authors' names to read the posts by Martha Davis, Lesley Wexler and Leigh Goodmark.
Solnit writes the best account I have read in explaining the performance art of Emma Sulkowicz, the Columbia student who carried her mattress through campus following a sexual assault against her that occurred in her dorm room.
The author goes on to review recent history in documenting events where women have been either ignored or silenced following reports of violence against them. She criticizes the media for turning gender violence events into something else and thus detracting from reporting of the real story, violence against women. Solnits article focuses on the positive change that happened during the past year that shifted the focus back where it belonged, on the perpetrators of the criminal acts committed against the women who spoke out.
The heart of Sofit's reporting is her exploration of what she calls the "earthquake" that changed women's responses from barely audible to the strong voices heard this year. Finally women's voices are debunking stereotypes that for so long have kept victimized women silent. The challenge now is to keep our voices strong.
The full article may be read here.
Tuesday, March 18, 2014
Co-Editor Sital Kalantry addresses the difficulties that domestic violence survivors encounter when attemtpting to fit into a classification under which they might find relief through the Board of Immigration Appeals Process.
The Jury is Out: Do the new Board of Immigration Appeals’ Decisions Give Victims of Domestic Violence a Stronger Basis to Claim Asylum?
The Board of Immigration Appeals on February 7, 2014 released a twin set of decisions—Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) and -, Matter of W-G-Rec. 20 26 I&N Dec.20 (BIA 2014)— in which it repackaged what constitutes a “particular social group.” In order for someone to obtain asylum, she must prove that she has a well-founded fear of persecution based on religion, nationality, race, political opinion, and particular social group. Survivors of domestic violence must fashion themselves into a “particular social group” to be considered for asylum since gender is not included as a separate category. Prior to these decisions, a group such as “married Guatemalan women unable to leave their relationships” would be considered a “particular social group,” if it can be shown that (1) is composed of members who share a common immutable characteristic, (2) is defined with particularity, and (3) has “social visibility.” The Board’s recent decisions changed the requirement of “social visibility” to “social distinction.”
Many have pointed out that victims of domestic violence found the “social visibility” requirement difficult to satisfy, because such victims are not typically clearly visible in society. (See for example, Fatima Marouf, “The Emerging Importance of Social Visibility in Defining Particular Social Group, 27 Yale Policy Review 47(2008)). In adopting the “social distinction” concept, the Board rejected the UNHCR and other advocates’ position that the Board return to the test it articulated in 1985 in Matter of Acosta, which included only the immutable characteristics requirement. In other words, they wanted the Board to remove the “particularity” and “social visibility” requirements all together. In response to the new Board decisions, the National Immigrant Justice Center recently issued a statement saying that “the new BIA decisions undermine U.S. obligations to protect asylum seekers.” .
Claiming asylum for domestic violence survivors is like putting a square peg in a round hole. The standard for asylum used in the United States comes from the 1951 UN Convention Relating to the Status of Refugees, which never anticipated these kinds of claims. Acknowledging that domestic violence should entitle someone from asylum, in 2000, the DOJ proposed regulations that articulated clearer asylum standards. However, to date no final regulations have been released.
Whether or not the standards articulated in the new BIA decisions will benefit victims of domestic violence is not entirely clear, but there is at least one success story. The Cleveland immigration court applied the new standards to grant asylum to a domestic victim. The opinion entered on February 24, 2014. To view the Cleveland case click here. The truth is that there will continue to be inconsistent immigration judge decisions and those domestic violence victims who appeal will be placed in limbo by the Board until the U.S. government articulates a coherent policy.