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Author: Elizabeth A. Wilson

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Parental Rights (cont.)

I’m reaching the end of my mid-month guest stint here at ConcurringOpinions.com and before I sign off, I want to respond to some of the comments made in my last post about the video of the father shooting his daughter’s computer — in particular, comments about my concluding remark, “I have no doubt that if a husband shot a .45 into a wife’s laptop, it would be considered an act of domestic violence.”   Some disagreed.  But I spent a year as a Joint Bunting Institute/Children’s Hospital Fellow in Domestic Violence back in the 1990’s, and in training materials and other work by advocates, destruction of  property is almost always included in the definitions of domestic violence.  See the National Coalition on Domestic Violence (http://www.ncadv.org/learn/TheProblem.php)  and  the Department of Justice (http://www.ovw.usdoj.gov/domviolence.htm#dv).  Destruction of property is among the acts defined as domestic violence in many states – see, e.g.,California and Colorado ( “Domestic violence also includes “any other crime against a person or against property, or any  municipal ordinance violation against a person or against property when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.” (Colorado Revised Statutes Section 18-6-800.3(1))).  Domestic violence offenders can also be charged with criminal destruction of property or criminal mischief.  There has been considerable discussion about whether destruction of property can be charged where the offender is a co-owner of the property, but New York, e.g., recently amended the law to ensure that criminal mischief could be charged even in such cases.

What I was driving at in the remark concerns the general  subject of the post:  parental  rights.   It is assumed  that physical (and other) forms of violence can be inflicted on children  because parents have a right to do so, a right that at its core includes a kind  of property claim:  This child belongs to me.  Parental rights advocates most loudly assert their rights against the state, but the  right of the parent is also of course a right against the child.  This includes the right – and this was the  focus of my post on recent research on physical punishment – to commit battery against children that would not be tolerated against adults or against  strangers.   The argument that it is  “logically flawed” to compare a husband’s relationship to a wife to a father’s relationship to a child begs the question of what the scope of parental rights should be.  (And it should be remembered  that it was not so long ago that women were considered property of their  husbands as well and that husbands had “rights” against their wives very different from what they are thought to have – the marital rape exception was eliminated very recently).

It’s been a pleasure blogging here at CoOp.  Thanks to Sarah Waldeck and the rest of the group for having me.

 

 

 

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Physical Punishment and Parental Rights

A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children.  This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases.  In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality.  (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on legal decisions.)

The CMAJ study reviews 20 years of published research on physical punishment of children and concludes that no evidence exists of positive outcomes.  Physical punishment is correlated with aggression and antisocial behavior, cognitive impairment and developmental problems, as well as depression, spousal abuse, and substance abuse.  Co-author Joan Durrant says, “”There are no studies that show any long term positive outcomes from physical punishment.”   Summaries of the study say that the study refutes the frequent argument that aggression comes before corporal punishment and not vice versa.  (I’ll get to the viral video of the dad shooting his daughter’s computer with a .45).

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ECHR on Diplomatic Assurance, pt. 2

I would like to thank Sarah Waldeck and the rest of the Concurring Opinions authors for allowing me to stay on until February 15th.  A lot happened has happened in the past few days with significant implications for international human rights law, but before I turn to these events I want to finish up my thoughts on the recent decision by the European Court of Human Rights in Othman v. United Kingdom.

To briefly recap, the Court’s judgment contained two main holdings. First, it found that diplomatic assurances agreed upon by Jordan and the United Kingdom sufficient to mitigate the risk that the Islamist cleric Omar Othman (a.k.a. Abu Qatada) would be tortured if extradited to Jordan for trial.  Second, it found that transfer to Jordan would expose Othman to an unfair trial, in that it was likely that evidence derived from torture would be used against him.  The second holding effectively bars the United Kingdom from transferring Othman to Jordan. The United Kingdom has 3 months days to appeal the decision to the Grand Chamber.

As promised in my previous post, I want to offer some thoughts here on whether the ECHR persuasively addressed criticism of the post-transfer monitoring arrangement created by MOU and exchange of letters between Jordan and the United Kingdom. The judgment contains some significant weaknesses in this regard, as I detail here:

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Lebron v. Padilla cont.

I received an interesting question asking how my analysis is informed by the recent trend in Bivens cases (outside the national security context) to “assimilate the Bivens inquiry to the Court’s now restrictive jurisprudence on implied statutory causes of action.”  Here is a brief answer. I’m not in general agreement with an approach conflating implied constitutional and statutory causes of action as, say, two variants of federal common law, because I do believe it makes a difference whether the source is a statute or the Constitution. But even if you accept the premise of the more restrictive approach, it is problematic that due regard is not being given to the extensive activity of Congress with respect to Bivens that lies between legislating and not-legislating, between creation of an express cause of action and silence.     Read More

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Lebron v. Rumsfeld: the Fourth Circuit Drops an Anvil on Bivens

I’m going to interrupt my look at the ECHR’s decision in Othman, in order to offer a few observations on the Fourth Circuit decision this week in Lebron v. Rumsfeld.  (There has been a little discussion on Lawfare.)  This case is one of two Bivens cases that had been pending involving Jose Padilla.  (The other is still before the Ninth Circuit and the parties have just been ordered to brief the effect of the Fourth Circuit decision, especially with respect to the issue of non-mutual collateral estoppel).   In Lebron, the Fourth Circuit found that “special factors” preclude a Bivens remedy in cases involving “enemy combatants” in military detention, even in cases of U.S. citizens held in the United States.  It’s a blunt instrument of a holding.  While a number of issues were before the Court, this post looks at the Bivens part of the decision and identifies a few errors in the Court’s reasoning.   The Fourth Circuit overreads Supreme Court precedents on Bivens dealing with the military and ignores Congress’s clear intention to preserve Bivens for citizens in its post-9/11 activity in the field of national security.

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ECHR on Diplomatic Assurances

Belated greetings to the CoOp community and thanks to Sarah Waldeck for enabling this opportunity to blog for what is left of January. I had hoped to post initially from Jordan, where I was visiting in January as a consultant for the American Bar Association’s Rule of Law Initiative (ABA ROLI), but the ABA’s regulations do not permit me to blog about the specific people or organizations that I met with during my visit.  I am still seeking clarification on the boundaries between specific information and general impressions, so for the moment I will keep my comments to the public record.  The following reflects my personal judgment only and is not based in any way on information disclosed in meetings held in my recent trip.

For my initial post, I want to set down some thoughts about the decision last week by the European Court of Human Rights in the case of Othman (Abu Qatada) v. United Kingdom, a decision effectively prohibiting the U.K. from deporting to Jordan a Islamist cleric who is currently being held in England without charge (and at least in part on the basis of secret evidence) and who has previously been convicted in absentia on terrorism charges in Jordan.

Though Jordan originally requested Othman’s extradition, it appears that the current litigation arises from the U. K.’s desire to deport him from England on national security grounds, rather than try him on terrorism charges.

The ECHR’s decision involved two main holdings:  first, that diplomatic assurances transmitted via a memorandum of understanding (MOU) between the United Kingdom and Jordan are sufficient to overcome the likelihood (based on Jordan’s human rights record) that Othman would be tortured if he were returned to Jordan to face trial on terrorism charges; second, that the U.K. would be violate Othman’s human rights nonetheless if it deported him to Jordan because evidence derived from torture would likely be used against in any trial.  My comments here focus mainly on the assurances part of the holding.

It should first be noted that the ECHR has firmly established the principle of judicial review of diplomatic assurances.   This in itself puts the European system far ahead of the United States, in which diplomatic assurances are regarded as the province solely of the executive.   See Report by Columbia Law School Human Rights Institute, Promises to Keep:  Diplomatic Assurances in U.S. Terrorism Transfers (Dec. 2010).  The ECHR initially began reviewing diplomatic assurances in cases involving the death penalty.  Its review of diplomatic assurances in terrorism cases began in the wake of revelations in 2004-2005 that, despite assurances to the contrary, Egypt had tortured two terrorism suspects transferred by Sweden, with assistance from the U.S., after rejecting their requests for asylum.  Human rights NGO’s and UN bodies have generally opposed the use of diplomatic assurances, but political consensus within Europe has split over the question whether assurances can be meaningfully regulated, or whether their use should be rejected outright.

Human rights’ NGO’s Amnesty International’s counterterrorism expert Julia Hall called the diplomatic assurances part of the Othman holding “an alarming setback for human rights” and said the decision as a whole was “a case of one step forward, two steps back.”

This I think overstates the extent to which the decision represents something qualitatively new in terms of the Court’s jurisprudence.  As a general matter, the standard used in Othman was set out in an earlier case, Saadi v. Italy (2008), in which the Court rejected assurances from Tunisia that terrorism suspects convicted in abstensia would not be tortured if returned to Tunisia, on the grounds that the assurances given by Tunisia were brief and formulaic and lacked any post-return monitoring system. The Court found that it had the obligation to review the “practical application” of the assurances and outlined a case-by-case approach in which the weight given to the diplomatic assurances depends “on the circumstances obtaining at the material time.” Saadi, para. 148. Subsequent decisions by the ECHR (more than a dozen) have identified particular factors to be considered, such as the national security profile of the individual involved, the availability of post-transfer monitoring, the specificity of the assurances in prohibiting torture, and the receiving country’s general human rights record with respect to torture.  The Court sets out these factors in Othman (para. 189), without indicating any relative weighting among them.  (For an overview of the case law, see Note (Alice Izumo), Diplomatic Assurances Against Torture and Ill-Treatment: European Court of Human Rights Jurisprudence, 42 Colum. Hum. Rgts. L. Rev. 233, 256-273 (2010)).  In at least one earlier case – Gasayev v. Spain (2009)– the court appears to have  found that diplomatic assurances from a country with a poor human rights record on torture (Russia) mitigated the risk involved in transfer, when the assurances specifically stated that international standards would be met and that diplomats from the transferring state would be able to monitor the post-transfer treatment of the detainee. (For some reason, I cannot pull up this case in the ECHR database of cases, but the Court cites it several times in setting out the factors to be considered in evaluating assurances.  Othman, para. 189 (vi), (viii), (xi)). Significantly, Othman, represented by Gareth Peirce, did not stake out a position that diplomatic assurances could in no case be adequate to mitigate the risk of torture, but he did argue that satisfactory standards would be met only in cases where 1) systemic torture had been brought under control and 2) if isolated acts of torture continue, there is an independent monitoring body with proven effectiveness and criminal sanctions against torture.  Othman, para. 168.

What seems to be emerging in the ECHR’s jurisprudence on diplomatic assurances is the requirement that, where a receiving state has a record of systematic torture, assurances must include a monitoring system. Jordan’s dismal record on torture has been the subject of numerous NGO and UN body reports, and the Court agreed with the parties that, “without assurances from the Jordanian Government, there would be a real risk of ill-treatment of the present applicant if he were returned to Jordan.”  Othman, para. 192. Several factors convinced the Court that the MOU would, in effect, rebut the presumption that Othman would be tortured if returned to Jordan.  The Court found the MOU in the Othman case to be particularly strong.  Indeed, the Court stated that the Jordan-U.K. MOU is “superior in both its detail and its formality to any assurances which the Court has previously examined.”  Othman, para. 194.  More importantly, the MOU provided for a monitoring system, and the Court also examined its terms of reference.  The Othman decision also makes much of the strength of the diplomatic ties between Jordan and the U.K. and the apparent political will in Jordan to fulfill the conditions in the MOU.

In my next post, I will look at the details of the monitoring agreement in more detail and evaluate whether the general and specific objections of human rights NGO’s have been persuasively addressed by the Court.