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Author: Mary Anne Franks

18

More Thoughts on the Dangerous Fragility of Men

First, I want to thank my hosts here at Concurring Opinions for asking me to stay on for another month. One of the things this extended invitation allows me to do is to respond at some length to issues raised in the comments on my last post, “The Dangerous Fragility of Men.” In that post, I highlighted a troubling phenomenon: men with privilege and power characterizing their insecurities and lack of self-control as vulnerability, and using that alleged vulnerability as an excuse or justification for murder, rape, and discrimination (and I would add, though I didn’t discuss it in the post, harassment and intimidation). To demonstrate this phenomenon, I offered a sample of quotations from recent, high-profile cases including Oscar Pistorius‘ shooting of his girlfriend and the gang rape of an 11-year-old girl in Texas. The post suggested that our society should make a greater effort both to marginalize this cowardice and become more attentive to actual vulnerability. In this post, I’d like to elaborate on these ideas and address some of the objections raised in the responses to my post.

I first want to spend a bit more time on the question of perceived v. actual vulnerability. I noted in my original post that one of the perplexing aspects of this form of male vulnerability is that it seems to increase, rather than decrease, with power or privilege. Frequently, the men using weakness as an excuse or justification (or others offering such explanations on their behalf) for harm are people who are objectively less vulnerable than most. They include famous athletes, soldiers, and wealthy businessmen. I think it is worth spelling this out more explicitly: there is a tendency on the part of privileged individuals to overstate their vulnerability. This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination. Feeling vulnerable is not the same thing as being vulnerable, and even actual vulnerability might need to yield before (or at least take into consideration) the greater vulnerability of other people.

We are all vulnerable in certain ways. Figuring out the what and why of our vulnerabilities is an important part of psychological awareness and well-being. What is of most interest to me here, however, is determining the conditions under which it is permissible for us to impose our vulnerabilities on other people, especially when that imposition takes the form of violence or discrimination. In determining those conditions, I would suggest we should ask ourselves at least three questions. One, we should question whether our vulnerability is objectively reasonable. Vulnerability that results from personal insecurity or prejudice is not vulnerability that we may rightfully impose on others. It is our own responsibility to correct vulnerabilities of our own creation. Second, we should question the magnitude of our vulnerability, especially when put in perspective with the vulnerabilities of others. Third, even if our vulnerability is both reasonable and of serious magnitude, we should question whether we are imposing it on appropriate parties in a just and proportional way. Read More

39

The Dangerous Fragility of Men

“I have also been a victim of violence and of burglaries before… I felt a sense of terror rushing over me … I was too scared to switch a light on.” Oscar Pistorius relating his state of mind before shooting his girlfriend Reeva Steenkamp four times through a bathroom door.

She “knew exactly how to press his buttons and make him angry.” Jovan Belcher complaining to his mistress about his girlfriend, Kassandra Perkins, before shooting Perkins nine times in front of their baby daughter.

“Like the spider and the fly. Wasn’t she saying, ‘Come into my parlor, said the spider to the fly?” Defense attorney Steve Taylor describing the 11-year old girl gang-raped by more than a dozen men in Cleveland, Texas.

“And it’s – all he sees are heavily tinted windows, which are up and the back windows which are down, and the car has at least four black men in it…” Defense attorney Robin Lemonidis explaining why her client, Michael Dunn, shot into a vehicle of unarmed teenagers eight times, killing 17-year-old Jordan Davis.

“Hurricanes. Tornadoes. Riots. Terrorists. Gangs. Lone criminals… These are perils we are sure to face — not just maybe. It’s not paranoia to buy a gun. It’s survival.” Wayne LaPierre, Executive Vice President of the National Rifle Association, objecting to the Obama Administration’s consideration of gun regulation.

“It’s a fear of the unknown… I’ve never seen a woman get killed or wounded. In my mind they may resemble my wife and I don’t know how I would react. It’s one thing to see a man injured or killed but a woman, now that’s a different story,” Staff Sergeant Alex Reyes, voicing his objection to lifting the formal ban on women in combat.

According to traditional gender stereotypes, men are supposedly stronger, braver, and less emotional than women. However unfair or inaccurate, this belief, along with the association of vulnerability, anxiety, and fear with women, has persisted throughout most of Western history. Once one scratches the surface of this myth, however, it becomes apparent that stereotypical “masculinity” (and “hyper-masculinity” even more so) is in fact defined by fragility. This fragility, moreover, is of a truly perplexing nature: it actually increases, rather than decreases, with power and privilege. Why did a world-renowned athlete who lives in a “fortified mansion surrounded by barbed wire” not even stop to turn on a light before shooting his girlfriend four times (if one takes seriously Pistorius’ claim that the shooting was an accident)? Because he was so intensely afraid of being victimized by burglars. Why did a popular NFL linebacker shoot the mother of their infant daughter nine times at close range? Because she did things that made him angry and scared, like staying out late at a concert. Why did more than a dozen men take turns raping an 11-year-old girl, one of them recording the rapes on his cellphone? Because they were so overwhelmed by her seductive clothes and makeup that they couldn’t control themselves. Why did a middle-aged white man with a gun in his glove compartment shoot eight times into a vehicle with four teenagers in it? Because he was so scared of the teenagers’ loud music and attitude that he imagined they must be pointing a gun at him. Why do American citizens – even those who live in gated, high-security enclaves complete with security guards, alarm systems, and identification checkpoints – need an infinite number of virtually unregulated, high-capacity weapons? Because hurricanes and terrorists threaten their very survival. Why should qualified women be denied the opportunity to be recognized and promoted for combat activity? Because some male soldiers – supposedly well-trained, experienced male soldiers – might become paralyzed by the sight of a woman in distress.

This is not the “New Age sensitive male” mocked by comedians and pundits. These men don’t ask questions or cry when they feel vulnerable: they kill, rape, and discriminate. And society largely allows, even encourages, them to do so. Instead of demanding that these men take responsibility for their own weaknesses, our society accommodates and excuses them. This is the flip side of blaming the victim: excusing (or justifying) the perpetrator. The time and energy spent criticizing a girlfriend’s supposed greediness, or an 11 year-old girl’s supposedly provocative clothing, or teenagers’ supposedly loud music could be spent challenging and marginalizing the inability of certain men to control themselves.

To acknowledge and reflect on one’s vulnerability is a good thing; to hold the world in thrall to it is not. Feeling vulnerable is often different from actually being vulnerable, and even actual vulnerabilities should not be used as a license for malicious or reckless behavior. With the supposed vulnerability of famous athletes, soldiers, and gun owners everywhere on display, perhaps we can also appreciate the vulnerability of those far more at risk.

44

Why We Need a Federal Criminal Law Response to Revenge Porn

As promised in the comments section of my last post, I offer in this post the outline of my proposal to effectively combat revenge porn. A few preliminary notes: one, this is very much a work in progress as well as being my first foray into drafting legislative language of any kind. Two, a note about terminology: while “revenge porn” is an attention-grabbing term, it is imprecise and potentially misleading. The best I have come up with as a replacement is “non-consensual pornography,” so that is the term I will use throughout this post. I would be interested to hear suggestions for a better term as well as any other constructive thoughts and feedback.

I want to emphasize at the outset that the problem of non-consensual pornography is not limited to the scenarios that receive the most media attention, that is, when A gives B (often an intimate partner) an intimate photo that B distributes without A’s consent. Non-consensual pornography includes the recording and broadcasting of a sexual assault for prurient purposes and distributing sexually graphic images obtained through hacking or other illicit means. Whatever one’s views on pornography more broadly, it should be a non-controversial proposition that pornography must at a minimum be restricted to individuals who are (1. adults and (2. consenting. Federal and state laws take the first very seriously; it is time they took consent requirements seriously as well.

Before I offer my proposal for what a federal criminal prohibition of non-consensual pornography could look like, I want to explain why looking to federal criminal law is the most appropriate and effective response to the problem. In doing so, I do not mean to suggest that other avenues are illegitimate or ill-advised. I support the use of existing laws or other reform proposals to the extent that they are able to deter non-consensual pornography or provide assistance to victims. That being said, here is my case for why federal criminal law is the best way to address non-consensual pornography, in Q&A form.

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35

Why You Can’t Punch a Boxer in the Face When He Asks You for Directions: Consent, Context, and Humanity

It is hard to imagine anyone arguing that it is acceptable to punch a boxer in the face when he asks you for directions because the boxer allows himself to be hit in the ring. It is even harder to imagine that anyone would argue that random punches to the face by strangers on the street is an inevitable or even likely consequence of taking up boxing, or blame the boxer for bringing the attack upon himself. It is harder still to imagine anyone objecting to the boxer’s right to seek protection under the law by claiming that the injury he suffers will decrease as such random attacks increase, or that if the boxer really wants to protect himself from being attacked in the street he should never have taken up boxing.

It is hard to imagine because most people have no difficulty understanding the concept of contextual consent most of the time. Just because X consents to an activity with a particular individual in a particular time and place under particular conditions does not mean that X consents to the same or similar activity with any individual in any time or place under any conditions. Boxers do not consent to being punched in the face as they walk down the street just because they get punched inside a boxing ring; janitors do not consent to cleaning your bathroom just because they clean the bathrooms at the local school; thrill seekers do not consent to being pushed off bridges without warning just because they enjoy bungee-jumping.

And yet, as we see in the common response to revenge porn, many people argue that if a woman gives a sexually explicit photo of herself to her boyfriend, not only should she expect that he will pass that photo on to complete strangers but she also has no right to object to him doing so. Many people argue that the more common revenge porn becomes, the less serious the harm to its victims will be. And many, many people argue that if a person does not want to become a victim of revenge pornography, she should never allow any intimate images of herself to exist. Why should the expectation and understanding of consent change so drastically when the victims are primarily female and the activity is sexual? This inequality is not only unjustified but dangerous. Indifference and hostility to women’s consent doesn’t just drive revenge porn; it is also at the heart of sexual harassment and rape. This is yet another reason why law and society must take revenge porn seriously: revenge porn normalizes and fetishizes the non-consensual sexual use of women’s bodies. Treating acts like revenge porn as inevitable, defensible, or at the very least outside the reach of the law teaches women that their consent to sexual use doesn’t matter. Even more importantly, it teaches men that women’s consent to sexual use doesn’t matter. Every failure to challenge the disregard for women’s sexual consent is a failure to recognize women’s humanity.

25

Adventures in Victim Blaming: Revenge Porn Edition

It would be one thing if the only people defending the practice of non-consensual sexual activity were the easily identifiable misogynists, the ones who always come crawling out of the gutters to inject their poorly spelled and exclamation-point-filled victim-blaming screeds into any discussion of rape, sexual harassment, or gender inequality. But the victim-blaming rhetoric that has surfaced in the conversation about revenge porn is also coming from seemingly reasonable people – people who think deeply about other social and legal issues and who even seem to have some sympathy for the victims.

Let me take as one example a recent post in Forbes by someone I respect, Professor Eric Goldman. The post is titled “What Should We Do About Revenge Porn Sites Like Texxxan?” and the answer, apparently, is nothing. Prof. Goldman characterizes revenge porn as “distasteful,” likens it to the “bad etiquette” of checking out the price of a colleague’s home on Zillow, and concludes with this recommendation: “for individuals who would prefer not to be a revenge porn victim or otherwise have intimate depictions of themselves publicly disclosed, the advice is simple: don’t take nude photos or videos.”

The first thing that strikes me about Prof. Goldman’s discussion of revenge porn (and this is true of many discussions of the issue) is the failure to note its gendered dimensions. This is despite the fact that empirical evidence so far indicates that revenge porn is primarily produced and consumed by men and primarily targets women. Revenge porn belongs to that class of activities that includes rape, domestic violence, and sexual harassment – that is, the class of activities overwhelmingly (though of course not solely) perpetrated by men and directed overwhelmingly (again, not solely) at women. Like those activities, one major effect of revenge porn is to limit women’s freedom to live their lives: it punishes women and girls for engaging in activities that their male counterparts regularly undertake with minimal negative (and often positive) consequences. Read More

6

The Normative Jurisprudence of Creepshots

My reaction to Robin West’s extraordinary scholarship always includes some mixture of distress and excitement: distress over the failures of law and humanity she describes with such devastating clarity, and excitement about the potential applications of her insights. In this post, I want to discuss how Robin’s critique of both liberal legalism and what she calls “neo-critical” legal theory in Normative Jurisprudence – particularly the former’s fetishization of individual rights and the latter’s decidedly uncritical celebration of consent – usefully illuminates the recent controversy over the outing of Michael Brutsch, aka “Violentacrez,” the man behind some of the most controversial forums on the popular social news website, reddit.com. One of these, the “/r/creepshot” forum (or “subreddit”), which encouraged users to submit surreptitious photographs of women and girls for sexual commentary, garnered national attention when it was discovered that a Georgia schoolteacher was posting pictures of his underage students. Brutsch’s outing (or “doxxing“) sparked outrage from many in the reddit community, and has led to an intriguing online and offline debate over Internet norms and practices. The defense of Brutsch and the forums he helped create – mostly sexual forums targeting women and girls – has been dominated by a highly selective conception of the right to privacy, the insistence on an unintelligibly broad conception of “consent,” and a frankly bewildering conception of the right to free speech. Attempts to criticize or curtail these forms of online abuse have also been primarily framed in terms of “rights,” to uncertain effect. Robin’s critiques of rights fetishism and the ideology of consent offer valuable insights into this developing debate.

I will attempt to briefly summarize (and no doubt oversimplify, though I hope not misrepresent) the points Robin makes that I think are most useful to this conversation. Liberal legalism’s focus on rights rests on a seductive fantasy of individual autonomy: it “prioritizes the liberty and autonomy of the independent individual, shrouds such a person in rights, grants him extraordinary powers within a wide ranging sphere of action, and in essence valorizes his freedom from the ties and bonds of community. It relegates, in turn, the interests, concerns, and cares of those of us who are not quite so autonomous or independent … those of us for whom our humanity is a function of our ties to others rather than our independence from them … to the realm of policy and political whim rather than the heightened airy domain of right, reason, and constitutional protection” (41). The critical legal studies movement attempted to correct some of this rights fetishism by pointing out that “rights” are not only radically indeterminate (i.e. rights can be interpreted and granted in conflicting ways), but that they are also legitimating (that is, bestowing the status of “right” on narrowly drawn freedoms can obscure the injustice and inequality that fall outside of them, thus insulating them from critique).

Robin persuasively demonstrates that neo-critical legal theorists held on to the indeterminacy thesis while jettisoning the critique of legitimation. Concerns about legitimation are concerns about suffering, and neo-crits are largely uninterested in, if not contemptuous of, suffering. Their primary concern is power and pleasure, which is accordingly supported by what Robin calls “the ideology of consent.” To the neo-crits, consent has the power to fully shield any act from either legal or moral critique. Robin addresses the way the ideology of consent plays out in the context of sex by looking to the work of Janet Halley. According to Robin, Halley espouses a view of sex that takes “[c]onsent to sex … as full justification for a collective blindness to both societal and individual pressures to engage in unwanted sex, so long as the sex is short of rape”(142). Sex is presumptively pleasurable, and as such presumptively immune from critique. As Robin describes Halley’s position, “sex is almost always innocent, and when consensual, there can be no ‘legitimate’ basis for criticism. Consensual sex is just too good to be circumscribed, or bound, by claims of its unwelcomeness or unwantedness. The claims that consensual sex is in fact unwelcome or unwanted are likely false in any event. The harms sustained, even if the claims are true, are trivial” (146). (I came to similar conclusions regarding Halley’s work in my review of her book, Split Decisions: How and Why to Take a Break from Feminism).

Now to apply these insights to the Michael Brutsch/creepshot controversy. The moderators of the creepshot subreddit provide this helpful definition of “creepshot” on the “subreddit details” page:

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4

The Sext Wars: Consent, Secrecy, and Privacy

The sexting phenomenon reveals much about contemporary social attitudes towards sexual expression, consent, and privacy, especially with regard to minors. One of the most troubling aspects of the debate over what can and should be done about “sexting-gone-bad” scenarios is the tendency to treat the parties involved as more or less moral and legal equivalents. A typical “sexting-gone-bad” scenario is one in which a young person takes an intimate cellphone photograph of him- or herself, forwards it to an actual or potential romantic interest, and discovers that this photograph has been forwarded to many other individuals, including strangers, classmates, and family members. There are at least four distinct categories of individuals involved in such a scenario: the creator of the image, the intended recipient, the distributor, and the unintended recipient. The second and third categories are sometimes the same person, but not always, and the number of individuals in the fourth category is potentially enormous. The legal response in many of the first sexting cases was to bring child pornography charges (creation, distribution, or possession) against all the individuals involved; the social response has likewise treated the various players as roughly morally equivalent. In some sexting cases, the distributors of the images have not been charged at all, whereas the creators have been. The view that the creators of sexual cellphone images are as bad as or worse than the distributors of those images combines many  troubling social attitudes about sexual expression and privacy.

First and most obviously, child pornography is clearly not the right frame of reference for the majority of these cases. The specter of child pornography, rightly invoked in relationships marked by coercion, exploitation, and serious asymmetries of age and power, is too often applied to any situation involving minors and sexuality. Whatever legitimate concerns society might have about sexual activity among consenting teenagers of roughly the same age, they should be clearly distinguished from concerns about pre-pubescent sexual activity and sexual contact between adults and children. The fact that the consequences of a conviction for child pornography include lifelong registration as a sex offender illustrates how poorly suited child porn charges are for most sexting cases.

Thankfully, states have begun to move away from the knee-jerk use of child pornography charges in sexting cases, but the treatment of creators as equal to or worse than distributors persists in both legal and social responses to sexting. The most alarming feature of this equivalence is its erasure of the significance of consent. In the typical sexting scenario (I leave to one side what I would call “harassment sexting” and deal only with images that the creator reasonably believes are welcome) a minor makes a choice to reveal herself sexually to one other person. We may think her choice is unwise or unduly motivated by social pressure, but we must recognize that it is in any event a consensual sexual act (barring extreme youth or mental incapacity). By contrast, the person who distributes the image to other individuals acts not only without consent but most often with the full knowledge and intent that the creator will be humiliated by the distribution. Thus, the distributor engages in a non-consensual sexual act. There is nothing equivalent about consensual and non-consensual sexual acts -  the person who sends an image of herself to another person is not equally or more responsible than the person who takes that image and forwards it to hundreds of others. To hold otherwise is to engage in victim-blaming, whether the act in question is sexting or sexual assault. A civilized society recognizes that a person subjected to non-consensual sexual activity should not be scrutinized for what she wore, how much she drank, whom she flirted with, or whether she sent someone a sexual image of herself. The only proper and relevant question is whether she consented to the act in question. Read More

6

For the Love of Hate: Why We Have Little to Fear from the Westboro Baptist Church

The “marketplace of ideas” conception of free speech is deeply flawed, not least because it unjustifiably presumes a level playing field and equal access. It also gives rise to the notion that there is no harm in giving false ideas free run because the truth will win out in the end. This myth was debunked by none other than John Stuart Mill, often credited as the father of the marketplace model of free speech: “[T]he dictum that truth always triumphs over persecution is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution.”

However, as the saying goes, even a stopped clock is right twice a day.  The naive – often disingenuously so – belief that “the true and sound will survive” while “the false and unsound will be vanquished” is occasionally vindicated, as it is in the case of the Westboro Baptist Church. The Church may have “won” in Snyder v. Phelps, but in a much more important sense, it has lost as spectacularly as any hateful group in recent history. One is hard pressed to find a group more universally hated across the ideological spectrum than the Westboro Baptist Church. Vocal critics of the Church include Bill O’Reilly, Sarah Palin, Michael Moore, and Jon Stewart. Numerous Christian organizations have condemned Westboro, as has the Ku Klux Klan (that’s right – the Ku Klux Klan finds Westboro’s practices too extreme). As of today, none of Westboro’s charmingly-named sites (godhatesfags.com, godhatesyou.com, priestsrapeboys.com, etc.) is accessible online, thanks to the efforts of either the hacking collective Anonymous or a self-proclaimed adversary of Anonymous who calls himself The Jester. Anonymous is currently under investigation for attacking MasterCard and Amazon on behalf of Wikileaks; The Jester claims responsibility for the cyber attack on Wikileaks last November. In other words, perhaps the most extraordinary thing about the Westboro Baptist Church is its ability to serve as a common target for groups who passionately disagree with and even hate each other.

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0

From Tailhook to Tahrir Square

A woman is suddenly set upon by a mob of aggressive, excited men who tear at her clothes, groping and fondling her as they pass her through the crowd. When the incident comes to light, the woman is blamed for being somewhere she shouldn’t have been and for bringing the assault upon herself.

This is not 2011, it is not Tahrir Square, and the victim is not a female CBS reporter. It’s 1991, it’s the Las Vegas Hilton, and the victim is a female Navy lieutenant. Perhaps most importantly, the crowd of men is not made up of Egyptian protesters, but of U.S. naval aviators and sailors.

In September 1991, the Tailhook Association, a nonprofit group of retired and active naval officers, held its annual convention in Las Vegas. As Lieutenant Paula Coughlin stepped off the elevator of the third floor, she was met by a crowd of more than 200 drunken officers. “I got attacked by a bunch of men that tried to pull my clothes off,” she said. “I fell down to the floor and tried to get out of the hallway, and they wouldn’t let me out. They were trying to pull my underwear off from between my legs.” Lt. Coughlin implored one of the aviators to help her; he responded by grabbing her breasts. When she reported the incident to her superior officer, he replied, “That’s what you get for going down a hallway of a bunch of drunken aviators.” After Lt. Coughlin went public with her story, more than 80 other women came forward with similar stories of being sexually assaulted by the crowd that night. Lt. Coughlin reported being harassed by her Navy colleagues for speaking out, and the media response was similarly harsh. Pundits and late-night comedians trivialized the incident as little more than fraternity antics, and Lt. Coughlin and other women who came forward were criticized for unfairly tarnishing the Navy’s reputation. The response of conservative figures was particularly extreme, denouncing attempts to reform the Navy in the wake of the Tailhook allegations as attempts to “feminize” the military. David Horowitz, in an article for the National Review titled “The Feminist Assault on the Military,” complained that “a drunken party at which crotches were grabbed in a gauntlet ritual ha[s] fueled a national hysteria about ‘sexual harassment’ that is threatening to deconstruct the military.”

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2

That Obscure Object of Concern: Selective Feminism and the Rise of Anti-Sharia Laws

“Evil resides (also) in the innocent gaze which perceives Evil all around.”

Rep. Louie Gohmert (R-TX) is worried about women. Specifically, he is worried about their equal rights under U.S. law, and is baffled that women are not up in arms about the sinister force that poses the greatest threat to them in our time. Is it the distressingly high rates of sexual violence in this country? Domestic abuse? Unequal working conditions? Recurring waves of legislation aimed at undermining women’s bodily integrity? None of these, according to Rep. Gohmert: the true threat is “creeping sharia law.”

Rep. Gohmert recently added his voice to the call for Congressional hearings on sharia’s supposed infiltration of U.S. society. During an interview on Frank Gaffney’s radio show, Gohmert said, “The biggest shock out of all of this is that the women’s liberation groups have not just gone berserk over this creep into our society that diminishes women as it does. … it does diminish the Constitution when you bring any law in that doesn’t allow women to be full equal citizens of the United States.” Gohmert’s rhetorical move here is perversely clever: he highlights a legitimate harm (here, the unequal treatment of women), attributes it exclusively to a foreign source (sharia law), and insinuates that those who fail to do the same are complacent and/or hypocritical (why aren’t “women’s liberation groups” more upset about this horrible threat?). This is a not a new tactic (anti-feminists like Christina Hoff Sommers have been doing it for years), but it is falling on particularly receptive ears.

At least thirteen states have recently introduced bills aimed at keeping sharia law out of U.S. courts. Oklahoma’s dramatically-named “Save Our State Amendment,” which explicitly listed sharia law as a forbidden source of authority, was recently held by a federal judge to violate the Establishment clause. The sponsors of many of the newer bills have learned to be less specific in their language, but most are quite comfortable admitting that sharia is their real target. Georgia Rep. Mike Jacobs (R-Atlanta), who introduced “The American Laws for Georgia Courts Act” (House Bill 45, which states that “it will be the public policy of this state to protect its citizens from the application of foreign laws when the application … will result in the violation of a right guaranteed by the Constitution of this state or of the United States”), told the Fulton County Daily Report that the bill would “ban the use of Sharia law in Georgia courts.” Admitting that he did not know of a single instance of any Georgia court ever being asked to apply sharia law, Rep. Jacobs expressed the belief that it had happened elsewhere: “We’re seeing more of a feeling that Sharia law should be applied in domestic cases.”

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