Category: Feminism and Gender

7

Identity Performance as a Bottleneck to Employment Opportunity

In his timely and provocative book, Professor Joey Fishkin makes an important intervention to anti-discrimination law praxis and theory. Poignantly, he observes that in developing anti-discrimination legislation and doctrine, policy makers as well as judges have largely focused on either eliminating or diminishing severe, pervasive, and arbitrary bottlenecks in the opportunity structure as opposed to focusing singularly on the achievement of equal outcomes. He defines bottlenecks as a “narrow place in the opportunity structure through which one must pass in order to successfully pursue a wide range of valued goals.” (Page 13). Professor Fishkin identifies three types of bottlenecks—“qualification,” “developmental,” and “instrumental good”—that policy should address in educational and employment contexts to bring about “equality pluralism”: “[the] opening up a broader range of opportunities for everyone.” (Page 2). As a race and law and employment discrimination law scholar, I am particularly interested in how Fishkin’s “anti-bottleneck” principle applies to arbitrary “qualification bottlenecks” in the employment context. Indeed, my scholarship on grooming codes discrimination illuminates how an obscured yet severe and pervasive “qualification bottleneck”—(non)conformity with racialized and gendered identity performance standards imposed by employers (which are reified within anti-discrimination jurisprudence like Title VII)—constrains or widens one’s range of employment opportunities.In this post, I will draw upon my scholarship on grooming codes discrimination to briefly explicate how one’s ability to navigate and negotiate identity performance demands limits or increases employment opportunities. Read More

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UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)
Articles

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672

 

Comments

Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812

 

 

 

3

Dispatches from Durham: Sexual Double Standards, Victim Blaming, and Online Abuse

In a series of recent pieces, the Duke Chronicle documented the experience of female students who were shamed for their expressing their sexuality. In one case, a young woman sent an e-mail to her sorority sisters saying that she had sex with a well-known performer who visited campus. The e-mail was leaked to multiple fraternity listservs, the site Betches Love This, and anonymous gossip site Collegiate ACB. On the site, the student was called a “whore, cum dumpster, and swamp monkey.” The various posts received hundreds of similar comments. The student deactivated her Facebook profile, deleted her Instagram, and disabled her Twitter account. Duke freshman “Lauren” was working in the porn industry to earn money to defray some of her college expenses. Lauren had not told anyone about her porn work, until a male classmate confronted her after watching her in a porn film. The student shared his discovery at a fraternity rush event. The story of the “freshman pornstar” went viral. The day after the student talked to his friends, Lauren received more than 230 friend requests on Facebook. Within days, the topic “Freshman Pornstar” was trending on Collegiate ACB. As Lauren confided to the school newspaper, the torment on Duke’s fourth campus–the online campus of the “towering chapel of Facebook,” the “student center of Twitter,” and the “grungy alleyways of Collegiate ACB”–was unrelenting. In a month’s time, the “Freshman Pornstar” thread on Collegiate ACB had 136 comments. The post was the seventh-most-recently commented post on Duke’s page on the gossip site. Some of the now-188 comments were vile, urging readers to write in once they have “banged” her and claiming that she slept with specific individuals and members of fraternities. Some were dangerous, noting her name and address. Comments blamed her for the abuse she was getting: “we going to pretend like she was unaware of the social consequences of going into that business? she made a decision, now she needs to live with the consequences;” “There’s no way she’s going to become a lawyer being a porn star (no law school is going to accept her). Seriously, she needs to get over herself and face the consequences of being a slut. I’ll be surprised if Duke doesn’t kick her out;” “Congratulations, you’ve ruined your own life.” Others defended the student: “you’re seriously making fun of her for that? um.. yeah this is the epitome of bullying.. you guys have written on a public forum her full name and where she lives (leaving her open for stalking and harassment) . as well as calling her a slut and attacking her personal beliefs.” As Lauren told the Chronicle, she feels harassed, hated, and discriminated against. She questions her decision to go to Duke given the abuse.

The Duke Chronicle’s editorial board wrote that the elite university is an “embittered battleground and discussions about Lauren–a first-year porn actress–have extracted salacious and sexist commentary from Duke’s student community.” The board found two primary themes in the commentary: characterizations of Lauren as a morally bankrupt slut and comments expressing a lewd desire to have sex with her. A third, unexamined theme, however, was also apparent–that Lauren was to blame for anything bad coming her way. She chose to do porn, so she assumed the risk of online harassment, poor employment opportunities, social shunning, and the possibility of getting kicked out of school.

Blaming the victim is a typical response to individuals facing online harassment, individuals who are mostly female and who are mostly attacked in sexually demeaning and threatening ways, as my articles and forthcoming book Hate Crimes in Cyberspace explore. After tech blogger Kathy Sierra was threatened with rape and strangulation via e-mail and on her blog, the response was that she chose to blog, so if she could not handle the heat, she should get out of the kitchen. College students blogging about sex were told that they “asked for” rape threats, defamatory lies, and the non-consensual posting of their nude photos because they blogged about their sexuality. Lena Chen’s experience was typical. When Chen attended Harvard, she wrote Sex and the Ivy. Anonymous commenters attacked her not with substantive criticisms of her opinions, but rather with death threats, suggestions of sexualized violence, and racial slurs. On a gossip blog, someone posted her sexually explicit photos, taken by her ex-boyfriend, without her consent. As Slate writer Amanda Hess reported (who would later face rape threats herself, see her recent article about her experience), Chen’s nude photos were reposted all over the Internet. The abuse continued even after she shut down the blog. Chen was accused of provoking the abuse by “making a blog about her personal sex life.” She was labeled an “attention whore” who deserved what she got. Commentators said that she leaked her own naked photos to get attention. Others said that she wrote about sex because she wanted posters to make sexual advances. We hear the same about victims of revenge porn.

Blaming the victim is a recurring theme. Society once blamed female employees for provoking their employers’ sexual advances. Wives were once told that they provoked domestic abuse. Just as society now recognizes sexual harassment at work and domestic abuse as serious social problems that victims did not bring on themselves, female college students are not to blame for online abuse if they have sex or make porn. Bloggers who write about sex are not to blame for online attacks. Revenge porn victims should not be blamed when harassers violate their trust and vindictively post their nude photos. Sexual double standards are at the heart of this response. Would we, for instance, say the same to men writing about sex? Tucker Max earned millions from writing books and a blog about his drunken sexual experiences with hundreds of women. By contrast, female sex bloggers have been attacked and told that they “asked for it.” As the Duke chronicle insightfully noted, the wildly different responses to the sexual escapades of Duke graduates Tucker Max and Karen Owen confirm that a sexual double standard is alive and well.


 

6

Scorned Law: Rethinking Evidentiary Rules in Cases of Gender-Based Violence

Today, I would like to touch upon what I believe to be a disturbing void within Critical Legal Theory. Although Crit-scholars have unmasked many examples of apparently neutral laws with discriminatory effects, they have overlooked to some extent the weight of apparently neutral evidentiary rules upon certain minority and identitarian groups.  The article I’m currently working on intends to explore this void by examining how evidence rules are not neutral in practice, but rather inexorably respond to our patriarchal practices.

The ultimate end of our evidentiary system is to fairly ascertain the truth and secure a just determination in every proceeding. However, for centuries, women have been doubly victimized and subjugated to patriarchal powers because of evidentiary rules. Their value as human beings have been lessened in rape and sexual harassment cases by a long history of corroboration requirements and public disclosure of their sexual pastMost jurisdictions have been able to recognize that it was necessary to reform these rules in order to amend those wrongs. Nonetheless, our system, through its evidentiary rules, continues to re-victimize women. Attorneys unscrupulously make use of certain rules of evidence to access a patriarchal narrative that blames women for the violence they are victims of or that portrays them as a dishonest party seeking revenge.  The resulting proceedings preclude effective judicial redress. It is time we start looking into these instances and think of amending our rules of evidence to correct the wrongs we continue to inflict upon women, especially in the context of gender-based violence.

Violence against women is an alarming problem in our society.  Although reliable figures are difficult to compile, it is estimated that 1.3 million women are victims of physical assault and that 85% of domestic violence victims are women. Most of these crimes, however, are not prosecuted, mainly because they go unreported. Organizations working in this field estimate that only 25% of all physical assaults, 20% of all rapes and 50% of all stalking crimes are reported. Moreover, meta-analysis of police and judicial statistics reveals that only one out of six domestic violence cases reported to the police in the United States results in a conviction.  Furthermore, only a third of the people arrested for domestic violence ends up convicted. These numbers illustrate a twofold problem.  First, a large percentage of the afflicted population of women is not seeking judicial redress. On the other hand, those who do go through the legal process are not receiving the justice they deserve and seek.

There are multiple reasons that would account for the low reporting rates in these types of crimes. It has been widely studied how victims do not feel comfortable going to the authorities because police officers do not validate their accusations and instead receive victims with the same violence the victims have been trying to escape. In addition, in many instances, women are trying to avoid the negative repercussions that prosecuting these crimes introduce to their lives, such as adverse child custody determinations or becoming the object of criminal investigations themselves. Likewise, there are several reasons that explain the low percentage of convictions. The more salient one is the implicit biases of triers of facts. It has been documented how judges and jurors take women to be less credible than their male partners, a bias that grows even deeper when factors such as race, socio-economic and immigration status are thrown into the mix.

This credibility bias is extremely powerful, especially when rules of evidence allow defense attorneys to use it in their favor. Fully aware of this fact, defense attorneys have reclaimed the myth of the scorned woman to argue that female victims are misusing the judicial system “to get back at” their partners or ex-lovers and that defendants should not be convicted because it is all a lie. The strategy takes advantage of the rules of evidence that allow attorneys to impeach the credibility of a witness with any specific act of untruthfulness by bringing into evidence inconsequential acts of mendacity. By doing so, defense attorneys access the sexist narrative of the scorned woman that resonates with the implicit credibility bias of adjudicators and secure a verdict of not guilty. This strategy hinders convictions and deters victims from coming forward. Domestic violence victims are well aware of this practice and choose not to report the crimes out of the fear of being demonized as liars and re-victimized during the trial.

Consider the following example. A woman decides to press charges against her husband who has been physically abusing her for three years. During the trial, the defense attorney impeaches the 25–year-old “housewife” with a loan application she filed when she was 20. The victim admits during cross that she in fact lied on the application.  Since all of the acts of violence occurred in the privacy of their home, there are no other witnesses to corroborate her version except for the victim’s mother. During the trial, the defense attorney highlights how successful his client is and how the marriage was experiencing difficulties. In the closing, the defense attorney states that we know how the victim is capable of lying to get whatever she wants. He further argues that she did not want her husband to leave the relationship and was capable of lying in order to force her husband to stay with her and secure her financial stability. The basic premise of the defense’s theory is that it was all an attempt from the victim to get back at the abuser for wanting to end their relationship. Finally, the attorney discredits the victim’s mother by affirming that a mother would do anything for a daughter. The verdict comes out and the defendant is found not guilty.

This case is more common than we might think. Women not only face the disbelief of those closest to them who cannot understand why they would leave their “alleged” abusive partner, but also bear the cross of being depicted as liars in court. Conviction rates seem to suggest that such a strategy is quite effective and that fact triers’ biases are indeed precluding the fair administration of justice in gender-based violence cases.

A good strategy to prevent this from continuing to happen is to reform our evidentiary rules. We must shield gender-based violence victims from vicious attacks based in patriarchal notions about women’s character that only skew the truth and prevent justice from being served. Such a proposal should also make evident that this powerful narrative of women not being credible is so pervasive that none of us is exempt from acting upon its premises. Specifically, I advocate for the adoption of rules that would prevent attorneys from impeaching victims of gender-based violence (such as a battered women, rape and sexual harassment victims) with previous acts of untruthfulness not related to the charges.

My proposal envisions a hearing presided by a second judge in which defense attorneys will proffer to the court the evidence they possess and intend to use in the trial regarding the untruthful character of the victim. In addition, the defense will be required to present evidence about the victim’s history of misusing the judicial system or any proof it might possess with regard to the victim maliciously filing the suit or pressing charges against the defendant. During this special hearing, the prosecution or the plaintiff would have the opportunity to rebut the allegations from the defense and present evidence that supports the veracity of the charges and the lack of evidence about the victim abusing the judicial system.

This hearing would give the court the opportunity to weigh the relevance of the evidence against its prejudicial effects and the probability of misguiding the triers of facts in their determination of whether the offense actually occurred.  If the court determines that the probative value of the evidence outweighs its prejudicial effects, the court will issue an order stating that such evidence should be admissible and will state the scope of the defense’s line of questioning and how it could be used by the defense when arguing its case. This procedure would ensure – especially in criminal cases – that the defendant’s rights are not being violated, while providing the victim a less biased court.

Although a blog post does not provide sufficient space to explore all the details of a possible shield rule, I hope this entry serves to stir up a conversation about the need for such a rule. Hopefully, in the future, our rules of evidence will be amended to protect women from being doubly victimized in gender-based violence cases. Even more importantly, such a reform would help increase the conviction rates in gender-based violence cases and would encourage victims to report incidents of violence.

9

Why is Reproductive Technology a Battleground in the Abortion Debate?

Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, 120px-Icsitending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.

The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. Costa Rica, for example, banned IVF entirely for this reason in a law later struck down by the Inter-American Court of Human Rights. Although their connection may not be immediately obvious, then, abortion and assisted reproduction have a history of intertwinement in the policymaking arena.

An important question remains, though, about what is achievable in bringing anti-abortion sentiments to bear on issues in assisted reproduction. On the surface, there appears to be no clear connection between terminating a pregnancy and pursuing one. Of course, abortion and assisted reproduction are both techniques for managing reproductive life, and it is true that, in some applications, assisted reproduction may result in embryo loss. Hence, calls to regulate embryo disposition (called “adoption” in this context) and embryonic stem cell research make a certain amount of sense. But the claim that embryos have a moral status is not a good explanation for why other areas of assisted reproduction have become attractive battlegrounds for pursuing an anti-abortion agenda: egg donation, sex selection, and intentional parenthood.

It is obvious why the movement decries sex-selective embryo discarding or sex-selective abortion. Less clear is the reason for the movement’s opposition to pre-conception sex-selective techniques. Furthermore, anti-abortion advocates have claimed, respectively, that egg donation harms women and that intentional parenthood in the absence of a genetic connection harms children. Neither of these positions has much to do with abortion. If it is safe to assume that the stances assumed by the anti-abortion movement against assisted reproduction have more to do with banning abortion than with regulating reproduction, it is important for us to inquire into why the movement believes its resources are well spent in this area and what the implications of its activities might be for law and policy.

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Moving Targets: A new blog from Mary Anne Franks discusses revenge porn, feminist theory, and social media

Former Concurring Opinions guest blogger Mary Anne Franks (an expert on “revenge porn,” cyber civil rights, and feminist theory) has just launched her own blog at Moving Targets. As expected, it’s fantastic.

Concurring Opinions readers are familiar with Professor Franks’ writings on topics like masculinity, consent, and social media. Professor Franks is a popular figure in the news as well — in a recent Huffington Post panel discussing gender roles, she thoroughly beat up poor anti-feminist internet writer Gavin McInnes. Her new blog provides a space for further follow up and conversation, and she’s already using it in that role. In a legal blogosphere which has been sometimes limited in its engagement with feminist legal theory, Professor Franks’ voice is a very welcome addition.

Welcome to the blogosphere, Mary Anne!

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Legal Developments in Revenge Porn: An Interview with Mary Anne Franks

A handful of state legislatures have recently passed or considered some different proposed bills to address the harm of non-consensual pornography (often called ‘revenge porn’). The topic of revenge porn raises important questions about privacy, civil rights, and online speech and harassment.

Law professor Mary Anne Franks has written previously on the topic in multiple venues, including in guest posts at Concurring Opinions. We were pleased to catch up with her recently to discuss the latest developments. Our interview follows:

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Hi, Mary Anne! Thanks so much for joining us for an interview. This is a really interesting topic, and we’re glad to get your take on it.

I am delighted to be here! Thank you for having me.

Okay, some substantive questions. First, what is ‘revenge porn’? Read More

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Who’s Your Daddy?

Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.

The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.

Read More

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What It Means to Talk about Reproductive Justice

In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.

As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.

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No Margin for Error

FastSmileSuzanne Kim’s post below on the economic and social pressures for “smile surgery” reminds me of Jonathan Crary’s excellent book, 24/7: Late Capitalism and the Ends of Sleep. Reviewing developments ranging from military use of modafinil to the rise of energy drinks, Crary concludes that “Time for human rest and regeneration is now simply too expensive to be structurally possible within contemporary capitalism.” Might the same be said for unsmiling faces in hypercompetitive service industries?

The key questions here are: who’s in charge, and what are their values? A recent story on gender dynamics at Harvard Business School offers some clues:

The men at the top of the heap worked in finance, drove luxury cars and advertised lavish weekend getaways on Instagram, many students observed in interviews. Some belonged to the so-called Section X, an on-again-off-again secret society of ultrawealthy, mostly male, mostly international students known for decadent parties and travel. Women were more likely to be sized up on how they looked. . . .

As a a recent discussion on the problem of “Second Generation” gender bias showed, emphasis on appearance may be a key “unseen barrier” to equity.

Image Credit: book by Robin Leidner on the commodification of affect.