Archive for the ‘Feminism and Gender’ Category
posted by Kaimipono D. Wenger
A familiar theme comes up frequently in internet discussions: Women who complain about online harassment are just missing the joke.
As an initial descriptive matter, it’s pretty clear that women and men are often treated differently in online discussion. (Quick, name a case in which someone was harassed online. Was the person you thought about a woman? I thought so.)
A few months ago, John Scalzi noted that:
In my experience, talking to women bloggers and writers, they are quite likely to get abusive comments and e-mail, and receive more of it not only than what I get personally (which isn’t difficult) but more than what men bloggers and writers typically get. I think bloggers who focus on certain subjects (politics, sexuality, etc) will get more abusive responses than ones who write primarily on other topics, but even in those fields, women seem more of a target for abusive people than the men are. And even women writing on non-controversial topics get smacked with this crap. I know knitting bloggers who have some amazingly hateful comments directed at them. They’re blogging about knitting, for Christ’s sake. . .
I can contrast this with how people approach me on similar topics. When I post photos of processed cheese, I don’t get abused about how bad it is and how bad I am for posting about it. People don’t abuse me over my weight, even when I talk explicitly about it. I go away from my family for weeks at a time and never get crap about what a bad father that makes me, even though I have always been the stay-at-home parent. Now, it’s true in every case that if I did get crap, I would deal with it harshly, either by going after the commenter or by simply malleting their jackassery into oblivion. But the point is I don’t have to. I’m a man and I largely get a pass on weight, on parenting and (apparently) on exhibition and ingestion of processed cheese products. Or at the very least if someone thinks I’m a bad person for any of these, they keep it to themselves. They do the same for any number of other topics they might feel free to lecture or abuse women over.
It’s this sort of thing that reminds me that the Internet is not the same experience for me as it is for some of my women friends. (Emphasis added.)
That bears repeating: The Internet is not the same experience for men as it is for women. (No wonder women are numerically underrepresented in prominent internet discussion spaces.)
Why is the internet a different place for men than for women? There are doubtless a number of contributing causes, but one of the major factors is that the internet is largely a male-constructed discursive space, and internet discussion norms often build on assumptions of male privilege. Read the rest of this post »
posted by Danielle Citron
With the help of law and changing norms, invidious discrimination has become less prevalent in arenas like schools, workplaces, hotels, and public transportation. Due to our social environments, anti-discrimination law is fairly easy to enforce. Because leaders usually can figure out those responsible for discriminatory conduct and ignore such behavior at their peril, bigotry raises a real risk of social sanction. So too hate discourse in the public sphere is more muted. A hundred years ago, Southern newspapers and leaders explicitly endorsed mob violence against blacks. As late as 1940, a newspaper editor in Durham, North Carolina could state that: “A Negro is different from other people in that he’s an unfortunate branch of the human family who hasn’t been able to make out of himself all he is capable of” due to his “background of the jungle.” In the post-Civil Rights era, the public expression of bigoted epithets and slurs occurs infrequently. One rarely hears racist, sexist, or homophobic speech in mainstream media outlets. Some interpret this state of affairs optimistically, as a sign that we are moving beyond race, gender, and arguably even sexual orientation. The election of the first black President provoked proclamations of our entry into a “post-racial” era. Many contend that we no longer need feminism anymore. Prime time television is filled with images of female power, from Brenda Leigh Johnson’s chief on The Closer to Dr. Miranda Bailey’s “take no prisoners” surgeon on Grey’s Anatomy. Who needs feminism anymore as its goals have been achieved?
But a new era is not upon us. In some arenas, hate’s explicit form has repackaged itself in subtlety. In public discourse, crude biological views of group inferiority are often replaced with a kinder, gentler “color-blind racism,” as sociologist Eduardo Bonilla-Silva calls it. The face of modern racism is, in journalist Touré’s estimation, “invisible or hard to discern, lurking in the shadows or hidden.” The media has also better disguised sexism with its anxiety about female achievement, renewed and amplified objectification of young women’s bodies and faces, and the dual exploitation and punishment of female sexuality, as media scholar Susan Douglas explains.
Offline public discourse may now be on more neutral ground but its online counterpart is not. While virulent bigotry continues behind closed doors, it increasingly appears in online spaces that blend public and private discourse. Although televised sports commentary rarely features anti-gay rhetoric, online sports message boards are awash in in-your-face homophobic speech. Racial epithets and slurs are common online, whether in Facebook profiles, Twitter posts, blog comments, or YouTube videos. College students encounter more sexually inappropriate speech in online interactions than in face-to-face ones.
Matters have not improved since I started talking and writing about it since 2007, when we woke up, for a brief second, and paid attention to sexualized, misogynistic attacks on Kathy Sierra on her blog and two others and the targeting of female law students on AutoAdmit. Then, technologist Tim O’Reilly and Wikipedia co-founder Jimmy Wales called for a Blogger’s Code of Conduct. That effort failed to gain traction, and ever since the bigoted online abuse continues, silencing victims, ruining their online reputations, costing them jobs, and interfering with their ability to engage with others online and offline. Newsweek’s always insightful Jessica Bennett has published important new piece on online misogyny and the Guardian’s Vanessa Thorpe and Richard Rogers similarly explore the rape threats and abuse of female bloggers. I will be blogging about bigoted online harassment, as I am amidst writing a book about it and serving on the Inter-Parliamentary Task Force on Online Hate, which recently held a hearing at the House of Commons. This all has to stop, and now.
posted by Jennifer Hendricks
Yesterday I posted about a dilemma in parental leave policies: The desire for formal sex equality leads to equal “caretaking” leave for men and women; when this leave is paid by the employer, it is typically quite short. The reality of biological differences is dealt with by providing separately for “disability” leave for pregnant and birthing women, often for a much longer period. In practice, that means that a woman who gives birth has an extended opportunity to bond with and care for a new child, while people who become parents in other ways do not. This creates an early discrepancy in caretaking between birthing and non-birthing parents. When children are adopted, the family as a whole suffers from not having that extra leeway for caretaking.
A woman in New York has filed a suit challenging these inequities in a novel way: Kara Krill received 13 weeks of paid maternity leave when she gave birth to her first child. Krill was unable to bear another child, and she and her husband hired a gestational surrogate, who gave birth to twins. This time, Krill was allowed only 5 days of leave, under the company’s policy for adoptive parents. Her suit alleges disability discrimination, saying that if it weren’t for her disability, which required her to have her children through a surrogate, she would have given birth and been entitled to the full 13 weeks of leave.
Krill faces an uphill battle under current law. I’m drawn, however, to the idea of designing parental leave policy around the idea that the inability to give birth is a disability that should be accommodated—and not just for women. Read the rest of this post »
posted by Jennifer Hendricks
Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:
U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.
The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Read the rest of this post »
posted by Frank Pasquale
I just wanted to make this announcement about an extraordinary conference:
The National Association of Women Judges is hosting their annual international conference in Newark, New Jersey on October 12-16. On October 14th, there will be a symposium at Rutgers Law School entitled Promoting Global Equality for Women Through the Law and on the 15th Seton Hall Law School will host break-out sessions on various topics including domestic violence, urban revitalization, immigration, forensic evidence, cross-cultural issues in the courts and leadership training. Seton Hall Law student Megan Altman will be receiving the Justice Ruth Bader Ginsburg scholarship which will be presented at the NAWJ Gala Saturday night at the Newark Club with Justice Ginsburg delivering the keynote address.
More information here at the NAWJ website. According to an email I received, “There are more than 50 international judges registered for the conference from countries including Argentina, Canada, China, Gambia, Guam, Haiti, Honduras, India, Jordan, Korea, Lagos, Malawi, Moldova, Navajo Nation, Nepal, Philippines, Sarajevo, South Korea, Taiwan, Tanzania, and Uganda.”
posted by Courtney Joslin
Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.
As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”
Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.
My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.
In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.
posted by Caroline Mala Corbin
In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.
For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”
In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.
posted by Mary Anne Franks
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 the rest of this post »
posted by Solangel Maldonado
Today the Supreme Court will hear argument in Wal-Mart Stores v. Dukes, potentially the largest employment class action case in U.S. history. The plaintiffs allege that Wal-Mart paid male employees more and promoted them over women with more seniority and that it maintained a culture of gender stereotyping where women were called “Janie Q’s,” told to wear make-up and “doll-up,” and meetings were held at Hooters. They also rely on statistical data to establish discrimination. They claim that women comprise 80% of hourly supervisors, but only one-third of store managers. The percentage of women in higher positions is even lower.
Unfortunately, we won’t learn for a while whether Wal-Mart actually discriminated against its female employees. The issue before the Court is one that civil procedure, specifically class action, junkies should find titillating—whether the six plaintiffs should have been certified to bring a class-action that could potentially include 1.5 million employees in thousands of stores across the country. Wal-Mart claims that there is no commonality among the plaintiffs’ claims and that the “named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent.” If the term “class-action certification” is making you yawn, you might be missing the potential impact of this issue for employment discrimination plaintiffs going forward. If the Supreme Court adopts the view of the dissenters in the Ninth Circuit opinion and requires plaintiffs seeking class certification to show “significant proof that an employer operated under a general policy of discrimination,” plaintiffs (including the EEOC) are also likely to find it much more difficult to prove that the entity should be held liable when the case is heard on its merits. I didn’t understand these implications until I read Professor Tristin Green’s article exposing the impact of Dukes for the future of systemic disparate treatment law. She also argues that the current individualistic model of disparate treatment (one bad actor or as one Wal-Mart executive put it, “some bosses may have gone astray”) has made it difficult for scholars to think critically about entity responsibility for systemic disparate treatment in the workplace. You can read the abstract and article here.
posted by David Gray
Secretary of State Hillary Rodham Clinton used her speech at the International Women of Courage Awards to call for women to be included in the processes of transition underway in Tunisia, Egypt, and elsewhere in the Middle East. According to Secretary Clinton, despite the fact that women played a prominent role in recent popular uprisings in Tunisia and Egypt, no women were invited to “join in drafting constitutional amendments for the transition to democracy [in Egypt].” Clinton rightly expressed her concerns with this state of affairs, pointing out both that “women . . . deserve to be at that table making those choices that will affect their lives and the lives of their daughters and theirs sons” and that “[n]o government can succeed if it excludes half of its people from important decisions.”
The experiences of women in abusive societies and the roles and rights of women in times of transition are topics of considerable interest for transitional justice scholars. Fionnuala Ní Aoláin, Ruth Rubio Marin, Christine Bell, and Catherine O’Rourke deserve particular credit for pressing these issues in recent articles and collected editions. The central messages of their important scholarship are: 1) that women’s experiences as victims are unique both because women are more frequently subjected to sexual violence and because women often bear much of the economic and social burdens of family survival; 2) that women are uniquely vulnerable during and after transition and are at risk of remaining victims of oppression and targeted violence even as the rest of society is liberalized; 3) that democratic commitments core to most transitional movements entitle women to a “seat at the table” during transition; and 4) that by including women in transitional and transitional justice processes, transitioning societies will be in a better position to achieve lasting peace while making good on their core commitments to democracy, human rights, and the rule of law. While hard to argue, these claims on justice have yet to gain much traction in actual transitions. Secretary Clinton’s comments are therefore welcome and well-timed.
posted by David Gray
posted by Mary Anne Franks
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.”
posted by Mary Anne Franks
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.”
Victims to the left of me, accusers to the right: Does Bobby Franklin know something we don’t about rape?
posted by Mary Anne Franks
Georgia state representative Bobby Franklin (R-Marietta) has recently proposed a bill that would require the word “victim” to be replaced with “accuser” in the state’s criminal codes. If this were the whole story, the bill might pose a moderately interesting metaphysical question: aren’t all crime victims merely accusers unless and until a court delivers a conviction? While the answer to that question is perhaps rather obviously no, that is not the question the bill actually raises: Rep. Franklin doesn’t think that people who claim to have been robbed, assaulted, or defrauded are merely “accusers.” No, those people are still “victims” even before a conviction is handed down, and indeed even if no conviction ever materializes. The bill only applies to certain crimes – namely, rape, stalking, and family violence. That is, the only crimes affected by this bill are those crimes disproportionately committed against women and committed disproportionately by men.
What accounts for this exceptional treatment? Neither the bill nor Rep. Franklin himself offers insight into the bill’s logic, and so we are left to speculate. Perhaps Rep. Franklin has fallen victim (or do I mean accuser?) to the unfounded yet persistent belief that false accusations of rape are significantly more common than those of other crimes. The bill provides yet another opportunity for misogynists to rehash hysterical statistics on false rape reports (one site,”Fathers for Life,” goes so far as to claim that there are 520,000 false rape allegations per year, a number that the site claims to work out to a whopping 98.1% of all reported cases – interesting numbers, because according to the National Crime Victimization Survey, there are closer to 250,000 sexual assaults per year, which would mean that 520,000 false reports would actually work out to an impressive false allegation rate of about 200%…) as well as a host of other anti-feminist canards, such as the claim that feminists don’t believe women ever lie about rape. How wearying it is to have to cover the same ground, over and over: of course people sometimes lie about rape. They also sometimes lie about robbery, and fraud, and assault. No reliable study – that is, any study that does not simply categorize as false all reports not resulting in convictions (an unconscionable conflation even without considering the documented, widespread manipulation and miscategorization of rape claims by police departments) – has ever shown that false reports of rape are significantly more common than false reports of other crimes. Yet false rape reports receive far more media attention than false reports of other crimes; rape claims are subject to more skepticism and invasive investigation than other claims; and rape is, for these and many other reasons, a vastly underreported crime.
And yet Rep. Franklin has proposed a bill that actually manages to make the status quo worse – one that actually increases the skepticism and prejudice that victims (yes, victims) of sexual assault, stalking, and domestic violence already endure. Even if there might be some merit in a general prohibition on the term “victim” prior to a court determination that a crime has been committed (although whatever merit this prohibition would have is meager indeed, as it defies logic to claim that a person has only been victimized if some perpetrator is proven guilty of the crime in a court of law. This would mean that all unsolved murders have no victim; all unreported crimes have no victim; all crimes not resulting in convictions due to bad lawyering or jury error have no victim), to apply this prohibition only to crimes committed primarily against women is simply unjustifiable.
posted by Mary Anne Franks
A Wikileaks cable involving the U.S. contracting firm DynCorp (a company that is no stranger to scandal) has received relatively little attention so far. DynCorp employees apparently hired bacha bazi, also called “dancing boys,” to perform at a party for Afghan police officers. While the details of the party are not yet clear, the practice of bacha bazi, which literally means “boy for play,” is a 300-year old Central Asian tradition that the State Department has called a “widespread, culturally sanctioned form of male rape.” The practice was banned under the Taliban but has re-emerged in recent years. The dancers, who are often abused children disowned by their families, wear makeup, women’s clothing, and bells on their feet when they perform for audiences of older men. According to the New York Times, “boys as young as 9 are dressed as girls and trained to dance for male audiences, then prostituted in an auction to the highest bidder.” When bachas turn 19, they are released and allowed to “reclaim their status as ‘male,’ though the stigma of having lived as a bacha is hard to overcome.” Some social scientists posit that the popularity of bacha bazi stems from the strict gender segregation that characterizes Afghan society even after the fall of the Taliban. There are few opportunities for men to interact with women, or boys with girls. While women are no longer required to wear the burqa since the Taliban were taken out of power, many still do out of local custom or fear for their safety. As one Afghani man put it, “How can you fall in love if you can’t see her face? We can see the boys, and we can tell which are beautiful.”
A short time ago, the New York Times ran a story about girls in Afghanistan who dress as boys until they reach puberty. The practice of bacha posh, which means “dressed as a boy,” allows families to avoid the perceived stigma of having no sons. It has the added benefit of granting girls freedom of movement and education that they would not otherwise have. A bacha posh can go to school, work outside the home, or be seen in public without a male chaperone much more easily than if she were visibly female. The freedom is temporary, however. When the girls approach marrying age or reach puberty, they are usually forced by their families to change back. Many of these girls resist this reversion. Sexual harassment and sexual assault of girls and women remains common in Afghanistan, and the restrictions on their movement and education make for difficult adjustments. “People use bad words for girls,” said one fifteen-year-old. “They scream at them on the streets. When I see that, I don’t want to be a girl. When I am a boy, they don’t speak to me like that.” Changing back into a girl also presents other challenges; women speak of the difficulties of having to learn how to interact with other women, how to speak like a woman, and how to walk in a floor-length covering after years of wearing loose trousers.
The twinned drag practices of bacha bazi and bacha posh reveal how much the consequences of feminization differ from those of masculinization. In bacha bazi, boys are feminized and consequently experience sexual exploitation and a lowering of social status. In bacha posh, girls are masculinized and experience the benefit of increased physical security and social freedom. To be feminized is to be punished; to be masculinized is to be liberated. It is tempting to locate the harm of these practices in the transposition: boys should not be forced to be girls, and girls should not be forced to be boys (this is how the harms of male prisoner sexual abuse is often characterized, i.e., men should not be treated as women). But to do so implies that there is some natural essence of “boyness” or “girlness” that childhood drag perverts. It would imply that the harm could be cured by simply ensuring that boys were allowed to be boys, and girls to be girls. That is, when these boys and girls reach adulthood and “switch back” (if they can do so successfully), the world is righted on its axis. But the fact that childhood drag is possible – that boys can meaningfully be thought of as girls, and vice versa - supports Judith Butler’s insight that drag has the potential to “enact and reveal the performativity of gender itself in a way that destabilizes the naturalized categories of identity and desire.” If so, it would be exactly wrong to draw from bacha bazi/bacha posh the lesson that we should not force boys and girls to be something they are not; rather, the lesson is that “girlhood” and “boyhood” can be put on or taken off. As constructs, they can be evaluated for their relative harms or benefits, and doing so exposes a significant asymmetry. To be considered male in Afghanistan means physical security and social freedom, whereas being considered female means abuse and oppression. Perhaps what the practices of bacha bazi/bacha posh illuminate most starkly, then, is how the construct of femininity can rob both boys and girls of childhood.
posted by Kaimipono D. Wenger
It is my pleasure to invite you to Thomas Jefferson School of Law’s upcoming 10th Anniversary Women and the Law Conference, “Gender Justice and Indian Sovereignty: Native American Women and the Law,” on Friday, February 18, 2011.
This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.” Read the rest of this post »
posted by Gerard Magliocca
There is an ongoing debate about whether the Act should be amended to eliminate its clear gender discrimination. The Act provides that the eldest son of the heir to the Throne is next in line for succession. This means that if Prince William and Kate Middleton have a daughter and then a son, the son would leapfrog his sister. (Queen Elizabeth II did not have any brothers.) The proposed amendment would provide that the eldest child is always next in line.
Here’s the twist: such an amendment would require the consent of all Commonwealth countries that recognize the Queen as their head of state. In effect, that Act of Parliament would also work a change in the domestic law of those countries. Thus, negotiations must be undertaken to secure consent from those former colonies, though of course they could refuse and start recognizing someone else as head of state (a President, for example).
This is the closest equivalent to an Article Five amendment in the British Constitution. You need support from Parliament and ratification by other legislatures. I think that issues involving the Crown are the only ones that require this special treatment.
No word on whether Parliament will also disestablish the Anglican Church and allow Catholics into the royal line. Gender discrimination is bad. Religious discrimination — not so much.
posted by Danielle Citron
Caroline Mala Corbin‘s Ceremonial Deism and The Reasonable Religious Outsider (UCLA Law Review 2010) is thought-provoking and important. Corbin argues that the reasonable person standard at the heart of the Establishment Clause’s endorsement analysis perpetuates Christian privilege rather than ensures religious liberty and equality for all. In her analysis, Corbin astutely invokes critiques of the reasonable person standard in sexual harassment doctrine. Here is the abstract:
State invocations of God are common in the United States; indeed, the national motto is “In God We Trust.” Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.
But would all reasonable people reach this conclusion? This Article examines the “reasonable person” at the heart of the Establishment Clause’s endorsement analysis. The starting point is the feminist critique of early sexual harassment decisions, which often held that a reasonable person would not find that the alleged harassment created a hostile work environment. Feminists argued that the supposedly objective reasonable person was actually a reasonable man, that men and women often have different perspectives on what amounts to sexual harassment due to structural inequalities, and that reliance on this unstated norm perpetuates male privilege rather than remedies it.
This Article argues that the same insights apply to the reasonable person used to evaluate ceremonial deism. The supposedly objective reasonable person too often equates to a reasonable Christian. Furthermore, just as men might find harmless comments that women would find offensive, certain invocations of God may seem acceptable to Christians that non-Christians would find alienating because of their status as religious outsiders. Finally, reliance on this norm perpetuates Christian privilege rather than ensures religious liberty and equality for all. Consequently, the constitutionally of ceremonial deism should be evaluated from the perspective of a reasonable religious outsider.
posted by Kaimipono D. Wenger
Today’s Bright Idea comes from Martha Chamallas and Jenny Wriggins. Martha Chamallas is the Robert J. Lynn Chair in Law at the Ohio State University, Moritz College of Law and is the author of Introduction to Feminist Legal Theory, and Jenny Wriggins is the Sumner T. Bernstein Professor of Law at the University of Maine School of Law. Both Martha and Jenny have written extensively about some of the ways in which tort law fails to adequately respond to the experiences of marginalized groups such as women and racial minorities. In The Measure of Injury, published earlier
this last year by NYU Press, the authors draw on their expertise (and a stunning array of mind-boggling real-life examples) to systematically demonstrate that tort law undervalues women and racial minorities, both historically and into the present. It’s an incredibly valuable contribution which also makes for a fascinating read. For the Bright Ideas series, we asked the authors a few questions about the book and also about their larger project.
1. As a general observer it seems to me that there is a moderately widespread public perception that race and gender inequalities are largely a thing of the past. What would you say in response to that idea?
The conventional wisdom about tort law certainly is that the field is gender and race neutral. In that respect, our book’s emphasis on gender and race bias cuts against the grain. In writing this book, we had to confront the reality that few people realize that tort law was historically marked by sharp distinctions based on race and gender. This lack of awareness contrasts with general assumptions about other parts of the legal system. There is a widespread perception, for example, that at one time the criminal justice system was racist. Historical inequalities in tort law, however, are just as striking and also merit attention, particularly since their legacies are imprinted in contemporary law. Read the rest of this post »
posted by Danielle Citron
In a move that recalls the postings on the now-defunct Juicy Campus, Facebook groups devote themselves to vulgar descriptions of female high school students. As Donna St. George of the Washington Post reported on November 11, a Facebook page targeted 30 female students from the T.C. Williams High School in Alexandria, Virginia. It featured photographs of the students accompanied by “offensive or sexual comments.” Another similar page included a picture of the school’s female principal. The Daily Beast recently reported that Choate Rosemary Hall boarding school banned access to Facebook through campus computers after discovering a 200-plus-page-long threat penned by female students that disparaged fellow female students. The Facebook page described Choate students as “hos” and “gross and faked and spray tanned.”
Facebook’s Terms of Service requires users to agree to refrain from bullying, intimidating, or harassing other users.” Pursuant to that policy (or so we can guess), Facebook took down the page of the 30 girls with the sexually demeaning comments five days after T.C. Williams High School’s principal filed a complaint with Facebook. Despite Facebook’s real-name culture, the author of the Facebook page has not been identified, an unsurprising result given the advantages provided ill-meaning individuals who want to evade responsibility for online activity. In the boarding school matter, it seems that a student copied the thread, publishing it for the consumption of students (and everyone else) who were not privy to the Facebook page. According to the Daily Beast, school administrators “hired a computer forensics expert to track how it had been made public.” Two of the girls who wrote the post were expelled and four were suspended.
In the T.C. Williams High School matter, the principal went on the school’s PA system for two days in a row to let students know that she thought the page was “totally offensive.” The Washington Post reports that the principal also asked students to avoid accessing it: “We’re better than this,” she told the students. If that is all the principal did, it seems a weak showing of moral leadership and civic education. Hopefully, the incident began a longer-term conversation about many things, including bullying, gender harassment, the risks of online activities, and the responsibilities of students while online. Now, the school officials’ response in the Choate matter is worth discussing. Norm Pattis, a Connecticut trial lawyer, contends that the school’s response is too harsh given the dire consequences of a school expulsion on a student’s chances of getting into college. Prohibiting Facebook on campus may also be an empty gesture. On the one hand, Choate students have continued to tweet and tumbl on their school accounts. They also can access social media including Facebook on their mobile devices, raising the same concerns of online civility. On the other, as Pattis suggests, the school missed a crucial teaching opportunity (beyond a 90-minute discussion with students) on how to be leaders, rather than the quick fix of banning Facebook on the campus network. That sounds right to me, too.
November 26, 2010 at 5:06 pm Posted in: Anonymity, Current Events, Cyber Civil Rights, Feminism and Gender, First Amendment, Privacy, Privacy (Gossip & Shaming), Technology, Web 2.0 Print This Post 3 Comments