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Reconsidering the Abuse That Dare Not Speak Its Name: A Criticism of Recent Legal Scholarship Regarding Same-Gender Domestic Violence
This article argues that while recent legal scholarship effectively disputes the applicability of a gendered model of domestic violence to same-gender abuse, it goes too far in embracing a completely gender-neutral model. Part I explains the theoretical problems with the non-gendered model of domestic violence by examining in detail the research which is most often cited in legal writings in support of this model. Part II briefly explores the pragmatic implications for lesbian and gay male victims of domestic violence when law enforcement policies such as mandatory arrest are based on a model of domestic violence which ignores contexts such as gender. Finally, Part III recommends initially abandoning any single model of domestic violence that assumes a priori gender neutrality, and instead constructing multiple models limited to specific contexts and dynamics. Once these multiple models have been adequately assessed and tested, their common threads can be identified and woven into an integrated meta-model.Law, Self-Pollution, and the Management of Social Anxiety
This article considers the anxieties about masturbation and spermatorrhoea from the standpoint of cultural-legal analysis. Seen from this perspective, the worries about masturbation provided an object onto which social anxieties could be displaced and thereby managed. Norm entrepreneurs who played on public fears manipulated basic cultural polarities in order to present masturbation and spermatorrhoea as objects of horror and disgust-things that needed to be expelled, if possible, from the body social.United Nations Convention Documents in Light of Feminist Theory
This article proposes that language identifying human rights of women in U.N. Conference documents has its origin in several different feminist theories. An understanding of these theories can help to clarify meaning, resolve inconsistencies, and predict the future direction of language in U.N. documents. Part I examines three prominent feminist theories and their relation to international law. Part II examines the history of women's rights in U.N. documents and examines the influence of feminist theory on the document language. Using the Women and the Economy section of the Fourth World Conference on Women, Platform for Action (Platform for Action), Part III shows how feminist theories can aid observers in understanding the documents and in making predictions about future trends. Comparison of the Platform for Action with a recent U.N. document titled Further Actions and Initiatives to Implement the Beijing Declaration and the Platform for Action supports predictions made based on the use of certain theories. Although language in U.N. documents still shows the influence of each of the three major theories, this article concludes that Dominance Feminist theory has the greatest impact.Faith in Justice: Fiduciaries, Malpractice & Sexual Abuse by Clergy
This article argues that perpetrators of sexual misconduct should not be granted refuge from the potential consequences of their actions by mere affiliation with a religious institution. Part I of this article examines the theories of malpractice and breach of fiduciary duty, and determines the appropriate cause of action for sexual misconduct and ascertains their capacities to withstand First Amendment scrutiny. Determining the cause of action is essential to the evaluation of the potential constitutional challenges. Part II demonstrates that sexual misconduct by clergy is well outside First Amendment constraints. It examines both the Free Exercise and Establishment Clauses, and evaluates the approaches of courts to the situation of clergy sexual misconduct. Part II then compares the judicial treatment of sexual harassment by clergy under Title VII as guidance for treatment of sexual misconduct by clergy. This Part also discusses a general theory of state intervention in the affairs of religious organizations. This article concludes with an application of the appropriate cause of action under tort law within First Amendment constraints.“Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism
This Article first summarizes gender, transgendered identity, and legal issues facing transgendered people to contextualize the lives of transgendered prisoners. Parts II and III explore respectively the placement and treatment issues that complicate the incarceration of the transgendered. Corrections authorities, through indifference or incompetence, foster a shockingly inhumane daily existence for transgendered prisoners. In Part V, I examine the plight of transgendered prisoners through the metaphor of the miners' canary. Transgendered prisoners signal the grave dangers facing all of us in a wide array of social structures, elucidating the apparently intractable problems of gender. This Article simultaneously explores a human rights tragedy and proposes practical solutions while taking a critical perspective on the issues raised.Parens Patriae and a Modest Proposal for the Twenty-First Century: Legal Philosophy and a New Look at Children’s Welfare
This paper will turn to philosophy to seek material for limiting the exercise of parens patriae power. A significant reduction of the government's role will better serve the modern concern for child rearing which is this century's re-definition of best interests.An Emerging Ethical and Medical Dilemma: Should Physicians Perform Sex Assignment Surgery on Infants with Ambiguous Genitalia?
This article discusses the development of a surgical approach to treating intersex infants and others with genital anomalies that began in the late 1950s and 1960s and became standard in the 1970s. Although professional literature has recently questioned the surgical approach to the treatment of infants, controversy surrounding treatment persists and the medical community now is divided. How sex reassignment surgery for intersex infants became a routine recommendation of practitioners and how parents were persuaded to consent to such radical surgeries provide a cautionary tale that is relevant to both medicine and law.A Matter of Principle and Consistency: Understanding the Battered Woman and Cultural Defenses
To adequately explain and argue why feminists, as a matter of legal theory, must take both the BWS and cultural defenses seriously, these defenses need further elaboration. Section I details what these defenses are, how they developed, and how they work in the justice system. Section II enlarges the picture by revealing the similarities between the two defenses which share not only the same theoretical and practical goals, but also the same criticisms and flaws highlighted by scholars. Finally, Section III asserts that cultural evidence and evidence of battering must be admitted to show the absence of mens rea. However, because serious problems arise from the admission of these two defenses, Section III discusses one potential approach to mitigating or eliminating the resulting harms and urges the search for more alternatives. The Article concludes that feminists must accept the admission of cultural evidence and evidence of battering in domestic violence homicide trials. The proper response to the problematic aspects of each defense is the search for specific solutions and approaches to mitigate the harms, not the abandonment of either defense.Dowry Deaths: Proposing a Standard for Implementation of Domestic Legislation in Accordance with Human Rights Obligations
This article discusses the due diligence standard of governmental responsibility, and measures the adequacy of India's implementation of its national dowry death legislation in accordance with its international human rights obligations. India has enacted legislation designed to combat dowry violence. Although India's laws seem to follow the letter of its international human rights obligations, the country violates the spirit of human rights by lacking an actual commitment to implement this legislation. This Article demonstrates and examines India's breach of its duty of due diligence. Such a breach constitutes government complicity in condoning and perpetuating dowry deaths, which violate women's human rights in India. Through this complicity, India dishonors its obligations under the Universal Declaration of Human Rights, the International Covenant on Social, Economic, and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention of Elimination of All Forms of Discrimination Against Women, the Declaration on the Elimination of Violence Against Women, and the Beijing Declaration and Platform for Action.Minors as Medical Decision Makers: The Pretextual Reasoning of the Court in the Abortion Cases
By examining the Court's failure to consider the allocation of authority between parents and children in the critical realm of medical decision making, this article exposes the irrationality of the Court's acceptance of limitations on the abortion rights of minors and reveals the pronatalist thrust of the parental involvement decisions. The article begins by looking at how the Roe Court characterized abortion as a medical decision, followed by a discussion about the medical decision-making rights of minors. Rooted in this medical paradigm, the article then turns to the parental involvement cases to examine the Court's failure to consider the medical decision-making of minors when evaluating the constitutionality of parental involvement laws as well as its emerging concern for the rights of the unborn.