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Beyond Seduction: Lessons Learned about Rape, Politics, and Power from Dominique Strauss-Kahn and Moshe Katsav
n the last decade, two influential international political figures, Dominique Strauss-Kahn, former head of the International Monetary Fund, and Moshe Katsav, former President of Israel, were accused of engaging in extreme and ongoing patterns of sexual violence. The collection of formal charges against the two men included rape, forcible indecent assault, sexual harassment, and obstruction of justice. The respective narratives surrounding the allegations against Katsav and Strauss-Kahn have their own individual characteristics, and each of the cases unfolded in diverging ways. Yet, the actions of these two men taken together, and the corresponding response of the legal systems in France, Israel, and the United States, offer an opportunity to evaluate contemporary issues of rape and power from a comparative perspective. This Article begins by telling the stories of how Strauss-Kahn and Katsav engaged in systematic patterns of sexual violence. It provides important background and context against which the two men are evaluated, offering a comparative analysis of the laws under which they faced accusations, formal charges, and in some instances, convictions. It is difficult to understand the ways in which the legal system and even the media responded to these allegations of sexual violence. This Article considers the victimization of women by the politically powerful by utilizing a framework created originally by Norwegian sociologist Nils Christie that identifies a set of characteristics describing the “ideal victim.” It next examines some of the legal issues impacted by stereotypes of “ideal” victims that conflict with the reality of “real” victims, making recommendations for expanding Christie’s framework to include an equally comprehensive evaluation of perpetrators and more importantly, the power differential that exists between victim and perpetrator. Midway through this Article, I explore the connection between sexuality, seduction, and sexual violence, and argue for a disentangling of these constructs. Finally, this article concludes by considering how the allegations against these powerful international political figures might advance the conversation on the intersection of sexual violence and power.Does the Constitution Protect Abortions Based on Fetal Anomaly?: Examining the Potential for Disability-Selective Abortion Bans in the Age of Prenatal Whole Genome Sequencing
This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—-the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation of this new technology into clinical care will both invigorate anti-choice legislatures to pursue such legislation and cause the laws’ impact on women to be greater than initially anticipated. Using the undue burden standard announced in Planned Parenthood v. Casey, this Note concludes that federal and state disability-selective abortion bans are unconstitutional based on the Due Process Clause. The Note also questions whether the federal government has constitutional authority under its enumerated powers to even enact such a ban. Finally, the Note presents policy reasons for why such an abortion ban will degrade the right to a pre-viability abortion so significantly as to render it non-existent.The Case for Procedural Safeguards in the U.S. Refugee Admissions Program
The U. S. Refugee Admissions Program (“USRAP”) is a humanitarian program that resettles vulnerable refugees to the United States. Though these refugees have suffered from extraordinarily high rates of trauma, the refugee admissions process does not have formal statutory or regulatory safeguards to accommodate the vulnerable nature of many applicants for resettlement. Yet, the applicants who have suffered the most trauma, including victims of sexual and gender- based violence, are the refugees most likely to be impeded by a process that largely centers on proving the severity of their trauma. To promote accurate outcomes, and to decrease the risk of retraumatization during the resettlement adjudication process, Congress should enact procedural safeguards to govern USRAP. In applications for resettlement, refugees should be guaranteed access to counsel during their interviews, access to evidence used by USRAP against the refugee, written reasons for USRAP’s adverse decisions, the opportunity to appeal, and pre-screening for, and accommodation of, vulnerable traits that might impact the adjudication process.The North Carolina Woman’s Right to Know Act: An Unconstitutional Infringement on a Physician’s First Amendment Right to Free Speech
The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute that mandates that an individual speak alters the content of that speech and is, therefore, subject to strict scrutiny. Pursuant to current United States Supreme Court precedents on compelled and content-based speech, the relevant portions of the Act are unconstitutional. Further, the claim made by the Act’s proponents that the speech involved is commercial speech, subject to a lesser degree of First Amendment scrutiny, fails under the Court’s commercial speech precedents. The State may reasonably regulate the medical profession by mandating that physicians obtain informed consent and convey limited, truthful information to patients. However, the Act’s extensive and one-size-fits-all approach to informed consent is not a reasonable regulation of medical practice. What is left, therefore, is an unconstitutional attempt by the State to infringe on the First Amendment rights of physicians providing abortions in North Carolina.Victim Participation at the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia: A Feminist Project
The question this Article poses is whether victim participation--one of the most recent developments in international criminal law--has increased the visibility of the actual lived experience of survivors of sexual and gender-based violence in the context of war, mass violence, or repression. Under the Rome Statute, victims of the world's most serious crimes were given unprecedented rights to participate in proceedings before the Court. Nearly a decade later, a similar scheme was established to allow victims to participate as civil parties in the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC or Extraordinary Chambers), a court created with UN support to prosecute atrocities committed by leaders of the Khmer Rouge during the period of 1975 to 1979. Although there are some significant differences in how the schemes work at the ICC and ECCC, both courts allow victims to participate in criminal proceedings independent of their role as witnesses for either the prosecution or defense. In other words, both have victim participation schemes intended to give victims a voice in the proceedings. Significantly, women's rights activists supported the creation of these victim participation schemes, particularly at the ICC, because, among other things, they thought that doing so might help address the under- or misrepresentation of women's experiences in those situations covered by the Court's jurisdiction. My aim is to explore whether these novel victim participation schemes, as implemented by the ICC and ECCC thus far, have actually allowed for greater recognition of victims' voices and experiences than was possible in proceedings before their predecessor tribunals. Have these schemes actually allowed women to communicate a fuller and more nuanced picture of their experiences than they would have been able to as victim-witnesses before the Yugoslav and Rwanda tribunals? Have they contributed to a richer understanding of the different and complex ways in which sexual violence and inequality are experienced by women in the context of war, mass violence, or repression? In other words, can the victim participation schemes at the ICC and the Extraordinary Chambers answer the feminist call for increased visibility of the actual lived experience of survivors of sexual and gender-based violence in the context of war, mass violence, or repression? Can they, in this sense, be considered "feminist projects"?Civil Marriage: Threat to Democracy
This Article argues that civil marriage and democracy are inherently incompatible, whether assessed from a transcultural perspective that reduces them to their most universal aspects or a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than selfdetermining based on their own preferences; they effectively deprive their citizens of equality by establishing insidious status hierarchies. While some deprivations of liberty and equality are justified-for example, those offset by substantial benefits to social welfare-this Article argues that deprivations of liberty and equality resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a transcultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and hererosexist ideologies, whereas American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses. Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this Article argues that it should be abolished. It does not, however, propose (as some have) that the institution be replaced by a relatively analogous "civil union" regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, it would also enable states to allocate governmental benefits more appropriately. It should be emphasized that this Article applies only to civil marriage and does not propose to prevent sexual partners from celebrating their commitments through private ceremonies or dissolving their relationships according to the terms of private contracts.The Devil Comes to Kansas: A Story of Free Love, Sexual Privacy, and the Law
On Sunday, September 19, 1886, Moses Harman, the editor of the radical newspaper Lucifer the Light-Bearer, presided over an inherently contradictory event-a free-love marriage ceremony between his associate editor, the thirty-seven-year-old Edwin Walker, and Moses' own daughter, the sixteen-year-old Lillian. The case that the two Harmans and Walker wished to present aimed to transform marriage from a public to a private relationship and from a permanent and exclusive one to a temporary one that permitted potentially many partners. State v. Walker and its parties have received some scholarly notice, but the truly radical quality of the arguments Moses, Edwin, and Lillian presented has yet to be fully appreciated. This Article's principal purpose is to present and analyze these arguments and the judicial response to them, thereby shedding light on contemporary debates over whether the state should withdraw from the marriage arena. Scholars from various perspectives have come to maintain that the state's leading role in defining marriage should yield to private contractual ordering. In a pluralistic era where groups within society disagree fundamentally over the essential attributes of marriage, it is argued that the time has come to abandon narrow, one-size-fits-all public definitions of marriage in favor of a rich tapestry of differing personal perspectives and points of view.Displaced Mothers, Absent and Unnatural Fathers: LGBT Transracial Adoption
While some might believe that Black versus gay discourse only surfaces in highly politicized settings like the military and marriage, it holds sway in the area of LGBT transracial adoption. LGBT transracial adoptions are a relatively small percentage of all adoptions, which include private adoptions, LGBT second-parent adoptions, and step-parent adoptions, but they are an important site for interrogating the Black versus gay discourse because adoption and custody decisions often address parent-child transmission. When claims intersect, as they do in a case where a White LGBT foster parent and a Black maternal grandmother dispute the adoption of a Black child, weakened race-based claims and LGBT transmission fears inform the court's decision. Disrupting the media staging of Black versus gay could provide courts better insight into how weakened race claims and LGBT transmission fears pull in opposite directions, and this would create the conditions for better, more innovative family decisions. If courts had a better understanding of the apparent competition between race and orientation, but also understood the costs attached to the media staging of the discourse, decision making in adoption and custody cases could be more comprehensive, taking into account the common interests in the children at issue. Understanding the costs that result from the media staging of Black versus gay discourse is key to finding common ground for identity groups and helping children of color already in LGBT homes. Black versus gay discourse is dangerous because of the structural costs that come with continued reliance on pernicious stereotypes of Black and gay. Looking at media and advocacy sources about LGBT transracial adoption, it appears as though rich, White gay men who adopt dangerous, damaged Black children may be the answer to racism, the superabundance of children in foster care, and poverty and criminality. This narrative looks like the gentrification of Black children by the gay community. This is dangerous because it imagines that Black is not gay and gay is not Black. It also displaces Black women as rightful, loving, and capable mothers and obscures the contributions of LGBTs of color and those with lower incomes, many of whom are mothers and fathers.Limiting the Affirmative Defense in the Digital Workplace
From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world technology in place in the digital workplace and the legal framework that courts have constructed in connection with affirmative defense to sexual harassment. The fundamental difference between digital and physical sexual harassment is the employer's ability to monitor and block offensive digital communications and thus prevent digital sexual harassment. This possibility of prevention is the underlying reason for treating the two forms of harassment differently and for modifying the existing affirmative defense. This Article proposes that when an employer fails to use available technology to prevent known digital sexual harassment issues, the affirmative defense should be modified or unavailable. Adopting this approach would compel employers to use monitoring and blocking technology as a way to eliminate digital sexual harassment in the workplace.Against the New Maternalism
Parenting is a major preoccupation in law and culture. As a result of efforts of the American women's movement over the past forty years, the legal parent is, for the first time in history, sex-neutral. Our law has abandoned restrictions on women's education, employment, and civic participation that sprang from and reinforced beliefs about the primacy of motherhood as women's best destiny. On the flip side, U.S. law now also generally rejects formal constraints on men's family roles by requiring sex-neutrality of laws regulating custody, adoption, alimony, spousal benefits, and the like. The official de-linking of presumptive parenting roles from a parent's sex is constitutionally enshrined in modern equal protection doctrine, statutory law, and common law. That sex-neutrality is hard won and valuable. It is also, however, woefully incomplete as a form of social change.