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Rape and the Querela in Italy: False Protection of Victim Agency
This Essay describes the history of the querela in Italy and explores the controversy surrounding the decision to maintain this institution. In addition, this Essay questions the degree to which the querela can protect victim agency when the attitudes of judges and lawyers in the Italian criminal justice system reflect persistent rape myths.Sex-Separation in Public Restrooms: Law, Architecture, and Gender
This Article challenges the common assumption that legally mandated sex-separation of public restrooms is a benign recognition of natural anatomical differences between men and women. Relying on legal history, gender history, and architectural theory, my central thesis is that, contrary to common intuitions, there was nothing benign or gender neutral about the social and historical origins of the first laws adopted at the end of the nineteenth century that mandated such separation.The Use of Drug Testing to Police Sex and Gender in the Olympic Games
Part I of this Article discusses the history and development of sex testing and drug testing and argues that the two are both historically and ideologically linked. Part II examines the current Code in detail and argues that the Code's focus on hormone-based controls acts to police sex and gender in Olympic athletes, thereby extending historical sex testing practices to a new era. This Article ultimately concludes that without recognizing and addressing the need for further research into the role of "sex" hormones in the body and the interplay of social context and biological circumstances, the IOC cannot maintain an anti-doping plan that serves its fairness and equality goals.Preserving the Seeds of Gender Fluidity: Tribal Courts and the Berdache Tradition
This Article outlines the particular cultural characteristics giving rise to traditional berdachism, the means by which American policies fostered their decline, and the Navajo tribal courts' re-infusion of these characteristics into contemporary jurisprudence. By tracking the interplay between the traditional values of child autonomy, gender equality, and tribal collectivism, the rise, fall and potential reemergence of the berdache tradition can be analyzed as resulting from shifts in its determinative cultural elements.The Rights of Putative Fathers to Their Infant Children in Contested Adoptions: Strengthening State Laws that Currently Deny Adequate Protection
This paper argues that states need to strengthen protection of putative fathers' rights to their infant children when the mother wishes for the child to be adopted. Part I frames the discussion around established parental rights through constitutional case law. To do this, the paper addresses both the Supreme Court's parental rights doctrine and its biology-plus doctrine, which requires unwed fathers to show that in addition to being the biological father they also have taken responsibility for their children. Part II describes common state statutes that affect putative fathers, including putative father registries, safe haven laws, and laws granting custody of an infant child to preadoptive parents instead of the father when he contests an adoption petition. Part II also discusses these statutes' inherent flaws, which violate an unwed father's parental and due process rights, and suggests ways states can strengthen these statutes to provide greater protection for fathers. Part III addresses how state practices implicate poor policy decisions. Specifically, states promote adoption for illegitimate children even when unnecessary and psychologically harmful, and when federal child welfare policy promotes family preservation. Part IV adds two more recommendations for how states can strengthen their protection for unwed fathers: greater compulsion of mothers' cooperation in identifying the father of their child and better recognition of the child's interest in being raised by a biological parent.A Sign of “Weakness”? Disrupting Gender Certainties in the Implementation of Security Council Resolution 1325
This Article will examine whether efforts to implement the Resolution suggest new ways to address the old problems: the reliance on stereotyped gender representations to rally women in the cause of peace and the vexed strategic question of how movements for transformative change might influence the mainstream institutions of international law and politics. The first concerns the way that the category of gender is deployed by women's peace activism and by international institutions as they respond to it. The author’s question is whether it is possible to rally women to promote peace, while also challenging the gender dichotomies that underpin the notion of a distinct women's contribution to peace; whether there are "disruptive" gender identities that can form an emancipatory basis for solidarity between women and men in the cause of peace. The second problem is whether the pacifist and equality goals of women's peace movements can best be pursued from outside or within mainstream institutions, systems of location which carry their own gendered dichotomies. The long experience of women's peace activism suggests that the most that can be achieved is a position that is partially inside. Rather than treating partial entry as a failed attempt at full inclusion, the suggestion is that this position might provide a foothold for resistive activity; that it may be possible to use this "in-between" space to remain accountable to anti-militarist "outside" movements while also working from the "inside" to transform military practices and ideologies. This suggestion has important implications for the ongoing struggles for a non-militarized peace and women's equality, and for future feminist efforts to influence and shape international institutions and their practices in law and politics.Victimizing the Abused?: Is Termination the Solution When Domestic Violence Comes to Work?
Part I of this article will discuss domestic violence, explaining the dynamics of domestic violence in an effort to shed light on why it is so difficult for a battered woman to leave the abusive relationship. This understanding is necessary for a sensitive and informed decision-making process. This Part will also discuss the magnitude of the effect that domestic violence has on the workplace. Part II will discuss a company's potential legal liability for: (a) wrongfully terminating the employee-victim and (b) failing to protect other employees (including, perhaps, the employee-victim herself) if the company does not terminate the employee-victim and violence ensues. This part will explore the many possible causes of action that the terminated employee may or may not bring, and will also explore an employer's obligation to protect its employees against workplace violence. Part III will explore the decision from a normative perspective, and will seek to answer such questions as: Can an employer justify its decision to punish the victim of domestic violence? Should it matter if the female employee was unwilling to help herself or take help from the employer? Are there other less severe alternatives an employer could take? Finally, perhaps the most important question: whose rights should trump? In other words, is it the right decision to sacrifice one woman's employment in order to protect the rest of the workforce against the potential risk of harm? If so, how significant should the harm be before such a decision is made? Finally, Part IV will offer this author's solutions to dealing with these very difficult issues. Even though there are circumstances where termination is justified (a conclusion that will be supported below), in this hypothetical, termination was unwarranted. My conclusions draw analogies to the law of the Americans with Disabilities Act to support my proposal that employers should use a direct threat analysis as well as concepts such as reasonable accommodation and undue burden to analyze the conflict between a company's interest in having a safe workplace and the spillover of domestic violence into the workplace. Because, as I conclude, there was not a significant threat of harm to the workplace in the hypothetical, termination cannot be justified.Reconceptualizing Domestic Violence in India: Economic Abuse and the Need for Broad Statutory Interpretation to Promote Women’s Fundamental Rights
This Article explores the reconceptualization of domestic violence in India through an analysis of the economic abuse provision of the recently passed Domestic Violence Act. The author argues that although India has taken a significant step towards advancing women's rights by characterizing economic abuse as a form of domestic violence, effective implementation of the law requires a broad interpretation of the economic abuse provision. To be consistent with the purpose of the statute and India's constitutional and international human rights obligations, "economic abuse" must be interpreted broadly to include the deprivation of a woman's control over her economic resources. Economic abuse would therefore include situations in which a woman is deprived the right to employment outside of the home or forced to turn over all of her earnings to her husband or in-laws. This broad interpretation is essential to ensure that women of all socio-economic levels have economic rights consistent with India's legal obligations.Introducing the Construct of the Jury into Family Violence Proceedings and Family Court Jurisprudence
This Article draws upon both the theory of and research on procedural justice holding that litigants often focus on the appearance of fairness rather than on the actual outcome. Thus, when litigants are able to choose the modality of fact-finding, they may be more accepting of the legal process, even if the outcome is not favorable to them. Allowing the option of a jury, even if not exercised, may dramatically improve the perceptions of litigants and may affect the legitimacy and longevity of case outcomes.More than Mere Semantics: The Case for an Expansive Definition of Persecution in Sexual Minority Asylum Claims
This Article asserts that the requirement in U.S. asylum law that requires an asylee to make a showing of persecutory intent is overly and especially restrictive in claims made by sexual minorities. This Article proposes that the U.S. adopt the asylum standards of New Zealand and Canada, where the focus is on the failure of government protection as opposed to a focus on persecutory intent. Such standards are consistent with both the realities of persecution that sexual minorities encounter and the original impetus behind the Refugee Convention. Part I examines the different forms of persecution against sexual minorities. Part II outlines the history of the Refugee Convention, including various political influences that suggest a liberal interpretation of Convention standards. Part III discusses the current split among the circuit courts regarding whether punitive intent is required to show persecution, and argues that requiring such a showing is especially detrimental to sexual minority asylum claims. Part IV proposes an alternative standard based on New Zealand and Canadian law and argues that this standard more closely coincides with the original meaning of international refugee law.