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Symbolism Over Substance: The Role of Adversarial Cross-Examination in Campus Sexual Assault Adjudications and the Legality of the Proposed Rulemaking on Title IX
Traditionally, it has been understood that campus sexual assault adjudications need not take on the formalities of the justice system. Since the consequences faced in campus adjudications are considerably less than punishments faced in the justice system, less process is owed under the Due Process Clause. However, in September 2018, the Sixth Circuit reconceived what constitutes due process in campus sexual assault adjudications in the case of Doe v. Baum. The court found that in cases involving conflicting narratives at public universities, the accused or his agent must have the ability to cross-examine his accuser in the presence of a neutral factfinder. On November 29, 2018, the Department of Education took Baum several steps further in a proposed rulemaking on Title IX, mandating cross-examination in all campus sexual assault cases at both public and private universities. In this Comment, I argue that the proposed rulemaking on Title IX goes too far, misinterpreting the case law and the dictates of due process, while neglecting empirical evidence and foreseen adverse consequences. I argue that the proposed rulemaking misinterprets case law—most notably the recent Baum decision— by failing to appreciate important limits to the scope of compulsory cross-examination. I also unpack the vast negative implications of the proposed rulemaking, including drops in reporting rates and considerable institutional costs. As a result of these legal shortcomings and practical implications, I argue that the proposed rulemaking fails to pass the Mathews balancing test. As universities, the federal government, and courts determine how best to adjudicate campus sexual assault allegations, all efforts must be taken to minimize trauma to the victim, safeguard the rights of the accused, and protect the financial viability of educational institutions.The Sexual Misconduct of Donald J. Trump: Toward a Misogyny Report
The numerous allegations of sexual misconduct—unwanted, unwelcome, often aggressive sexual behavior—levied against Donald Trump merit attention and redress. Despite obstacles to civil remedies, there has been some litigation, but it has mostly been unsatisfactory. The many allegations reported in the media have not been amenable to judicial, legislative, executive, or political resolution. Women, including women who allege Trump committed sexual misconduct against them when they were minors, have generally not been afforded the remedies to which they are entitled. Because litigation and media accounts have proven inadequate to the task of addressing Trump’s sexual misconduct, there should be a government inquiry and resulting Report. Such a Report—a Misogyny Report focused on Donald Trump—would assist the nation in assessing and contextualizing the troubling and persistent allegations of his sexual misconduct. An inquiry and Report could provide a forum for considering each individual woman affected and as part of a pattern of Trump’s conduct. Further, an inquiry and Report could ameliorate the silencing of women—through isolation, threats, and nondisclosure agreements— and propose remedies to empower these women as well as other women. A Misogyny Report could also suggest specific correctives to obstacles in the path of bringing and completing litigation that could address the alleged sexual misconduct of Trump and ultimately of others. A government Misogyny Report initiated by Congress or some other governmental body could provide a much-needed reckoning.Putting the Fetus First — Legal Regulation, Motherhood, and Pregnancy
The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetuses before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and from England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or who are perceived to have behaved in a way that could result in a negative outcome. This Article provides a new approach by bringing together a critical assessment of fetal protection laws with theories of motherhood ideologies and analyzing how such ideologies have resulted in legal developments not only in the US, where the fetus has been granted legal recognition in most states, but also in England and Wales, where the fetus continues to have no legal personality. The Article will conclude that the application of the fetus-first mentality within criminal law has resulted in dangerous legal developments that challenge women’s rights, while doing little to protect fetuses.The Ground on Which We All Stand: A Conversation About Menstrual Equity Law and Activism
This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist, or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis. This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal changes. The authors then turn to conceptual issues about the relationship between menstrual equity and gender justice, as well as the difference between equity and equality. The essay concludes with consideration of the future of menstrual equity and menstrual justice work. The authors envision an expanded, inclusive group of individuals working for greater gender justice.The Plight of Women in Positions of Corporate Leadership in the United States, the European Union, and Japan: Differing Laws and Cultures, Similar Issues
Gender diversity in corporate governance is a highly debated issue worldwide. National campaigns such as “2020 Women on Boards” in the United States and “Women on the Board Pledge for Europe” are examples of just two initiatives aimed at increasing female representation in the corporate boardroom. Several European countries have adopted board quotas as a means toward achieving gender diversity. Japan has passed an Act on Promotion of Women’s Participation and Advancement in the Workplace to lay a foundation for establishing targets for promoting women. This Article examines the status of women in positions of leadership in the United States, several major countries in the European Union, and Japan. We focus on the legal backdrop in each jurisdiction regarding gender discrimination and studies tending to demonstrate the economic benefits of gender diversity. We conclude that although important steps have been taken in the direction of narrowing the gender gap in all jurisdictions examined, progress has been slow and difficult across the board. The issue of too few women at the top will not be resolved until there is a wider acceptance that female leaders can benefit their organizations and contribute to social and economic progress. Moreover, the presence of women on corporate boards is valuable in and of itself and the status quo ought to be further challenged in international business.Me Too? The Invisible Older Victims of Sexual Violence
A review of legal research on violence against women and elder abuse reveals a disturbing picture. There is hardly any American legal research examining sexual abuse of older women and its conceptualization in legal literature and treatment in the legal system. This Article attempts to fill the abovementioned gap and to bring the hidden issue of sexual violence against older women to light. Scholars writing on rape, violence against women, and elder abuse tend to analyze age and gendered sexual violence separately from each other, without accounting for their interplay. This Article proposes a conceptual framework of sexual abuse of older women that integrates age and gender in the analysis. To achieve this end, this Article examines 109 publicly available American cases involving sexual violence against women over the age of 60, between the years 2000 and 2018, which are based on a search of 1,308 American cases. Based on this new empirical database, this Article offers an opportunity for analyzing the social and legal “taboo” regarding sexual abuse of older women. Despite findings indicating that sexual abuse of older women (and older people in general) is a significant issue creating serious consequences for victims, the Article shows that legal actors, social workers, health professionals, family members, and society miss its signs. Sexual abuse of older women is being noticed and treated by the criminal justice system only when it reflects a “real rape” 1 scenario. The obstacles to effective prosecution and to full access to the criminal justice system are distinctive in the case of older victims because of the effect of age, the way age shapes the experience of older victims of sexual violence, the effects of sexual violence on the victims, and its interplay with gender. Although sexual violence against older women is a form of elder abuse, it should be viewed separately from other forms of elder abuse and should be understood as part of a wider context of gender-based violence. There is a need for a holistic approach to sexual violence of older women, which perceives the sexual violence as a unique phenomenon and provides older women with legal and social mechanisms that fit their needs and experience both as women and elderly people.Prescription Restriction: Why Birth Control Must Be Over-the-Counter in the United States
This Note argues that it is harmful and unnecessary to require women to obtain prescriptions for access to hormonal birth control. Requiring a prescription is necessarily a barrier to access which hurts women and hamstrings the ability to dictate their own reproductive plans. It is also an irrational regulation in light of the relative safety of hormonal birth control pills, particularly progestin-only formulations, compared to other drugs readily available on the shelves. Leading medical organizations, including the American College of Obstetrics and Gynecologists, advocate for over-the-counter access to hormonal birth control. While acknowledging that not every woman will have positive outcomes taking hormonal birth control pills, this Note argues that women are capable of taking hormonal birth control as directed and are able to self-identify if they themselves are at risk for complications. Following a long line of cases that establish reproduction as a fundamental right in the United States, it follows that requiring a prescription for access can and should be analyzed under the Fifth and Fourteenth Amendment Due Process clauses, particularly under the Undue Burden standard. Certain prerequisites, such as pelvic exams, once thought to be necessary to safely prescribe hormonal birth control, are now widely considered unnecessary in determining whether a particular woman can safely take birth control pills. This Note goes further and argues that such prerequisites are an unconstitutional method of holding vital medication hostage from women who desire to control their reproductive health.Contracting Around Gender Constructs: Transgender Men at Women’s Colleges
As the transgender community gains increasing visibility in society, women’s colleges have begun to address new questions about who is eligible to attend. One such question is whether students who come out as transgender men after matriculation are eligible to remain enrolled and graduate from these institutions. The main claims relevant to this discussion are (1) colleges’ right to retain their identity as all-women’s institutions; (2) the parallel rights of cisgender female students who explicitly choose to attend an all-women’s institution, and (3) transgender students’ competing right to avoid arbitrary or capricious dismissal based on gender identity. This Note posits that contract law provides a useful framework for colleges to evaluate this question since both express and implied contracts form the basis of the student- college relationship. Ultimately, this Note argues that, although solutions that satisfy all parties are impossible, harms can be minimized if transgender students are permitted to graduate and given appropriate support throughout the transition process, and other policies are adapted to address the concerns of cisgender female students.Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-Based Analysis and Reform Proposal
Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a nationwide effort to reform the custody laws to create a presumption of equal parenting time, with no exception when one of the parents has engaged in domestic violence. Domestic violence survivors and their advocates, however, claim that the needs of survivors of domestic violence and their children to be safe and free from further abuse are not being met in custody cases, that their claims of abuse are not being believed, and that the harm when a parent commits domestic violence against the other parent is not being recognized and addressed by judges and the family law professional upon whom they rely. This Article first presents a literature review, with articulated scientific standards applied to each of the pieces of research cited in this review, on what is happening outside of court and in court relating to domestic violence and best practices for taking domestic violence into account in these child custody cases. Among the key findings from this literature review are: (1) when a parent commits domestic violence against the other parent, this can cause serious long-term harm to children, (2) custody judgments tend to favor fathers over mothers because greater weight is placed on claims of alienation than on domestic violence claims, (3) long-term harms can be mitigated by evidence-based best practices, most notably, supporting non-abusive parents in their efforts to protect themselves and their children from further domestic violence, (4) family law judges and professionals must be trained on domestic violence and its nuances, as well as how to screen for domestic violence, to adequately support them, and (5) a component of this training is learning how to distinguish mutual “situational couple violence” for which “parallel parenting” custody arrangements might be feasible, from a pattern of “coercive abuse,” where sole decision-making and primary parenting time should be ordered to the non-abusive parent, and protective restrictions on parenting time should be ordered to the abusive parent. The Article then reports on a fifty-state review of custody-related laws (laws determining which parent makes major decisions relating to the child, who is allocated primary parenting time, and whether protective restrictions shall be placed on the parenting time of a parent who has engaged in domestic violence). This review found serious gaps between what evidence-based best practices suggest, and what is currently required by law in many states. These gaps in the law, including the failure of the law to require domestic violence screening and training for judges and other family law professionals, contribute to poor custody decision-making by them that compromises the safety and welfare of domestic violence survivors and their children. The Article then proposes nuanced law reforms that would align custody-related laws with evidence-based best practices for taking domestic violence into account in custody cases, including creating rebuttable presumptions, burdens of proof, and definitions of domestic violence that conform with these evidence-based best practices.Getting to Equal: Resolving the Judicial Impasse on the Weight of Non-Monetary Contribution in Kenya’s Marital Asset Division
Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, it provides that monetary contribution and non-monetary contribution are the only factors for dividing marital property on divorce. The Kenyan courts have issued contradictory decisions on the weight of nonmonetary contribution in long-term and short-term marriages. Without guidance on the weight of non-monetary contribution during divorce proceedings, the courts have left potential litigants, especially women, to navigate the unsettled waters of marital disputes in the legal system. Kenya’s Parliament should take steps to clarify the legislation, develop regulations on the weight of non-monetary contribution, and provide statutory factors for consideration during division of marital property. This will ensure that courts meet the overriding objective of achieving a fair outcome in marital property disputes. Because of the constitutional guarantee of equality, the courts must begin analysis of property division by assuming each spouse is entitled to half of the marital property.