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Author Archives: Colin Miller
Irresistible Impulse: Supreme Court of Iowa Finds Employer Can Fire Employee He Deems an “Irresistible Attraction”
The question is not before us of whether it would be sex discrimination if Tenge had been terminated because Lori perceived her as a threat to her marriage but there was no evidence that she had engaged in any sexually suggestive conduct. Tenge v. Phillips Modern Ag. Co., 446 F.3d 903 (8th Cir. 2006). … Continue reading
Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace
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Pages In Your Diary: Supreme Court of West Virginia Badly Errs in Deeming Diary Entries Admissible Despite Rape Shield Rule
A defendant is charged with second-degree sexual assault and related crimes after another individual and he allegedly commit sexual crimes against a 13 year-old victim. After the alleged crimes, the alleged victim starts writing in a notebook and writes in … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary, Invasion of Privacy
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Judge as Judicial Midwife?: Justice on Botswana’s High Court Strikes Down Customary Law Rule Banning Female Inheritance
Recently, a justice on Botswana’s high court struck down a Ngwaketse Customary Law rule precluding women from inheriting family homes, finding that it contravened the right to equality principle enshrined in Botswana’s constitution. Perhaps as interesting as the justice’s conclusion is … Continue reading
Posted in Activism, Courts and the Judiciary
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eRape?: Should Courts Allow Rape Defendants to Discover the Google Searches of Their Victims?
Jennifer Bennett was beaten, choked, and raped by Thomas Bray at his condo. (Here is the Today Show video on her story) Upon returning to her home, “[s]he stood at the entrance to her bathroom for 15 minutes, fighting the … Continue reading
Posted in Coerced Sex, Courts and the Judiciary
1 Comment
Persecution Complex: 3rd Circuit Finds Village Head’s Threat of Marriage or Incarceration Was Not Persecution
Substantial evidence supports the BIA’s decision. While Zhang contends that she was persecuted when the village chief attempted to coerce her into marrying his son, and that she suffered this persecution on account of her membership in a particular social … Continue reading
Posted in Courts and the Judiciary, Immigration
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The Bitch Is Back: When a Supervisor Repeatedly & Angrily Calls An Employee a “Bitch” to Her Face in Front of Co-Workers, Is it Sexual Harassment?
Kimberly Passananti was the deputy director of the DRC from 2002 until 2007. For several years, her supervisor was DRC director John Sullivan. After losing her job in 2007, Passananti sued, claiming that Sullivan subjected her to sexual harassment and … Continue reading
Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace
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Under the Shield: Should the Rape Shield Rule Apply at Sentencing Hearings?
Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Double Nickels on the Dime: Supreme Court of Israel Creates Burden-Shifting Framework for Gender Pay Disparity Cases
According to the Washington Post, Israeli feminists on Friday welcomed a Supreme Court ruling they say will help enforce equal pay laws for men and women. The ruling, issued Thursday, requires employers paying different wages to men and women to … Continue reading
Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace
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Deborah Tuerkheimer’s Judging Sex & The En Banc Opinion That Reversed The Rape Shield Killing Ruling
Back in 2010, I posted an entry about the Sixth Circuit’s opinion in Gagne v. Booker, 596 F.3d 335 (6th Cir. 2010), the (in)famous rape shield case in which the dissent accused the majority of “effectively abrogat[ing] every rape-shield statute … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Will Pennsylvanie Become The Last State To Allow For The Admission Of Rape Trauma Syndrome Evidence?
According to an article on the CBS21 news site, “[t]wo very important bills are sitting in committees right now.” One of those bills is House Bill 1264, which allows for the admission of expert testimony regarding rape trauma syndrome. Yes, … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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It’s My Space, That’s Why They Call It MySpace: Court of Appeals of Texas Finds MySpace Comment Covered by Rape Shield Rule
A defendant is charged with various sexual crimes against the alleged victim, a 15 year-old. To support his defense, the defendant seeks to introduce into evidence a comment that the alleged victim made on her MySpace page, where she referred … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
1 Comment
Wicked Little Town: Transgendered Widow of Firefighter Fights the City of Wharton, Texas for Workers Compensation Benefits
When the Landmark Theater in Chicago announced that John Cameron Mitchell‘s “Hedwig and the Angry Inch” would soon be playing as part of its Midnight Madness, I was not surprised at all. “Hedwig” is this generation’s “The Rocky Horror Picture Show” … Continue reading
Posted in Courts and the Judiciary, LGBT Rights
1 Comment
No Passage To India: India Fails To Approve Landmark Changes To Its Sexual Harassment Law
Landmark amendments to India’s sexual harassment law failed to get approval by the Union Cabinet on Thursday. The amendments would have done at least two things to India’s Sexual Harassment of Women at Work Place Prevention, Prohibition and Redressal) Bill: … Continue reading
Posted in Feminism and the Workplace
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District Of Oregon Dismisses Stereotype of the Emotional, Gossipy, and Flirtatious Woman & Then Labels the Plaintiff One
As noted by Bridget, in delivering the luncheon address at the MSU Symposium on “Gender and the Legal Profession,” the Honorable Nancy Gertner said that “[t]he reason that people are losing discrimination cases is not because it didn’t happen. It’s because … Continue reading
Posted in Courts and the Judiciary, Employment Discrimination
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Why NZ Director’s Reference to the “Oprahfication” of the Courtroom was Really a Jab at the “Pussification” of the Courtroom
I’m not a huge fan of victim impact statements. These statements typically used to consist of family members taking the witness stand during the sentencing phase of a murder trial and explaining the character of the victim and what his … Continue reading
Posted in Feminism and Law, Sexism in the Media
1 Comment
Without Prejudice?: 6th Circuit Deems Rape Shield Evidence Minimally Prejudicial To Victim, Reverses Conviction
The district court excluded the 2007 acts because those encounters occurred at a different place than the indicted offenses. Although there is certainly a difference between private sexual acts and those that take place in public, that does not eliminate, … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Love, Hate, Murder, and Commitment Devices: No-Drop DV Policies and the Reduction in Men Murdered by Intimates
Last week, the folks at Freakonomics posted an interesting podcast (“Save Me From Myself”) about commitment devices. A commitment device is “a means with which to lock yourself into a course of action that you might not otherwise choose but that … Continue reading
Posted in Acts of Violence, Courts and the Judiciary, Feminism and Economics
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The Loss of Sexual Innocence: Supreme Court of Guam Finds Trial Court Erred in Limiting Cross-Examination of Child Rape Victim
A defendant is on trial for criminal sexual conduct based upon acts that he allegedly committed against a 10 year-old victim. Previously, a forensic examination of the alleged victim revealed scar tissue on her hymen. Before trial, the defendant failed … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Taking Exception: Is Evidence of Prior Oral Sex by 15 Year-Old Victim Admissible in Prosecution of 38 Year-Old?
A 38 year-old defendant is charged with four counts of sexual conduct with a minor, and it is undisputed that he engaged in four acts of oral sexual intercourse with the victim, who was 15 years-old. The defendant, however, seeks to present … Continue reading
Posted in Coerced Sex, Courts and the Judiciary
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The Vermont Frat Questionnaire & The Foreseeability of Stranger Rape Based Upon Increased Acquaintance Rape at a College
If I could rape someone, who would it be? This now infamous question, asked at the end of a fraternity questionnaire at the University of Vermont, led to the fraternity being suspended. But let’s say that the university took no … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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The Only Exception: Arkansas Case Reveals Danger Of State’s Undifferentiated Rape Shield Exception
Like many state counterparts, Federal Rule of Evidence 412(a), the Federal Rape Shield Rule, precludes the admission of evidence of an alleged victim’s prior sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Touching a Nerve?: 8th Circuit Finds ALJ’s Comment About Touching A Feminist’s Nerve Didn’t Constitute Reversible Bias
[A]fter Perkins testified that her daily routine includes watching the Lifetime channel, the ALJ asked, “And what is the subject matter of that? That’s the girl channel.”…Perkins responded, “Women’s channel.”…The ALJ then stated, “All right. I’m glad our [vocational expert] … Continue reading
Posted in Courts and the Judiciary, Women's Health
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A Picture Is Worth A Thousand Words: Court Of Appeals of Iowa Fails to Resolve Whether Facebook Photos Trigger Rape Shield Rule Analysis
Similar to its federal counterpart, Iowa Rule of Evidence 5.412a, Iowa’s rape shield rule, Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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The Oh in Ohio: Court of Appeals of Ohio Shockingly Concludes Rape Shield Rule Doesn’t Cover Nonconsensual Sexual Activity
We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, “our paramount concern is the legislative … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Topeka Misdemeanor Domestic Battery Cases to be Prosecuted by Law Student Interns
In my last post about the Topeka imbroglio, I wondered how vigorously the County DA would prosecute misdemeanor domestic battery cases after the city of Topeka dicriminalized misdemeanor domestic battery and forced the County DA’s hand (by his own admission). … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
1 Comment
Topeka Officially Decriminalizes Misdemeanor Domestic Battery
Earlier today, the Topeka City Council, by a vote of 7-3, repealed the local law that makes misdemeanor domestic battery a crime. The move, the councilors were told, would force District Attorney Chad Taylor to prosecute the cases because they would remain … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
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Placing Topeka’s Possible Decriminalization of Misdemeanor Domestic Battery in Historical Context
After my previous post on the possibility of Topeka decriminalizing misdemeanor domestic battery, I decided to do some research to see if there is any historical precedent for such an action. It turns out that there is (sort of). In … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
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Topeka City Council to Vote on Measure to Decriminalize Misdemeanor Domestic Battery
Here are some excerpts from the article, Suspected domestic abusers go free as Topeka city, council officials bicker over funds: A bitter argument over money in Topeka, Kan., means that city and county authorities have neglected to prosecute or charge … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
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Does an Aggravating Factor Based on “a Difference in the Sexes of the Victim and the Defendant” Violate Equal Protection?
Following up on my previous post, here is another interesting case in a similar vein: State v. Wright, 563 S.E.2d 311 (S.C. 2002). In Wright, Todd Wright was convicted of criminal domestic violence of a high and aggravated nature. One of … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
1 Comment
Does a Law Punishing More Severely a Male’s Assault of a Female Violate Equal Protection?
Eugene Volokh has an interesting post up over at The Volokh Conspiracy. The post discusses G.S. § 14-33(c)(2), which provides that Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
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Unimpeachable: 7th Circuit Finds Evidence That Sauna Was Used as Place Of Prostitution Inadmissible Under Rape Shield Rule
Like all states, Wisconsin has a rape shield rule. Under Wisconsin’s rule, WIS. STAT. Section 972.11(2)(b), in civil and criminal cases involving alleged sex crimes, any evidence concerning the complaining witness’s prior sexual conduct or opinions of the witness’s prior … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Breaking Bad: District of Vermont Deems Detention of Pregnant Passenger in Need of Bathroom Break Reasonable So Female Officer (Who Never Took Her to the Bathroom) Could Arrive
Authorities believe that a a vehicle contains narcotics. They detain a passenger and call for a narcotics dog. The dog arrives 45 minutes later. Another 20-30 minutes pass, and the authorities still haven’t conducted the canine sniff. The passenger confesses. … Continue reading
Posted in Courts and the Judiciary
1 Comment
Can You Hear Me?: Court of Appeals of Texas Finds Failure to Hold In Camera Rape Shield Hearing Isn’t Reversible Error
Similar to its federal counterpart, Texas Rule of Evidence 412(c) provides that if a criminal defendant is trying to present evidence under an exception to the rape shield rule, the defendant must inform the court out of the hearing of … Continue reading
Posted in Coerced Sex, Courts and the Judiciary
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A Private Matter?: Military Court Opinion Reveals Problem With Military Rape Shield Rule
Federal Rule of Evidence 412(a), the federal Rape Shield Rule, provides that evidence of an alleged victim’s sexual predisposition or other sexual behavior is inadmissible to establish her propensity to consent to sexual acts and her conformity with that propensity, … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
1 Comment
Everything But The Girl: Northern District Of Indiana Opinion Sharpens Split Over Nature Of Affirmative Defense In Single-Instance Harassment Cases
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace
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Gettin’ (Un)Lucky in Kentucky: Court of Appeals of Kentucky Finds Trial Court Erred in Excluding Evidence That Alleged Victim Was a “Crack Whore”
Assume that a defendant is on trial for sexually assaulting a victim. And, assume that the defendant’s defense is, essentially, that the alleged victim is a “crack whore.” Should the defendant be able to present evidence of the alleged victim’s … Continue reading
When Innocence Is Pink: Why There Is A Gender Gap In Exonerations of the Wrongfully Convicted and Efforts That Might Shrink It
There are over 60 innocence projects nationwide, and they do tremendous work. According to the Cardozo Innocence Project website, “There have been 271 post-conviction DNA exonerations in United States history.” The Innocence Project has profiles of each of the exonerees … Continue reading
Posted in Courts and the Judiciary, Feminism and Law, Feminism and Science
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As Judge Nancy Gertner Retires, We Lose One of Our Greatest Judges But Gain One of Her Greatest Opinions
Judge Nancy Gertner kicks ass. I remember writing a motion in limine regarding the admissibility of virtual reality evidence for the annual mock technology trial when I was a student at William and Mary. Judge Gertner served as the judge … Continue reading
Posted in Academia, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace
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Exception(al) Opinion: Supreme Court of Montana Opinion Might Mean Montana Has Broadest Abuse Exception to Court-Ordered Mediation
Mediation in child custody determinations is popular, partly due to the mediation principle of neutrality, which theoretically gives both parents an equal chance at a fair allocation of parenting time. However, not all divorce cases are appropriate for mediation. In severe cases of intimate partner violence there are … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
1 Comment
Article of Interest: Kerri L. Stone’s Clarifying Stereotype
Federal Rule of Evidence 801(d)(2)(E) provides that “[a] statement is not hearsay if…[t]he statement is offered against a party and is…a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E) is based … Continue reading
Posted in Academia, Courts and the Judiciary, Employment Discrimination, Feminist Legal Scholarship
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(Non)Consenting Adults: Illinois Opinion Finds Adultery Is Serious Provocation, Sexual Assault Is Not
I’m currently teaching 2nd degree murder in my Criminal Law class and was looking for a good Illinois case on the subject. In Illinois, a defendant who could otherwise be convicted of 1st degree murder can be convicted of 2nd … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Should Courts Award Child-Rearing Damages for “Wrongful Birth” in Cases of the Rape of a Minor?
The issue of whether there should be a right to abortion in cases of rape has arisen again in response to comments by teen sensation Justin Bieber. The 16 year-old pop star was asked about abortion in rape cases, and … Continue reading
There’s No Sex in Your Violence: Opinion Reveals Minnesota Only Allows Hostile Work Environment Claims Based On Sexual Harassment, Not Gender Discrimination
A female employee brings an action against a school district under the Minnesota Human Rights Act (MHRA), alleging hostile work environment based upon gender discrimination. The gravaman of her complaint is that her male supervisor made sexist statements about the … Continue reading
Posted in Acts of Violence, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace, Sexual Harassment
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The “Inevitable Firing” Approach: How The Inevitable Discovery Doctrine Should Inform Subordinate Discrimination Cases
A company fires an employee. The employee files an action against the company, alleging that the firing was discriminatory. The company moves for summary judgement dismissing the complaint. The fired employee has no direct evidence that the supervisor who fired … Continue reading
Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace
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What Kind Of Right?: Court of Appeals of Michigan Finds Rape Shield Rule Vests Rights In Victims
MCL 750.520j, Michigan’s rape shield statute, provides that: (1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted … unless and only … Continue reading
Posted in Coerced Sex, Courts and the Judiciary
1 Comment
Article of Interest: Josephine Ross’ Blaming the Victim: ‘Consent’ Within the Fourth Amendment and Rape Law
It used to be that courts applied an objective definition of consent in rape prosecutions. This was because of traditional force and resistance requirements: First, courts interpreted the element of force to require that the man overpower the woman or … Continue reading
Posted in Academia, Feminist Legal Scholarship
1 Comment
As Seen on TV?: SDNY Finds Social Framework Testimony Wouldn’t Help Jurors Because Gender Stereotypes are Exposed on Sitcoms & News Reports
Moreover, the Court agrees with the Minnesota Court of Appeals’ reasoning in Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355 (Minn.Ct.App.2003) wherein the court found that the trial court abused its discretion by admitting Dr. Borgida’s testimony because the … Continue reading
The Wonder State: Eastern District of Arkansas Finds Serious Flaw With Arkansas’ Rape Shield Rule
This Court views the case as illustrating a serious flaw in Arkansas’s criminal justice system, whereby Arkansas applies its rape shield statute in a broad and sweeping fashion without properly focusing on the constitutional rights of the accused. Jackson v. … Continue reading
Posted in Coerced Sex, Courts and the Judiciary
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Northern District of California Permits Defendants to Interrogate Title IX Plaintiff About Whether She Consented to Teacher’s Sexual Behavior When She Was 15
A plaintiff claims that she was 15 years-old when she was subjected to sexual molestation by her then 38 year-old teacher at a charter school. Accordingly, she brings a Section 1983 action (1) against the school and its director/principal for failure to train and … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Demonstrably Durable: Indiana Case Reveals Indiana Courts Still Recognize Demonstrably False Accusation Exception To Rape Shield Rule
"Under common law, evidence of prior false allegations of sexual misconduct is admissible if the allegation was demonstrably false and similar to that with which the defendant was charged, or if the complaining witness has admitted that the prior accusation … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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