One day in the summer of 2011, Los Angeles law professor Yxta Maya Murray visited the Tate Britain and was shocked to see there Cathy Wilkes’ installation (We are) pro-choice, a phantasmagoria involving a “weeping” naked mannequin sitting on a toilet, as well as a ladder and some banged up kitchenware. Murray gleaned that something feminist was in the offing, but couldn’t tell quite what that might be. It seemed evident that Wilkes was making a case that women are miserable in today’s brutalist western-capitalist society. However (she wondered), were there any other, more hopeful, conclusions to draw from the work? Pro-choice sent her off on a six-months long adventure of trying to understand this amazing art – intellectual travels that drew her to the lands of French/Bulgarian feminist Julia Kristeva, U.S. legal theorist Drucilla Cornell, and to the strange ways of Irish Wilkes herself. In the resulting essay, Murray asks the following questions: What is this suffering that Wilkes’ describes in (We are) pro-choice? How does art help us understand subordination that might be reversed through legal reform? And what kinds of radical changes have to be made to museum law and policy that would allow art institutions to help us liberate the oppressed?

Download the article from SSRN at the link.

Feminist Law Professors

From our northern-dwelling colleagues, this notice of that Volume 24, Number 1, 2012 of the Canadian Journal of Women and the Law  is now available online. It’s also available at Project MUSE. 

Here’s the publisher’s plug for the on-line edition:

CJWL Online includes an archive of current and previously published articles going back to 2009.

Subscribers to CJWL Online enjoy:

Enhanced features not available in the print version- supplementary information, colour photos, videos, audio files, etc. encouraging further exploration and research.

Early access to the latest issues – Did you know that most online issues are available to subscribers up to two weeks in advance of the print version? Sign up for e-mail alerts and you will know as soon as the latest issue is ready for you to read.

Everything you need at your fingertips – search through current and archived issues from the comfort of your office chair not by digging through book shelves or storage boxes. The easy to use search function allows you to organize results by article summaries, abstracts or citations and bookmark, export, or print a specific page, chapter or article.

Founded in 1985, the same year as the equality guarantee of the Canadian Charter of Rights and Freedoms came into force, the Canadian Journal of Women and the Law has been publishing ground-breaking, multi-disciplinary scholarship on the impact of law on women’s social, economic and legal status for twenty-five years.

Project MUSE is a unique collaboration between libraries and publishers, providing 100% full-text, affordable and user-friendly online access to a comprehensive selection of prestigious humanities and social sciences journals. MUSE’s online journal collections support a diverse array of research needs at academic, public, special and school libraries worldwide.

For more information about the Canadian Journal of Women and the Law or for submissions information, please contact:

Canadian Journal of Women and the Law
University of Toronto Press­­ – Journals Division
5201 Dufferin Street, Toronto, ON Canada M3H 5T8
Tel: (416)667-7810  Fax: (416)667-7881
Email journals@utpress.utoronto.ca

Website: www.utpjournals.com

-Bridget Crawford

Feminist Law Professors

Lolita Buckner Inniss has published Bridging the Great Divide–A Response to Linda Greenhouse and Reva B. Siegel’s Before (and After) Roe v. Wade: New Questions About Backlash, 89 Wash. U. L. Rev. 963 (2012).  Here is the abstract:

This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into the debate, race and class being two of the most salient. Race, class, and abortion have interacted in complex and numerous ways throughout United States history. While this interaction in some respects can be described via a linear, historical approach, it is not fully explicated by a single dichotomous before/after analysis centered on Roe. Instead, race, class, and abortion are constantly interacting, sometimes co-constructed, constituent parts of a much greater social, cultural, and political conversation in the United States. I suggest that if national party politics and the Catholic Church are important aspects of the development of the United States narrative on abortion, then race and class are telling and even compelling subtexts in that narrative. Giving attention to these subtextual strands may offer valuable additional insights.

The full essay is available here.

Professor Inniss is the Joseph C. Hostetler-Baker and Hostetler Professor of Law at Cleveland-Marshall College of Law.  She will be the Elihu Root Peace Fund Visiting Professor of Women’s Studies at Hamilton College during the 2012-2013 academic year.

-Bridget Crawford

Feminist Law Professors

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, that’s right. Pennsylvania courts are the last holdout against the admission of RTS evidence. According to Pennsylvania Coalition against Rape CEO Delila Rumburg, “I think it’s really mind-boggling that the expert witness testimony has not been moving because we are the only state in the nation that doesn’t recognize expert witness testimony.”

Why not? The key(stone) case is Commonwealth v. Gallagher, 547 A.2d 355 (Pa. 1988), which held that RTS evidence is inadmissible because “[d]eterminations of credibility…are exclusively the province of the jury.” So, what was the RTS evidence at issue? According to the court,

The crux of the testimony appears to be that the victim’s failure to identify the appellant two weeks after the rape is unremarkable, as she was in the acute phase of RTS in which a victim has difficulty performing even normal functions, and the in-court identification five years later is particularly credible, as it results from a flashback, with the mind operating like a computer.

The Pennsylvania Supremes held that “[i]t is clear that the only purpose of the expert testimony was to enhance the credibility of the victim.” And for the court, this made the evidence inadmissible because

The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness…. [T]he question of a witness’ credibility has routinely been reserved exclusively for the jury.

But here’s the problem with this quote: A rape is not an ordinary life experience. In fact, it is probably about as far from ordinary as you can get. And that’s exactly the point of RTS evidence. It is to inform jurors, many of whom have not been raped (or have not come to terms with being raped) that they can’t apply inferences from the ordinary experiences of human life and reach an accurate understanding of how rape victims act. All of this is contained in the General Assembly’s findings connect to House Bill 1264 (reprinted below), and we can only hope that the Pennsylvania legislature relies upon these findings rather than “common knowledge as to the natural tendencies of human nature”:

The General Assembly finds and declares as follows:

(1) Research indicates that victims of sex crimes behave in many different ways, but because of the prevalence and persistence of myths and misunderstandings regarding sex crimes, jurors often perceive common victim behaviors as counterintuitive and mistakenly believe that they are compelling evidence of a victim’s lack of credibility.

(2) One of the misconceptions of jurors is that a sexual assault victim would ordinarily be expected to make a prompt complaint to law enforcement authorities. As such, jurors often incorrectly draw an adverse inference against the credibility of a sexual assault victim.

(3) Jurors bring their biases into the jury room and the process of jury selection often fails to reveal jurors’ mistaken beliefs about crimes of sexual violence and victim responses to sex crimes.

(4) To overcome these myths and misunderstandings related to victim behavior, many courts have recognized that expert testimony is necessary to provide jurors with the proper context in which to evaluate a victim’s behaviors.

(5) Counselors, psychiatrists, psychologists, victim advocates, social workers and others who work with sexual assault victims possess specialized knowledge about common victim behaviors and victim responses to trauma and that expertise is beyond the experience and knowledge of the average juror.

(6) Without an accurate context in which to evaluate victim behaviors, it is common for jurors to fail to recognize a victim’s behavior as a common response to trauma.

-Colin Miller

Feminist Law Professors

Marie Ashe (Suffolk) has posted to SSRN her article Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law, 21 Temple Political & Civil Rights Law Review 163 (Fall 2011).  Here is the abstract:

This article provides an historical examination of American Constitutional law concerning religion as it has evolved through three periods: the Mormon period of the late nineteenth century; the religious pluralism period of post-WW2 decades; and the multiculturalism period that began around 1990 and that remains underway. It examines Supreme Court interpretations of First Amendment provisions pertaining to religion, and it contextualizes those interpretations to explore their implications for women’s liberty and equality at each of the three periods. Its argument is that Constitutional doctrine relating to religion – through its multiple doctrinal reversals – has consistently entailed and depended upon negative constructions of women, sacrificing women’s liberty and equality interests in order to prefer and to cultivate the liberty and equality interests of churches.

The full article is available here.

-Bridget Crawford

Feminist Law Professors

Caroline Mala Corbin (Miami) has posted to SSRN her chapter “Expanding the Bob Jones Compromise,” which will appear in the forthcoming Cambridge U Press book edited by Austin Sarat, Matters of Faith: Religious Experiences and Legal Responses in the United States.  Here is the abstract:

Sometimes the right to liberty and the right to equality point in the same direction. Sometimes the two rights conflict.  Which constitutional value should prevail when the right to religious liberty clashes with the right to be free from discrimination on the basis of race and sex? More particularly, should faith-based organizations, in the name of religious liberty, be immune from anti-discrimination law?

Bob Jones University v. United States suggests a compromise: permit faith-based organizations to discriminate on the basis of race or sex if that discrimination is religiously required, but at the same time refuse to condone or support that discrimination by denying those religious organizations any financial aid.  In fact, it is already federal policy to withhold government subsidies from religious organizations that discriminate on the basis of race, and the Bob Jones Court rejected a free exercise challenge to that policy.  The same policy should apply with regard to discrimination on the basis of sex. Allowing religious groups to discriminate on the basis of sex but declining to provide grants, vouchers, or tax exempt status to those that do discriminate honors both our commitment to religious liberty and our commitment to equality.

The full chapter is available here.

-Bridget Crawford

Feminist Law Professors

 

Marissa Alexander, a mother of two, was denied a new trial after she was convicted and sentenced to 20 years in prison for shooting “in the direction of” her husband.  Here’s Wonkette’s take:

[A] Florida judge has decided that there will be no new trial for this nice mother of two, Marissa Alexander, who will serve her 20 years in jail for shooting in the direction of her abusive husband, which she did because she couldn’t get to her cell phone or escape because she had run away from him into the garage only to discover that the garage door was broken.

Well lady, Florida would like to remind you that you could have escaped your attacker “through the front or back door,” and also? Going back in the house armed with a gun (where she presumably would have had to go in order to escape through the front or back door, but whatever, we didn’t expect this to make any sense and so far we’re not disappointed) is not “consistent with someone in genuine fear of his or her life.” * * *

It took a jury 12 minutes to find Alexander guilty of aggravated assault with a deadly weapon; the judge in that trial did not allow her to cite her husband’s longstanding abuse of her and others, or the state’s Stand Your Ground defense. This is going to shock you, and we know it sounds weird especially since it’s Florida and all, but it’s possible that race was a factor in this decision.

See the full article here.

-Bridget Crawford

Feminist Law Professors

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 to herself as a “bitch/whore.” Should the court admit or exclude this evidence? That was the question confronted by the Court of Appeals of Texas, Waco, in its recent opinion in Dale v. State, 2012 WL 1382446 (Tex.App.-Waco 2012).

In Dale, the facts were as stated above, with the Court of Appeals of Texas, Waco, having to decide whether the proffered evidence was covered by Texas Rule of Evidence 412, Texas’ rape shield rule. The specific comment on the alleged victim’s MySpace page was, “Thanks for turning everybody against me…’cause I’m a bitch/whore.” Texas Rule of Evidence 412(a) provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.

Meanwhile, Texas Rule of Evidence 412(b) provides that, subject to certain exceptions,

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible….

The Court of Appeals of Texas, Waco, addressed the issue under Rule 412(b), initially noting that

“Sexual behavior” is not defined in the rules of evidence.…Nevertheless, this Court noted that, prior to the codification of rule 412, the Court of Criminal Appeals reviewed the definition of “sexual conduct” in…the precursor to rule 412….The Court found “sexual” to mean “of or pertaining to sex; sexual matters.”

The court then found that

In the present case, [the alleged victim] referred to herself as a “bitch/whore” on her MySpace page. The plain and ordinary meaning of the term “whore” is “a woman who engages in sexual acts for money.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 1351 (10th ed.1993). On the other hand, the plain and ordinary meaning of the term “bitch” is “a lewd or immoral woman.”…We believe that these terms are commonly used to reference “sexual matters,” which would violate not only the agreed-upon motion in limine between the parties in this case but also rule 412.

Finally, the court found that none of the exceptions to Rule 412(b) were applicable in the case before it and thus found that the trial court properly excluded the subject evidence.

I generally agree with the court’s conclusion but wonder why the court didn’t simply treat the evidence as Rule 412(a) evidence rather than Rule 412(b) evidence, which is subject to possible exceptions. Plainly, the MySpace evidence didn’t reference any specific instances of the alleged victim’s prior sexual behavior but instead contained the opinion, either by the alleged victim or others, that the alleged victim was a bitch/whore. Therefore, the evidence was Rule 412(a) evidence.

-Colin Miller

Feminist Law Professors

Sarah Maple in her Studio; Photo by Andrew Hassen

Folks with an interest in feminist art will want to check out the work of Sarah Maple, a visual artist based in Sussex, England.  In a recent article in the (UK) Independent, journalist Charlotte Rachael Proudman describes the artist’s work:

In an unfailingly mischievous manner, Sarah Maple uses narrative artwork to challenge traditional notions of religion, identity and the societal role of women. Her artwork never fails to shock; her latest piece Menstruate With Pride(right) is no exception. Surrounded by a horrified and disgusted crowd, Maple stands centre stage, a proud woman menstruating in public. It’s an interesting and bold statement; clearly Maple is an incendiary feminist. But the painting also airs a deep societal secret that menstruation is – and must remain – taboo.

What better way to understand the meaning behind Maple’s artwork than to ask the artist herself? “Initially I didn’t want to make work about menstruation because I thought it was a bit of a cliché. But as I was looking more into the idea of women and shame, I felt like I couldn’t avoid it!” Maple laughs. “I think there’s a phenomenal burden of shame on women from word go. When I started my period I was absolutely horrified, I felt it was humiliating. I didn’t tell my mother for 3 years, I felt I was letting her down. I think this may have been a cultural thing,” she says.

Read the full article here.

For more about Sarah Maple’s work, see her website here.

-Bridget Crawford

Feminist Law Professors

It seems unthinkable.

The South Africa Constitution has the reputation as the most progressive constitution in the world, based in part on an equality provision that explicitly includes “sexual orientation.”

But there is a move afoot to amend the Constitution and remove “sexual orientation” from the text.

More on ConLawProf blog here. 

Feminist Law Professors