Law Commons^™

Maintaining The Presumption Of Innocence In Date Rape Trials Through The Use Of Language Orders: State V. Safi And The Banning Of The Word "Rape", Jason Wool

William & Mary Journal of Race, Gender, and Social Justice

This note evaluates the use of language orders in date rape trials in which the defense is consent through a case study of State v. Safi, in which Tory Bowen claims that Pamir Safi date raped her. In that case, the trial judge granted a motion by the defense to prevent the prosecution and any of their witnesses from using words such as "rape" and "sexual assault." Using State v. Safi as a starting point, the author examines the use of such trial orders from the perspective of both defendants and victims. The author concludes that a modified version of …

From Hillary Clinton To Lady Macbeth: Or, Historicizing Gender, Law, And Power Through Shakespeare's Scottish Play, Carla Spivack

William & Mary Journal of Race, Gender, and Social Justice

Female rule was anomalous in the sixteenth century, therefore, Elizabeth I developed a complex set of symbols, rooted in claims traditionally made by male rulers, to legitimate her claim to rule. Nonetheless, her reign was anxiety-provoking, and this article argues that the years after her death saw a backlash against female power. Part of this backlash consisted of the reworking of the symbols Elizabeth had used. This article examines this process of revision in Shakespeare's play Macbeth and, later, in the responses of King James I to claims of demonic possession.

This article draws together three historical moments - Queen …

The Parent Trap: Differential Familial Power In Same-Sex Families, Deirdre M. Bowen

William & Mary Journal of Race, Gender, and Social Justice

Do intact same-sex couples where one member of the couple became pregnant with assisted reproduction or was the primary adopter, and the other member became a parent through second parent adoption, understand the legal protections afforded them? In short the answer is no. An interesting family dynamic arises around those who can claim the true status as parent based on their legal understandings of parenthood and their interactions with the dominant culture. While high profile custody cases on this issue have been decided in the United States with varying results, no research has examined the impact of uneven legal protections …

The Facade Of Neutrality: Uncovering Gender Silences In International Trade, Barnali Choudhury

William & Mary Journal of Race, Gender, and Social Justice

International trade policies have traditionally been measured in terms of net economic benefit and market-based criteria. For the most part, these policies have largely ignored any of the societal effects that a liberalized trade regime may cause. Recently, however, the environmental, health, and labor impacts of trade agreements have slowly gained recognition as areas of concern. This recognition has led to an overall growing trend towards acknowledging the linkages between trade and non-trade issues.

One area that has been relatively untouched by any new developments is the issue of gender. Trade theories proceed from the premise that trade agreements are …

Creeping By Moonlight: A Look At Civil Commitment Laws For Sexually Violent Predators Through The Lens Of The Yellow Wallpaper, Heather R. Willis

William & Mary Journal of Race, Gender, and Social Justice

This note examines the constitutional and social implications of the civil commitment of sexually violent predators in the United States. These commitments are implemented on sexual offenders deemed too dangerous to be placed back into society after serving prison sentences and have been gaining popularity across the United States. Currently, these commitments are considered constitutional in limited circumstances by the Supreme Court, but while these commitments are meant for only the most dangerous and least controllable individuals, the public reaction to sexual offenses increases the possibility these commitments will be misused. As a part of examining this commitment process, this …

Uneasy Lies The Tiara: Crowns, Contracts, And The Rebekah Revels Litigation, Amanda Harmon Cooley

William & Mary Journal of Race, Gender, and Social Justice

In the last five years, news of various scandals in the pageant industry has inundated media outlets. These recent incidents are by no means outliers in the history of pageantry. This article explores the significance of one of these controversies - the Rebekah Revels litigation, which stemmed from the disputed 2002 Miss North Carolina pageant.

For context, this article first outlines allegations of wrongdoing in early pageants. It proceeds with an analysis of how the Revels litigation serves as an exemplar of the types of contract lawsuits that may continue to entangle pageant organizations in the future. Finally, the article …

Adolescents Under International Law: Autonomy As The Key To Reproductive Health, Aliya Haider

William & Mary Journal of Race, Gender, and Social Justice

As a matter of policy, the reproductive and sexual health of adolescents matter because they comprise almost one half of the world's population. As a matter of international human rights law, adolescents have reproductive and sexual health rights. This article outlines how the international community must ensure adolescents' access to and exercise of those reproductive health rights. Governments must enable informed decision-making while also offering state protections for this vulnerable population. Without laws and policies that uphold adolescent health worldwide, future generations will needlessly suffer.

Bringing Down The Bedroom Walls: Emphasizing Substance Over Form In Personalized Abuse, Orly Rachmilovitz

William & Mary Journal of Race, Gender, and Social Justice

This article explores what makes domestic violence special and whether privileging certain abusive relationships, and thus certain victims, over others is justified. It argues that abuse in familial, romantic, or cohabitating relationships is not necessarily any more harmful than abuse in other personal relationships; that harm from abuse should be identified through substantive criteria, for which marriage or cohabitation should not be proxies; and that heightened protections should be extended accordingly. The article pinpoints the criteria that justify distinguishing domestic violence from other forms of violence and examines how federal and state domestic violence laws define protected victims and relationships. …

Re-Possessing "Home": A Re-Analysis Of Gender, Homeownership, And Debtor Default For Feminist Legal Theory, Lorna Fox

William & Mary Journal of Race, Gender, and Social Justice

The current credit crisis has brought the subject of subprime and other problematic debt to the forefront of many agendas - both political and personal. This article explores some of the underlying legal, theoretical, economic, and phenomenological issues associated with default and foreclosure, particularly as they affect women homeowners. The analysis is embedded in feminist discourse on home, from traditional critiques of the association between women and home to evolving conceptions of the benefits and the burdens of home for contemporary feminist theory. This article traces the ideas of "home" and "homeownership" for American women and considers how it might …

Polygamy And Same-Sex Marriage - Allies Or Adversaries Within The Same-Sex Marriage Movement, Jaime M. Gher

William & Mary Journal of Race, Gender, and Social Justice

This article addresses the charged slippery slope accusation that permitting same-sex marriage will inevitably lead to the legalization of polygamy. While same-sex marriage advocates generally distance their cause from polygamy and its disparaging history when responding to such accusations, this article determines whether that response is appropriate, or alternatively, whether the same-sex marriage movement could benefit from linkages between polygamy and same-sex marriage. In conducting the analysis, this article presents a nuanced discussion of marriage and its varying forms. Specifically, it examines the United States' historical regulation of polygamy, interrogates analogies between polygamy and same-sex marriage, compares cross-cultural practices and …

Mothers Versus Babies: Constitutional And Policy Problems With Prosecutions For Prenatal Maternal Substance Abuse, Meghan Horn

William & Mary Journal of Race, Gender, and Social Justice

This note examines the constitutional and policy implications of criminal prosecutions for prenatal maternal substance abuse under statutes criminalizing drug delivery, child abuse, and manslaughter. Although only one of these convictions has been upheld in the thirty years since a prosecutor first brought such charges, prosecutors continue to propose new and increasingly inventive theories of prosecution. Not only do these cases present procedural due process, substantive due process, and equal protection problems, they also cannot be supported by public policy. The prosecutions are opposed by healthcare workers, pit the interests of mothers and unborn children against each other, and actually …

Virginia Is For (Lovers) Business Owners Who Feel The Human Rights Commission Poses A Threat To Their Religious Liberties, Sarah Miller

William & Mary Journal of Race, Gender, and Social Justice

In November 1992, the Arlington County Board voted to add "sexual orientation" to the group of classes protected under its antidiscrimination policy. When a store owner was sued for violating this policy in 2006, he countersued, claiming that Arlington did not have the power to enact such a policy. His claim was based on the existence of a strongly state-centered power hierarchy unique to a very small minority of states, including Virginia, laid out in the Dillon Rule. Virginia's use of the Dillon Rule basically cripples its municipal corporations by injecting uncertainty into the process of enacting local legislation and …

Women In Federal Prison: Pathways In, Programs Out, Kim White

William & Mary Journal of Race, Gender, and Social Justice

One of the fastest growing populations in most correctional systems is female offenders and the impact of these rising numbers is significant. The author speaks to the rising female population numbers, the types of crimes and behaviors that lead to their incarceration, the characteristics of female offenders, the impact their incarceration has on their families and children, and how gender responsive programming is pivotal to their effective and successful reentry into society.

Hard Labor: The Legal Implications Of Shackling Female Inmates During Pregnancy And Childbirth, Geraldine Doetzer

William & Mary Journal of Race, Gender, and Social Justice

Despite international human rights guidelines that prohibit the practice, thirty-eight states and the Federal Bureau of Prisons currently allow corrections officials to shackle pregnant inmates during the third trimester of pregnancy. Of these, twenty-three states and the Bureau also allow restraints to be used during active labor. Only two state legislatures, Illinois and California, have addressed the issue of using physical restraints on pregnant inmates; the vast majority of states rely on corrections officials to craft policy.

This article analyzes both states' justifications for shackling policies as well as the Constitutional and human rights arguments that have been posed by …

Speech: Latinas And Their Families In Detention: The Growing Intersection Of Immigration Law And Criminal Law, Sandra Guerra Thompson

William & Mary Journal of Race, Gender, and Social Justice

In this article, Professor Sandra Guerra Thompson explores the growing enforcement of immigration law within the interior of the United States and the growing intersection of the criminal justice system and immigration law. Through the use of worksite enforcement sweeps and immigration screening by state and local law enforcement, growing numbers of undocumented persons are being taken into custody by federal immigration officials. She examines the plight of women and families held in detention centers under what are often deplorable conditions. Ironically, immigration detention centers offer fewer resources than those available in most state prisons. The immigration law judicial system …

The Caged Canary, Elizabeth Alexander

William & Mary Journal of Race, Gender, and Social Justice

The United States has experienced an explosion in the number of people in prison, an explosion that cannot be attributed to changes in the crime rate, but rather reflects changes in public policy, particularly sentencing policy regarding drug crimes. These changes have had a devastating impact on African-American communities. The changes have also adversely affected the social, economic, and political culture of the nation as a whole. The rate of increase in incarceration for women prisoners has been disproportionately high, although women are generally imprisoned for non-violent crimes and have lower recidivism rates than men. Once in prison, women are …

Women In Prison: International Problems And Human Rights Based Approaches To Reform, Jenni Gainsborough

William & Mary Journal of Race, Gender, and Social Justice

The growth in prison populations is a world-wide phenomenon, and within the overall growth rate, many countries are seeing a disproportionate rate of increase among women. Despite differences in culture and resources, women everywhere face similar problems in prison systems, which have been designed primarily by and for men. These include sexual abuse, lack of appropriate medical care, loss of children and breakdown of families. The United States leads the world in both the overall size of its prison population and its rate of incarceration. Advocates for reform are increasingly turning to international human rights laws, standards and norms to …

Women And The Death Penalty: Racial Disparities And Differences, Harry Greenlee, Shelia P. Greenlee

William & Mary Journal of Race, Gender, and Social Justice

The death penalty in America has been studied, discussed, and written about extensively. The vast majority of researchers, however, have focused their study of the death penalty, or capital punishment, on male prisoners. This article examines the data related to women on death row since 1973, with particular attention to similar problems that have been documented for men, while highlighting racial differences and/or racial disparities where found. The subjects were 157 women who received death row sentences, forty-nine women currently on death row, and the eleven women executed since 1973. The data demonstrated that some racial disparities do exist with …

Red Light, Green Light: Assessing The Stop And Go In The Advancement Of Women In The Legal And Business Sectors, Megan Erb

William & Mary Journal of Race, Gender, and Social Justice

The purpose of this note is to identify the problems professional women have in building a career while caring for a family, and to provide the basis for creating a solution. Part I of this note addresses the various types of problems that force women out of the workplace, as well as the difficulties women have in reentering the job market. Part II of this note compares the alternative work schedules offered in the legal and business communities. Part III focuses on the success the business firms have had, with the help of business schools, in finding a practical solution …

Public Policy, Women, And Confinement: A Plea For Reasonableness, Peter M. Carlson

William & Mary Journal of Race, Gender, and Social Justice

This veteran correctional administrator reviews the explosion of numbers of female offenders confined in the United States today. The article explores the myriad causes and effects of this shift in public policy and notes the negative impact of today's policy outcomes on individual offenders, correctional systems, and our society. The author argues for a modification of policy to a more rational approach to judicial sentencing.

The Interaction Of Customary Law And Microfinance: Women's Entry Into The World Economy, Shana Hofstetter

William & Mary Journal of Race, Gender, and Social Justice

This note examines the complicated relationship between microfinance and customary law. Microfinance, the practice of giving small, collateral-free loans to the poorest members of society, has gained great popularity in the last thirty years. These loan programs specifically target women and use women's traditional emphasis on groups to ensure success. Customary law can hinder microfinance ventures because of the restrictions these laws place on women's roles and responsibilities. Case studies on the Dominican Republic, Morocco, and Bangladesh explore how individual customary laws can hinder microfinance programs and women's micro-businesses. This note also discusses how microfinance programs act as catalysts of …