Law Commons^™

Feminist Scripts For Punishment, India Thusi

Articles by Maurer Faculty

Review of:

THE FEMINIST WAR ON CRIME: THE UNEXPECTED ROLE OF WOMEN’S LIBERATION IN MASS INCARCERATION. By Aya Gruber. Oakland, C.A.: University of California Press. 2020. Pp. xii, 288. $29.95.

Women’S Votes, Women’S Voices, And The Limits Of Criminal Justice Reform, 1911–1950, Carolyn B. Ramsey

Publications

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience—through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Articles in Law Reviews & Other Academic Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

#Metoo And Mass Incarceration, Aya Gruber

Publications

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020). The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime …

Improving Law Enforcement’S Victim-Centric Responses To Sexual Assault: Global Best Practice Catalog, Ayesha Ashraf, Sebastián Galleguillos Agurto, Frederick Geyer, Kamela Gjoka, Jasmine Hwang, Stanley Montinat, Jessica Moor, Pierre Reyes, Tara Ventimiglia, Hongda Xu

Publications and Research

This catalog was compiled as part of a U.S. State Department Diplomacy Lab Project entitled “Improving Law Enforcement’s Victim-Centric Responses to Sexual Assault,” in fall semester of 2019, for American Citizens Services, US Embassy Bangkok. It is intended to cover best practices in law enforcement response to sexual assault across the globe, including laws, policies and programs.Ten multilingual graduate students in the capstone seminar of the Master of Arts Degree Program in International Crime and Justice at John Jay College of Criminal Justice (CUNY) established criteria for inclusion and standardized elements for each entry in this catalog. The ultimate aim …

Law Versus Action: How Five Cape Town Organizations Are Combating High Rates Of Sexual Assault And The Failure Of Progressive Sexual Offences Legislation, Anna Tinker

Independent Study Project (ISP) Collection

This Independent Study Project (ISP) seeks to understand the work various Cape Town organizations are doing to help survivors of sexual assault gain access to justice. Previous research finds that social norms defining masculinity as well as rape myths and stereotypes lead to the high levels of gender-based violence (GBV) in South Africa. This research led to my hypothesis that organizations fighting GBV would target these norms to help survivors access the justice system that so frequently ignores them. Eight organizations were contacted requesting an interview to discuss their work and two agreed to participate. Participants were asked to discuss …

#Metoo, Statutory Rape Laws, And The Persistence Of Gender Stereotypes, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

This Article proceeds in five parts. Part I reviews the history of the legal and social movement from gender-specific to gender-neutral statutory rape laws. This Part includes an exploration of critical scholarship responding to the Supreme Court's Michael M. decision. Part II explains the limitations of gender-specific legislation. This Part illustrates that there are two categories of gender-neutral statutory rape jurisdictions: age-differential statutes and arbitrary prosecution statutes. This Part also explores challenges to these statutes, particularly arbitrary prosecution statutes, on equal protection grounds. Part III provides empirical data that men are prosecuted at a rate four times greater than females …

Sex Wars As Proxy Wars, Aya Gruber

Publications

The clash between feminists and queer theorists over the meaning of sex—danger versus pleasure—is well- trodden academic territory. Less discussed is what the theories have in common. There is an important presumption uniting many feminist and queer accounts of sexuality: sex, relative to all other human activities, is something of great, or grave, importance. The theories reflect Gayle Rubin’s postulation that "everything pertaining to sex has been a ‘special case’ in our culture.” In the #MeToo era, we can see all too clearly how sex has an outsized influence in public debate. Raging against sexual harm has become the preferred …

Judicial Audiences: A Case Study Of Justice David Watt's Literary Judgments, Elaine Craig

Articles, Book Chapters, & Popular Press

Applicants to the federal judiciary identify three main audiences for their decisions: the involved and affected parties, the public, and the legal profession. This case study examines a set of decisions authored by Justice David Watt of the Ontario Court of Appeal, involving the rape, torture, murder or attempted murder of women, in which he attempts humour or uses puns, parody, stark imagery and highly stylized and colloquial language to introduce the violence, or factual circumstances surrounding the violence, in these cases. It assess these introductions in relation to the audiences judges have identified as important for their decisions. The …

Solving The Riddle Of Rape By Deception, Luis E. Chiesa

Journal Articles

Is sex obtained by lies an act of lawful seduction or criminal rape? This deceptively simple question has baffled courts and scholars for more than a century. In an influential recent article, Yale Law Professor Jed Rubenfeld argued that our ambivalence towards this question generates what he called the “riddle of rape-by-deception”. The riddle is that if rape is defined as having sex without consent, then rape statutes should prohibit sex by deception just as much as they prohibit sex by force. Yet they don’t. So either rape statutes are guilty of a huge, inexplicable oversight or rape law is …

Henry V. British Columbia: Still Seeking A Just Approach To Damages For Wrongful Conviction, Emma Cunliffe

All Faculty Publications

Henry v. British Columbia (Attorney General) was the first case in which a claimant sought damages under section 24(1) of the Canadian Charter of Rights and Freedoms for breaches of rights that led to a wrongful conviction and imprisonment. In its 2015 decision, the Supreme Court of Canada clarified the criteria for the award and quantum of such damages. In June 2016, Hinkson C.J.S.C. awarded $8,086,691.80 in damages to Ivan Henry in compensation, special damages and “to serve both the vindication and deterrence functions of s. 24(1) of the Charter”.

In this article, I describe the events that led to …

How To Think (Like A Lawyer) About Rape, Kimberly Kessler Ferzan, Peter K. Westen

All Faculty Scholarship

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when we use “consent” to mean two different things and the question of whether …

The Wages Of Genetic Entitlement: The Good, The Bad, And The Ugly In The Rape Survivor Child Custody Act, Jennifer S. Hendricks

Publications

This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to …

Rape And Mental Health Outcomes Among Women: Examining The Moderating Effects Of “Healthy” Fear Levels, Ryan E. Spohn, Emily M. Wright, Johanna C. Peterson

Criminology and Criminal Justice Faculty Publications

This study examined the mediating and moderating impact of fear of victimization on the relationships between forcible and vicarious rape on depression and PTSD among college women. Forcible and vicarious rape positively affected PTSD and depression symptomology, but fear did not mediate these relationships. Fear moderated the impact of forcible rape on PTSD, but was not a moderator for depression. Findings suggest that there may be “healthy” levels of fear in the aftermath of victimization where having too little fear may leave women unnecessarily vulnerable to victimization, while having too much fear may lead to social isolation and withdrawal.

The Criminalization Of Title Ix, Erin R. Collins

Law Faculty Publications

This essay proceeds in three parts. Part I provides a brief overview of the history of feminist-influenced criminal rape law reform and the rise of carceral feminism. Part II demonstrates how key tenets of the criminal law approach have been imported into emerging Title IX policies. Part III engages in a brief distributional analysis to identify who benefits and who loses from this approach. Then, drawing on insights from critical feminist critiques of rape law reform, begins to identify ways to use the opportunity Title IX presents to craft a very different kind of response to sexual assault--one that focuses …

For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.

The Ethical Identity Of Sexual Assault Lawyers, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the …

The Inhospitable Court, Elaine Craig

Articles, Book Chapters, & Popular Press

Who speaks and with what authority, who is believed, what evidence is introduced, and how it is presented, is informed not only by the substantive law and the rules of evidence but also by the rituals of the trial. It is from this legal process as a whole that a judge or jury determines the (legal) ‘truth’ about a woman’s allegation of rape. A sexual assault complainant’s capacity to be believed in court, to share in the production of meaning about an incidence of what she alleges was unwanted sexual contact, requires her to play a part in certain rituals …

Anti-Rape Culture, Aya Gruber

Publications

This essay, written for the Kansas Law Review Symposium on Campus Sexual Assault, critically analyzes “anti-rape culture” ― a set of empirical claims about rape’s prevalence, causes, and effects and a set of normative ideas about sex, gender, and institutional authority ― which has heralded a new era of discipline, in all senses of the word, on college campuses. In the past few years, publicity about the campus rape crisis has created widespread anxiety, despite the fact that incidents of sexual assault have generally declined and one-in-four-type statistics have been around for decades. The recent surge of interest is due …

Consent Confusion, Aya Gruber

Publications

The slogans are ubiquitous: “Only ‘Yes’ Means ‘Yes’”; “Got Consent?”; “Consent is Hot, Assault is Not!” Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic “yes”?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today’s widespread uncertainty …

Not Affirmative Consent, Aya Gruber

Publications

No abstract provided.

The Ethical Identity Of Sexual Assault Lawyers, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the …

Rape Law Revisited, Aya Gruber

Publications

This essay introduces the Ohio State Journal of Criminal Law Symposium, “Rape Law Revisited” (Vol. 13(2)). The Symposium features articles by Deborah Tuerkheimer, Kimberly Ferzan, David Bryden and Erica Madore, Bennett Capers, and Erin Collins. The symposium provides fresh perspectives on the issues surrounding sexual assault law and policy in today’s environment. The introduction notes that the current rape reform redux is not just a rehashing of old arguments, but boasts many new features. Today’s rape activism occurs in a moment when feminist ideas about coerced sex no longer exist at the margins — they govern and enjoy cultural acceptance, …

Sexual Assault As A Law Of War Violation & U.S. Service-Members’ Duty To Report, Chris Jenks, Jay Morse

Faculty Journal Articles and Book Chapters

This Essay considers when U.S. service members deployed to Afghanistan are obligated to report allegations of sexual assault by Afghan security forces against Afghan nationals to the U.S. military. The answer requires applying a longstanding Department of Defense policy for reporting law of war violations and hinges on whether there is a nexus between the sexual assault and the armed conflict in Afghanistan. Although recent attention on this topic has brought much-needed visibility to sexual assault in conflict zones, the overbroad assertions of the media and the military have unfortunately fostered more confusion than clarity. This Essay does not attempt …

"Nobody's Saying We're Opposed To Complying": Barriers To University Compliance With Vawa And Title Ix, Charlotte Savino

Cornell Law Library Prize for Exemplary Student Research Papers

Part I of this note will explore the government’s action in addressing sexual assault on campus, including the history of VAWA, the Clery Act, and Title IX. Part II will posit barriers to compliance, including ambiguous mandates, due process issues of private adjudication, and privacy law. Part III encapsulates the current political landscape and the laws that are under consideration. Part IV concludes with the financial and legal consequences of university action and inaction, including lawsuits brought by victims, lawsuits brought by the accused, Department of Education and Office of Civil Rights fines, and admissions consequences as prospective students actively …

Husbands Who Drug And Rape Their Wives: The Injustice Of The Marital Exemption In Ohio’S Sexual Offenses, Patricia J. Falk

Law Faculty Articles and Essays

This article argues that Ohio's marital rape exemption fails to vindicate the sexual autonomy and physical integrity of all persons in the state to be free from non-consensual sexual conduct. This protection from unwanted, non-consensual sexual violation should be afforded to Ohioans regardless of the victim's marital relationship to the perpetrator. Furthermore, the state's sexual offense provisions are plagued with inconsistencies and illogical distinctions with respect to the marital immunity. Ohio's partially abolished marital exemption cannot be justified under any coherent theory of justice, appears to survive merely due to inertia, and certainly does not serve the best interests of …

Impact Of The “Nirbhaya” Rape Case: Isolated Phenomenon Or Social Change?, Tina P. Lapsia

Honors Scholar Theses

In December 2012, a twenty-three year old college student, who was given the pseudonym “Nirbhaya” (“fearless”), was fatally gang-raped on a private bus in Delhi, India, galvanizing the country to swiftly adopt new legislative measures and catapulting the issue of violence against women in India into the international spotlight. Although assault and rape cases have made India infamous for its high volume of crimes against women, the reaction to this particular incident was much different from before. This paper investigates whether the governmental and societal responses represent social change, as indicated by changing attitudes towards violence against women in India. …

Anti-Rape Culture, Aya Gruber

Publications

No abstract provided.

When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber

Publications

Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a "peculiar institution" and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. …

Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger

All Faculty Scholarship

No abstract provided.