Law Commons^™

Till Death Do Us Part: The Legal Remedies Of Sexual Assault In Marriage - Or Lack Thereof, Kaylyn Presley

The Arkansas Journal of Social Change and Public Service

No abstract provided.

Reversing The Decriminalization Of Sexual Violence, Lisa Avalos

Journal Articles

Sexual violence has largely been decriminalized in the United States through disbelief of victims, apathy on the part of law enforcement officers, and inaction on the part of institutions. Indeed, these mechanisms are so effective at burying the problem that most people are not aware of the extent of unprosecuted sexual violence, the woefully deficient law enforcement response, and the need for sweeping reform. The Article proceeds in two parts. Part I maps the extent of this problem and argues that the weakest link in the societal response to sexual assault lies at the juncture between victim and law enforcement. …

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims' Rights (White Paper), David A. Schlueter, Lisa Schenck

Faculty Articles

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, …

American Military Justice: Retaining The Commander's Authority To Enforce Discipline And Justice, David A. Schlueter, Lisa Schenck

Faculty Articles

This white paper recommends that Congress reject proposals that would remove a commander’s prosecutorial discretion and instead place it in the hands of senior armed forces lawyers. There are currently two proposed legislative provisions that would adversely affect the commander’s prosecutorial discretion and undermine the commander’s ability to enforce good order and discipline. The first proposed provision was included in Section 540F of the 2020 National Defense Authorization Act, where Congress mandated that the Department of Defense report to the congressional armed services committees on the feasibility of creating a pilot program that would remove a commander’s authority to prefer, …

A Pause In The Expansion Of Vicarious Liability, Kee Yang Low, Siang Ping Lai

Research Collection Yong Pung How School Of Law

The doctrine of vicarious liability has undergone dramatic development in recent times and has been extended to scenarios quite different from that of employer-employee. The question is: will vicarious liability be applied to a situation where the tortfeasor is an independent contractor? The UKSC supplied the answer in Barclays Bank v Various Claimants. This article considers the implications of this landmark decision.

Symbolism Over Substance: The Role Of Adversarial Cross-Examination In Campus Sexual Assault Adjudications And The Legality Of The Proposed Rulemaking On Title Ix, Hunter Davis

Michigan Journal of Gender & Law

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 …

The Sexual Misconduct Of Donald J. Trump: Toward A Misogyny Report, Ruthann Robson

Michigan Journal of Gender & Law

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 …

The Elastic Meaning(S) Of Human Trafficking, Julie A. Dahlstrom

Faculty Scholarship

What is human trafficking? When is an expansive definition of trafficking justifiable? How does trafficking relate to other concepts—like domestic violence, sexual assault, labor exploitation, and prostitution—with which it often overlaps? These questions have become increasingly salient after the U.S. Congress defined the crime of human trafficking in the Victims of Trafficking and Violence Protection Act of 2000 (“TVPA”). Since then, all fifty states have passed legislation with varying definitions of the crime. Congress also has re-entered the field with subsequent legislation, expanding the crime to capture new conduct.

As a result of legislative advocacy and judicial interpretation, the legal …

Sexual Violence And Future Harm: Lessons From Asylum Law, Shawn E. Fields

Utah Law Review

Sexual violence victims face unique and enduring safety risks following an assault. The legal system’s gradual shift from solely punishing offenders for past acts to protecting survivors from future harm reflects a recognition of this fact. But so-called “sexual assault protection order” statutes impose onerous “future harm” requirements – including proof by clear and convincing evidence that another sexual assault is imminent – that belies the realities of ongoing injury for victims and creates barriers to protection similar to the criminal justice approach to rape.

This Article suggests a different approach, one justified by a novel analogy to the refugee …

The Complex Legacy Of R. V. Cuerrier: Hiv Nondisclosure Prosecutions And Their Impact On Sexual Assault Law, Isabel Grant

All Faculty Publications

This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around …

The Canary In The Military Justice Mineshaft: A Review Of Recent Sexual Assault Courts-Martial Tainted By Unlawful Command Influence, Mark Visger

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Gundy V. United States: Breathing New (And Unexpected) Life Into The Nondelegation Doctrine, Brandon K. Wharton

Maryland Law Review

No abstract provided.

An Intersection Of Gender, Race, And Sports: Guidelines For Universities Determining Whether Athletes Accused Of Title Ix Violations Should Be Removed From Their Teams, David A. Grenardo

Faculty Articles

Sexual assault on college campuses remains an epidemic. As universities attempt to handle Title IX complaints regarding sexual misconduct, they must protect the academic environment and integrity of their schools. Since athletes are three times more likely to be accused of sexual assault than non-athletes, and schools have historically mishandled complaints against athletes, the proposed guidelines in this Article provide an equitable approach for determining when an athlete should be removed from his team based on accusations of a Title IX violation. The guidelines are based on the newly implemented Title IX regulations and take into account the interests and …

An Examination Of How The Canadian Military’S Legal System Responds To Sexual Assault, Elaine Craig

Articles, Book Chapters, & Popular Press

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted …

#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 …

Breaking The Silence On Father-Daughter Sexual Abuse Of Adolescent Girls: A Case Law Study, Janine Benedet, Isabel Grant

All Faculty Publications

Adolescent girls are targeted for sexual violence at a rate higher than females at any other life stage. Girls most often face sexual violence at the hands of men that they know and trust within their own families, yet this type of abuse has largely evaded scrutiny from the #MeToo movement. In this article, the authors seek to revitalize the discussion of sexual abuse against adolescent girls by their fathers. The article is part of a larger study that examined all Canadian judicial decisions involving sexual offences against girls between the ages of twelve and seventeen inclusive over a three-year …

Sexual Exploitation And The Adultified Black Girl, Mikah K. Thompson

Faculty Works

A troubling legacy of American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black girls and women based not only on the fact that they were considered property but also on stereotypes about their sexuality. Even though the law now criminalizes the rape of Black girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. …

Does 'No, Not Without A Condom' Mean 'Yes, Even Without A Condom'?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant

All Faculty Publications

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …