Sexuality and the Law Commons^™

When A Victim's A Victim: Making Reference To Victims And Sex-Crime Prosecution, Scott A. Mcdonald

Nevada Law Journal

No abstract provided.

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.

Negotiating Sex, Michelle J. Anderson

Working Paper Series

“Negotiating Sex” is a response to the two major proposals for rape law reform in legal scholarship today, as well as a proposal for a third way. Susan Estrich and Donald Dripps argue that sexual penetration should be legal unless the victim expresses her non-consent, a proposal I call the “No Model.” Stephen Schulhofer argues that sexual penetration should be illegal unless the defendant obtains affirmative consent for penetration through the victim’s words or conduct, a proposal I call the “Yes Model.” Under this model, according to Schulhofer, if a woman does not say “no,” and “her silence is combined …

From No Means No To Only Yes Means Yes: The Rational Results Of An Affirmative Consent Standard In Rape Law, Nicholas J. Little

Vanderbilt Law Review

2003 saw the arrest of the star basketball player Kobe Bryant on charges of forcing a woman to have sex with him, charges that were dropped in 2004. This arrest is perhaps the most prominent in what has become a sordid procession of public shame: the charging of professional athletes with crimes of sexual assault. As is common in rape charges, neither party denies that the sex took place. Instead the argument is based on whether the woman consented to it. In the apology Bryant issued that led to the dismissal of the charges, he admits that "[a]lthough I truly …

Lucky: The Sequel, Martha Chamallas

Indiana Law Journal

No abstract provided.

Pennsylvania And Pornography: Cdt V. Pappert Offers A New Approach To Criminal Liability, 23 J. Marshall J. Computer & Info. L. 411 (2005), John Spence

UIC John Marshall Journal of Information Technology & Privacy Law

The rapid expansion of information technology in the past few years has left states and the Federal government struggling desperately to keep up and many of the laws attempting to regulate the Internet and information technology show a lack of understanding how the affected technology actually works and could possibly the growth and distribution of new ideas and inventions even incapacitate the Internet. One area in particular that has been the subject of widespread concern and attention is online pornography, a business that few people only realize just how big it truly is. This article focuses on the recent District …

Pornography As Trafficking, Catharine A. Mackinnon

Michigan Journal of International Law

In material reality, pornography is one way women and children are trafficked for sex. To make visual pornography, the bulk of the industry's products, real women and children, and some men, are rented out for use in commercial sex acts. In the resulting materials, these people are then conveyed and sold for a buyer's sexual use. Obscenity laws, the traditional legal approach to the problem, do not care about these realities at all. The morality of what is said and shown remains their focus and concern. The injuries inflicted on real people to make the materials, or because they are …

Lawrence Beyond Gay Rights: Taking The Rationality Requirement For Justifying Criminal Statutes Seriously, 53 Drake L. Rev. 231 (2005), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

International Child Abductions: The Challenges Facing America , Charles F. Hall

ExpressO

International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

Male Sexual Assault: Issues Of Arousal And Consent, Siegmund Fred Fuchs

Cleveland State Law Review

This Note argues that an erection under these circumstances does not indicate consent to engage in sexual activity. Part II of this Note explores the reality of male sexual assault and offers various medical, psychological, sociological, and cultural reasons to explain why a male victim may maintain an erection while being sexually assaulted and/or raped. Part II also explores the complex relationship between physical arousal and sexual desire. Part III provides a legal background to both the law's treatment of male sexual assault generally and in specific instances where the male victim maintained an erection during his assault. This part …

Lawrence V. Texas: When "Profound And Deep Convictions" Collide With Liberty Interests, Nancy J. Knauer

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's landmark decision in Lawrence v. Texas, which overturned Bowers v. Hardwick and invalidated a Texas sodomy law criminalizing same-sex intimacy. The author argues that Lawrence not only advanced individual liberty interests but also marked a significant shift in the legal and cultural recognition of homosexuality, moving beyond earlier frameworks that criminalized or marginalized gay individuals. The decision reflects broader societal changes in understanding same-sex relationships and challenges the use of moral disapproval as a basis for legal restrictions on consensual adult conduct.

The Shag-A-Delic Supreme Court: "Anal Sex," "Mystery," "Destiny," And The "Transcendent" In Lawrence V. Texas, Richard D. Mohr

Cardozo Journal of Equal Rights & Social Justice

The article critiques Justice Anthony Kennedy's majority opinion in Lawrence v. Texas for its lack of clarity and robust constitutional framework. While the decision overturned Texas's sodomy law, the author argues that Kennedy's reasoning conflated liberty and equality rights, relied on vague language, and failed to establish a clear legal standard, undermining its potential to provide strong protection for LGBTQ+ rights.

Challenging Dissent: The Ontology And Logic Of Lawrence V. Texas, Jami Weinstein, Tobyn Demarco

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's decision in Lawrence v. Texas, which invalidated a Texas antisodomy statute criminalizing homosexual conduct. The Court held that the statute failed rational basis review and rejected the promotion of majoritarian sexual morality as a legitimate state interest. The decision reflects a broader recognition of the fundamental right to make autonomous, private, consensual, adult sexual choices. The analysis critiques Justice Scalia's dissent, arguing that his fears about the end of morals legislation are unfounded and that laws based solely on moral disapproval lack a rational basis.

The Free Speech Coalition & Adult Entertainment: An Inside View Of The Adult Entertainment Industry, Its Leading Advocate & The First Amendment, Clay Calvert, Robert Richards

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal evolution from *Bowers v. Hardwick* to Lawrence v. Texas, highlighting how the latter marked a pivotal shift in recognizing LGBTQ+ rights by emphasizing personal autonomy and dignity. It underscores the significance of narrative strategies in shaping judicial decisions, particularly in *Lawrence*, where the plaintiffs' personal stories influenced the Court's ruling.

"You Are Entering A Gay And Lesbian Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers – [Raising Questions About Lawrence, Sex Wars, And The Criminal Law], Bernard Harcourt

Faculty Scholarship

The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal …

Criminal Statutes Of Limitations: An Obstacle To The Prosecution And Punishment Of Child Sexual Abuse, Jodi Leibowitz

Cardozo Law Review

No abstract provided.

Sex Offender Registration And Community Notification Laws: Will These Laws Survive?, Kimberly B. Wilkins

University of Richmond Law Review

No abstract provided.

The Effect Of Prior Consensual Sex Between The Victim And The Offender On The Prosecutor's Decision To File Charges In Sexual Assault Cases., Kimberly Brooke Hollifield

Electronic Theses and Dissertations

Research has shown that both legal and extra-legal factors are used by the prosecutor in a sexual assault case when making the decision to file charges in the case. However, no study on sexual assault prosecutorial discretion, at this time, has examined the effect of prior consensual sex between the victim and the offender and the affect that it has on the prosecutor’s decision to file charges. Using data from a National Institute of Justice Study on sexual assault case processing, this study tests whether evidence of prior consensual sex between the victim and the offender plays a role in …

The Quandary Of Megan's Law: When The Child Sex Offender Is A Child, 37 J. Marshall L. Rev. 73 (2003), Timothy E. Wind

UIC Law Review

No abstract provided.

The Closet Becomes Darker For The Abused: A Perspective On Lesbian Partner Abuse, Marnie J. Franklin

Cardozo Journal of Equal Rights & Social Justice

The article argues that lesbian partner abuse is systematically overlooked in both academic discourse and legal systems, which predominantly rely on heteronormative frameworks that fail to account for same-sex relationships. This exclusion perpetuates the marginalization of abused lesbians, who face unique barriers due to societal homophobia, internalized shame, and the legal system's reliance on heterosexual models of domestic violence.

The Duty To Protect: Blackstone's Doctrine Of In Loco Parentis: A Lens For Viewing The Sexual Abuse Of Students, Todd A. Demitchell

Brigham Young University Education and Law Journal

No abstract provided.

Sexualized Racism/Gendered Violence: Outraging The Body Politic In The Reconstruction South, Lisa Cardyn

Michigan Law Review

From its establishment in the months following the Civil War by a motley assortment of disgruntled former rebels, the first Ku Klux Klan, like its many vigilante counterparts, employed terror to realize its invidious social and political aspirations. This terror assumed disparate shapes - from the storied nightriding of disguised bands on horseback, to cryptic threats, horrific assaults, and, not infrequently, murder. While students of Reconstruction have considered many facets of klan violence, none to date has focused exclusively on sexual violence in its historical specificity. Yet, as the work of Catherine Clinton, Laura Edwards, and Martha Hodes persuasively demonstrates, …

Introduction To The Symposium: Homophobia In The Halls Of Justice: Sexual Orientation Bias And Its Implications Within The Legal System, Brenda V. Smith, Pamela Bridgewater

Scholarly Articles in Law Reviews & Journals

The gay moment is unavoidable. -Andrew Kopkind

Gay activist, journalist and political commentator Andrew Kopkind made this profound observation at a critical moment in the queer rights movement, in the midst of the March on Washington, pride rallies, queer organizing and the ever strengthening movement to address the AIDS crisis within the queer community. The moment, however, meant different things to participants in the movement. Over the years, the queer or sexual liberation movement transformed itself into a much more equality-based movement with the most energy focused on securing recognition of gay marriage and equal access to the military. As …

The Complex Uses Of Sexual Orientation In Criminal Court, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Times may or may not be changing for gay people in the criminal justice system--and for the import of sexual orientation in criminal law. It depends on the nature of the case and, more importantly, exactly whose sexual orientation we are talking about.

Signs of positive change include the recent high profile Matthew Shepard and Diane Whipple cases, in which gay and lesbian homicide victims were mourned not only by the gay community, but also by the entire country. It was no doubt helpful that both Shepard and Whipple presented very appealing images of gay people: each was young, attractive, …

Celibacy, Sexual Exclusivity, And Illicit Drug Abstinence: Giving Up The Life As Taboo In Aids Prevention, Ibpp Editor

International Bulletin of Political Psychology

This article highlights social cognitions that seem to impede cost-effective approaches to AIDS prevention.

Science Gone Astray: Evolution And Rape, Elisabeth A. Lloyd

Michigan Law Review

Throughout A Natural History of Rape, coauthors Randy Thomhill and Craig Palmer resort to what is known among philosophers of science as "The Galileo Defense," which amounts to the following claim: I am telling the Truth and doing excellent science, but because of ideology and ignorance, I am being persecuted. The authors have repeated and elaborated upon this defense during the si:lable media flurry accompanying the book's publication in February 2000. Now, history has accepted this defense from Galileo. But in order for it to work for Thornhill and Palmer, of course, they must be telling the Truth and doing …

When Is An Attempted Rape Not An Attempted Rape? When The Victim Is A Transsexual - Schwenk V. Hartford: The Intersection Of Prison Rape, Title Vii And Societal Willingness To Dehumanize Transsexuals, Katrina C. Rose

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Little Sisters Book And Art Emporium V. Minister Of Justice: Sex Equality And The Attack On R. V. Butler, Janine Benedet

All Faculty Publications

Scholars and philosophers spend much of their time discussing what pornography means and whether it can be defined. This debate persists despite the fact that most men, regardless of their sexual orientation, seem to understand quite well what pornography is, and what it is for: they produce it commercially, buy it in magazines, rent it in videos, and search for it on the Internet. The pornography industry has the distinct advantage of selling a product that, in legal terms, is considered "expression," and therefore a product that has been declared worthy of constitutional protection under section 2(b) of the Canadian …