Sexuality and the Law Commons^™

Defensive Mechanism: A Father's Right To Defend The Unborn, Lawrence Estrada

Cardozo Journal of Equal Rights & Social Justice

The note examines the Michigan Court of Appeals' decision in Kurr, which recognized a father's right to defend his unborn children under the defense of others doctrine, citing Michigan's fetal homicide law. This ruling extends legal protections to fetuses while maintaining exceptions for lawful abortions, reflecting broader shifts in legal and public policy toward fetal protection. The decision highlights the tension between protecting unborn life and preserving women's reproductive rights, emphasizing the narrow application of the defense to avoid undermining abortion rights established by Roe v. Wade.

Rethinking Child Advocacy After Roper V. Simmons: "Kids Are Just Different" And "Kids Are Like Adults" Advocacy Strategies, Elisa Poncz

Cardozo Public Law, Policy & Ethics Journal

The article examines the tension between two competing arguments in juvenile law: "kids are just different" and "kids are like adults." It critiques the binary approach often used in child advocacy and proposes a more nuanced, patchwork strategy that combines both perspectives to better serve the diverse needs of juveniles. The analysis focuses on key legal contexts, including the death penalty, life without parole, and minors' rights in medical decision-making, education, and internet access. The author argues that a balanced approach is essential to address the complexities of juvenile rights and responsibilities.

Myspace In A Post-Grokster World: Digital Finger Pointing For Offenses Perpetrated Through Use Of Social Networking Sites After Mgm V. Grokster, Cheryl J. Eisner

Cardozo Public Law, Policy & Ethics Journal

The note examines the dismissal of a negligence lawsuit against MySpace, arguing that interactive computer services should not be held liable for offline harms committed by users. It emphasizes the importance of protecting such platforms under the Communications Decency Act (CDA) and highlights the need to balance free speech and technological development against concerns for user safety.

Strict Liability And Negligent Rape: Or How I Learned To Start Worrying And Question The Criminal Justice System, Dini Rosenbaum

Cardozo Journal of Equal Rights & Social Justice

The note critiques strict liability and negligent rape standards, advocating for a more nuanced approach that prioritizes subjective fault and societal education to address the limitations of current rape laws. It emphasizes the need to align legal standards with the defendant's actual state of mind while addressing systemic barriers to justice, particularly in date rape cases. The analysis highlights the gap between legal reforms and their practical application, suggesting that education could be a more effective tool for prevention than relying solely on legal changes.

The Waterloo For The So-Called Church Autonomy Theory: Widespread Clergy Abuse And Institutional Cover-Up, Marci A. Hamilton

Cardozo Law Review

No abstract provided.

Birds Of An Illegal Feather: Prostitution And Paid Pornography Should Be Criminalized Together, Zachary David Streit

Cardozo Public Law, Policy & Ethics Journal

The note argues that prostitution and paid pornography should be criminalized together under the same legal framework. Both activities are criticized for their harmful effects, including the objectification and exploitation of women, as well as contributing to social ills such as disease and violence. The author advocates for the use of existing prostitution laws to prosecute those involved in pornography, arguing that this approach is legally sound and would help reduce the negative impacts of both industries.

"We're Here To Protect Democracy. We're Not Here To Practice It": The U.S. Military's Involvement In Trafficking In Persons And Suggestions For The Future, Jorene Soto

Cardozo Journal of Equal Rights & Social Justice

The article argues that the U.S. military has historically been complicit in human trafficking, particularly through its involvement in prostitution near overseas bases, and that current legal and policy measures fail to adequately address this issue. While laws like the Trafficking Victims Protection Act (TVPA) and the Uniform Code of Military Justice (UCMJ) provide some framework, enforcement and penalties are insufficient to deter military personnel from contributing to trafficking. The article calls for stronger legal policies, enhanced education, and stricter penalties to combat this issue effectively.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Civil Commitment Of Sexually Violent Predators: The Search For A Limiting Principle, Aman Ahluwalia

Cardozo Public Law, Policy & Ethics Journal

The article challenges the legal and empirical justifications for civil commitment of sexually violent predators, arguing that current standards, such as mental abnormality and lack of control, are overly broad and lack robust empirical support. It contends that recidivism rates for sex offenders are not significantly higher than those of other offenders, undermining the rationale for civil commitment. The analysis advocates for a more nuanced approach to incapacitation, emphasizing criminal law solutions over medicalized commitments.

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

Poor Whites, Benevolent Masters, And The Ideologies Of Slavery: A Slave Accused Of Rape In The Antebellum South, Jason A. Gillmer

ExpressO

This Article analyzes in detail a case involving a slave accused of raping a white woman in the 1850s to offer a fresh perspective on our basic assumptions about sex and race in the slave South. Joining a new group of “cultural-legal historians,” the author looks beyond the legal language of Southern legislatures and high courts, and focuses instead on the trial record of one case: State v. Pleasant. In doing so, the author uncovers the stories of ordinary men and women – the slave, his master, his accuser, his attorney, the jurors, and others – to see how the …

Reconceptualizing Child Sexual Exploitation As A Bias Crime Under The Protect Act, Tracy Agyemang

Cardozo Journal of Equal Rights & Social Justice

The note argues that the PROTECT Act, while expanding legal measures to combat child sexual exploitation, fails to address the crime's root causes and its nature as a form of discrimination. It advocates for reconceptualizing child sexual exploitation as a bias crime, which would enhance legal deterrence, increase penalties, and better acknowledge the psychological trauma experienced by victims. The note emphasizes that recognizing exploitation as a bias crime would address the systemic factors, such as poverty and discrimination, that perpetuate the crime.

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

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 …

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 …

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.

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

Cardozo 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.

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

The Homosexual-Advance Defense And Hate Crimes Statutes: Their Interaction And Conflict, Scott D. Mccoy

Cardozo Law Review

No abstract provided.

Decriminalization Of Sodomy Under South Africa's 1996 Constitution: Implications For South African And U.S. Law, Heidi Joy Schmid

Cardozo Journal of International and Comparative Law

The note examines the landmark decision of the South African Constitutional Court in National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Another, which invalidated sodomy laws as unconstitutional. The court held that these laws violated rights to dignity, privacy, and equality under the South African Constitution of 1996. Judge Sachs emphasized the interconnectedness of privacy and equality rights, advocating for a broad interpretation of privacy and the importance of dignity in challenging discriminatory laws. The decision not only advanced sexual minority rights in South Africa but also highlighted broader implications for global jurisprudence, …

Video Voyeurism, Privacy, And The Internet: Exposing Peeping Toms In Cyberspace, Clay Calvert, Justin Brown

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Some Thoughts On The Conduct/Status Distinction, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.