Protecting Victims of Domestic Violence — Have We Got the Balance Right?

That states should act to prevent domestic violence and protect victims is clearly acknowledged in international law. Yet international law confirms also that victims, perpetrators and their families have rights to privacy, to a family life and to a home. The extent to which rights to respect for private and family life should be interfered with in order to protect victims remains in dispute. With the aim of improving the protection afforded to domestic violence victims in England and Wales, in 2011–2012 the police and courts piloted the use of two new short-term protective measures; domestic violence protection notices and orders. Between 2012 and 2013 the police also piloted the domestic violence disclosure scheme, which saw prospective victims provided with information about their partner’s previous violent behaviour. The disclosure scheme and the domestic violence protection orders and notices were rolled out nationally in March 2014. In this article, consideration is given to the impact these two initiatives will have on the privacy of victims and perpetrators, an issue not considered in government evaluations of the pilots. This article analyses whether the roll-out of these new initiatives is justified, given their potential for interference in private and family life

Toxic Misogyny and the Limits of Counterspeech

Gender equality, across all the ways that we humans are engendered, is an unrealized ideal of many contemporary Americans. It is not enshrined in the U.S. Constitution, unless one interprets “men” to include women, which the Framers did not. Although passed by Congress in 1972, the Equal Rights Amendment (ERA) failed to gain the necessary thirty-eight state ratifications, and it has never become law. Thirty-five states initially ratified it between 1972 and 1977, then two more in 2017 and 2018. It remains one state short. These ratifications indicate significant social progress for women, but the progress is uneven, even within states that have supported the ERA. Offering a glimmer of hope, the Senate of Virginia voted to ratify the ERA in February 2019, but the measure was killed in committee by the Republican-controlled House of Delegates. Women remain constitutionally unequal. For anyone concerned with justice, the question is not whether something should be done about the misogynist onslaught girls and women encounter; the question is: What should be done, and who should do it? Supreme Court doctrine may favor counterspeech to tort remedies or criminalization, but to justify this we need a robust conception of what sorts of speech might have the power to counter oppressive speech, who can achieve it, and under what circumstances. In setting policy, we cannot assume a speech encounter between equally powerful adults, each fully free to speak their minds and each with the backing of deep and broad social norms. Where inequality reigns, the odds are not in favor of someone who tries to combat the bad speech of the powerful with the more speech of the vulnerable. This paper explores the mechanisms of counterspeech and the limits of the remedies counterspeech can provide. By understanding the very concept of misogyny and considering some mechanics of the ways language works, we can gain a better picture of the prospect of creating normative change through counterspeech

Conference Bibliography: Juvenile Justice 1999-2013

A selected bibliography was prepared in connection with the Juvenile Justice Conference held at the William S. Boyd School of Law, University of Nevada, Las Vegas, on April 12-13, 2013

Yes, No, and Maybe: Informed Decision Making About Divorce Mediation in the Presence of Domestic Violence

Divorce mediation in the context of domestic violence is one of the most controversial issues in family law today. Some believe that mediation is never appropriate when domestic violence has taken place, and others believe that it is always appropriate and should be mandatory. These views can be reconciled by taking a third approach, that mediation is sometimes appropriate but that this decision must be made on a case-by-case basis in consultation with the abuse survivor. The central premise of this article is that victims of domestic violence should have the opportunity to make an informed choice about which divorce process - mediated or adversarial - will best meet the needs of their families. Because families are different and because both adversarial and mediated proceedings vary in quality and accessibility, decisions about what process to use must be made on an individual basis in light of the real, not theoretical, options available to the family. The article uses social science research to (1) establish that families experience different types of violence and consequently differ from each other in ways that are significant for choosing a divorce process; (2) provide objective information on how mediation and the adversarial process compare in terms of overall effectiveness, satisfaction rates, and compliance with agreements or orders; and (3) evaluate the extent to which commentators\u27 fears about mediation and domestic violence have been substantiated. The article analyzes this information and suggests factors, both individual and systemic, to be considered in choosing a divorce process. Finally, the article discusses specific practice safeguards and makes recommendations for future change

Nature and Nurture: Revisiting the Infant Adoption Process

Adopted children constitute approximately two percent of the United States\u27 childhood population, but are disproportionately represented in mental health settings, where they make up an estimated four to fifteen percent of the population. Science suggests that for those adopted at birth, this discrepancy may be due in part to their abrupt removal from the biological parents. We are now beginning to understand the importance of the bonding that takes place in utero and the infant\u27s awareness at birth. This article suggests three changes to the infant adoption process to align it with scientific knowledge. First, all adults involved in the adoption need to be educated on the unique mental health needs that adopted children may have as a result of their transition from one family to another. Second, the infant adoption placement process should be changed from an event to a process to make the shift from one family to another more gradual. Finally, we need a sea change in the cultural beliefs surrounding adoption to make access to information and contact with biological parents the norm rather than the exception

I Do Know How She Does It (But Sometimes I Wish I Didn\u27t)

I care deeply about the issue of women\u27s attrition from the legal profession. Admittedly, I have not written any scholarly work on this exact topic. When I learned who the other symposium guests were and how much extensive work they have done on this subject, I was left to wonder what I could contribute to our discussion. I have not conducted any empirical studies; I do not have any new and brilliant insight. What I do have, is experience. I have performed ‘the juggling act’ that simultaneous full-time lawyering and mothering requires. I have worked part-time in a large law firm. I have also made the transition to the academic world, where the work is no less demanding but the schedule tends to be more flexible

Tumbling Towers as Turning Points: Will 9/11 Usher in a New Civil Rights Era for Gay Men and Lesbians in the United States?

This article examines the events of 9/11, and the potential resultant shifts in attitude, policies, and laws in the United States, through the lens of civil rights extended to gay and lesbian citizens. It seeks, but does not purport to definitively discover, the true meaning of the phrase life will never be the same. It asks, but does not purport to fully answer, whether historians a century or two hence will look back on 9/11 as the turning point when the United States began to fulfill its promise of liberty to all people, or whether this date will be earmarked as the time when the United States, wounded and weary, rejected individual civil liberties in favor of a restrictive but arguably safer society. The next section of this article, Section II, provides a brief status report on the civil rights of gay men and lesbians in the United States prior to 9/11. Additionally, Section II provides information in terms of the legal status of gays and lesbians and public attitudes about this segment of the U.S. population. Section III looks at how the nation has reacted to 9/11, and highlights the polar opposite reactions of those who seek to preserve civil liberties in this time of crisis and those who cite 9/11 as justification for significantly restricting these liberties. Section IV examines the situation through the narrower focus of civil rights extended to, and those denied to, gay and lesbian citizens of the United States. In addition to examining the important role gay and lesbian people played in 9/11 events, Section IV recounts the struggle of gay and lesbian people seeking eligibility for remedies routinely afforded their heterosexual counterparts. Section IV also identifies two other civil rights areas that may be affected by the events of 9/11: anti- discrimination in employment law and hate crime legislation. Section V provides a brief conclusion

Tumbling Towers as Turning Points: Will 9/11 Usher in a New Civil Rights Era for Gay Men and Lesbians in the United States?

This article examines the events of 9/11, and the potential resultant shifts in attitude, policies, and laws in the United States, through the lens of civil rights extended to gay and lesbian citizens. It seeks, but does not purport to definitively discover, the true meaning of the phrase life will never be the same. It asks, but does not purport to fully answer, whether historians a century or two hence will look back on 9/11 as the turning point when the United States began to fulfill its promise of liberty to all people, or whether this date will be earmarked as the time when the United States, wounded and weary, rejected individual civil liberties in favor of a restrictive but arguably safer society. The next section of this article, Section II, provides a brief status report on the civil rights of gay men and lesbians in the United States prior to 9/11. Additionally, Section II provides information in terms of the legal status of gays and lesbians and public attitudes about this segment of the U.S. population. Section III looks at how the nation has reacted to 9/11, and highlights the polar opposite reactions of those who seek to preserve civil liberties in this time of crisis and those who cite 9/11 as justification for significantly restricting these liberties. Section IV examines the situation through the narrower focus of civil rights extended to, and those denied to, gay and lesbian citizens of the United States. In addition to examining the important role gay and lesbian people played in 9/11 events, Section IV recounts the struggle of gay and lesbian people seeking eligibility for remedies routinely afforded their heterosexual counterparts. Section IV also identifies two other civil rights areas that may be affected by the events of 9/11: anti- discrimination in employment law and hate crime legislation. Section V provides a brief conclusion

The Parent Trap: Differential Familial Power in Same-Sex Families

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. The result of research conducted on this issue indicated that second parent adopters had much less emotional power in the family, but often had more economic power. Even biologically connected mothers and some primary adoptive fathers were concerned about whether their partners would continue to financially support their children should the couple\u27s relationship dissolve. Both parents had misconceptions about what kind of legal protections or obligations the law afforded these second parent adopters should the couple end their relationship. Ultimately, the article concludes that second parent adopters become imprisoned parents within the family and across the larger culture because of current legal frameworks and policies. Recommendations are made for legislatures, courts, policy-makers, and lawyers to expand parentage presumptions, allow for joint adoption outside of the marital context, and reframe how lawyers counsel same-sex couples as they engage in family formation

Law, Literature, and Libel: Victorian Censorship of Dirty Filthy Books on Birth Control

This article presents a case study of the feminist jurisprudence performed by three early birth control advocates: Annie Besant, Jane Hume Clapperton, and Marie Stopes. In the late nineteenth and early twentieth centuries, the subject of birth control was so taboo that serious efforts were made to keep John Stuart Mill from being buried in Westminster Abbey because of his sympathies with the idea of family limitation. The threat of being charged with obscenity and immorality, whether in a legal indictment, in a literary review, or in the court of public opinion, effectively silenced much public discourse on this important social issue. Besant, Clapperton and Stopes, however, dared to speak out. Annie Besant published a tract on birth control and defended herself in court against charges of obscene libel in a highly publicized 1877 trial. The writer Jane Hume Clapperton took the unprecedented step of advocating for the use of artificial birth control in a novel, Margaret Dunmore; or, A Socialist Home (1888). Marie Stopes wrote two runaway bestsellers on the topic, Married Love (1918) and Wise Parenthood (1918), and opened the first birth control clinic in England in 1921. These three women used legal and literary public forums to foreground women\u27s experiences and to expose the devastating real-life effects of denying women access to knowledge about family limitation. An analysis of their work and the myriad attempts to keep them quiet illumines the ways in which indirect control of access to information on birth control served to regulate women\u27s bodies and maintain traditionally-held cultural beliefs about good mothering and female sexuality. The stories of Besant, Clapperton and Stopes impress on the historical record that, despite all legal, extralegal, and illegal efforts to censor and censure those who were publicizing contraceptive information, word was getting out. As the regulation of motherhood, reproductive health, rights, and access continue to be pressing twenty-first-century concerns, there is much to be learned from the revisionary strategies of these early advocates