'EQUAL'
PART FIVE VIOLENCE (1990-2000)
21. A Challenge for a Young Lawyer
In 1990, Senator Joseph Biden asked a staffer, Victoria Nourse, to figure out what Congress should do to reduce violent crimes against women.
Judges historically had viewed rape cases skeptically, requiring proof of the utmost resistance to the point of enduring additional physical violence before finding that a woman or girl had not consented. The law frequently also required corroboration of the victim's testimony. The machinations of a vengeful, scheming woman were much feared.
But Nourse's reading eventually took her to the Fourteenth Amendment. Section five of the amendment granted Congress the right to pass legislation to achieve the amendment's equal protection goals. She discovered that Professor Robin West had proposed “A Married Woman's Privacy Act” that would guarantee protection against sexual assault to all women and prohibit discrimination against married women in applying rape laws. West's use of the right to privacy was somewhat problematic, since that right had been used against women, as for example, refusal to charge batterers for crimes committed in the home. But Nourse believed that a law could target violence against women as a civil rights violation by giving women a civil cause of action.
Tuesday, November 24, 2009
Monday, November 23, 2009
Laura's wedding bells
Our friend and fellow blogger Laura Hammargren got married Saturday night in a lovely ceremony at the Minnesota History Center. I've never seen a prettier or happier bride. Or one with better earrings (my gift!) Laura danced with her husband Cristof to "Brown-Eyed Girl" and her dad to "Isn't She Lovely." I wanted to cry, and I saw Laura's mom dab her eyes. I haven't written a wedding announcement since I first got out of J-school, but this one was worth it.
Wednesday, November 18, 2009
Conference call on Stupak-Pitts Amendment
Minnesota attorney Susan Burns and other lawyers will hold a conference call this Friday at noon for lawyers and legal professionals to learn what the Stupak-Pitts Amendment says about insurance coverage for abortion and how women will be impacted if the same provision makes its way into the final Senate bill.
Speaking will be attorney Bethany Sousa of the National Women’s Law Center in Washington, D.C.
Friday, November 20, 12:00 p.m. (CST)
Dial in: 1-888-870-8262
Participant Passcode: 202 956 3065
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Key Language of the Stupak-Pitts Amendment:
“No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act or rape or incest.”
Speaking will be attorney Bethany Sousa of the National Women’s Law Center in Washington, D.C.
Friday, November 20, 12:00 p.m. (CST)
Dial in: 1-888-870-8262
Participant Passcode: 202 956 3065
************************************************************************
Key Language of the Stupak-Pitts Amendment:
“No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act or rape or incest.”
Tuesday, November 17, 2009
GFIC: Domestic Violence
At the recent 20th Anniversary Commemoration Luncheon and CLE Seminar for the Gender Fairness in the Courts task force report, a third panel spoke on the topic of "Domestic Violence: How Practitioners Identify Violence in Today's Complex World."
The presenters, Loretta Frederick of the Battered Women's Justice Projcet and Professor Nancy VerSteegh of the William Mitchell College of Law, really centered their presentation on the practical. After showing a clip from the movie Waitress (a must-see, by the way), they had these tips for identifying domestic abuse in clients:
The presenters, Loretta Frederick of the Battered Women's Justice Projcet and Professor Nancy VerSteegh of the William Mitchell College of Law, really centered their presentation on the practical. After showing a clip from the movie Waitress (a must-see, by the way), they had these tips for identifying domestic abuse in clients:
- Context is key: for example, think of the many meanings of a slap. Depending on the fear you may or may not have of the offender, it can be a much more, or less, threatening action.
- Differentiate between non-coercive and coercive violence. The difference between the two depends on the reoccurance and constancy of threats. The difference will also greatly impact your representation of a client.
- Think carefully about a common vocabulary. Make sure you are using terms that everyone can have a common understanding of.
- Talk in a safe setting, and remind your client of confidentiality.
- Be as comfortable as you can with the issues, because that will translate to your client.
- Help the client assess the risk, and help her realize the violent outcomes that domestic abuse can have.
Thursday, November 12, 2009
MacKinnon's students say her class was emotional
Here's a link to a wonderful article about Catherine MacKinnons's Sex Equality class at Harvard.
The student writes: "Legal discourse is theoretically and intentionally rational, but Sex Equality was an emotional class. Contrary to the need to suppress emotion, it was invited into the classroom to inform processes of reason and applications and evaluations of law and legal opinion. Does the current state of rape law make you angry? Well, it should; and that anger is an indication that the law in both the black letter and in its implementation should be modified. Do the horrifying realities of prostitution and legal decisions that blame the victims of these horrors and not the perpetrators of them make you sick? They should."
"And instead of throwing your hands up and joining the ranks of the complacent, consider instead what your unique position as a person with elite legal training could contribute to eradicating horrors, and to eradicating all of the other forms of discrimination we face in our daily lives."
The posts on Equal show how important MacKinnon has been to all of us; and anyone who quotes Virginia Woolf to law students is a pal of mine.
The student writes: "Legal discourse is theoretically and intentionally rational, but Sex Equality was an emotional class. Contrary to the need to suppress emotion, it was invited into the classroom to inform processes of reason and applications and evaluations of law and legal opinion. Does the current state of rape law make you angry? Well, it should; and that anger is an indication that the law in both the black letter and in its implementation should be modified. Do the horrifying realities of prostitution and legal decisions that blame the victims of these horrors and not the perpetrators of them make you sick? They should."
"And instead of throwing your hands up and joining the ranks of the complacent, consider instead what your unique position as a person with elite legal training could contribute to eradicating horrors, and to eradicating all of the other forms of discrimination we face in our daily lives."
The posts on Equal show how important MacKinnon has been to all of us; and anyone who quotes Virginia Woolf to law students is a pal of mine.
16 Days Against Gender Violence Starts Nov. 25
The Center for Women's Global Leadership at Rutgers University's 16 Days of Activism Against Gender Violence starts Nov. 25. It is an international campaign originating from the first Women's Global Leadership Institute sponsored by the Center for Women's Global Leadership in 1991. Participants chose the dates, Nov. 25, International Day Against Violence Against Women and Dec. 10, International Human Rights Day, in order to symbolically link violence against women and human rights and to emphasize that such violence is a violation of human rights. This 16-day period also highlights other significant dates including Nov. 29, International Women Human Rights Defenders Day, Dec. 1, World AIDS Day, and Dec. 6, which marks the Anniversary of the Montreal Massacre, when a gunman who claimed to be "fighting feminism" murdered 14 women before killing himself.
In connection with the 16 days, The Advocates for Human Rights will hold "Legal Reform on Violence against Women in the Republic of Georgia: Recent Successes and Challenges," a brown bag lunch seminar on Tuesday, Nov. 24, from 12:00 - 1:00 p.m. at Fredrikson & Byron, P.A., Minnetonka/Tamarack Room (40th floor), 200 S. Sixth Street, Suite 4000, Minneapolis
In connection with the 16 days, The Advocates for Human Rights will hold "Legal Reform on Violence against Women in the Republic of Georgia: Recent Successes and Challenges," a brown bag lunch seminar on Tuesday, Nov. 24, from 12:00 - 1:00 p.m. at Fredrikson & Byron, P.A., Minnetonka/Tamarack Room (40th floor), 200 S. Sixth Street, Suite 4000, Minneapolis
Equal: Vinson at the Supreme Court
20. At the Supreme Court
Justice Sandra Day O'Connor thoroughly questioned the bank's attorney, Robert Troll, who was forced to concede that if Vinson had brought a case of racial harassment she would not have to lose her job to win her case, and that the same standards should apply to sexual harassment.
O'Connor also began the questioning of Barry. Barry, aided by MacKinnon, told the court that Vinson had pled a pattern of harassment and a hostile environment in the lower courts. Barry had assistance from O'Connor at another point in the argument when she interrupted an exchange with Justice William Rehnquist and gave her an opportunity to point out that she had been denied a free transcript. Rehnquist was committed to a discussion of the evidence of unwelcomeness and the clothes that Vinson wore to work.
Getting caught up in the questioning, Barry twice referred to the California Rules of Evidence. But the general consensus was that Barry had done a terrific job, even with Rehnquist's distractions and Chief Justice Warren Burger's concern that the bank shouldn't be held responsible for the act of the employees.
Despite the hostile environment created by Rehnquist's questioning, the court unanimously supported Vinson in an opinion he wrote. Two days earlier, Rehnquist had been appointed chief justice. Barry assumed that he ruled in her favor because he wanted his appointment confirmed by the Democratic Senate.
The early votes appeared to be in Vinson's favor but the first draft to the Rehnquist opinion surprised the justices. Rehnquist wanted to limit the bank's liability but other justices wanted to apply the same strict liability standard to hostile environment cases as was applied to quid pro quo cases. It didn't seem that Congress would have intended the two Title VII claims to have different standards, Stevens wrote in a memo.
Rehnquist replied that he would be Stevens' sixth vote but not the fifth one. Rehnquist was determined to be in the majority. O'Connor joined with Stevens and Rehnquist followed. But Justices Marshall, Blackmun, Brennan and Stevens concurred in the judgment only, distancing themselves from Rehnquist's refusal to apply strict liability or to define the limits of employer liability.
“We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.,” wrote Rehnquist.
Vinson eventually settled with the bank and used some of the money to go to nursing school. Her harasser went to jail for embezzlement. Barry went bankrupt but later revived her practice and MacKinnon became a tenured professor of law at the University of Michigan, and, eventually, Minnesota.
Justice Sandra Day O'Connor thoroughly questioned the bank's attorney, Robert Troll, who was forced to concede that if Vinson had brought a case of racial harassment she would not have to lose her job to win her case, and that the same standards should apply to sexual harassment.
O'Connor also began the questioning of Barry. Barry, aided by MacKinnon, told the court that Vinson had pled a pattern of harassment and a hostile environment in the lower courts. Barry had assistance from O'Connor at another point in the argument when she interrupted an exchange with Justice William Rehnquist and gave her an opportunity to point out that she had been denied a free transcript. Rehnquist was committed to a discussion of the evidence of unwelcomeness and the clothes that Vinson wore to work.
Getting caught up in the questioning, Barry twice referred to the California Rules of Evidence. But the general consensus was that Barry had done a terrific job, even with Rehnquist's distractions and Chief Justice Warren Burger's concern that the bank shouldn't be held responsible for the act of the employees.
Despite the hostile environment created by Rehnquist's questioning, the court unanimously supported Vinson in an opinion he wrote. Two days earlier, Rehnquist had been appointed chief justice. Barry assumed that he ruled in her favor because he wanted his appointment confirmed by the Democratic Senate.
The early votes appeared to be in Vinson's favor but the first draft to the Rehnquist opinion surprised the justices. Rehnquist wanted to limit the bank's liability but other justices wanted to apply the same strict liability standard to hostile environment cases as was applied to quid pro quo cases. It didn't seem that Congress would have intended the two Title VII claims to have different standards, Stevens wrote in a memo.
Rehnquist replied that he would be Stevens' sixth vote but not the fifth one. Rehnquist was determined to be in the majority. O'Connor joined with Stevens and Rehnquist followed. But Justices Marshall, Blackmun, Brennan and Stevens concurred in the judgment only, distancing themselves from Rehnquist's refusal to apply strict liability or to define the limits of employer liability.
“We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.,” wrote Rehnquist.
Vinson eventually settled with the bank and used some of the money to go to nursing school. Her harasser went to jail for embezzlement. Barry went bankrupt but later revived her practice and MacKinnon became a tenured professor of law at the University of Michigan, and, eventually, Minnesota.
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