APPLIED FEMINISM AND #METOO
April 11-12, 2019
Abstracts of Conference Papers
Sorry Not Sorry, Jamie Abrams, Associate Professor, University of Louisville Brandeis School of Law
This paper examines the state of “apology law” following the #MeToo Movement and in modern political context. Apology laws offer legal protection when health care professionals offer condolences to loved ones suffering from grief following an adverse medical outcome. While conventional wisdom suggested that doctors should “deny and defend” when an adverse medical outcome occurred, thirty six states now have apology laws that prohibit admission of these statements and related evidence of empathy and sympathy from later being admitted against the doctor. These law reforms have generated empirical scholarship examining the efficacy of apologies. Some early scholars argued convincingly that apologies can be effective at deterring torts suits entirely or at least reducing the amount of the claim. More recent scholars, however, called into question the effectiveness of an apology at reducing tort liability at all.
Gender theory also examines differences in apology strategies and effectiveness by gender. These data reveal that women apologize more for their behaviors than men. Entire “how to” guidances exist on how men should apologize to women distinctly, without the parallel guidances instructing women how to successfully apologize to men or to women. Apologies, when issued, may be viewed differently by gender as well, as exemplified by books like “Real Men Don’t Apologize”? These differences are explained by perceptions that male apologizing will appear weak and suggestions that the gendered differences sit in cognizing a mistake at all.
Drawing upon the tort literature and gender apology research, this paper will examine the legal and social status of the apology in the #MeToo Movement. The #MeToo Movement brought a flurry of apology coverage. Media outlets covered and critiqued the quality of apologies issued by those accused of inappropriate conduct. The Movement also initially garnered such widespread support that many critics and disbelievers also apologized for critical comments, even when not even named as a victim or perpetrator.
The #MeToo Movement has also developed against the backdrop of divisive and entrenched politics. The #MeToo Movement took root following the Access Hollywood recordings of Trump, which led to one of Trump’s own efforts at apology, followed by a return to entrenched, indignant politics in which accountability is wholesale absent. The Movement also overlaps with the war on truth in which political strategies resort to calling any unfavorable news “fake news.” The political climate would notably suggest that the public apology would play a minimal role in the #MeToo Movement.
This paper uses apology law literature to examine apology following the #MeToo Movement. Have apologies had any effect on the outcome of the offender? Have the public apologies increased or decreased the likelihood of liability? While civil or criminal liability seems less likely for recent #MeToo allegations involving past conduct, have they encouraged more victims to come forward or softened or stoked the public response to allegations? While we are only now learning just how systemic non-disclosure agreements were to sustaining the culture of sexual assault and sexual harassment, are apologies a partial antidote or another toxin to NDAs?
Indigenizing the #Me Too Campaign: A South African Perspective , Penelope Andrews, Sabbatical Scholar, Columbia Law School, Distinguished Visiting Professor of Law, New York Law School
When allegations of serial sexual misconduct by Hollywood producer, Harvey Weinstein, broke late in 2017 in the USA, they provided the opportunity for a global reckoning over sexualized violence against women. After all, the allegations resonated in almost every society.
Feminist scholars and advocates in South Africa watched events unfolding in the USA with some excitement, especially the rash of dismissals and resignations of establishment figures like Charlie Rose, Senator Al Franken, Matt Lauer and Tavis Smiley. It was assumed that in a society like South Africa, with rates of violence against women among the highest in the world, a cascade of revelations and accusations would emerge against some of the most prominent men across all sectors of South African society.
The first shot across the bow came from Jennifer Ferguson, a well-known singer and former Member of Parliament for South Africa’s ruling Party, the African National Congress (ANC), who laid a charge of rape against Danny Jordaan, former ANC Mayor of the City of Nelson Mandela Bay and the President of the South African Football Association. Initially the publicity from the charge generated an expectation that it would trigger not just support for Ms. Ferguson, but would also launch the #MeToo movement in South Africa.
This did not transpire for several reasons – which raises the question to be pursued in my paper, namely, with the shocking statistics of violence against women, why has the #MeToo Movement not caught on in South Africa? What are the reasons?
I proffer several: One may be attributed to the issue of race and its central place in South African political and legal culture. [Ms. Ferguson is White and Mr. Jordaan, Black.] Sexualized violence in South Africa has always been racialized (as it has in the USA and elsewhere) and that may ultimately be a reason why large numbers of black women were reluctant to come out in support of Ms. Ferguson’s claim. The second reason may relate to the “celebrity” status of Ms. Ferguson, and the notion that the voices of high profile women are prioritized over those of ordinary women, who are often poor and marginalized. The third reason is connected to pervasive poverty, with many South Africans not having access to the technology that enables widespread social media campaigns, as the #MeToo movement has become. The fourth reason is linked to the ubiquitous nature of sexual violence in South Africa, steeped in deeply masculinist and patriarchal cultures, and the difficulty of generating the resistance to such masculinities and patriarchy, compared to the organized opposition to racism. The final reason may lie in the penchant for restorative rather than punitive justice, a legacy of South Africa’s Truth and Reconciliation Commission
My paper interrogates these reasons and explores ways that the expansive Bill of Rights and gender equality laws may be conscripted to pursue an indigenized #MeToo campaign that accommodates the South African political, social and cultural context.
Peer Retaliation in the Post #MeToo Era , Deborah Brake,Professor of Law and Associate Dean for Research and Faculty Development, University of Pittsburgh School of Law
The national firestorm created by #MeToo has galvanized feminist legal scholars to reconsider how law responds to sexual harassment at work and the prospects for #MeToo to transform workplace cultures in a way that law to date has not. In the analysis of #MeToo’s prospects for change, less attention has been paid to how retaliation law intersects with the movement. One particular aspect of retaliation law – peer or coworker retaliation – has notably escaped the attention of legal scholars. Already underdeveloped as a species of retaliation law, peer retaliation holds particular resonance for #MeToo for several reasons. First, the Supreme Court’s relatively recent decision in Vance v.Ball State University means that more employees with day-to-day supervisory responsibilities over other workers will nevertheless count as coworkers and not supervisors for the purposes of employer liability for retaliatory harassment. Although Vance’s holding addressed liability for sexual harassment, its reasoning extends to retaliatory harassment as well. As a result, more retaliatory conduct that might otherwise have been captured as retaliation by a supervisor will now fall under the murkier standard applicable to coworker retaliation. Second, as disclosures of sexual harassment continue to pour out through social media and outside of workplace channels, opportunities for negative reactions by peers at work abound. These types of incidents will likely largely fall outside of the law’s protection from retaliation, depending on how narrowly courts construe protected activity. Finally, as the #MeToo moment spawns an ascendant backlash, anger and hostility toward the women (and some men) who call out sexual harassment and abuse may make retaliatory reactions from coworkers increasingly likely. For these reasons (and a few more), legal scholarship on peer retaliation and its intersection with the #MeToo movement is timely and urgent. This article will explore several ways in which the doctrine governing employer responsibility for peer retaliation may affect – and potentially hinder – the transformative impact of #MeToo in changing workplace culture. The article will also explore how lessons from #MeToo might be productively brought to bear on the development of Title VII law as applied to peer retaliation for opposing sexual harassment. Because of the role peer reactions play in individual decisions about whether to speak up about personal experience with sexual harassment, retaliation law’s response to peer retaliation has an integral, though as yet unexplored, relation to the #MeToo movement.
#SororityToo: Breaking the Code of Silence about Relationship Violence in Collegiate Greek Life , Tanya Cooper, Director, Restoration and Justice Clinic; Assistant Clinical Professor of Law, Pepperdine University School of Law
Relationship violence is an epidemic affecting millions of students, and those who participate in the Panhellenic system (Greek-letter fraternities and sororities in American colleges and universities) are especially vulnerable. Studies show 1 in 5 students have been victimized during their college career, but because of a number of related factors, the problem’s magnitude on campus remains unknown. As social societies bent on secrecy, Greek life hides violence in its midst. Publicized scandals on campus and social media campaigns, however, have raised awareness and sparked public outrage against the widespread problem of relationship violence, which disproportionately affects women although men are victimized too. Laws and policies vacillate depending on the government administration in power, but nevertheless offer little help to victims, who are often secondarily traumatized by the different systems through which they report crime and seek relief and recourse. Systems theories offers one useful framework that may effect change better. Without collective action, however, we will continue to put millions of American youth at great risk of harm that jeopardizes their education and health. Many Greek organizations already educate their members, and their existing philanthropy is targeted to help victims. Many campuses model collaborative and interdisciplinary programs that produce better outcomes. This latest national furor rekindles hope and spurs strategies to create safer havens for our students.
Third Generation Discrimination Part II: An Empirical Analysis of Judicial Decision Making , Catherine Dunham ,Professor of Law, Elon University School of Law
This research explores whether a judge’s gender, age, and tenure on the bench impacts a judge’s rulings on dispositive motions in Title VII gender discrimination claims. The empirical research project flows from earlier work on bias-based gender discrimination discussed in the article Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace, 51 Akron L. Rev. 55 (2017) which expanded the previously recognized theory of Second Generation Discrimination to include a further layer of disruptive gender bias in the judiciary and jury. Both projects flow from a study of sociological data and analysis noting the role of implicit bias in decision-making and particularly the role of implicit gender bias in the evaluation of legal claims under Title VII. Third Generation Discrimination put forth the theory that a cycle of implicit gender bias in judicial decision making has created a next-level layer of discriminatory treatment in Title VII gender discrimination claims. The current research attempts to test the Third Generation Discrimination theory by evaluating a sample of Title VII gender discrimination claims heard in the federal courts for a 10 year period.
The sample of cases is derived from a comprehensive research pool which includes federal district and circuit court cases from January 2010 through April 2018. The research focuses on claims filed under Title VII based on allegations of gender discrimination in the workplace. The sample of cases studied narrows the full research pool to focus on cases wherein the Judge made or reviewed de novo a dispositive ruling, such as a ruling on a motion for Summary Judgment, and included a written opinion addressing the strengths and weaknesses of the Title VII gender discrimination claim. The sample includes cases premised on allegations of overt discrimination, sexual harassment, and implicit bias-based discrimination and includes cases wherein the federal Title VII claims are joined with other state and federal claims of discrimination. Cases included in the sample are noted as either favoring the plaintiff or defendant(s) based on an analysis of whether gender discrimination claims were allowed to move forward in litigation. Data is also gathered on the age, gender, Presidential appointment, and judicial tenure of the Judge making the dispositive ruling in each case included in the sample.
The completed research project will assess relationships between the relevant data on the presiding judge and outcome of the case. The analysis of this data will allow for the testing of the theory that judicial demographics impact decisions when the allegations in the case require an assessment of workplace climate and culture, possibly leading to important information regarding which judicial traits may affect the overarching success of Title VII gender discrimination lawsuits.
#MeToo: The Path from Credibility Discounting to Systemic Change , Deborah Epstein , Professor of Law and Co-Director, Domestic Violence Clinic, Georgetown University Law Center
#MeToo stories demonstrate a deep-rooted tendency to discount the credibility of women when they report abuse perpetrated by men. The methods we use to assess both the plausibility of stories people tell and the trustworthiness of individuals who tell them create a systematic barrier to women’s ability to achieve justice.
Our assessment of story plausibility relies in part on the cognitive process psychologists call “false consensus bias.” We assume that our own experiences of how the world works are universal; what I would likely do, say, or feel is also what all others would do, say, or feel. In reality, however, this is incorrect. Instead, each of us understands how the world works based heavily on our particular life experiences. A passenger who has survived a car crash may react quite differently to a driver’s slam of the brakes than one who has experienced unremarkable car rides.
In the sexual harassment context, the crucial experiential gap lies in either being a survivor of workplace harassment, or having worked in environments free from abuse. Women in workplace situations characterized by supervisor harassment often decide to stay in their jobs and tolerate abuse. Their reasons vary: fear of retaliation; economic dependence; professional ambition. Whatever the reason, women who’ve had this experience understand that the decision to stay is a normal response to a difficult situation where few viable options exist.
But those privileged enough to have not experienced workplace harassment often can’t understand. When Donald Trump was asked to imagine his daughter experiencing workplace harassment, he said it would pose no problem; she would find another company to work for or start another career. This worldview dictates that a woman’s decision to tolerate harassment is inconsistent with how people to act; it does not make sense. When these listeners hear stories where women act in ways that are in fact prototypical, they impose an unfair, discriminatory credibility discount.
Similarly, our assessment of storyteller trustworthiness is influenced by gender-based stereotypes. One of these is the grasping, system-gaming woman on the make—“golddiggers.” We discount the trustworthiness of women who appear motivated by a desire to get something, particularly from men in their lives.
Workplace harassment imposes real financial harms: retaliation, denial of raises, etc. The law thus entitles victims to financial compensation. But women who pursue such compensation are perceived as “golddiggers,” exaggerating/fabricating their stories for money. Their credibility suffers a substantial discount.
This forces many women survivors to choose: (1) seek full relief but risk being found incredible and lose the entire case; (2) limit financial relief sought solely to be found credible; or (3) sign an NDA to get financial relief but sacrifice protecting other women.
These are just a few examples of discount women’s credibility in the workplace harassment context. To stop this form of (primarily) male abuse of (primarily) women, it is not enough to hold men accountable. We must end discriminatory discounts of women’s stories.
The piece will explore other #MeToo-related credibility discounts and explore possible solutions.
#MeToo and the Pursuit of Women’s International Human Rights , Benedetta Faedi Duramy , Professor of Law & Associate Dean for Faculty Scholarship, Golden Gate University School of Law
The past year has been an important time for contemporary feminism. Although the fight against sexual harassment began within the fourth-wave feminism around 2012, and the MeToo workshops were organized by Tarana Burke in Alabama in 2007, it was in October 2017 that the MeToo movement went viral prompting survivors of sexual assault to use the hashtag #MeToo on social media 12 million times in just a few weeks. By all means, #MeToo has been a global phenomenon. Over 1.7 million survivors in more than eighty-five countries retweeted the hashtag. Thousands of women and men around the world took to the streets protesting sexual harassment; and women from a variety of countries, including Sweden, Japan, France, and India, finally came forward to report sexual harassment in the workplace. Feminists and scholars have since attempted to understand: What is happening? Why now? And which voices have not been heard? This article reflects on such questions at the international level by surveying the countries where the #MeToo phenomenon has resonated the most and seeking to understand why and how this occurred. To this end, the article examines the legal reforms and the policy interventions related to gender discrimination, sexual violence and workplace sexual harassment that have followed. Furthermore, the article investigates whether, how and to what extent the #MeToo movement relates to and can advance international human rights for all women by examining the current legal instruments protecting women from discrimination and violence as well as by suggesting what remains to be done in the pursuit of women’s parity and liberty.
#MeToo, Sexual Harassment and Accountability: Considering the Role of Restorative Approaches, Julie Goldscheid ,Professor of Law, CUNY Law School
The #MeToo movement has sparked valuable reflection about the effectiveness of sexual harassment laws and policies that now have been on the books for decades. The sheer prevalence of the accusations has spurred recognition of what feminists have long known, that sexual harassment is pervasive in and out of the workplace. Rightful outrage has led to calls for “strong measures” that “take violence seriously”. It also has spurred questions about the appropriateness of institutional responses directed toward the person accused of committing harm. As but one example, in the wake of allegations of sexual misconduct by then-Senator Al Franken, many called for his resignation, while others urged waiting until an ethics investigation was completed. The reflexive call for “zero tolerance” policies should give us pause to reflect on what approaches truly advance accountability and best promote prevention, deterrence, and education.
At the same time that sexual harassment has taken a center stage in public debate, many are critiquing the dominant, criminal justice-based response to intimate partner violence, another form of gender violence. Those policies historically have been informed by a similar call for “strong” responses and “zero tolerance” policies. Yet, as many have documented, the turn to criminalization has failed meaningfully to hold those accused of committing harm to account, and instead has caused harm to individuals and families and has decimated many communities. Increasingly, though not without controversy, advocates and policymakers are considering how restorative practices might play a role in addressing violence and promoting accountability. Emerging programs are exploring the use of restorative practices in gender violence cases, including cases of sexual and intimate partner violence outside institutional settings, and in cases of sexual assault on campus. Public outrage about sexual harassment at work risks fueling, or exacerbating, an infusion of the same punitive responses that are now being reconsidered, into workplace and related reforms.
This paper will explore how restorative approaches might play a role in cases of workplace sexual harassment. It will consider questions such as how restorative practices should be considered differently in claims against institutions, as opposed to claims against individuals, whether there might be a place for apology by those accused of committing harm in this context, and how, if at all, any such apology should be assessed. As someone who has worked on issues of sexual harassment on the job since the early 1980’s, I raise these questions with the hope of spurring reflective dialog about what policies and responses stand the best chance of producing meaningful and long lasting change.
Rethinking Institutional Response to Sexual Harassment in the Wake of #MeToo , Joanna Grossman, Ellen K. Solender Endowed Chair in Women and Law & Professor of Law, SMU Dedman School of Law
The #MeToo Movement of 2018 invites reflection on sexual harassment in the workplace, as well as in other contexts. Among other revelations, the movement has laid bare the reality that sexual harassment continues to be common and harmful; it continues to thwarts women’s equal opportunity in the workplace. But why is this still the case? Sexual harassment has been an actionable form of discrimination for over three decades, and employers can be held legally responsible for it in many situations. Employers have taken many measures to prevent and correct it. Yet, it is hardly a stretch to conclude that very little has changed. Surveys as well as other information make clear that the prevalence of sexual misconduct has not decreased despite the development of a robust set of rules designed to address it. In broad brush, this paper will explore why conventional measures have been ineffective and consider which institutional responses may work better. In particular, it will focus on three features of the conventional approach that doom it to failure. First, evidence makes clear that the most common institutional measures, such as policies, procedures, and training, do little if anything to prevent sexual misconduct in the first instance. Yet, employers are not held accountable when their efforts are ineffective. Second, the current approach to preventing and correcting harassment relies extensively on victim reporting, despite the vast evidence that most employees who experience harassment do not file formal complaints—and those who do are likely to experience retaliation and other adverse consequences. Third, increased awareness of, and accountability for, harassment both contribute to a rise in gender sidelining—a phenomenon that leads men to avoid working with women in order to protect themselves from harassment accusations—a practice that has obvious harmful effects on women’s opportunities for advancement. The paper will conclude with suggested new approaches for dealing with sexual misconduct at work that are more effective and have fewer unintended consequences.
Recognizing Rage Surrounding the #MeToo Movement and Differing Approaches to Address It , Johanna Gusman, Visiting Research Scholar, Georgetown University Legal Center
Feminist legal theory has been instrumental in the formal legal construction of gender discrimination and the recognition of legal systems as a tool for male dominance. With it, there has been a notable amount of scholarship, especially as regards the cross section of feminist legal theory and international human rights law. At the same time, the recognition of the prevalence of sexual violence in the social consciousness, particularly through the viral #MeToo Movement, has further highlighted the pitfalls of existing law in addressing the problem and actually responding to the (justifiable) rage stemming from this egregious deficiency. In this respect, given the oft cited issue of sexual male dominance over women as a primary reason for their subordination—in particular via the ways that reporting of sexual violence further disenfranchises, traumatizes, and subjugates women—more must be done to bridge this gap in law.
While law tends to favor process and procedure in addressing such issues, this is actually an issue best suited for explicit and substantial engagement with the role of emotions, specifically in the discussion of the dimensions of rage, in finding creative and meaningful solutions. This paper explores the ways in which this can be done looking at responses ranging from the Global Women’s March and various Indigenous Women’s Groups to the specific approaches highlighted in comments by the Committee on the Elimination of Discrimination against Women and critiques from the United Nations Special Rapporteur on Violence Against Women. When rage is recognized as a rational reaction to the systemic, historic, and widespread nature of this issue, that is the most authentic way to begin to address the problem. In other words, reconciling the emotion behind the issue with the procedure to address it is part and parcel to helping solve the problem.
Immigrant Women in the Shadow of the #MeToo Movement , Nicole Hallett, Assistant Clinical Professor of Law, University at Buffalo School of Law
The #MeToo movement has propelled the issues of sexual assault, domestic violence, and sexual harassment into the spotlight. Organizations such as Times Up have sprung up to tackle these issues, and many state and local jurisdictions have proposed legal reforms aimed at protecting women. To many, it feels like a turning point in the national conversation.
One group that has been largely left out of this conversation is immigrant women, who have spent the last year under an unprecedented assault from the Trump Administration and its draconian immigration policies. These policies have targeted all segments of the immigrant population, but they have been particularly detrimental to immigrant women who have suffered sexual assault, domestic violence, and/or sexual harassment.
This paper will explore the ways in which the #MeToo movement has failed help immigrant women and will detail the ways in which it is more difficult for immigrant woman to protect themselves now than it was before the #MeToo movement. The paper will explore four areas of immigration policy:
(1) Asylum Law: On June 11, 2018, Attorney General Jeff Sessions issued a landmark asylum decision called Matter of A-B-, which limited the right of domestic and sexual violence survivors to apply for asylum in the United States. It is by equal measures an “anti-immigrant” decision in that it is designed to decrease the number of individuals who can seek asylum in the United States, and an “anti-woman” decision in that it devalues women’s experiences and ignores systemic injustices inflicted on women. The decision puts hundreds of thousands of women at risk of deportation to the country where their perpetrator resides.
(2) Prosecutorial Discretion: The end of prosecutorial discretion has meant that immigrant victims of crime, including victims of sexual assault and domestic violence can no longer access the legal system without fear that it will lead to their deportation. Reports of courthouse arrests have led some police departments to observe a drastic reduction in crime reporting among immigrants. Though these policies affect all immigrants, they disproportionately affect women who already face barriers and hurdles to reporting crimes committed against them. In addition, the visa programs designed to protect victims – U, T, and VAWA visas – have become less effective at preventing victims’ deportation. The future of these visa programs is now in doubt as the reauthorization of the Violence Against Women Act stalls in Congress.
(3) Public Benefits: The Department of Homeland Security has issued new regulations that severely limit the ability of immigrants to collect public benefits. Immigrant women will be disproportionately affected because of the number of women who are solo heads of household. In addition, immigrant women in abusive relationships will be less likely to leave, unable to rely on important benefits to make ends meet, including benefits for which their U.S. citizen children are eligible. Even immigrant women not affected by the new regulations, including asylees and those who received T, U, and VAWA, may be chilled from seeking benefits.
(4) Workplace Enforcement: Immigrant women are already more likely to suffer workplace sexual harassment and assault and less likely to report. The Trump Administration’s emphasis on workplace enforcement, the uncertain future of deconfliction between federal labor agencies and immigration authorities, and the lack of alternative options for women in abusive work environments will mean more victims and fewer repercussions for perpetrators.
Misdirection and Misogeny: Political Deployment of "Women's Issues" to Justify Nativist Goals , Dina Francesca Haynes , Professor of Law, New England Law
Politicians and jurists have utilized paternalism to achieve their protectionist objectives for millennia. Increasingly, however, politicians and donors attempt to secure constituent support for otherwise unrelated political objectives by claiming that these proposed laws and policies “protect women.” This paper will focus on human trafficking and the MeToo movement as two arenas in which political actors, confronted with issues that actually do impact women and the real opportunity to impact positive change, instead squander that opportunity by pretending to care about the impact of human trafficking and sexual abuse, while actually taking aim at other political agendas. While this might seem relatively innocuous, the conflation is a problem for many reasons. One fairly benign reason is that conflation masks and obscures both the real problem and the real solutions. But much more is at risk. When we fail to observe these moments of political misdirection and fail to call them out, we risk much more than missing the opportunity to effectively respond to issues that impact women. The real risk is that feminist agendas are being hijacked to provide fodder for the rise of nationalism, isolationism and misogyny.
There Are No Outsiders Here: Rethinking Intersectionality as Hegemonic Discourse in the Age of #MeToo , Teri McMurtry-Chubb, Professor of Law, Mercer University Law School
This article considers how the shorthand of intersectionality functions in anti-discrimination litigation, activist circles, and across social media as hegemonic discourse that reinforces and further enshrines dichotomous male/female and White/Black domination. Proponents of the theory of intersectionality, as expressed in Kimberlè Crenshaw’s foundational Critical Race Theory/Critical Race Feminism (CRT/F) article, “Demarginalizing the Intersection Between Race and Sex: Anti-Discrimination Doctrine, Feminist Theory and Antiracist Politics,” argue that intersecting identities in White persons are considered the norm, while the intersecting identities of women of color converge as something “other” than and “lesser” than the “norm”, a “marginalized” identity, resulting in anti-discrimination doctrine that falls short of addressing discrimination. Legal scholars writing from the position of their intersecting race, class, gender and sexual identities and their performance of those identities have formulated a collective identity as scholars positioned “outside” scholarly legal discourse. These academics write about how those positioned “outside” privileged race, gender, class and sexual identities (White, male, wealthy and straight) are discriminated against vis-a-vis those identities because of the intersection of their race, class, gender, and sexuality. The collective identity of “outsider,” however, is a misnomer and an essentialist signifier. As the term “intersectionality” has become the shorthand by which scholars and activists discuss multiple, intersecting identities for marginalized people – primarily people of color - it has essentialized marginalization and set up whiteness as a monolithic identity without interrogating the nuanced race, class, gender, and sexualities that comprise it.
Such hegemonic discourse limits how scholars, litigators, and activists can discuss the consequences of difference as they manifest in the law, legal, and societal institutions, and how litigators and activists can use the theories that comprise “intersectionality” for social change. To continue this discourse in ways that both define and solidify difference does little to address the nuances of white supremacy, patriarchy, and capitalism as they operate in the descriptors “race,” “class,” “gender,” “sexuality,” and “sexual orientation.” The essence of hegemonic analytic processes as expressed in scholarly and practical legal discourse about difference, and its implications for critical lawyering and activism practices, practices that propel us toward social justice, are the subjects of this article. Its focus is on the use of intersectionality as a rhetorical expression for which a coherent communication of oppression remains elusive.
This article proceeds in three parts. Part I explores the process by which intersectionality has become hegemonic discourse. Part II considers the practical limitations of intersectionality, understood as the relationship between race, class, gender, and sexuality, through an exploration of several cases engaging anti-discrimination doctrine. Lastly, Part III examines how the #MeToo movement exposes the analytic gaps between intersectionality – expressed as the intersection of race, class, gender, and sexuality - and the overarching power structures of white supremacy, patriarchy, and capitalism that control them.
Applying Lessons from #MeToo to Abusive Policing , Josephine Ross, Professor of Law, University School of Law
Let's bring the #MeToo spotlight to bear on American policing. Sexual abuse is the second most common civilian complaint lodged against police officers in the United States. As author Andrea Ritchie explains, it is impossible to talk about abusive policing against women and girls without talking about sexual abuse. This year, New York finally amended its laws so that police who engage in sexual conduct on-duty can no longer claim that the civilian “consented.” This change flowed from a high-profile incident involving a handcuffed 18-year old woman who allegedly consented to sex in a police van.
While most of the recognized cases of sexual abuse involve female victims, there are plenty of male victims. Unfortunately, police sexual harassment abuse of men is under-reported and overlooked. There are a number of reasons for this, including a hetero-normative perspective that imagines that men, including men in uniform, do not behave in sexual ways towards other men. Underlying this view rests another misconception, that male aggression against women stems from sexual attraction. As the #MeToo movement tells us, sexual harassment and assault are about power and control.
The #MeToo stories demonstrate the importance of going public and naming the conduct as “abuse.” When Christine Blasey Ford came forward, many Americans realized that individuals often keep their abuse secret, telling almost no one for years or even decades. The power of the movement has been speaking truth to power, describing incidents, and naming names. The movement helped survivors know they were not alone and that these encounters were not their fault. Similarly, it is time for the public to learn that many officers engage in inappropriate sexual conduct against suspects, such as pulling down a transgender woman’s underwear for a gender check, or engaging in a twenty-minute frisk on a traffic stop of young woman with particular focus on her breasts, or pulling down a man’s pants in public during a pat-frisk. As James Baldwin said, “Not everything that is faced can be changed, but nothing can be changed until it is faced.”
Before #MeToo changed the discussion, people tended to see sexual harassment as normal and inevitable. Ambitious actors, for example, were told to expect casting couches as a price of entering the field. In policing, we teach civilians to put up with groin searches on public streets. In fact, police are taught to explore the areas around the buttocks and groins with extra attention during public frisks. Constitutionally speaking, if officers have a right to pat your pocket to see if you have a gun, they have the right to run their hands between the cracks of your buttocks, whether you are male or female or whether the officer is male or female. As a civilian, you have a duty to endure it or face arrest for refusing to follow an order. Applying #MeToo principals here means changing systemic problems as well as making intentional assaults costly for the so-called bad apples.
#WhoAmI? Harm & Remedy for Youth of the #MeToo Era , Charisa Smith, Associate Professor, City University of New York School of Law
The legal landscape is erratic concerning sexual and gender-based harms between minors. Despite the #MeToo conversation, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school sexual assault, and heightened public awareness, fundamental issues regarding minors remain ignored or misunderstood The legal system simultaneously over-criminalizes developing youth sexuality while neglecting crucial instances of victimization. Yet, failed responses will continue to perpetuate harm and complicity in rape culture.
This article brings legal analysis and public attention to a crisis that cannot be understated. As many as 81% of students between grades 8 and 11 report experiencing sexual harassment at school, and the U.S. Bureau of Justice statistics found that girls ages 16-19 are four times more likely than the general population to be victims of sexual assault. These figures are undoubtedly low as much sexual victimization goes unreported, including prevalence among males, LGBTQI populations, communities of color, and adults.
At best, the status quo approach to sexual and gender-based harms between youth fails to address underlying reasons why broader rape culture and harmful incidents continue. At worst, it deprives young survivors of true remedies while unfairly branding children with life-long punishment. Juvenile sex-offender registration, surveillance of children and families, and incarceration are common and disproportionate responses. Existing institutions and tools for redress either misapply adult-centric standards or overlook key considerations unique to minors. Incidents between youth are overwhelmingly mis-identified or de-contextualized.
This article utilizes the analytical frame of the #MeToo movement—one of newfound courage and tenacity among survivors of sexual and gender-based harms— to situate a “Me” that remains strikingly unrecognized: The individual under age 18. After illustrating the dilemma posed by status quo legal responses, this article examines the concept of “Me”— personal and sexual identity— for those under age 18 vis-à-vis physical and social science expertise.
There is a significant gap between empirical reality and legal response. Sensationalized media coverage and adult overreaction further prevent legal actors and communities from squaring expertise with prevention strategies and commensurate responses to harm. A core dilemma involves scenarios where technology blurs the line between a minor victim and offender, or where multiple youth may fit into both categories.
The fields of children’s rights, family law, and criminal justice continue wrestling with the continuum of human maturity in setting boundaries and legal rules. However, the rigid victim – offender paradigm is ill-suited for incidents of sexual and gender-based harms between youth in the digital age. Gatekeepers must scrutinize harm—its existence, nature, severity, and potential compounding by intervention—before moving towards remedy and response. Integral involvement of young people in the process is key. Although severe events may require formal legal redress, youth often seek remedies that provide safe spaces for self-exploration, individual accountability, and collective accountability including restorative justice. Importantly, youth prioritize a technological remedy that can erase the repeated harm of digital victimization. Yet, interventions to date fail to merge private sector momentum with legal and community problem-solving.
Restorative Justice through Administrative Law: Male Military Sexual Assault and the Veterans Administration , Elizabeth Tarloski , Staff Attorney/Adjunct Professor, William and Mary Law School-Lewis B. Puller Jr., Veterans Benefits Clinic
There is a hesitant acceptance of male-identifying persons as sexual assault survivors/victims in today’s society. This hesitation is even more pronounced in the case of male military sexual assault survivors because the military is an institution that is defined by hegemonic masculinity. It is not surprising then that male sexual assault survivors are often left on the sidelines of the #metoo dialogue and that male veterans have a higher chance of being denied disability benefits related to military sexual assaults. Male-identifying survivors of military sexual assault experience a double victimization; the first from the military assault and the second during the Department of Veterans Affairs (VA) benefits process. While the military has been making strides towards de-stigmatizing male sexual assault, and these steps are hotly debated, the VA has seemingly taken steps backwards. In fact, in Fall 2018, the Office of Inspector General identified serious errors in the Veterans Benefits Administration's handling of military sexual trauma (MST) disability claims.
This article proposes an alternative form of restorative justice using the VA benefits system. The system, if successful, could act as a catalyst for change in the perception of who can be a survivor, aid in the healing process of male MST survivors and remedy the inadequacies of the past adjudication of claims. While restorative justice for sexual assault survivors and proposed changes to the VA benefits system have been written about extensively, what has been missing from these discussions is the idea that what is now considered the mysterious, complicated and depersonalized VA system could use a widely accepted form of justice as a tool for change through restitution in the form of benefits and “hearings” as a form of encounters.
Using the framework of multidimensional masculinities theory and narrative storytelling, this article will examine whether the reinforced portrayal of ‘woman as victim’, not only in the military but in the public at large, has the unintended consequences of perpetuating an unintended bias in the VA health and benefits systems. It will go on to address how assaults are often times not labeled as sexual in nature by the male victims/survivors, rarely reported, and less often prosecuted. Then, with an alternative version of restorative justice and by using the concept of ‘betrayal trauma’ which has been used to describe the unique trauma that those in the military suffer by identifying both the individual perpetrator and the institution as the ‘betrayer’, the article will examine how the VA could fulfill the encounter part of the restorative justice process by meeting with survivors about their claims, something that already occurs in some cases in what is supposed to be a non-adversarial process.
If implemented, this could address the VA’s inadequate provision on benefits, disability and healthcare, it has thus far provided to male survivors. It could also provide a chance for the VA to address survivor’s concerns of justice and restitution and help to change the dialogue of who can be a survivor.