Crim C113 - Final Study Guide
Crim C113 - Final Study Guide Crm/Law C113
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Dr. Hillary Berk C113, Spring 2016 FINAL REVIEW SHEET Sexual Orientation and the Construction of Masculinity Boys and “fag” discourse Construction of gender Masculinity The Five Sexes Sexual orientation harassment Title VII of the Civil Rights Act Male intersectionality Cases: Oncale v. Sundowner (1998); Simonton v. Runyon (2000) Scholars: Anne Fausto-Sterling; C.J. Pascoe Intersectionality/Multiracial Feminist Theory Intersectionality theory and discrimination Racialized sexual harassment Theorizing “difference” Multiracial feminism Sisterhood and socio-legal change Scholars: bell hooks, Mari Matsuda, Tanya Hernandez, Kimberle Crenshaw, Bethany Coston and Michael Kimmel, Chimamanda Ngozi Adichie Gender, marriage and the “private sphere” Who may marry? State interests Fundamental right to marry 14 Amendment Equal Protection Clause Separate spheres jurisprudence Antimiscegenation Levels of scrutiny/classifications Spiritual and menial housework Marriage rates Domestic Worker’s Bill of Rights Cases: Loving v. Virginia (1967) This material is subject to copyright. You may not duplicate, distribute, post, email, copy, or otherwise share this material at any time. It is intended exclusively for individual use by students enrolled in C113 during Spring 2016 at UC Irvine. Dr. Hillary Berk C113, Spring 2016 Who May Marry/Same-Sex Marriage Who may marry (part 2) State interests in marriage Liberty Privacy Equality Autonomy Substantive Due Process th th 5 and 14 Amendment Same-sex marriage Benefits and burdens of marriage Marriage equality movement Defense of Marriage Act (DOMA) Cases: Jones v. Hallahan (1973), Baehr v. Lewin (1993), Goodridge v. MA Dept Public Health (2003), Lawrence v. TX (2002); U.S. v. Windsor (2013); Obergefell et al. v. Hodges (2015) Privacy, Bodily Autonomy, and Contraception Reproductive rights Right to Privacy Bodily autonomy Bthl ofthights th 5 , 14 , and 9 Amendments: Substantive Due Process (part 2) Fundamental rights in conflict Right to contracept st 1 Amendment: religious liberty Barriers to access Parental consent Affordable Care Act Gender inequality Cases/Law: Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972); (Burwell v. Hobby Lobby (2014); Religious Freedom Restoration Act of 1993 (RFRA) This material is subject to copyright. You may not duplicate, distribute, post, email, copy, or otherwise share this material at any time. It is intended exclusively for individual use by students enrolled in C113 during 2016 at UC Irvine. Dr. Hillary Berk C113, Spring 2016 The Fundamental Right to Abortion Right to privacy Bodily autonomy Undue burden Viability Informed consent Waiting period Notification State interests Barriers to access Restrictive bills and legislation Intersectionality and unequal impacts Gender and social control Cases: Roe v. Wade (1973), Planned Parenthood v. Casey (1992), Whole Woman’s Health v. Hellerstedt (2016)/Texas and Louisiana TRAP laws Privacy, Procreation, and Surrogacy Assisted reproductive technology Surrogacy (traditional and gestational) Family formation Intent Right to privacy Right to procreate, parent, family State interests Contract law Uniform Parentage Act Privileging the genetic tie Multi-jurisdictional practices Cases/Law: In Re the Matter of Baby M (NJ 1988); Johnson v. Calvert (CA 1993); CA Assembly Bill 1217; Scholars: Dorothy Roberts This material is subject to copyright. You may not duplicate, distribute, post, email, copy, or otherwise share this material at any time. It is intended exclusively for individual use by students enrolled in C113 during 2016 at UC Irvine. Dr. Hillary Berk C113, Spring 2016 Rape: A Legal Primer Rape (California Penal Code) Sexual Assault Force Resistance Consent Intoxication Rape Myths Aggravated vs. Simple Rape “Real Rape” Model Penal Code Spousal Exclusion Rule Title IX of the Civil Rights Act Rape data Reporting “Yes Means Yes” (CA) Missoula Case study Undetected rapists University of Montana Trauma and retraumatization Cast of characters Impacts on victim Consent and non-consent Perceptions of perpetrators Reasonable resistance Evidence/sufficient evidence Law on the books vs. law in action Interrogation Campus rape Montana rape law Risk Sentencing Reporting Accountability Rape kit Remorse Police discretion Montana County Attorney’s Office Prosecutorial discretion Criminal justice system Public perception Department of Justice Institutionalized sex discrimination Title IX of the Civil Rights Act Structural barriers/structural inequality Responses to sexual assault College athletics Sexual assault training Rape myths Structural, legal, and social reform Cultural norms and attitudes Progress and persistence of gender Role of media and social media inequality Lisak study “Acquaintance” rape This material is subject to copyright. You may not duplicate, distribute, post, email, copy, or otherwise share this material at any time. It is intended exclusively for individual use by students enrolled in C113 during 2016 at UC Irvine. Crim C113 Lecture 9 Week 5 04/25/2016 ▯ Sexual Orientation and the Construction of Masculinity ▯ ▯ Five Sexes Man Woman Three intersex categories “herms,” “merms,” and “ferms” ▯ ▯ Two-Party Sexual System Law ignores the many gradations from female to male, requiring a binary… o But what about “herms,” “merms,” and “ferms”? o Herms = true hermaphrodites; both egg and sperm producing organs; as a matter of physical sex, they have both o Merms = male pseudo-hermaphrodites; people who have testes, sperm producing organs, and some aspects of female genitalia but no ovaries to produce eggs; you have an XY chromosomal make-up o Ferms = female pseudo-hermaphrodites; have ovaries and some aspects of male genitalia, but they don’t have testes to produce sperm; have female XX chromosomal make-up (STERLING) o This is about as common as having red hair From a campus of 6000 elite undergrads, there were 240 intersexuals. The legal system requires that we select categories in a binary: you are male or female o Birth certificate ▯ ▯ Anne Fausto-Sterling Why do law, medicine, and other social institutions push to erase any form of embodied sex that doesn’t conform to the norm? o To protect the child because the assumption is if you’re a hermaphrodite or inter-sex individual, you are doomed to a life of misery o Happiness is based on being placed in one of these two categories (male/female) Why should we care? Doctors would perform surgery to babies to prevent this sort of distinction In order to make distinctions between categories, we need categories What Sterling suggests = if we look at sexual multiplicity, we need to conceive of a world with shared powers and equality ▯ ▯ “Dude, You’re a Fag” What does that mean? Pasco argues that the use of the word fag is more complicated than garden variety homophobia What is CJ Pasco’s method and how does she learn what she knows? o She uses qualitative interviews with students; observation; ethnography o Interviews high-school boys and girls collecting data Boys = refer to anything How is using “fag” gendered? o Abject position; vulnerable, o Believing that males are supposed to be or carry more Competence, strength, heterosexual prowess o Targeted specifically toward guys o Not equal opportunity homophobia because it’s bad to be gay but it’s cool to be a lesbian o Lesbianism has a place in the heterosexual fantasy: two- woman trope; women engaging in sexual activity for male’s pleasure o Adolescent boys dislike gay men more than lesbians In her observations, girls were not called dikes in the systematic way Gendered homophobia How is using “fag” deployed? o Through discourse According to Pasco, what is it that deploying the term “fag” do? o Promote hegemonic masculinity o Fag talk and the imitations that students go through in high school serve as the discourse that boys discipline themselves and their classmates through joking relationships; spectrum of niceness to meanness and the taken-for-grantedness of this language o Extension of what Sterling said; society chooses a binary way of looking at sex: male/female; mode of discipline and a fear of a sector of homosexuality How is using “fag” racialized? o Both white students and black students were insulting and to emasculate ▯ ▯ Deploying “fag” through daily discourse and rituals as adolescents actually constitutes gender and masculinity ▯ ▯ Fluid vs static identity ▯ ▯ Boys police behaviors to avoid permanent stigma (using “fag” as a weapon/disciplinary tool) ▯ ▯ From adolescent boys to adults: the schoolyard to the workplace A form of sexual harassment? Sex discrimination? Title VII does not recognize a claim for discrimination on the basis of sexual orientation ▯ ▯ Oncale v Sundowner Offshore Services (1998) Man working on oil rig with 8-10 other workers; Joseph Oncale was being picked on, physically assaulted, called a lot of names, threatened several times to be raped Legal question: does a man forcibly subjected to sex-related, humiliating words and actions by other male co-workers have a claim for sexual harassment under Title VII Supreme Court reiterated that same-sex harassment is not illegal, but this was sexual harassment This case overrules dozens of decisions preceding the time ▯ ▯ Same-Sex Harassment Employees are protected under Title VII from enduring harassment on the job, whether male or female The sexual orientation of either the harasser or the victim is irrelevant in an analysis of what makes a “hostile work environment” A victim is not required to show that the harasser has some motive of actually getting sexual gratification from it o Don’t have to prove that they would actually have wanted to rape or not ▯ ▯ Simonton v Runyon (2 nd circuit 2000) Dwayne Simonton was a postal worker for 12 years in New York; he gets glowing reviews and has very good performance; coworkers called him a fucking faggot and told him to suck their dick or they’ll shove it up his ass; putting male dolls in his car He had a heart attack Was Dwayne subjected to a hostile work-environment? o Based on sexual orientation Is there a difference between discrimination*** Dwayne lost o 1) don’t recognize a claim based on sexual orientation ▯ ▯ Is an environment “hostile”? Harris factors: o Frequency of the discriminatory conduct o Severity o Physically threatening, humiliating o Unreasonably interferes with work o Psychological harm to the victim ▯ ▯ How is Simonton’s case different from Oncale, Hopkins, and others? If Congress wanted to make this behavior illegal, it could just amend the civil rights act Congress/Title VII does not protect against discrimination based on sexual orientation Simonton wasn’t harassed “because of sex” (i.e., because he was a man) but because he was “gay” Isn’t this sex discrimination based on gender stereotyping? o You can’t bootstrap protection for sexual orientation and shoehorn it into Title VII; not all gay men are stereotypically feminine and not all heterosexual men are stereotypically masculine Procedural problems ▯ ▯ Crim C113 Lecture 14 Week 7 05/11/2016 ▯ Burwell v. Hobby Lobby (2014) Tension between competing rights, religious freedom Whether bosses should be required to have insurance for contraception for employees Hobby Lobby = craft store, the Greens, as Christians did not believe in contraception; conflicted with religious beliefs; employs around 13,000 people AT issue: the rule under the Affordable Care Act ACA that requires employer group health plans to furnish “preventative care and screenings for women” o i.e., contraception, including “emergency contraception” Competing rights between government who requires employers to offer health care under ACA and the rights of the employer to be free from unwarranted governmental interference with their free exercise of religion Exempts non-profit church or religious organizations Q: can Hobby-Lobby as a private, for-profit company get an exemption for religion? This is the big difference. If they get it, who else gets it? Government does have a compelling interest in requiring contraceptive coverage in the Affordable Care Act ACA But it’s mandate does burden the plaintiff’s exercise of religion Is there a less burdensome alternative? o Could the government think of another way that both provides contraceptive coverage and doesn’t burden Hobby Lobby’s religious preferences? o For the government to provide contraception Under the substantive due process analysis This is a violation of their religious beliefs and Hobby Lobby won the case ▯ <ABORTION> ▯ What does the fundamental right to abort, or not to abort, mean in practice – not just “on the books”? Roe v Wade establishes this ▯ ▯ What is bodily autonomy? Privacy? Liberty? (on the meta level) ▯ ▯ What barriers to access prevent the free exercise of these individual rights? ▯ ▯ How does the law’s interpretation illustrate gender and social control? ▯ ▯ Planned Parenthood v. Casey (1992) Upholding the fundamental right to abort, or not to abort, established in the landmark Roe v. Wade (1973) How do we analyze regulations that may not directly prohibit fundamental rights but may otherwise significantly impact a woman’s right to get an abortion? The Pennsylvania regulations at-issue: o 1- 24 hours before an abortion, a woman must provide written informed consent she was counseled (waiting period) that a physician told her the probable gestational age of the fetus, the abortion procedure described, and the risks and alternatives to the operation whether or not to undergo an abortion, medical risks, and a list of agencies that would provide alternatives to abortion o 2- spousal notification (a spouse must be notified of the pending abortion) married pregnant woman except in a medical emergency, must provide the doctor with a signed statement indicating the husband has been notified of approval unless she cannot locate him; the fetus is the product of spousal sexual assault o 3- minor must obtain informed consent of a parent or guardian prior to obtaining an abortion or go to court (judicial bypass); show abortion is in best interest or she is mature enough to make her own decision or show that bad things would happen if she went to her parents o 4- reporting requirements on facilities (facilities must file publicly available reports) Reaffirms the “essential holding” of Roe v. Wade: o 1- right to choose abortion before “viability” without undue interference from the State o 2- state power to restrict abortion after viability IF there are exceptions for women’s life and health viability = the time period in which the fetus is gestating (out of the womb) pre-viability = fetus cannot survive outside the woman’s body (inside the womb) o 3- state has legitimate interests in protecting the life of the woman and health of the fetus where does the constitutional protection to terminate the fetus come from? The due process clause of the 14 amendment has a substantive component; hinges on a fundamental right to privacy and liberty Q: How is the abortion decision gendered? Why is it unique? o “The liberty of the woman is at stake in a sense unique to the human conditions and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. Her suffering is too intimate and personal for the state to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture…” – Justice Sandra Day O’Connor, Majority Opinion Roe protects the substantive liberties of the person Viability can still mark the “point” at which a state’s interest in fetal life justifies bans on abortion – whenever that point may be in time, based on technology Same legal question as in Lawrence o Q: At what point does a state regulation “infringe” on a fundamental right or liberty interest, so as to be unconstitutional? (Privacy) o A: In the context of abortion, when the state regulation imposes an undue burden (a substantial obstacle in the path of a woman’s choice) ▯ ▯ Gender and Social Control Do these laws further the State interest in preserving women’s health? What about the State interest in potential fetal life? How is gender difference constructed and policed? ▯ ▯ Whole Women’s Health v. Hellerstedt (2016) What is the benefit of having to go to an ambulatory surgical center to take two pills? o Doctors must have hospital admitting privileges o Clinics must meet standards for outpatient surgical centers How are these gendered? Why aren’t much riskier procedures also regulated? Is this about material and fetal health, or a “back door” ban? Do these requirements create an “undue burden”? ▯ ▯ Crim C113 Lecture 10 Week 5 04/27/2016 ▯ <Intersectionality and Multiracial/Critical Race Feminism> ▯ ▯ Simonton v Runyon Court refused what Simonton was saying He may have won the case had he instead asserted like Anne Hopkins that he was discriminated on the basis of gender stereotyping; you have to provide evidence between spectrum of masculinity and femininity and stereotypes surrounding that Harassment because of sex vs harassment because of sexual orientation Congress has not yet included sexual orientation in the civil rights amendment ▯ ▯ Agenda Intersectionality theory Racialized sexual harassment Difference, multiracial feminism, and sisterhood Scholars: bell hooks, Mari Matsuda, Tanya Hernandez, Bethany Coston and Michael Kimmel, Chimamanda Ngozi Adichie ▯ ▯ Several states primarily in the south have been enacting laws claiming that individuals should be able to discriminate against individuals who claim to be part of LGBT categories on the grounds of religious freedom ▯ ▯ Kimberle Crenshaw Intersectionality Not just about the intersection of race and gender, or multiple identity, but the legal consequences of intersecting multiple identities Crenshaw argued that anti-discrimination law fails to comprehend the nature of societal discrimination that are faced by people who identify with multiple identities ▯ ▯ Crenshaw provides examples of a black woman, a disabled Asian man, and professor ▯ ▯ Intersectionality Societal discrimination is not just “additive,” it is unique o I am black + a woman People with intersectional disadvantages experience the same discrimination if not more discrimination Example) workplace o Employer hires a white woman and a black man, but refuse to hire a black woman; excuse employer gives that customer stereotypes of black women would harm the business and that profits are essential, therefore they shouldn’t be forced to hire a black woman But civil rights law fails to recognize intersectional discrimination. It requires race OR sex and evaluates only binary categories (male/female, black/white, abled/disabled) o People who have multiple areas of disadvantage are not allowed to make their claims, therefore essentially losing their cases ▯ ▯ Tanya Hernandez Examines the phenomenon using the context of sexual harassment cases She took a look at years of Title VII claims of sexual harassment o 7 year model = took 7 years of claims filed; the rate at which they are filed o 20 years of reporting of sexual harassment claims She notices that black women were disproportionately represented Women of color = overrepresented o Colored women make up 16% of work force; filing 41% of all sexual harassment claims White women = underrepresented o White women make up 84% of work force; filing only 59% of all sexual harassment claims Q: what explains this disparity in EEOC data? Women of color are more sensitized because they have the past experience and knowledge of civil rights movement to file more claims; they have been in hostile environments more Why is this not a good explanation? o It takes the focus away from the perpetrators In fact, women of color actually underreport sexual harassment; can’t use sensitization to explain the disparity Disparity between women of color and white women and their being educated; Hernandez said she controlled for levels of education, and skills, and it was the same across race Explanation of disparities in filing? o Reporting and filing more because they’re being harassed more Women of color are either more severely harassed or more frequently harassed or both Left with race and racism as the causal explanation because sexual harassers, according to Hernandez, look through the lens using specific stereotypes of women of color to be more available We base our opinions and perceptions on others on idealized types ▯ ▯ Racialized gender stereotypes Nicki Minaj Lucy Liu Jennifer Lopez Stereotypes of women of color according to Hernandez may increase their chances of being harassed and assaulted White women’s stereotype = respectability and purity; race for white women = more sacred Conclusion? o We want to be quite aware of the role that racialized gender stereotypes—what those are and how it happens in the workplace o Race on one hand, sex on the other may not be helping people out there and we should include an intersectional claim to Title VII ▯ ▯ Marginalized Masculinities Another type of intersectionality Intersection of privilege among men themselves Coston and Kimmel acknowledge that privilege among men exists, that gender is the mechanism by which the marginalized are marginalized Not all heterosexual men are white; not all white men are heterosexual; something else is also happening in the category of male Three categories that Coston and Kimmel call the “not-real man” o Disabled men They aren’t capable of doing anything a masculine, real man can; disabled man’s appearance and behavior, strength, aggression, sexual prowess; idealized standards that men and women place on men are based on abledbodiness Disabled men symbolize lack of self control, weakness, vulnerability o Gay men They’re more feminine and not tough; more emotional Effeminism vs. hyper-masculine performance Traditionally been the alter for masculinity Some gay men in response to resisting the label present hyper-masculine performance with certain types of bodybuilding and dress styles o Working-class men The most prototypical; hard-working; physical embodiment of strength Lack education, money, and skill = male-dominant constructions that sit at the top of male; dumb brute Stereotypes = great pride = breadwinner of family (providing for them); not being able to do that is a failure of masculinity You can’t assert power in the work force so you assert power and masculinity at home ▯ ▯ Doing Gender, Doing Difference Since difference is the mechanism for stigmatizing and excluding, performing masculinity involves a preoccupation with proving your gender to others Doesn’t happen at organizational level; is internalized ▯ ▯ bell hooks Q: Why is sisterhood still powerful? o You need to have some commitment towards this in some unified front o Undermines patriarchy Solidarity is necessary to challenge sexism, discrimination, and patriarchy – to lobby for social change across boundaries of race and class Communicates how important race and class are; sisterhood would have never been possible if individual women hadn’t been willing to divest their power; acknowledgment and helping hands– that’s what works Sisterhood requires getting rid of class and race domination ▯ Mari Matsuda What does it take to maintain sisterhood? o Feminists must have hard conversations about race If you don’t talk to others and get defensive, you’re ignorant and undermine other’s beliefs and ideals, etc. Legal scholars must work in coalition Social justice requires understanding all forms of subordination o How do these forms intersect with one another? ▯ ▯ Multiracial Feminist Theory Just like all social relations are gendered, all social relations are racialized How can we achieve social justice and solidarity? o Matsuda = have to ask the other question, “Where is the patriarchy and homophobia or ableism in this relationship?” o In unity there is strength ▯ ▯ Chimamanda Ngozi Adichie = YouTube Video TedTalk We Should All Be Feminists Nigerian novelist and writer Writes stories and social stuff; lecturer African feminist and social justice activist ▯ ▯ Crim C113 Lecture 12 Week 6 05/04/2016 ▯ <Who May Marry?> ▯ ▯ Do domestic workers have rights? Maximum # of work hours if you’re in a domestic position? Minimum hours + overtime pay? Minimum wage requirements? There is a movement to protect workers who aren’t covered under certain laws ▯ ▯ Rights for domestic worker laws Some of these cover minimum wages Some of them even require that the employer reports on taxes to make sure you’re accounted for as an employee Some of these states cover sexual harassment ▯ ▯ Agenda: Who may marry?: rapid socio-legal change th Liberty, privacy, equality: Due process and the 14 amendment Marriage cases ▯ ▯ If the government can’t deny the right to marry based on race, can they deny the right to marry based on sex or sexual orientation (gender)? Does the state have compelling interest in regulating that marriage? ▯ ▯ Jones v. Hallahan (1973) Two women asked for a license to marry each other in the state of Kentucky They were refused They said it’s not fair, they are constitutionally protected (Leving v Virginia where marriage is a fundamental right) They arguedthhat this tholated their fundamental rights: right to st marry (5 and 14 amendments protecting that right); right in 1 amendment to freely associate; right to exercise religion under 1 st amendment They argued not allowing us to marry would amount to cruel and unusual punishment The marriage law in Kentucky didn’t specify you must be a “man” and a “woman” to marry – so can two women? o No explicit prohibition on same sex couples from marrying In the absence of law, what does a court do? How do they figure it out? Who should they look to? How do they decide something like this? If we’re judges what are we going to do? o They interpret laws or the lack of law when the plain language is unclear or there is silence o You might look to older, legislative documents o You might look to see how the term (marriage) is commonly used Court looks to the dictionary According to the dictionary, marriage is the state of being married or being united to the person of the opposite sex as husband and wife, or the civil status and condition of one man and one woman united in law for life Marriage is a matter of custom, and marriage has always been considered a union between a man and a woman HOLDING: Since custom and the dictionary don’t validate same-sex marriage, then it’s not unconstitutional to deny a fundamental right Is this good legal reasoning? ▯ ▯ Baehr v. Lewin (Hawaii 1993) Just because a practice was accepted in the past doesn’t mean it’s humane, intrinsic, right or legal (Loving v Virginia) The 14 amendment of the Constitution requires the government to have a compelling reason why people can’t choose their partner for marriage How can two gay men or two gay women procreate? One judge disagrees: o The legislative purpose in denying same-sex marriage is to, “foster and protect the propagation of the human race…” o Only heterosexual marriage can do that o This is a compelling state interest ▯ ▯ What is marriage for and about? What’s so important about marriage? Why do same-sex couples want the right to marry? The family unit is what we define as the central space; regulated as such by laws (domestic relations) The reality of private sphere is obsessed with marriage What makes a family = marriage = some central part of it ▯ ▯ Goodridge v. Massachusetts Department of Public Health (2003) Asked specific legal question: whether it would be unconstitutional against 14 amendment for state of Massachusetts to deny equal protection to two people of same-sex into marriage? What is liberty? What is equality? We had 14 couples who brought a case to Massachusetts Department of Public Health; these couples were denied the license to marriage Many people hold deep religious and personal beliefs about homosexuality; these clerks had specific beliefs, despite the law, refused to issue the license Legal questions: what the Massachusetts constitution says Massachusetts court said it’s a fundamental right and has great personal significance as one of the basic civil rights of man “Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family – these are among the most basic of every individual’s’ liberty and due process rights…” Court said there’s no evidence that forbidding same sex marriage will reduce number of heterosexual couples wanting to get married? People are in fact raising families of whatever their sexual orientation and what marriage does is something better; provides economic stability, love, companionship; denying that and saying you can’t be married, who’s going to suffer if you already have children? The children are ▯ ▯ Defense of Marriage Act (DOMA) Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. o Some states allow same-sex marriage, some start to make civil unions/domestic partnerships; some refuse it entirely o The federal government was preventing those marriages in states that allowed it from being acknowledged from other states ▯ ▯ US v Windsor (2013) Two women got married in Canada in 2007 They have been living in New York for 40 years You have a retired IBM programmer (Tea); she has multiple sclerosis (she dies) When she dies, she had a will and left her entire estate to her partner and wife of 40 years, but Edith was not allowed to claim a particular tax benefit Spousal estate tax = if you’re married, the government doesn’t take money She had to pay $363k to the IRS Q: Is Edith a “surviving spouse”? so she doesn’t have to pay the IRS Q: Does DOMA violate the Constitutional guarantees of equal protection and due process? Kennedy brings in Lawrence v Texas (sodomy case about consensual gay sex and police entering a private home to arrest them when Texas statute says it’s illegal) o Why did he bring this? o Violates equal protection and due process Explained that the due process clause protects the liberty of the person to make private intimate choices about their lives and the court in Windsor said the exact same thing With this understanding about making choices, we have to strike down DOMA (federal government violating equal protection and that principle; denying people’s liberty) ▯ ▯ Lawrence v Texas (2003) …the most private human conduct, sexual behavior, and in the most private of places, the home… The Due Process Clause has a substantive, not just procedural component, in order to give life to the meaning of “liberty” Full right to engage in conduct without government intervention Just because no specific place in the Constitution says you have a fundamental right to be sexually intimate with the person of your choice in the privacy of your own home, that doesn’t mean the courts can interpret what it means in essence to be a free person in America They concluded that Texas furthers no legitimate state interest Explained that the due process clause protects the liberty of the person to make private intimate choices about their lives ▯ Let the people through the legislature decide social norms and values, not the courts (democratic dissenting votes) VS. “Minorities trampled on by the democratic process have recourse to the courts: the recourse is called constitutional law…” – Judge Posner Obergefell v. Hodges (2015) Q: do the 14 amendment’s due process and equal protection clauses require a state to license a marriage between two people of the same sex? Q: Does it require states and the federal government to acknowledge them? Obergefell is one plaintiff of same-sex couples who sued their states Kennedy said it is the due process clause that guarantees the right to marry; fundamental civil liberties that the constitution protects; should be the same for same-sex couples also HOLDING: No evidence was shown that something bad would happen so judicial precedent has held that the right to marry is a fundamental liberty because it’s inherent in what we believe in the concept of individual autonomy o Denial of this right would deny same-sex couples equal protection of the law ▯ ▯ Crim C113 Lecture 11 Week 6 05/02/2016 ▯ <Gender, Marriage, and The Private Sphere> ▯ ▯ Agenda: State interest in marriage Who may marry? Fundamental right to marry Separate spheres and domestic labor Spiritual and menial housework ▯ ▯ Why do people marry? Marriage is the best appropriate space to raise children Developed in response to two class-based social needs: o 1) To allocate property If you didn’t have property, you didn’t get married o 2) To predict and regulate inheritance Contract between husband, wife, and government Marriage was really about serving the state and the institution of the family To control social status and to create difference in society – to maintain class divisions; to maintain power and keep them within certain family lines (socioeconomic reasons to marry) Marriage was a basis for financially caring for members where government didn’t have centralized welfare programs th In 20 century, many institutions took over the older functions of the family ▯ ▯ The arranged marriage was usual up until recent times where love really became a part of it ▯ ▯ How much is the government allowed to intervene? State does have interests in regulating marriage ▯ ▯ Marriage = state forcing other people to take care of each other ▯ ▯ State interests in regulating marriage 1) Protect the vulnerable o We have social norms against pedophilia, protecting the vulnerable, making sure we maintain o There is a continuation of belief that women are fragile, vulnerable, need protection—carries forward o It is argued first and foremost that when people are vulnerable, they can’t economically take care of themselves (taxes, insurance, social security) o State never wants to spend money on vulnerable people 2) Encourage and enforce equality o Custody decision making 3) Regulation of contract o When you get married, there are consequences o You agree to not only get benefits from marriage (taxes, pooling of resources), but also responsibilities and who you can visit o You are required to take on the debts, not just the benefits of marriage (spouses share the debts and obligations equally) o Prenup form (premarital agreement) = before you’re married 4) Enforce sexual morality o Been a central legitimate state interest ▯ ▯ Loving v Virginia (US Sup Ct 1967) Mildred and Richard Loving They live in Virginia but go to Washington DC to get married There was an antimiscegenation law (scheme of statutes that not only defined the races, but voids marriages and asses penalties) Couldn’t get married in Virginia because Mildred wasn’t white ▯ ▯ Antimiscegenation law White persons = o “no trace whatever of any blood other than Caucasian...” o exception: 1/16 or less American Indian blood and NO other blood Colored persons = o “any ascertainable negro blood…” o Exception: ¼ Native American blood ▯ ▯ The Marriage of John Rolfe and Pocahontas was an example of creating political alliance between two different nationalities ▯ ▯ Equal prthection clause of the US Constitution 14 amendment: no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ▯ ▯ (Loving v Virginia cont.) ▯ State “interest” in regulating interracial marriage: 1) “to preserve the racial integrity of its citizens…prevent the corruption of blood, a mongrel breed of citizens, and the obliteration of racial pride” o Ordinary scrutiny: show a legitimate state interest 2) “Equal application” theory: not unconstitutional because it applies equally to blacks and whites (i.e., forbids either blacks or white from intermarriage) ▯ ▯ (Loving v Virginia cont.) this statute according to Supreme Court makes racial classifications even if it applies equally to everyone th The 14 amendment prevents invidious discrimination ▯ ▯ Central purpose of equal protection is to eliminate all state-based race discrimination Not only do you have a classification, Virginia was classifying the races; clear discrimination in the case ▯ ▯ The freedom to marry is “a vital personal right essential to the orderly pursuit of happiness by free men…fundamental to our very existence and survival…” ▯ ▯ Loving v Virginia cont. Holding: Marriage can be regulated by the state o Cannot interfere for individuals to choose their partners ▯ ▯ Dorothy Roberts “The dichotomy between women’s spiritual and menial housework exists within an ideology that distinguishes between work in the public and private spheres…” o Spiritual housework = quality time, care, emotion put into household; voluntary, positive, pleasant, motivated work, the privileged part of housework o Menial housework = doing the dirty work, cleaning bathrooms, scrubbing floors, serving your master’s children, extracting emotional element from work ▯ ▯ Spiritual v. Menial Housework (Dorothy Roberts) Respect and dignity one form of labor gets and the other doesn’t How is it gendered? o Realm of women’s work o Both spiritual and menial are performed primarily by women How is it raced? o People who perform menial housework are largely women of color EX) The nanny How is it classed? o Upper class families can afford to pay lower classes to do menial tasks (outsourcing) o People who perform menial labor are poorer and less educated How does it implicate national origin? o People who perform menial labor are disproportionately immigrants ▯ ▯ Socio-Legal Consequences of the Dichotomy Fosters hierarchy among women o The delegation; creates certain power structure Pool of workers depends upon race and class subordination Outsourcing labor o Women have always contributed to the economic parts of family o They might be considered the best worker, provider in some kinds of households, but that might disqualify them from their own households (bad mothers of their own children because they’re preoccupied in raising other children) Hurts domestic laborers and the privileged Devalues all women’s work ▯ ▯ Crim C113 Lecture 13 Week 7 05/09/2016 ▯ The Right to Privacy, Reproduction and contraception ▯ ▯ Meta Questions What is the source of our legally-protected reproductive rights, including the right to contracept, the right to bear children, and the right not to? What is the relationship between the right to privacy and the right to equality? ▯ ▯ A lot of our fundamental rights come from the US Constitution It is the supreme law in the land ▯ ▯ States do have the power to regulate our lives; when can the court step in to have the power to invalidate laws that intrude too much on our fundamental rights? Tension of laws of state regulation What point can the court say that’s too much intrusion Courts do have power to invalidate laws that infringe on the right to consensual, private, intimate, personal choices ▯ ▯ How does the court determine when a state or federal law infringes on our reproductive rights? ▯ ▯ Various substantive rights are comprised within the term “liberty” Most familiar of our fundamental liberties are in the first 8 amendments, the Bill of Rights (right to speech, exercise of religion, hearing, etc.) But the courts have interpreted more, like the fundamental right to marry in Loving ▯ ▯ 14 th amendment due process clause “No state shall make or enforce any law which shall… deprive any person of life, liberty, or property withouthdue process of law…” the due process clause of the 14 amendment has a substantive component o not just the fairness of “procedural” rules the right to hearing, the right to not incriminate oneself Substantive rights = give individual power to choose certain things Substantive due process = acknowledges that there is a sphere of personal freedom upon which the law simply cannot infringe; true even if you use fair procedures o Began in 1960s, this interpretation came through a lot of cases about reproduction and reproductive rights o Since the 1960s, the Supreme Court has heard countless cases regarding fertility, contraception, sex education, abortion, the right to parent, who can parent, and a number of other things ▯ ▯ Griswold v. Connecticut (1965) Estelle Griswold, Medical Advisor for Planned parenthood clinic in New Haven, Connecticut, primary plaintif There was a Connecticut law and it somehow regulated contraception Case did not have to do with abortion, or just a woman Connecticut law = The right of married couples to do certain things in the bedroom; criminalized the use of contraception by married couples; forbid doctors from giving birth control or birth control advice to married couples Plaintifs charged as accessories Supreme Court struck the law down as unconstitutional; relied on the notion of privacy but it really became front and center as jurisprudence; people have a right to privacy The court said that the notion of privacy is based on emanations that we find in the Bill of Rights Specific guarantees in the Bill of Rights have “penumbras” “zone of privacy” implicit in the Constitution… a “penumbra” of guarantees recognized in the term liberty + enumerated rights HOLDING: relationship between husband and wife lies in this zone of privacy; forbidding the use of contraception or forbidding doctor for giving patients advice on contraception has a destruction on intimate family relationships The Constitution places limits on State interference with a person’s most basic decisions about reproduction and family relationships ▯ th ▯ 5 amendment DP “No person shall be…deprived of life, liberty, or property, without due process of law…” o Federal protection o To protect citizens of abuse by federal government o To address rights violations that occur because of federal government interaction ▯ 14 th amendment DP “Nor shall any State deprive any person of life, liberty, or property, without due process of law…” o The incorporation of the Bill of Rights to the States o The part in which state action is being governed and that states are being brought into the federal system o Becomes a place in which the Bill of Rights and all the other rights that are delineated in the Constitution become incorporated by the States o Not only is the state responsible for people getting due process of law, they are responsible for all of our fundamental rights o States are allowed to give people more rights than the Federal government does ▯ 9 thamendment = says that the 14 amendment is the bottom floor not the ceiling of rights and they can give them more and that is why some states like the state of California have an ERA says we don’t just have to follow the federal government, sometimes we can be more proactive ▯ ▯ In the enumeration of the constitution of certain rights shall not be construed to deny or disparage others retained by the people ▯ ▯ Eisenstadt v. Baird (1972) William Baird arrested 8 times on felony charges Does it violate the right to privacy to limit the prescription and sale of contraception to married couples only? Gave a condom to a young unmarried woman in the audience of the lecture Arrested there and then Accused of giving spermicidal foam to somebody else and was arrested for that too Court found that this too is unconstitutional; fundamental right to privacy doesn’t belong to marital relationship. It belongs to each and every one of us (unmarried people too) “The right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally afecting a person as the decision whether to bear or beget a child…” ▯ ▯ Carey v. Population Services (1977) What about unmarried minors? Any right to access contraceptives, like condoms? Q: Should minors be required to have parental consent before getting a condom at school? Q: Should minors have access to emergency contraception (Plan B/the “morning after” pill)? ▯ ▯ Barriers to contraception (i.e., barriers to exercising fundamental rights) Access barriers Cost barriers Insurance coverage issues Social pressure, morality Religion ▯ ▯ Who bears the brunt of these barriers? Women = pregnancy Women are the ones disproportionately raising children alone Major source of gender inequality and intersectional reproductive injustice ▯ ▯ Burwell v. Hobby Lobby (2014) Tension between competing rights, religious freedom Whether bosses should be required to have insurance for contraception for employees Hobby Lobby = craft store, the Greens, as Christians did not believe in contraception; conflicted with religious beliefs; employs around 13,000 people AT issue: the rule under the Afordable Care Act ACA that requires employer group health plans to furnish “preventative care and screenings for women” o i.e., contraception, including “emergency contraception” Competing rights between government who requires employers to ofer health care under ACA and the rights of the employer to be free from unwarranted governmental interference with their free exercise of religion ▯ ▯ Crim C113 Lecture 16 Week 8 05/18/2016 ▯ Rape: Force, Resistance, and Consent ▯ ▯ Sociolegal question: What explains the stunning gap between violent acts against women and criminal punishment? ▯ ▯ What is rape? Rape is an act of sexual intercourse accomplished with a person not the spouse of perpetrator under any of the following circumstances: (Cal Penal Code 261) o Against a person’s will by any means of force, violence, menace, or fear of immediate and unlawful bodily injury o A person is prevented from resisting by any intoxicating or anesthetic substance (drugs, alcohol, ruffys, etc.) o Incapable of giving legal consent (age, mental disorder, developmental or physical disability, intoxication) o A person is at the time unconscious of the nature of the act and this is known to the assailant (including asleep) o Against the person’s will by threatening to retaliate in the future against the victim or another person ▯ ▯ Laws of rape are gender neutral now ▯ ▯ Consent is a defense to rape Show “nonconsent” by “resisting” Evidence victim prevented from resisting by threats to health and safety, unconsciousness/intoxicated at the time ▯ ▯ If the perpetrator said the victim consented, the victim would have to show nonconsent by reasonable resistance (physical or verbal i.e., no saying stop, crying, begging, screaming) some states require only physical resistance and don’t accept verbal resistance ▯ ▯ Strong persistence between the divide of the public and private spheres ▯ ▯ Rape (common law) = “a man who has forced sexual intercourse with a female, not his wife” spousal exclusion rule (husband could not be convicted of rape since wife is property under principle of coverture = blanket consent to sexual intimacy) Model Penal Code affirmation, 1980; consideration to abandon spousal exclusion rule but they didn’t do it o Late 80’s early 90s = removal of spousal extinction rule Persistence of public/private sphere ▯ ▯ The basic elements of rape are: Sexual intercourse Some kind of forcible compulsion Nonconsent ▯ ▯ The law on the books doesn’t distinguish between those degrees of familiarity; it doesn’t say “and they don’t know each other” ▯ ▯ Susan Estrich: “Real” Rape? Aggravated rape is “real”: o By a stranger o Taken by surprise o Brandishing a weapon o Lots of kicking and screaming o Multiple assailants Simple rape is not: o Single defendant o Has “met” the victim o May not have a weapon o Contributory behavior by the victim (spoke with perpetrator, had a drink, clothing, rode in car…) ▯ ▯ Rape might well be a situation where there is no consent, the victim has induced fear, and sex occurs through submission instead of willingness ▯ ▯ Why do we have this history of distrust? ▯ ▯ Rape Myths “She was dressed like a slut so she was just asking for it” “A lot of women lie about rape because they regret consensual sex” “I listen when a guy says no. Do you?” “Idk how I feel about this Steubenville trail.. not saying she asked for it buy why did you consume so much alcohol in the first place?” Legitimate rapes don’t cause pregnancy Most people are raped by strangers Women lie It’s over reported It only happens to women Only certain women get raped or sexually assaulted (beauty/appearance standard, bad rep, sluts, prostitutes) There is a certain standardized set of behaviors after being raped She wants the attention if she gets it with the student/athlete Only certain men commit rape (psychopaths) Only virgins can be raped If you’ve teased someone, or you’ve been promiscuous Consuming alcohol does not give carte blanche for rape Any woman who accuses an athlete is a gold digger If he buys you dinner, you’re expected to put out If one does not resist, it’s not rape Rape is exaggerated and over reported and falsely reported ▯ ▯ Some Rape data Fewer than 5% of campus rapes are reported to law enforcement (L&V) Only 4% of reported rapes involve any instigating behavior by the victim, consisting of as little as a gesture (National Commission on Crimes of Violence) Only 28% of all sexual
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