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Crim C113 - Week 2 notes

by: Edward Avakian

Crim C113 - Week 2 notes Crm/Law C113

Edward Avakian
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About this Document

These notes cover lectures 3 and 4 (week 2's notes).
Gender and Social Control
Hillary Berk
Class Notes
Crim, criminology, Gender, social, Law
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This 9 page Class Notes was uploaded by Edward Avakian on Wednesday April 6, 2016. The Class Notes belongs to Crm/Law C113 at University of California - Irvine taught by Hillary Berk in Winter 2016. Since its upload, it has received 20 views. For similar materials see Gender and Social Control in Criminology and Criminal Justice at University of California - Irvine.

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Date Created: 04/06/16
Crim C113 Lecture 4 Week 2 04/06/2016 ▯ Equality and the Constitution  First wave of reform = woman’s movement ▯ ▯ Agenda  Formal Equality Model  Equal Rights Amendment (ERA) th  14 Amendment  Levels of Scrutiny  Cases ▯ ▯ Sociolegal Questions  What are the guarantees for equality provided in the Constitution?  Should men and women be treated the same?  Are there appropriate circumstances to treat them differently, and if so, what are they?  Should we consider the impact of laws, and not just the plain language of laws?  Is an Equal Rights Amendment (ERA) necessary to achieve gender equality? ▯ ▯ Legal Strategies for achieving gender equality  Promoting an equal rights amendment (ERA)  Using the existing Constitution to seek gender equality (using a variety of strategies in the language and what has already been passed on in paper) ▯ Formal equality model  Are men and women similarly situated?  According to Levitt and Verchick, what is the formal equality model? o People having equal opportunity o The actual practice of putting the laws into place o The law should not treat a woman differently from a similarly situated man o We don’t want to make generalizations, stereotypes about women  Liberal or Sameness feminism, i.e., men and women should be treated the same  Our Constitution does not provide an equal rights amendment  US is one of 7 countries in the world that has rejected the idea of signing a no discrimination against woman act  Most people do believe that we should have an ERA th  Within the Constitution, there is the 14 amendment ▯ ▯ 14 amendment’s three relevant clauses:  1) Privileges and Immunities clause o no state can make laws that abridge the privileges and immunities of the citizens of the United States o which privileges and immunities are given to women?  2) Due Process clause o requires individuals to be provided certain legal procedures due process before they are deprived of their lives (punishment for crimes), their liberty (imprisonment), or their property (taking of their land)  3) Equal protection clause o no person may be denied equal protection of the law (all people must be treated equally under the law) ▯ ▯ Equal rights amendment  Fears of creating ERA o Worried that divorce rates would increase o Negative effect on society if women increase in the work force o Women would be in the military, forced conscription (draft) o Worried gays would want rights, same sex marriage o Work day  Society has already incorporated these things; what are the arguments now against an ERA  Phyllis Schlafly was a lawyer, but wanted other women to remain in the “private” sphere  In 1963, President Kennedy called together the first commission on the status of women and women’s rights  Alice Paul = belonging in the Republican party = wrote the first ERA  Key turn in policy = the commission that convened by President Kennedy; they thought we don’t even know if we need an ERA to promote sex equality within the United States; in Kennedy’s report, he encouraged social movement actors, interest groups, and a variety of legal organizations to bring individual cases to their state courts and to the US Supreme Court to let the courts interpret the principles of equality as provided in the 14 amendment  Primary face of the movement to bring specific cases to Supreme Court in an activist way? = Ruth Bader Ginsburg = first very active practicing women lawyers; in favor of equality  Courts allowed states to treat people differently as long as unequal treatment wasn’t arbitrary  Constitution isn’t okay with irrational discrimination ▯ ▯ Goesaert v Cleary (1948)  Supreme Court held that it was okay to ban women as bartenders  It’s in the general welfare to keep women from bartending despite any discriminatory effect  Justice Douglas (Dissent): The Michigan statute arbitrarily discriminates betweenthale and female pub owners, which is a violation of the 14 Amendment… ▯ ▯ Hoyt v Florida (1961)  Mrs. Hoyt argued that she deserved a jury of her peers in court: women  Murdered her husband with a baseball bat because he was battering her; claimed she had been suffering at his hand for a while now  What did Mrs. Hoyt argue? o She was convicted by an all male jury; she thought maybe if she had a jury of women, the outcome of the cases might be different  What did she fthl was violated? Her due process rights under the 14 amendment and her equal protection o As long as Florida has “a” reason for treating women as a separate class, and there isn’t a discriminatory purpose, then it need not require women to perform jury service*  Assume that men want to serve on juries, women have the privilege not to; if a few weird women want to serve on the jury, they have to register with the state and go through procedures, etc o *Even if in practice this means the jury pool is 95% male o Nature of her crime needed a jury of her peers who might relate to her in a certain way that males could not o The statute in Florida on its face is discriminatory and violates equal protection; state upheld the statute o As long as Florida has a reason as treating women as a separate class, i.e. discriminating, there is no apparent discriminatory purpose for this particular reason; the state can discriminate; it’s reasonable not to require women perform jury service unless they specifically want to ▯ ▯ Levels of scrutiny  1. Ordinary scrutiny = is the law “reasonably” related to a “legitimate” state interest? o What approach do judges take when a claimant comes to them? As long it’s reasonable, the law will be upheld  2. Middle level scrutiny =  3. Strict scrutiny (suspect class) = is the law necessary? State must show a compelling reason for discrimination o state laws that discriminated on the basis of race would be looked at with much more suspicion o all courts have to do is change their classifications ▯ ▯ Reed v Reed (US Sup Ct 1971)  Sally Reed  Two adopted parents, Sally and Cecil Reed, adopted their son; something intervenes before he dies; they separate before he dies; at the time their son died without a will  Sally petitions for probate  Cecil files competing petition, and the lower court chooses Cecil since he was a man  Law in Idaho: if there are two competing parents, two family members, one male and one female, the state gives preference to males as executors of the estate o Why? What’s the states purpose? o = to avoid hearings to decide who should be the executor of the estate o also said, naturally, men are much more capable of handling finances  Supreme court said: the lower court’s reasoning was “arbitrary” and not “legitimate” enough to justify gender discrimination under the Equal Protection clause  Criticized judge in lower court to determine what are the relative capacities required for probate  Sally Reed won, but gender would not be treated as a “suspect” classification ▯ ▯ Frontiero v Richardson (US Sup Ct – 1973)  Sharron Frontiero – working as a physical therapist at Maxwell Air Force Base in Alabama; her husband was a stay at home dad  Legal issue of case: wanted to claim husband as dependent  We have a law that states dependency benefits; women have to prove up some things = discriminatory on its face; treating men and women differently (employment context)  Military regulation provides dependent benefits to all male officers, but not female officers  All justices agree the regulation is a violation of the due process and equal protection clauses  There is a split; 4 justices said sex should be a suspect classification; other justices took the path of not even going there; this regulation doesn’t pass muster  Justices disagree whether sex/gender should be a “suspect” class examined under strict scrutiny, like race  Argument given by those who called for sex being suspect: you can’t choose; sex or racial origin is an immutable characteristic ▯ ▯ Craig v Boren (1976)  Controversy: drinking age for men was 18; women was 21; it prohibited; Distinguished the legal drinking age and the purchase of alcohol (3.2%)  Does the Oklahoma law deny 18-20 year old men equal protection under the law?  (i.e., middle level scrutiny)  State argues that discrimination is justified since their goal is traffic safety  If a law discriminates on the basis of gender, it must be substantially related to an important government interest ▯ ▯ Crim C113 Lecture 3 Week 2 04/04/2016 ▯ Stephanie Coontz and equality and why there’s been a stall in equality today despite the very strong women’s movement  If equality isn’t present, families would revert to making choices based on fallback positions  The woman in a heterosexual partnership would revert to domestic responsibilities = THE VALUE STRETCH o Watering down your original values and expectations for equality; can be problematic; make choices based on what you’ve got to do to survive, to get by, not necessarily based off ideals o It persists for institutional and structural reasons; become reinforced by US laws = socioeconomic reasoning ▯ ▯ The “Woman” Movement 1848 – 1920  Referred to as the first wave of reform when it comes to gender equality  1848 = year for Women’s rights movements in Seneca Falls  1920 = the right to vote (suffrage) = 19 amendment th  The passage of the Post-reconstruction amendments (13-15 amendments)  Seeking equality of citizenship = mutual efforts that were happening in order to have reform of the American legal system  Lucretia Mott, Elizabeth Cady Stanton, Grimke sisters = important figures in women’s movement  Division in 1850s and 1860s = should we take as primary the right of African American males in the US to have the right to vote? Women to vote? Or both?  Elizabeth Cady Stanton = part of more radical group; National Women’s Suffrage Association  More moderate group = American Woman Suffrage Association = started by Henry Blackwell and Lucy Stone o “Coverature” = once a woman marries, her civil life “dies” o Doctrine stating women had no independent legal existence from their husbands o They become one person; law only recognizes one person, husband, for all public and civil matters o Upon marriage, become one person in law  the husband o Wife would assume husband’s name o Women could not entire into contracts, own property, receive her wages, or have custody of children upon separation o All of her personal property would be managed by husband o She could contract debts for items of necessity from general stores o She would lose custody if she chose to exit the marriage  The Married Women’s property acts = set of laws happening at the state level that attempted to remedy that civil death of women to allow women to inherit and control their own property and to enter into contracts o There are still ways to show as if you’re acting legally -> judicial interpretation; equality in form instead of equality in fact o Despite it being passed with no issues there were still issues, outcomes weren’t produced  Declaration of Sentiments = presented at Women’s Rights convention in Seneca Falls, NY o List of grievances and suggested resolutions to those grievances o Modeled after Declaration of Independence o Much more radical o Made revolutionary statement on fundamental principles of equality = they’re not just requesting rights and privileges, they want the duties of citizens, the right to get arrested, etc.  Frederick Douglass = “In our eyes, the rights of woman and the rights of man are identical – we ask no rights, we advocate no rights for ourselves, which we would not ask and advocate for woman. Whatever may be said as to a division of duties and avocations, the rights of man and the rights of women are one and inseparable…” – Women’s rights convention Worcester, MA 1851  Ida B. Wells = anti-lynching movement was led by her o Black men were hung on allegations of having sexual contact with white women  How does reform happen? Commonality occurs  Key concerns that African-American women and some of the white women leaders shared? Some grievances they could agree upon? o Sexual submission (harassment by person who controls wages at advance of spouse of partner) o Right to custody over children o Experience of subordination through wife-beating and control (domestic violence was a space on which women as a whole could gather round and go to courts and state that this is an experience they share) o Economic control o Black women seemed more concerned with child care, the minimum wage, controls about the length of the work day and work week  1865 = passage of post-Civil War amendments (between 1865- 1870) o 13 amendment = Abolition of slavery o 14 amendment = Due process clause (deprivation without due process of law – right of liberty, happiness), equal protection clause; declaration that we have a natural, unified government acknowledging full citizenship to everyone in the US; creates a national identity for us o 15 amendment = The right to vote shall not be denied on account of race, color, or servitude  1865 = end of Civil War; cessation of southern states  Susan B. Anthony = arrested for registering to vote in 1872; tries to vote; refused her to testify ▯ ▯ Separate Spheres vs. Integration Jurisprudence  Both legal convention and social convention define women as belonging to a separate sphere than men belong  Legal debate placed people into camps = judges = get to decide that become precedent and get to govern other peoples’ lives  Separate sphere = naturalized argument as viewing women as gentle graces, tender susceptibility, purity/moral, natural inclination towards subordination o Chief Justice Ryan = stated that women were designed for domestic life  Integration jurisprudence = integrate women into public life; don’t keep them in private, separate sphere of domesticity by slowly integrating them into it  Lavinia Goodell, 1875, was denied admission to law school due to “law of nature” that she belonged in separate sphere of house to bear children  Chief Justice Ryan thought it would emasculate women and make them want the right to vote, etc. ▯ ▯ Minor v Happersett (1875) – challenges women’s right to vote and goes all the way up to Supreme Court; husband and wife team = Francis and Virginia Minor; instead of having to argue that we need to pass a new amendment, we want to rely on the existing language on what’s in the Constitution; argue for a very specific statement  Question for the court: Is voting one of the privileges and immunities of the 14 amendment’s grant of national citizenship? o I.e., are all citizens voters?  Holding = voting is not one of the privileges and immunities ▯ ▯ Myra Bradwell’s case – she wanted to be a lawyer; cites the 14 th amendment; already a trained lawyer by her husband, already had been doing the work; she beat out a ton of other people, men, and passed her exams, she met all the requirements on the paper, she and her husband established Chicago Legal News  Petitions in 1869 for admission to Illinois BAR  Only issue is whether a women should be disqualified from being admitted based off of sex  Is the practice of your chosen profession a privilege and immunity th afforded by the 14 amendment of the Constitution?  Found her with a disability because she was married (coverture)  Does the 14 amendment provide equal protection of the law to Myra, i.e., equal right to pursue a profession?  Agency = attorneys are agents who enter into contracts on behalf of their clients  The sex of the applicant independent of coverture is sufficient reason; legislature did not intend for such woman to hold offices  God designed sexes to occupy different spheres of actions ▯ ▯ 1971 National Women’s Suffrage Assoc Delegates ▯ ▯ Muller v Oregon (1908)  Several people working at a laundry facility  Laundry owner was fined because owner was letting workers work longer than 10 hour shifts  Limiting women’s work hours is a reasonable exercise of police power – to protect women’s health and safety – eventhf it doesn’t treat everyone “equally” under the 14 Amendment ▯ ▯ Sojourner Truth – Ain’t I a woman passage ▯ ▯


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