Category Archives: Feminism

A Quick Review of Sexual Assault Statutes

Did Donald Trump admit to criminal activity? Generally, sexual touching or contact without a person’s consent is a crime. For example, here are some provisions of New York’s Penal Code that relate to the actions that Donald Trump admitted to in his statements captured on tape and revealed by the Washington Post.

Leda and the Swan by Antoine Bourdaine

§130.52 Forcible touching.

A person is guilty of forcible touching when such person
intentionally, and for no legitimate purpose:
1. forcibly touches the sexual or other intimate parts of another
person for the purpose of degrading or abusing such person, or for the
purpose of gratifying the actor’s sexual desire; or
2. subjects another person to sexual contact for the purpose of
gratifying the actor’s sexual desire and with intent to degrade or abuse
such other person while such other person is a passenger on a bus,
train, or subway car operated by any transit agency, authority or
company, public or private, whose operation is authorized by New York
state or any of its political subdivisions.
For the purposes of this section, forcible touching includes
squeezing, grabbing or pinching..
Forcible touching is a class A misdemeanor.

§ 130.53 Persistent sexual abuse.

A person is guilty of persistent sexual abuse when he or she commits
the crime of forcible touching, as defined in section 130.52 of this
article, sexual abuse in the third degree, as defined in section 130.55
of this article, or sexual abuse in the second degree, as defined in
section 130.60 of this article, and, within the previous ten year
period, excluding any time during which such person was incarcerated for
any reason, has been convicted two or more times, in separate criminal
transactions for which sentence was imposed on separate occasions, of
forcible touching, as defined in section 130.52 of this article, sexual
abuse in the third degree as defined in section 130.55 of this article,
sexual abuse in the second degree, as defined in section 130.60 of this
article, or any offense defined in this article, of which the commission
or attempted commission thereof is a felony.
Persistent sexual abuse is a class E felony.

There are several statutes that criminalize sexual contact without consent. “Sexual contact” is defined by the New York Penal Code, §130.00(3) as:

“Sexual contact” means any touching of the sexual or other intimate
parts of a person for the purpose of gratifying sexual desire of either
party. It includes the touching of the actor by the victim, as well as
the touching of the victim by the actor, whether directly or through
clothing, as well as the emission of ejaculate by the actor upon any
part of the victim, clothed or unclothed.

For example, § 130.55 Sexual abuse in the third degree.

A person is guilty of sexual abuse in the third degree when he or she
subjects another person to sexual contact without the latter`s consent;
except that in any prosecution under this section, it is an affirmative
defense that (a) such other person`s lack of consent was due solely to
incapacity to consent by reason of being less than seventeen years old,
and (b) such other person was more than fourteen years old, and (c) the
defendant was less than five years older than such other person.
Sexual abuse in the third degree is a class B misdemeanor.

S 130.65 Sexual abuse in the first degree.

A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason of being
physically helpless; or
3. When the other person is less than eleven years old; or
4. When the other person is less than thirteen years old and the actor
is twenty-one years old or older.
Sexual abuse in the first degree is a class D felony.

So, even this statement – – – “I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait.” – – – could be an admission of a crime.

What Should Congress Do After Hobby Lobby?

What can – – – and should – – – Congress do after “Hobby Lobby”?
In a word: lots!

You’ve most likely heard about the United States Supreme Court’s divided and divisive opinion in “Hobby Lobby” – – now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell – – – on the last day of the Court’s Term in 2013-2014. The majority, in an opinion authored by Justice Samuel Alito, held that closely held corporations (or their owner/shareholders) are entitled to a religious exemption from the federal mandate to provide health insurance to employees that includes contraceptive coverage.

image via

But what is getting lost in this discussion is that not only is the provision of contraceptive coverage based on federal laws (“Obamacare” and the regulations passed pursuant to it), but so too is the basis for the religious exemption. The Religious Freedom Restoration Act, RFRA, is the statute interpreted by the Court to provide religious “freedom” to for profit corporations like Hobby Lobby.

Importantly, the decision is an interpretation of the word “person” in the RFRA statute, passed by Congress in 1993. Equally important, the decision is an application of the requirement under RFRA that a person’s religion be “substantially burdened.” And perhaps most important, the decision is an application of RFRA’s ultra-strict scrutiny that changed otherwise applicable First Amendment doctrine. Under RFRA, the government interest must be compelling and that interest must be effectuated by the “least restrictive means, even if the government action is a religiously neutral one of general applicability.

Given that the Court is simply interpreting a statute – – – and not the Constitution – – – Congress can amend the statute to nullify the Court’s interpretation. Or Congress could repeal the statute – – – a statute meant to change First Amendment doctrine after all – – – in its entirely and restore the First Amendment. Indeed, the repeal statute could be called the First Amendment Restoration Act.

I further discuss the option Congress has in a post for the London School of Economics blog. [Update: And here’s more]

Meanwhile, I’ll be more than interested in what New York’s Senator Kirsten Gillibrand has to say.

United States Supreme Court to Hear Facebook Threats in Domestic Violence Case

An estranged husband posts this message to the partner who has previously obtained a protective order:

image via

Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true threat jurisprudence

And prison time will add zeroes to my settlement
Which you won’t see a lick
Because you suck dog dick in front of children

****

And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s department
[link: Freedom of Speech, www.wikipedia.org]

Can the man be convicted of a “true threat” in violation of a federal criminal statute or is his speech protected by the First Amendment? Should the prosecution have to prove that he had the “subjective intent” to threaten?

That’s the issue the United States Supreme Court will consider in Elonis v. United States. The jury had convicted Mr. Elonis and the Third Circuit Court of Appeals affirmed. The Court granted review today and there is more discussion on the Constitutional Law Professors Blog here.

Unanimous Supreme Court Says Anti-Abortion Group Can Challenge Ohio Election Law

The Court’s decision in Susan B. Anthony List v. Driehaus issued today rests on the doctrine of “standing” necessary for a party to invoke the power of the federal courts to hear a case. The Court unanimously reverses the Sixth Circuit’s finding that the anti-abortion organization did not demonstrate it had a fear of future action by the Ohio Election Commission. This means that the organization can challenge Ohio’s provision banning false statements in elections as violating the First Amendment.

Maybe the Court’s opinion is more political than it seems? Here’s my discussion on the Constitutional Law Professors Blog.

June 16: International Domestic Workers Day

It’s International Domestic Workers Day. Until relatively recently, the legal rules governing employment could be found under the category “master and servant.” Through feminist activism, women have achieved some semblance of equality and have been able to increasingly inhabit the “master” role, even as we remain over-represented in the “servant” role.

But is mistress-servant an improvement over master-servant?

In my essay, A Servant of One’s Own: The Continuing Class Struggle in Feminist Legal Theories and Practices (available as a free download on srrn here) I consider the role of feminist legal theories in confronting the continuing issue of domestic service.

Part one discusses the terrific book, MRS. WOOLF AND THE SERVANTS: AN INTIMATE HISTORY OF DOMESTIC LIFE IN BLOOMSBURY by Alison Light, a must-read for Woolf scholars and fans, that delves into both the particularities and larger social aspects of Virginia Woolf’s employment of domestic workers.

Part two examines the United States Supreme Court case of Long Island Care at Home v. Coke, upholding a regulation that exempted certain employees in “domestic service” from minimum and overtime wage laws even if they were hired by a company rather than a household. During the Court’s oral arguments, it was clear that the Justices identified with the person receiving care rather than the worker, even though Ms. Coke was present in the courtroom. The regulation remains the subject of activism by domestic workers.

Part three considers the trial and proceedings of another case from Long Island, US v. Sabhani, in which the United States prosecuted and a jury convicted a woman and a man for “forced labor” and “document servitude” of two women from Indonesia.

In the last section, the essay compares the situations of Virginia Woolf and her servants, Long Island Care at Home, Ltd. and its servants, and Varsha Sabhnani and her servants. The essay argues that any relationship categorized as “servant” and “master,” even when the “master” is a “mistress,” and even when the master/servant dichotomy is viewed as a relatively equal contractual relationship rather than one based on status, is deeply problematical. The essay further argues that this “servant problem” needs much more feminist attention.

The Nation has launched a new “roundtable” to be called “The Curve” where “feminists talk economics” with a first post asking “Does feminism have a class problem?” The initial discussion does devote some attention to low-wage workers, but doesn’t confront issues of domestic work. One hopes it will.

image via International Domestic Workers Federation

Dressing Constitutionally CUNY Podcast

Listen to a conversation with CUNY’s Margaret Ramirez on “Book Beat.”

Our Clothing, and Hair, in the Courts

February 10, 2014 | Book Beat

From Colonial collars and Quaker hats to miniskirts and Muslim headscarves, our clothing — and hair — often have become issues for U.S. courts, says CUNY Law School professor Ruthann Robson. In her new book, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, Robson examines nudity cases, saggy pants in schools and recent battles of transgender teens dressing for the prom.

Robson at CUNY Law

City University of New York Academic Commons