Tag Archives: domestic violence

DV, Restraining Orders & State Responsibilities: Caroline Bettinger López on Gonzalez (Lenahan) v US

New in the Am. U. J. Gender Soc. Pol’y & L. 208 (2012) is Caroline Bettinger-Lopez’s keynote address from the Journal’s 2012 Symposium on  Lenahan (Gonzales) v. United States of America: Domesticating International Law.

Bettinger-Lopez of the University of Miami Faculty of Law spoke about Implementation, Litigation, and Mobilization Strategies in relation to the case, and the article begins with an introduction to the case and the domestic litigation.  The article is available here on heinOnline (not open source). Also on SSRN, which is open source, here.

More on the harrowing facts of Jessica Gonzalez’s (now Jessica Lenahan) case here, a MiamiLaw page with lots of links, including a video of Prof. Bettinger-Lopez speaking about the case and other “advocacy” videos.  Here is a “timeline” from the ACLU: Timeline: Jessica Gonzales v. U.S.A. | American Civil Liberties Union.

 

Restricting Legal Clinic Services to Exclude men accused of Domestic Violence: Windsor edition

Here’s the Community Legal Aid (Windsor Law student/Legal Aid Ontario funded) Clinic policy that has been provoking “outrage” from the defence bar and others including at least one faculty member.

“We’re very alarmed about this,” said Frank Miller, who heads the Windsor chapter of the Criminal Lawyers’ Association.

According to Miller, the policy flies in the face of some of the basic tenets of the justice system: presumption of innocence and the right to legal representation.

“The university prides itself on access-to-justice issues, and yet they’re acting in this manner,” Miller said Tuesday.

He described the policy as “generously giving assistance to women in that situation, and denying it to men.”

Asked if he feels there’s a political agenda behind the policy, Miller replied: “I can only speculate. It speaks for itself, I suppose, when one reads what they’ve decided to do.”

Miller said local members of the Criminal Lawyers’ Association plan on meeting Friday to discuss the issue further. “We want to find out what’s driving this.”  Source: http://blogs.windsorstar.com/2012/09/25/sexism-female-favoured-policy-change-at-community-legal-aid-stirs-outrage/

and the twitter-sphere:

[blackbirdpie url=”https://twitter.com/EmirCrowne/status/250778789091606529″]

This is not a new issue for Ontario law schools and clinics (as many commentators have pointed out, similar policies exist at a number of law school clinics – both Osgoode clinics, CLASP and PCLS have policies which date back to the 1980’s).  It is interesting to compare the reaction in Windsor to the one described in Jennie Abell’s 1992 article chronicling the implementation of a similar policy at Ottawa in 1990. Jennie Abell 17 Queen’s L.J. 147 (1992) Women, Violence, & the Criminal Law: It’s the Fundamentals of Being a Lawyer That Are at Stake Here (which unfortunately does not appear to be available open source).  Abell wrote:

…the significant philosophical and political aspects to the issues and the merits of the arguments were marginalized rather than explored. Instead of a “debate”, what emerged was a contest about power and control of the legal profession. and a focus on process rather than the substantive issues and the problematic nature of the underlying assumptions. [at 148]

[this article also covers the issue: Mossman 1994 Gender Equality, Family Law, & Access to Justice.’ Int J L Pol’y & Fam 8: 357 bit.ly/TB41ut

Prof Mossman has suggested I look for the report of the  L.S.U.C. Special Committee to Investigate Complaints against the University of Ottawa Student Legal Aid Society convened on this – if anyone has it in e-form, I would like to be able to post it – let me know!

 

Here is a bit from the Windsor policy document:

In the past several months, a working group composed of CLA, LAW, and Windsor Law School representatives has been meeting to discuss various policy and pedagogical issues related to our clinical law programs.

One of the many issues addressed has been the policies and protocols that ought to be in place regarding domestic violence cases including peace bond cases.

Guiding these discussions was a commitment to ensuring adequate supervision and training of clinic students, a commitment to ensuring that our casework advances the cause of justice and a commitment to improving the student clinical experience.

In the course of its extensive discussions, the working group considered expert opinions and key reports that have addressed this issue, including work that has been done on developing appropriate screening tools for cases involving domestic violence.  The group also conducted a survey of law school clinics across Canada. This survey revealed that there are many other clinics that do not handle domestic violence or peace bond cases.

More on this, I am sure, to come.  These decisions aren’t easy and they require commitment- and it isn’t a burden to have to defend and justify them against questions and concerns about access to justice.   But it is tiring to see people (pretending to be) (being) shocked that there is a politics to service provision and legal aid and criminal justice, and/or making “reverse sexism” arguments as though they are clear debate enders.   I hope the media coverage takes some time to explore this one.  The comments of review counsel (see the Windsor Star article above) question the process, and I suppose that will have to be hashed out along with the substantive choice.

Elder (In)Justice: A Critique of the Criminalization of Elder Abuse (New on SSRN)

The past two decades have seen a rapid proliferation of laws and policies that facilitate a criminal justice response to elder abuse. Drawing on feminist critiques of the criminal justice response to domestic violence, this Article argues that the criminalization of elder abuse can protect elder abuse victims and improve public attitudes toward elder mistreatment. However, it warns that by failing to engage elder abuse victims in the punishment process and criminalizing certain consensual interactions involving older adults, the current criminal justice system response to elder abuse threatens to oppress victims, perpetuate negative stereotypes about older adults, and undermine the delivery of victim services. It therefore posits that the debate over how to address elder abuse must move beyond the question of whether the criminal justice system should respond to elder abuse to thinking critically about how the system should do so. Finally, it suggests that the criminal justice system response to elder abuse could be improved by being informed by those working in parallel domains, including domestic violence.

Click here for SSRN link to Nina A. Kohn’s (Syracuse Law) piece which will appear in the American Criminal Law Review.

Miami county recognizes a Right to be free of domestic violence

Over at IntLawGrrls, Caroline Bettinger-Lopez   writes about how Miami county became the first to recognize the Right to be free of domestic violence.

… Commissioner Sally A. Heyman  a longtime advocate for domestic violence victim…coauthored the resolution along with my students at University of Miami School of Law Human Rights Clinic, Rashanda McCollum and Michael Stevenson. In addition to working with Commissioner Heyman, the students engaged with domestic violence advocacy groups across south Florida, gathering insight as to their shared goals and the most effective means by which to accomplish them.

Birth Control Sabotage

Was interested to hear on CBC radio’s The Current this morning about the appeal in this Nova Scotia case, now on reserve at the NSCA.  R v. Hutchinson, 2011 NSSC 361 involved a man who deliberately and secretly damaged condoms because he wanted his girlfriend to get pregnant, and she did not want to have a child.  There are some complexities in the case (like a finding of fact that she did not in fact become pregnant through the damaged condoms, but because a false positive home pregnancy test prompted the couple to give up on birth control altogether).  In any case, Mr. Hutchinson is appealing his conviction on sexual assault (he was charged with aggravated sexual assault).

One of the things that is really bothering me about the commentary (both on the radio and in the article below from the Halifax news) is that some people are assuming that if the charge/conviction are appropriate that they would be equally appropriate in the case of a woman who sabotaged or lied about birth control and had sex with a man.  I don’t deny that this could be seen as the same thing.  But surely we understand the difference between the consequence to a man (genetic connection to child, possible liability for child support, etc) and to a woman (sperm in her body which could lead to conception and pregnancy,  plus the consequence of being a parent).  Again, I’m not arguing that these couldn’t or shouldn’t be treated the same way in law, but could we please acknowledge the differences between becoming pregnant though this kind of sabotage and making someone pregnant due to sabotage?

Appeal has social policy implications | The Chronicle Herald.

Anyway, I don’t feel ready to comment on the merits of the claim that lying about birth control (because you deliberately sabotaged it) on the part of the man vitiates consent to sexual activity or amounts to aggravated sexual assault.   But I did come across a comment, Birth Control Sabotage as Domestic Violence: A Legal Response, today, on SSRN.  That whole transit of Venus thing must have lined up some coincidences in the world.  And other madness like Americans (other than Ruthann Robson) writing about Canadian law!

Written by a law student at Berkeley, the article argues in favour of criminalizing birth control sabotage, but not, it appears, through existing [US] provisions.  It closely considers the first trial and appeal in the Hutchinson case (starting at p27).   For clarification about the progress of the Hutchinson case, the Chronicle Herald’s Clare Mellor, June 5 (from the article linked above):

The case, which has been before the courts for several years, has involved two trials. In 2009, a Nova Scotia Supreme Court judge found Hutchinson not guilty of aggravated sexual assault, but the Nova Scotia Court of Appeal overturned that decision and ordered a new trial.

In 2011, Hutchinson was found not guilty of aggravated sexual assault but guilty of the lesser offence of sexual assault.

While the woman did not consent to sexual intercourse with damaged condoms, the Crown failed to prove that her pregnancy was a result of having had sex using those condoms, the trial judge said at the time.

On Monday, the case was heard by a special five-member appeal court panel headed by Chief Justice Michael MacDonald, instead of the usual three-member panel.

 

 

Shane Trawick University of California, Berkeley – School of Law

Abstract:
This Comment responds to a series of recent studies linking domestic violence to birth control sabotage — a phenomenon where male partners destroy or manipulate contraceptive devices to force pregnancy, attempting to hold their female partners captive in a violent relationship. Birth control sabotage can take many forms, including the destruction of birth control, the piercing of condoms, or the forceful removal of contraceptive vaginal rings or intrauterine devices. Its existence begs two questions: what legal remedies are available to victims of birth control sabotage, and what policy steps should be taken to limit its occurrence? The absence of legal scholarship resolving these questions is glaring, and virtually no legal scholarship addresses the intersection of birth control sabotage and domestic violence. This Comment contends, first, that the recent studies linking birth control sabotage and domestic violence provide a sufficient justification for labeling sabotage as an intentional, fraudulent misrepresentation tort claim. Second, this Comment normatively argues that state legislatures ought to act quickly to criminalize birth control sabotage. As sabotage can now be understood as an act of violence in continuing domestic violence, criminalization and incarceration are crucial in preventing further abuse. While legal remedies for birth control sabotage have been severely limited in the past, creative attorneys and motivated legislators should address this important issue to improve the lives of survivors and their families.

 

Of course there are also links to other cases about the context of sexual activity and how it might or might not vitiate consent, such as Mabior and DC (french only) in which appeals to the SCC have been heard and decisions are reserved.  Both are cases in which HIV+ people did not disclose their status to sexual partners.