Category Archives: Book Reviews

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Student Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, Gabriella Gutiérrez y Muhs, et al., eds.

By Kate Aizpuru[1]


             We’ve all seen the brochures. Glossy pamphlets advertising sparkling university buildings, rolling green campuses, and laughing students linked arm-in-arm as benevolent faculty look on, smiling. Somehow, college and university brochures always seem to feature students and faculty of color, bedecked with tolerance, diversity, and a cheery demeanor. But something is rotten in the academy. Even as institutions of higher learning trumpet their achievements in diversity, the reality is that for women of color, the academy can be an unwelcoming, unsupportive, and sometimes overtly racist environment in which to work and live. In a masterpiece of frank conversation, convincing discussion, accessible prose, and courage, Presumed Incompetent weaves together the challenges facing women of color in the (literally) ivory tower—while providing future academics with the tools they will need to remain resilient, and allies and universities with strategies for creating a healthier environment. 

             After a short introduction, the book is organized into five sections containing a total of thirty essays: General Campus Climate, Faculty/Student Relationships, Networks of Allies, Social Class in Academia, and Tenure and Promotion. The final chapter, “Lessons from the Experiences of Women of Color Working in Academia,” derives “immediate, concrete, and applicable recommendations that may help circumvent and/or diffuse the conditions described in [the] anthology.”[2] And despite the heartrending—and occasionally hair-raising—stories, as editor Carmen G. Gonzalez writes, “[T]he ultimate lesson of Presumed Incompetent is resilience . . . Our goal as editors was to empower women of color and allies by providing tools and strategies to overcome the challenges described in this volume.”[3]

            Those challenges included both overt and subtle racism, pervasive stereotyping, lack of institutional support, lack of respect from students, misogyny, heteronormativity, class bias, and isolation from home—among others. I was shocked at the flagrant racism that both students and other faculty displayed to the contributors: the black professor who was openly mocked for her natural hair;[4] the black faculty member who reported receiving Ku Klux Klan notes under her door;[5] the Argentinian professor whose student argued that, “You don’t even speak English. How do you know my paper is bad?”[6]; the post-doc who, after her first promising job interview, was told, “Well, I’m just going to be honest with you. You’re going to get this job because you’re black and a woman. So we’re going to give you this job. But we’re going to hire someone else for the job we advertised.”[7]

             Yet the brunt of the narratives did not focus primarily on overtly racist statements, though there were plenty of those to go around. Every essay also shed light on the institutional structures that consistently worked against women of color seeking to advance their academic careers.

             One frequently referenced example was the request that women of color serve on “diversity committees.” Universities, seeking to burnish their diversity credentials, would obviously benefit from having a black, Asian, or Latina women sitting on or chairing a diversity committee. But participation in committees counts for nothing when that professor is being evaluated for tenure. So what is a professor facing the appointment to do? Agree to participate in the committee, in addition to her teaching load and other responsibilities, sacrificing the time she needs for research and publishing? Or refuse, thereby alienating those who will ultimately decide whether her career advances?

             Faculty also reported perceiving that students, who were more accustomed to seeing women of color as maids, cooks, nannies and in other subservient roles than in positions of power, simply did not view their professors as credible. Indeed, “research shows that both minorities and women are presumed to be incompetent as soon as they walk in the door.”[8] When the students challenged the professor over a grade or some other issue, universities frequently sided with the student or chose to remain neutral—thereby further undermining the authority of the women of color faculty.[9] White students resented being taught race and gender issues by women of color, whom they perceived as, at best, unable to teach the material objectively, or at worst, inflicting “reverse racism” on the classroom.[10] White professors, particularly cis-men, on the other hand, were typically viewed as capable of presenting any material without a particular political agenda.[11] Meanwhile, faculty also reported rejection by their communities of origin[12] or by students of color.[13]

             Racial and gender stereotypes seemed to follow many contributors into the academy, shaping institutional expectations. Although the white media has excoriated Paula Deen for her racist comments, Angela Mae Kupenda’s essay makes clear that racist nostalgia is not limited to aging bigots: “[B]lack female academics are asked, or required, to focus on presenting a comforting appearance for whites who miss the blacks of the ‘ole South’ . . . . In the slavery—and even in the postslavery—South, for example, black women were required to place the needs of the white families they worked for over those of their own children. Unfortunately today, black women in the South still face these ghosts. When we try to ignore their ghoulish calling, we may be punished for allegedly lacking collegiality or harboring irrational anger.”[14] Professor Kupenda described how, after she turned down an offer to run a program for entering students who needed some extra help, her white academic dean replied: “We need you to teach in the summer program because you are black, you are a woman, you are a great teacher, and you nurture, mother, feed, and nurse all the students.”[15] In disbelief, Kupenda responded, “You just described a mammy . . . . I guess I will have to be a mammy for you nine months a year, but . . . three months a year I must try to be a scholar.”[16] Years later, Kupenda continued to feel as though she had been complicit in her own oppression: “I had become a mammylike, fully accessible stereotype to make the white students more comfortable.”[17] Black woman professors like Kupenda are in a double-bind, because studies have confirmed that “likeability and warmth are key elements for women professors to get good student evaluations,”[18] and for professors of color this often means taking extra steps to put white students at ease.[19]

             As the chapters progress, the essays begin to focus more on strategies and tools for creating a healthier environment—not just for women of color in the academy, but also for the administrators who will be managing them and their white and/or male colleagues. While acknowledging that for many faculty of color the task of sustaining oneself can seem an uphill climb,[20] the consensus appears to be that, with work, the academy can be as supportive and welcoming for women of color as it is for white men.

             Many of the essays shared the tools that contributors had, themselves, employed to sustain themselves while navigating treacherous territory. Community, solidarity, and the creation of safe spaces stood out as prominent themes.[21] Relatedly, mentorship was identified as “critical for graduate students and faculty of color in white-dominated departments and disciplines.”[22] Collectives provide a space to discuss challenges and openly speak the truth about institutions, as well as create the opportunity for unified strength and advocacy.[23] As Võ writes, “anxiety is reduced if you have supportive colleagues who protect you from burdensome committee work, present you with suitable teaching assignments, and genuinely support your research agenda,” and, “[a] good mentor can help you navigate the political landmines.”[24]

             Other essays provided concrete career advice for women of color and their allies in the academy. Holling, Fu and Bubar provided specific tips for women of color contemplating joint appointments.[25] Chang described the process of developing a women of color studies curriculum that is “intersectional, that looks at the experiences of women of color living within the structures of these systems of oppression and views them as inextricably linked,” aiming to “bring research to the service of communities being studied, rather than the reverse.”[26] Spade explains how classroom agreements, like “move up/move back,” “collaboration not competition,” “constructive feedback,” and using preferred pronouns and correct pronunciations of names can go a long way to creating a safe space in the classroom.[27] Other essays discussed issues like salary and benefit negotiations, institutional politics, tenure, promotion, and work/life balance.

             In addition to the wisdom aimed at aspiring academics, several of the chapters provided guidance for administrators and department heads. Võ calls on institutions of higher education to “consider a holistic approach to hiring, retaining, and promoting diverse faculty,” pointing out that “creating equitable policies, along with transforming a hostile workplace culture, benefits all faculty.”[28] Lazos draws on research about race, gender and student evaluations to determine that “academia needs to make systemic changes to account for the factors that systemically negatively impact both women and minority professors,” and suggests looking into different ways of evaluating teaching performance.[29] In the final chapter, among other suggestions, Flores recommends that administrators “be color conscious, not color-blind”; develop an action—and outcome—based diversity plan focusing on underrepresented group members; not define white women as the de facto norm for all women by using the phrase “women and people of color” or “women and minorities”; avoid knee-jerk reactions to accusations of racism; and mandate and implement meaningful sexual harassment policies.[30] She also advises administrators on how to deal with student/faculty issues, noting, for example, that “[w]hen women of color teach topics related to social justice . . . some, if not most white students will meet their message with resentment,” and that “lesbian, bisexual, transgender and transsexual women of color are particularly vulnerable to student violence and harassment.”[31]

             Presumed Incompetent is, first and foremost, a book by and for women of color who are in the academy or aspiring to enter academia. Editor Carmen Gonzalez writes, “I wanted students who might become law professors (or professors in other disciplines) to be forewarned and fore-armed.”[32] Nonetheless, it is also a book for white people and men in academia. Gonzalez continues, “The goal is to share strategies that can be used by women of color, by allies, and by academic leaders to ensure that underrepresented groups succeed in the academic workplace and to disrupt dysfunctional hierarchies.”[33] The collection triumphantly achieves that goal.

             When I first agreed to write this review, I felt uncomfortable writing about a book that I perceived as aimed at women of color. After all, as a white woman, I can relate to some of the challenges facing women in higher education, but I also enjoy the various well-documented privileges of white skin, upper-middle-class background, and Swarthmore and (forthcoming) Harvard degrees. Nevertheless, I quickly realized that Presumed Incompetent is a book for everyone who is interested in social justice and fighting structures of oppression. Some of the passages that were the most important for my own reading experience dealt with the failures of white, straight cis-gender women to be good allies.[34] Whether it was the surprise that a white woman would bring up race because “it was unusual for white women to raise the topic of racial justice”;[35] the failure of white women to support faculty of color in issues of racial oppression;[36] or even the thoughtless assumption that, “due to my own unexamined race and class privileges . . . that I could critique social conventions, wear and study whatever I wanted, and still be respected and promoted by senior white male faculty,”[37] I saw myself and my own failures—the misunderstandings and microaggressions—reflected in the text. It is my intention that, having read Presumed Incompetent and absorbed its lessons and strategies, I can work to become a better ally in the future.

             Presumed Incompetent is a historic work for a number of reasons, not least for its frank, honest discussion of race and gender in the workplace. Moreover, it documents the lived experiences of women who have struggled, survived, and thrived in often unfriendly and unwelcoming environments—“ensur[ing] that even those women who survived and soared realize that they are part of a greater phenomenon that relates more to power and gender relations than their particular stories,” and situating their work as “clearly central to the academy of the twenty-first century.”[38] At times heartbreaking, at times hopeful, and always powerful, Presumed Incompetent is a must-read for academics, for those whose friends and loved ones are scholars, and for students of social justice anywhere.

 

Presumed Incompetent: The Intersections of Race and Class for Women in Academia, edited by Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carman G. González and Angela P. Harris, is available from the University Press of Colorado. For more information, visit their website: http://www.usu.edu/usupress/books/index.cfm?isbn=8695.

 

 


[1] J.D., Harvard Law School, 2014. Thanks to Christine Stott and the staff of the Harvard Journal of Law and Gender for their help on this piece. Thanks to the editors and contributors of this incredible volume for speaking truth to power.

 

[2] Yolanda Flores Niemann, Lessons from the Experiences of Women of Color Working in Academia, in Presumed Incompetent 446, 447 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[3] Gwendolyn, The Academic Feminist: Women of Color, Racism and Resilience in Academia, Feministing, http://feministing.com/2013/05/13/the-academic-feminist-women-of-color-racism-and-resilience-in-academia/ (last visited August 5, 2013).

 

[4] Angela Mae Kupenda, Facing Down the Spooks, in Presumed Incompetent 20, 24 (Gabriella Gutiérrez y Muhs, et al., 2012) (“Years later, I went natural with my hair. Then, many years after that, several of my black female students went natural. White classmates accosted them regularly and accused them of joining “Kupenda’s agenda” by stopping perming their hair and making themselves look more natural, which the white students felt was unnatural.”).

 

[5] Sherrée Wilson, They Forgot Mammy Had a Brain, in Presumed Incompetent 65, 70(Gabriella Gutiérrez y Muhs, et al., 2012) (“It felt hostile, and you know some very directly racist incidents happened. At one point, people in the school—it was African Americans, and I think gays and lesbians—got Klu Klux Klan notes under our doors. Or sometimes just plain old racist things were said.”).

 

[6] Kimberly R. Moffitt, et. al., Present and Unequal, in Presumed Incompetent 78, 89 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[7] Serena E, On Being Special, in Presumed Incompetent 152, 158 (Gabriella Gutiérrez y Muhs, et al., 2012)

 

[8] Sylvia R. Lazos, Are Student Teaching Evaluations Holding Back Women and Minorities?, Presumed Incompetent 164, 177 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[9] E.g., Delia D. Douglas, Black/Out: The White Face of Multiculturalism and the Violence of the Canadian Academic Imperial Project, in Presumed Incompetent 50, 56­–57 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[10] See, e.g., Carmen R. Lugo-Lugo, A Prostitute, a Servant, and a Customer Service Representative, in Presumed Incompetent 40, 45 (Gabriella Gutiérrez y Muhs, et al., 2012); Linda Trinh Võ, Navigating the Academic Terrain: The Racial and Gender Politics of Elusive Belonging, in Presumed Incompetent 93, 102 (Gabriella Gutiérrez y Muhs, et al., 2012); Grace Chang, Where’s the Violence?: The Promise and Perils of Teaching Women-of-Color Studies, in Presumed Incompetent 198, 198–199 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[11] Lazos, supra note 8, at 182.

 

[12] E.g., Cerise L. Glenn, Stepping In and Stepping Out: Examining the Way Anticipatory Career Socialization Impacts Identity Negotiation of African American Women in Academia, in Presumed Incompetent 133, 139 (Gabriella Gutiérrez y Muhs, et al., 2012). (“In addition to receiving responses from those inside academic institutions that African American women do not belong in our respective fields in academia as we obtain undergraduate and graduate degrees and begin interviewing for positions, these messages also come from our families, peer groups, and communities.”).

 

[13] See, e.g., Easton, supra note 5, at 161.

 

[14] Kupenda, supra note 42, at 23.

 

[15] Id.

 

[16] Id.

 

[17] Id.

 

[18] Lazos, supra note 8, at 181.

 

[19] Id. at 176.

 

[20] E.g., Michelle A. Holling, et. al., Dis/Jointed Appointments: Solidarity amidst Inequity, Tokenism and Marginalization, in Presumed Incompetent 250, 253 (Gabriella Gutiérrez y Muhs, et al., 2012) (“How come we talk of simply sustaining ourselves whereas our colleagues appear to be well positioned to explore the academy in a multitude of ways that feed them professionally? How come simply sustaining ourselves—surviving versus thriving—becomes the standard for womyn of color in the academy?”).

 

[21] See, e.g., id. at 263; Margalynne J. Armstrong & Stephanie M. Wildman, Working Across Racial Lines in a Not-So-Post-Racial World, in Presumed Incompetent 224, 240 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[22] Kari Lerum, What’s Love Got to Do With It?: Life Teachings from Multiracial Feminism, in Presumed Incompetent 266, 269 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[23] Michelle M. Jacob, Native Women Maintaining Their Culture in the White Academy, in Presumed Incompetent 242, 249 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[24] Võ, supra note 10, at 98.

 

[25] Holling, supra note 20, at 264.

 

[26] Chang, supra note 10, at 201.

 

[27] Dean Spade, Notes Towards Racial and Gender Justice Ally Practice in Legal Academia, in Presumed Incompetent 186, 189–90 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[28] Võ, supra note 10, at 108.

 

[29] Lazos, supra note 8, at 185.

 

[30] Id. at 453–62.

 

[31] Id. at 465, 467.

 

[32] Email from Carmen G. Gonzalez to Jean W. Strout (May 23, 2013, 23:42 EST) (on file with author).

 

[33] Id.

 

[34] See, e.g., Stephanie A. Shields, Waking up to Privilege, in Presumed Incompetent 29, 39 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

[35] Armstrong & Wildman, supra note 17, at 238.

 

[36] See Kupenda, supra note 2, at 24–25.

 

[37] Lerum, supra note 18, at 268.

 

[38] Gabriella Gutiérrez y Muhs, Afterword, in Presumed Incompetent 501, 504 (Gabriella Gutiérrez y Muhs, et al., 2012).

 

14911

Book Review: Battling Miss Bolsheviki

Book Review

Misty Wright*

Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. By Kirsten Marie Delegard. Philadelphia, PA. University of Pennsylvania Press. 217 pages.

Click here to access a PDF version of the book review.

 

 

 
Miss Bolsheviki has come to town,
With a Russian cap and a German gown,
In women’s clubs she’s sure to be found,
For she’s come to disarm America

…The male of the species has a different plan
He uses the bomb and the fire brand,
And incites class hatred wherever he can
While she’s busy disarming America.

His special stunt is arousing the mob,
To expropriate and hate and kill and rob,
While she’s working on her political job
AWAKE! AROUSE! AMERICA![1]

In 1920, female enfranchisement marked the dawning of a new era of female power in American democracy. But rather than catapulting women’s reform efforts forward, the 1920s ushered in an era of female conservatism, whose presence and players have largely been overlooked or underplayed. In Battling Miss Bolsheviki, Kirsten Marie Delegard explains how women antiradicals recast female reformers as Bolshevik sympathizers, halting female reform “during their critical transition to full political citizenship.”[2] In fact, Delegard argues, the 1920s’ reshaping of women’s politics was just as influenced by the Russian Revolution as the Nineteenth Amendment.[3]

I. DELEGARD’S BOOK FILLS A VOID IN BOTH WOMEN’S HISTORY AND CONSERVATIVE HISTORY.

Prior to the Nineteenth Amendment, “maternalist” members of women’s clubs lobbied Congress to advance a reform agenda, viewing their work as a “selfless mission[] necessary for the protection of their homes, families, and children.”[4] Suffrage did not lead to the kind of social welfare reform they had imagined.[5] At first, historians supposed that women simply lost steam.[6] Others cited male opposition as the culprit.[7] But Delegard suggests that the real reason for stymied reform was that the women’s bloc divided after suffrage.[8] By the end of the 1920s, women antiradicals had linked their reform-minded sisters to dangerous revolution, delegitimizing the reform movement and its leaders.[9]

According to Delegard, assumptions of women’s history have posed a problem to our understanding of what happened to the women’s bloc in the 1920s.[10] There is an “unspoken belief that women possess an inherent affinity for demilitarization, an expanded social safety net, and greater social justice.”[11] Because of this bias, history has been written as though women who opposed radical and reform agendas—female antiradicals—did not exist.[12] But this belief is simply unfounded; female antiradicals were not merely backlash phenomena, outliers, or pawns of the War Department or other male antiradical efforts.[13] Delegard demonstrates that the female antiradical movement was a legitimate, widely supported cause of its own.

She also demonstrates that the female antiradical movement had far-reaching effects. Not only did it stifle the path of American reform[14] and “challenge[] assumptions about female political engagement,”[15] but it also was integral in the rise of the American conservative right.[16] It divided women and women’s organizations that had once been “united under the flag of social improvement.”[17] It set the stage for women’s anticommunist involvement.[18] And decades later, at the time of the Equal Rights Amendment, it was “instrumental in turning the GOP to the right.”[19] Delegard argues that the conservative political identity constructed by 1920s antiradicals later swept Reagan into the Presidency,[20] and women were the “backbone” of conservative mobilization in the 20th century.[21] Most interestingly, “[t]he power struggles . . . illustrate both the political potential and the pitfalls of using female solidarity as a foundation for organizing, a paradox that will continue to bedevil politically active women well into the twenty-first century.”[22]

II. A BRIEF SUMMARY OF DELEGARD’S NARRATIVE.

Delegard begins with the philosophical inception of antiradicalism. In 1919, the Senate Overman Committee held hearings to investigate the 1917 Bolshevik revolution.[23] Testimony from an American prisoner in Russia about women becoming the state’s property, available to any man who wanted them, resulted in myths and rhetoric centered on the danger of perverting the traditional family.[24] Some of these dangers included divorce laws that “encouraged men to discard their wives” and “the ‘nationalization’ of women and children.”[25] “These stories helped recast domestic repression as necessary to shield women and children from the effects of radicalism; they gave moral legitimacy to efforts to crush quests for political, economic, and racial justice.”[26] Delegard contends that narratives about women—particularly about sexual victimization of women—provided the most powerful arguments that Bolshevism endangered America.[27] “Narratives about sexual terror transformed the fight against radicalism into a battle to protect American womanhood.”[28] From the Overman hearings emerged fear, and from that fear emerged female antiradicals.

The similarities this book reveals between female maternalist reformers and female antiradicals are striking. Both, first and foremost, desired to protect women (and children).[29] But they disagreed on how to go about doing so. Antiradicals turned to the family and patriarchy.[30] They could not imagine a society in which woman’s childcare duties and structural inequities would not limit her ability to be economically independent.[31] In comparison, female reformers’ dreams were a bit bigger, as they saw alternate, government-assisted protection as a real possibility that could enable economic independence. Further, both said their motivations were selfless—for the benefit of society and their children—but their true aim was self-preservation.[32] And both reformers and antiradicals were scared of radicalism.[33]

Not only did female reformers and antiradicals have similar aims, but they also had, on the whole, similar backgrounds—a similar activist history, middle class status, and white racial backgrounds “kept these women operating in the same political world, even as ideology was pulling them apart.”[34] They also had similar education levels and assumptions about gender, race, and the threat of immigration.[35] Both used the same institutional structure and sometimes, the very same institutions, for their activism.[36] Many organizations housed both reform and antiradical individuals, and many individuals belonged to both reform and antiradical organizations over the 1920s.[37]

Throughout her book, Delegard dances around the role of sex-stereotyping and sexism in women’s political activism. For example, Americans thought all women were innate maternalists.[38] In the early years following the ratification of the Nineteenth Amendment, women took up the peace movement and self-stereotyped themselves as natural peacemakers.[39] But antiradicals saw women as uniquely vulnerable to radical ideology on account of their sex’s tender nature.[40] Others saw them as un-American, foolishly creating a nation defenseless to radical takeover.[41] The War Department went on the offensive, labeling women’s organizations as radical.[42] Female antiradicals found that sexism shut them out of the male antiradicals’ conversation, but Delegard contends that the resulting separatism preserved the vitality of their campaign.[43]

To be clear, there was no evidence of a Russian effort to recruit American women.[44] Despite this, a diagram of “female treachery that linked all middle-class women activists [and sixteen organizations] to revolutionary radicalism” emerged in 1923.[45] This Spider Web Chart was accompanied by the poem featured at the beginning of this review.[46] It was circulated by the War Department but authored by a woman—a fact overlooked by many, including female reformers.[47]

“It takes women to fight women,” stated Claire Oliphant, the national president of the American Legion Auxiliary, in 1925.[48] Whether or not this was true, women certainly did begin to fight women in the 1920s.  Female antiradicals took up counter-subversion,[49] staged highly public confrontations with peace activists,[50] blocked conventions,[51] redefined the agendas of women’s organizations (particularly by polarizing centrist ones), created new antiradical women’s institutions,[52] and campaigned against legislation. Delegard discusses each of these strategies in extraordinary depth. For example, antiradicals’ campaign against legislation included opposition to the Child Labor Amendment, to the reauthorization of the Maternity Act,[53] and to the Equal Rights Amendment, all on grounds that they would supposedly weaken the patriarchal family or nationalize women and children, either of which would make the country vulnerable to radical takeover.[54] Antiradicals were successful at stopping the “revolution by legislation”[55] because they knew how to be effective information disseminators and fear mongerers at the local level. Both the Child Labor Amendment and the (much later) Equal Rights Amendment passed through Congress, but antiradicals prevented its ratification by the states.[56]

Antiradicals’ most effective tactic, and the tactic that receives the most page space in the book, was the systematic application of guilt-by-association to reform organizations and individuals.[57] They sought to destroy the political reputations of reform organizations and the reform and moderate women who ran them.[58] In 1927, the Daughters of the American Revolution (DAR) released six blacklists,[59] demonstrating the DAR’s broad campaign against peace activists and reformers.[60] “Magnifying once-hidden differences among women from similar backgrounds, the DAR’s blacklists served as the final nail in the coffin for long-standing alliances, an ineluctable sign that women who had considered themselves natural allies were now enemies.”[61]

And voila: a new conservative movement was born. A new female movement was born. And a unified female voting bloc, once feared by men and male elected officials, was no longer a threat.[62]

III. DELEGARD’S RESEARCH PROVIDES A DEEP NARRATIVE OF FEMALE ANTIRADICALISM’S EMERGENCE.

The crowning achievement of this work is its extraordinary depth. Delegard supports 217 pages of text with 79 pages of notes and an index of concepts and acronyms. She draws not only from historical analyses, but also from primary sources whose pages had been left relatively unturned by mainstream historians. She integrates the archives of the national headquarters of the Daughters of 1812[63] with newspaper records, War Department memoranda, Military Intelligence Division correspondence,[64] and many more sources.

Because this book is so well researched, it not only addresses the who’s, what’s, where’s, and when’s of the female antiradical movement. It also answers the why’s and how’s—at the individual, organizational, and philosophical levels. In order to answer these questions, Delegard delves into the evolution of women’s organizations such as the Daughters of the American Revolution (DAR), the Women’s International League for Peace and Freedom, the Women’s Joint Congressional Committee, and the General Federation of Women’s Clubs (GFWC). She makes the story even more flavorful by using abbreviated yet detailed mini-biographies of women who led and financed these organizations. For example, spotlight pages are dedicated to Flora Walker, chairman of the DAR’s National Defense Committee, whose name became synonymous with antiradicalism.[65] Delegard uses personal journals, DAR correspondence, DAR proceeding minutes, publications, and other sources to bring Ms. Walker to life.[66] She details Walker’s interest in antiradicalism, which stemmed from the Seattle labor strike, her personal romantic life, and of course her DAR involvement and leadership.[67] Similar mini-biographies of DAR president general Grace Brosseau,[68] DAR financier Helen Gould Shepard,[69] anti-suffragist and president of the Massachusetts Public Interests League Margaret Robinson,[70] Kentucky GFWC leader Georgia Martin,[71] chief of the Women’s Auxiliary Intelligence Bureau for Massachusetts Elizabeth Lowell Putnam,[72] prominent social reformer Florence Kelley,[73] reformer Helen Tufts Bailie,[74] and many more reformers, radicals, and antiradicals bring enormous insight to the narrative and humanize its characters.

IV. BATTLING MISS BOLSHEVIKI IS A CHALLENGING READ BUT LEAVES THE READER WANTING MORE.

One of the major difficulties of this work is that the wealth of information explored presents organizational difficulties. The author has partially solved this problem by providing summaries at the close of each chapter. Still, the author embarks on the same timeline multiple times throughout the book rather than remaining chronological throughout, resulting in a significant amount of repetition and occasional complication. This makes the read require significant focus to get the most out of it.

Overall, this work leaves the reader with an eye-opening understanding of the evolution of female and conservative political involvement and tactics. What is more exciting to me personally is that it provides a launching point for greater interest in and exploration of women’s conservative activism. For example, how does this narrative fit into the overarching narrative of the 1920s?[75] What is the significance of these developments through the lens of the conservative movement as a whole? How did these battles between middle class white women interact with the activism of women of color and of lower socioeconomic status?[76] What connections can we draw between the female antiradicals of the 1920s and the female antiradicals of today? What makes female antiradicals effective or not effective, and what could female reformers of today do to more effectively combat their efforts?

Even more questions arise in the wake of recent political events. In the age of social media, 24-hour news, and the 2008 Democratic presidential primary race, do we still need women to fight women? What does the fact that there are now more women than ever in Congress mean for that fight? And after the 2012 election cycle’s “war on women,” might this critical mass of congresswomen have the potential to realize the united reformist women’s front envisioned by the women reformers of the 1920s?

Cite as: Misty Wright, Book Review, Harv. J.L. & Gender, (Jan. 2013) (reviewing Kirsten Marie Delegard, Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States, (2012)), www.harvardjlg.com/2013/01/book-review-battling-miss-bolsheviki.


* Harvard Law School, J.D., Class of 2013.

[1] Kirsten Marie Delegard, Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States 49 (2012) (internal quotations omitted) (quoting a poem accompanying the 1923 Spider Web Chart, discussed infra, Part II).

[2] Id. at 7.

[3] See id. at 16.

[4] Id. at 2.

[5] See id. at 3.

[6] See id.

[7] Id.

[8] See id. at 4.

[9] See id. at 5.

[10] Id. at 14.

[11] Id.

[12] See id. at 13.

[13] See id. at 13–15.

[14] See id. at 11.

[15] Id. at 87.

[16] See id. at 142.

[17] Id. at 209.

[18] See id.

[19] Id. at 215.

[20] See id. at 216.

[21] Id. at 216.

[22] Id. at 217.

[23] See id. at 8.

[24] See id. at 8–9.

[25] Id.

[26] Id. at 20.

[27] Id. at 28.

[28] Id. at 31. Delegard also notes that using the violation of women to justify military action was common throughout U.S. history. Id. Further, the Bureau of Free Love (where women were used sexually) was the most sensational myth about Bolshevik Russia. Id. at 29.

[29] See id. at 56.

[30] See id. at 15. Female conservative activists’ “opposition to radicalism was deeply gendered, for it was motivated by the belief that these ideologies aimed to dismantle the patriarchal protections that provided shelter and care to women and children.”

[31] See id. at 71.

[32] See id. at 56 (“Women who became conservative activists believed that radical ideologies menaced their homes, churches, and personal safety.”)

[33] See id. at 174.

[34] Id. at 179.

[35] See id. at 13, 174.

[36] See id. at 87.

[37] See id. at 173.

[38] See id. at 55.

[39] See id. at 38–39.

[40] See id. at 35–38. Antiradicals saw these female peace activists as duped, but one inherent tension left unexplored in the book is that female antiradicals were clinging to false information from the Overman Committee hearings (and other false propaganda) from the antiradical movement’s inception.

[41] Id. at 40.

[42] See id. at 39, 42.

[43] Id. at 15.

[44] See id. at 37.

[45] Id. at 48.

[46] Id. at 48–49.

[47] See id. at 54–55.

[48] Id. at 85.

[49] See id. at 68.

[50] See id. at 85.

[51] See id. at 87.

[52] See, e.g. id. at 93 (discussing the Women’s Patriotic Conference on National Defense).

[53] See id. at 149.

[54] See id. at 114, 129.

[55] Id. at 114.

[56] See id. at 120 (for a discussion of the Child Labor Amendment’s defeat at the local level); id. at 214 (for a discussion of the Equal Rights Amendment’s defeat at the local level).

[57] See id. at 147.

[58] See id. at 146.

[59] See id. at 147, 160.

[60] See id. at 161.

[61] Id. at 179–180.

[62] See id. at 144.

[63] Id. at 13.

[64] Id. at 258 n.97.

[65] See id. at 103.

[66] See id. at 97–103.

[67] See id.

[68] See id. at 95.

[69] See id. at 100.

[70] See id. at 122.

[71] See id. at 131.

[72] See id. at 137.

[73] See id. at 151.

[74] See id. at 175.

[75] See id. at 33. Female reformers did not eclipse the image of immigrant radicals as agents of subversion, raising the question: how significant were they in a broader context? Id.; see also id. at 142 (“[T]his countersubversion work likely did little to influence the activities of committed revolutionaries.”)

[76] Delegard talks intermittently about race and class.  See, e.g. id. at 4 (maternalists’ purported female unity left out many races and political persuasions); id. at 29 (fear of mixing classes and races); id. at 59, 174 (reinforcement of class and racial hierarchies); id. at 174 (reformers and antiradicals had the same racial and ethnic prejudices).

9780814743133_Full

Book Review: Women Who Opt Out

Book Review

Kristi Jobson*

Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance.  Edited by Bernie D. Jones.  New York, NY.  New York University Press (2012).  199 pages.

 Click here to access a PDF version of the book review.

“Mommy wars” are nothing new, but American mothers became particularly good at judging one another’s choices this year.  Witness the debate between Facebook COO Sheryl Sandberg[1] and Princeton University professor Anne-Marie Slaughter[2] about having it all (or not),[3] the furor over a woman breastfeeding her almost four-year-old son on the cover of Time,[4] the commentary by a Democrat Party strategist on CNN that Ann Romney “never worked a day in her life” while raising five children,[5] and the critical response[6] to newly-named Yahoo! CEO Marissa Meyer’s expectation that she’d take only a couple weeks off after the birth of her daughter.[7]  Mainstream media, “mommy bloggers,” and op-ed columnists all want to know if we’re “mom enough,”[8] but as compared to . . . what?

Differing expectations of “good mothers” manifest themselves in these debates over breastfeeding vs. bottle,[9] daycare vs. nanny, stay-at-home dads vs. traditional male breadwinners.[10]  The supposed choice of whether to work or stay home remains a lively source of debate about who counts as a good mother (despite talk about stay-at-home fathers being the “new normal,”[11] these men are still treated more as novelties).

With the furor over Slaughter’s essay and Mayer’s maternity leave swirling in our heads, the essay compilation Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance could not have had better publication timing.  While the work-family balance topic resonates with public discourse in 2012, the catalyst for this book is a decade-old The New York Times article that remains a seminal fixture in the popular debate about working mothers.  Lisa Belkin’s article, “The Opt-Out Revolution,”[12] featured highly-educated women who decided to forego the professional workplace in favor of home life and parenting. Two years later, the Times reported on female college students at Yale, Harvard, and Princeton who expected to remain home with children once married.[13]  The women sounded chipper but their words indicated a fatalistic view about the potential to be a working mother.  One nineteen-year-old explained her view: “My mother’s always told me you can’t be the best career woman and the best mother at the same time.  You always have to choose one over the other.”[14]

These two articles epitomize the third-wave “choice feminism”[15] argument that a woman’s decision to “opt out” of the paid work force in order to parent full-time should be respected and celebrated.[16]  Once women have access to the same educational and professional opportunities as men, so the choice feminism argument goes, it is up to them to decide whether to do so.  In the name of autonomy and respect for women’s choices, staying home should be regarded as a valid preference.  As Belkin wrote in her piece, “Why don’t women run the world? Maybe it’s because they don’t want to.”[17]

In the preface to Women Who Opt Out, editor Bernie D. Jones directly ties the book to Belkin’s piece, calling it the “embod[iment of] . . . certain American cultural anxieties.”[18]  Jones characterizes the supposed phenomenon of successful young women giving up careers for home as a kind of “retreat.”[19]  I found the description both chilling and perfect in its implication.  To retreat means that there must have been some conflict in the first place—a conflict that the retreating mother apparently lost.

Such framing challenges the choice feminism view in its assertion that there was a choice in the first place.  As Jones writes in her opening introductory essay, the choice view begets a “mind-set that women no longer experience discrimination; they experience only a myriad of choices from which to choose.”[20]  Like Jones’s use of the word “retreat” in the opening of the book, each essay in Women Who Opt Out skewers the choice feminism view and confirmed for me that we are just fooling ourselves if we pretend that women opt out because that is what they want.

Like the conception of opting out popularized by the New York Times, the compilation opens with an examination of the supposed choices of economically privileged women.  After an introductory history of working mothers and feminist theory in Part I, the book critiques Belkin’s narrative in Part II, entitled “Is ‘Opting Out’ for Real?”[21]  In “The Rhetoric and Reality of Opting Out,” Pamela Stone and Lisa Ackerly Hernandez persuasively argue that popular coverage of women leaving the workforce “continues a long-standing practice in the media of positioning elite women as arbiters of gender norms and of associating motherhood with class and race privilege.”[22]  Curiously, however, their essay focuses on this same group—“white, college-educated, married mothers”[23]—as it seeks to debunk popular notions of opting out among privileged women.

Leaving this dissonance aside, I found Stone and Hernandez’s essay strong.  They provide a literature review of sorts, synthesizing recent studies to question whether the so-called opt-out revolution exists at all.  For example, among the privileged group described above, population survey data show that the number leaving the workforce has declined from 25.2% in 1981 to 21.3% in 2005.[24]  The face of at-home motherhood is no longer white and college-educated but more commonly Hispanic and less educated.[25]  Stone and Hernandez discuss Stone’s own 2007 qualitative study of former upper-middle class professional and managerial career women, demonstrating through interviews and analysis that “workplace pushes” account for the primary factors leading women to leave their careers.[26]

The next essay draws attention to a different type of “opting out”—women who remain in the workforce but with lower career aspirations and fewer opportunities for career development.[27]  Kerstin Aumann and Ellen Galinsky are quick to acknowledge that this phenomenon affects both women and men in their discussion of recent data trends in the National Study of the Changing Workforce (NSCW).[28]  As they write, “[t]he real opt-out revolution needs to be reconceptualized and it needs to include men.”[29]  According to the data, employees with children under age 18 are more likely to prefer jobs with less responsibility due to “job pressure” concerns than are employees without children.[30]  At the same time, among young women under age 29, those with children, as well as those without children, are “equal in their desire to move to jobs with more responsibility.”[31]  After a discussion of data from the NSCW survey, Aumann and Galinsky propose a framework for “flexible careers” taking into account the life stages of employees.[32]  This section called to mind Anne-Marie Slaughter’s ultimate conclusion in her July/August 2012 Atlantic article: the struggle to “make it work” as a professional and a parent requires us to “redefin[e] the arc” of our career paths, accounting for fluctuations in an individual’s ability to commit fully to the office, hospital, or university.[33]

If the first two essays in Women Who Opt Out challenge the validity of the supposed trend of professional women cheerfully leaving paid work for home and hearth, the remainder of the collection focuses on the women unaccounted for in the “Opt-Out Revolution” narrative.  Susan J. Lambert uses census data, Current Population Survey (CPS) data, and trends in labor practices to show that far from opting out, many women in hourly work seek to opt in to full-time employment, expressing preferences for more hours.[34]  This is particularly stark among women of color.[35]  Lambert argues that employer practices that create instability for hourly workers bar women from fully opting in; for example, many hourly employees receive their work schedules a week or so in advance, making it difficult for employees to coordinate care for children or dependent adults.[36]

Among the essays in Part III: “Can All Women ‘Opt In’ before They ‘Opt Out’?”,[37]  “The Challenges to and Consequences of “Opting Out” for Low-Wage, New Mothers”[38] by Maureen Perry-Jenkins stands out for its rich presentation of the lived experiences of women.  Each selection in Women Who Opt Out utilizes hard data to make its argument, and many used interviews to elucidate trends.  Perry-Jenkins takes her work a step further by actually offering the reader quotations from the interviews she conducted with the Work and Family Transitions Project.  Instead of simply reporting that many interviewees struggled when work schedules unexpectedly changed, we hear from Donna, who organized child care around her 6:00 a.m. to 2:00 p.m. shift as a truck driver.[39]  Her reaction when her supervisor calls to tell her that she will be working 11:00 a.m. to 7:00 p.m., effective the next day: “I burst into tears . . . . I was ready to quit, but what could I do?  We needed the job.”[40]  The stories of Donna and others make the essay’s point even more palpable and clear: “For low-wage working women . . . stepping out of the workforce to be a full-time, stay-at-home mother may be the dream, but the financial reality does not allow it.”[41]

Similarly, Joan C. Williams[42] and Jamie Dolkas use detailed personal accounts from union arbitration reports to illustrate their points in the concluding essay of the book, “The Opt-Out Revolution Revisited.”[43]  The stories range from flight attendants who bring small children along with them on flights when a babysitter cancels last minute[44] to single fathers fired when they refuse overtime work.[45]  Williams and Dolkas write, “the arbitrations paint a vivid picture of inflexible workplaces and a shortage of financial resources that makes child care difficult—and retaining a job of paramount importance.”[46]  I couldn’t agree more.  While many of the essays effectively argue that the so-called opt out revolution is simply unrepresentative of the experiences of American working women, the use of personal narrative by Perry-Jenkins and Williams & Dolkas make these two essays the strongest of the compilation.

There were two things I expected to see in this book that ended up being absent.  One was the experience of non-heterosexual couples.  How does the calculus change when both partners are female, particularly if both bear children within the relationship?  How about when both partners are male—in environments where men are expected to accept overtime without question or where paternity leaves lasting more than two weeks raise eyebrows, how do couples negotiate their child care and work responsibilities with employers and within their own relationship?  Since the compilation relies heavily on empirical data, perhaps that information is just not out there.  Still, an essay addressing the particular circumstances of homosexual couples would have fleshed out this collection.

Second, I would have loved to see an analysis of proposed legislation.  What are lawmakers doing at the local and state levels to address some of these problems?   What are the pros and cons of pending proposals?  If one of the writers had carte blanche ability to enact a law, what might it look like?  The compilation provides a bountiful amount of information and analysis to enlighten legislators—now what might they do about it?

Overall, by the end of Women Who Opt Out, the reader “sees how misleading is the message that work-family conflict is a story about privileged women leaving fast-track careers.”[47]  The time and energy spent picking apart each other’s parenting choices as presented in The New York Times feel not just counterproductive to the women’s movement, but irrelevant.  It is a long way from the smiling woman in yoga pants breastfeeding her toddler on the cover of Time to Donna, who pulls off the highway to pump milk roadside in her truck.[48]  Instead of asserting our own smug opinions of Marissa Meyer’s expected short break post-baby,[49] why don’t we talk about back-up day care for flight attendants and paid maternity leave for retail workers?

At the same time, I cannot help but feel that the women leaving the professional workforce matter, too—indeed, that their “choices” are inextricably tied to the middle-income and low-income women with children discussed throughout the book.  I would love for Women Who Opt Out to spark discussion about how the supposed opt-out revolution connects to the desire of hourly wage earners to opt-in to full employment.  If women leave professional work entirely or decline to follow the grueling path to top leadership, what impact does that have on all female employees?  Perhaps we need more women sitting on corporate boards of major airlines in order to institute family-friendly policies for flight attendants.  We certainly could use more women in political leadership positions to enact the type of legislation that demands, say, mandatory pumping breaks for female truck drivers.[50]

Choice feminism might respond that it is not the responsibility of every professional woman to continue beating the high-powered career path drum, especially when it is to the detriment of her family.  I think that makes sense from the standpoint of the individual, but to what extent is there much of a choice involved, and what are the costs when we aggregate all those “choices” together?  What about the women for whom staying at home with children is out of the question?  These are the questions raised by Bernie D. Jones’s compilation.  Those scrutinizing the parenting and professional decisions of high-profile women like Marissa Meyer, Ann Romney, and Anne-Marie Slaughter might do well to turn their attention to the considerations raised in Women Who Opt Out.

Cite as: Kristi Jobson, Book Review, Harv. J.L. & Gender, (Sept. 2012) (reviewing Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance, (Bernie D. Jones ed., 2012)), www.harvardjlg.com/2012/09/book-review-women-who-opt-out.


* Harvard Law School, J.D., Class of 2012.

[1] Sheryl Sandberg, C.O.O., Facebook, Inc., Barnard College Commencement Address (May 17, 2011), available at http://barnard.edu/headlines/transcript-and-video-speech-sheryl-sandberg-chief-operating-officer-facebook.  After discussing an “ambition gap” between men and women, Sandberg attributed difficulties in work-life balance to women “quietly leaning back” from ambitious professional tracks in anticipation of one day needing to stay home with children.  “Women almost never make one decision to leave the workforce.  It doesn’t happen that way.  They make small little decisions along the way that eventually lead them there. . . . Do not lean back; lean in. . . . That’s the only way, when that day comes, you’ll even have a decision to make.” Id.

[2] Anne-Marie Slaughter, Why Women Still Can’t Have It All, Atlantic Monthly, July/Aug. 2012, at 84, available at http://www.theatlantic.com/magazine/archive/2012/07/why-women-still-cant-have-it-all/309020/. Slaughter’s article explained her decision to leave her job as the first female director of State Department policy planning in order to spend more time with her teenage sons.  She concluded that contrary to the “feminist credo” that women can have both a full home life and a high-powered professional job, the “unresolvable tensions between family and career” will require a massive overhaul in the structures of the American economy and workplace culture. Id. at 86–87.

[3] In Slaughter’s article, she discusses Sandberg’s speech: “Although couched in terms of encouragement, Sandberg’s exhortation contains more than a note of reproach.  We who have made it to the top, or are striving to get there, are essentially saying to the women in the generation behind us: ‘What’s the matter with you?’” Id. at 87–88.  Slaughter also expressed skepticism about Sandberg’s attribution to differences between men and women’s career paths to an ambition gap: “I fear that the obstacles that keep women from reaching the top are rather more prosaic than the scope of their ambition. . . . I would hope to see commencement speeches that finger America’s social and business policies, rather than women’s level of ambition, in explaining the dearth of women at the top.” Id. at 90–91. For an excellent compilation of commentary on Slaughter’s article and Sandberg’s speech, see  Allison Benedikt, Dan Kois, Marcelle Friedman, Farhad Manjoo, Matthew Yglesias, Dahlia Lithwick & L.V. Anderson, Can You Have It All? Talking About the Atlantic Piece That Everyone Is Talking About, Slate (June 22, 2012, 4:29 PM), http://www.slate.com/blogs/xx_factor/2012/06/22/anne_marie_slaughter_s_atlantic_cover_story_and_having_it_all_a_chat.html.

[4] For an image of the cover, published May 10, 2012, see Feifei Sun, Behind the Cover: Are You Mom Enough?, Time Magazine LightBox (May 10, 2012) http://lightbox.time.com/2012/05/10/parenting/#1.

[5] Tom Cohen, Comment on Romney’s wife keeps campaign focus on women, CNN (Apr. 12, 2012), http://articles.cnn.com/2012-04-12/politics/politics_campaign-wrap_1_ann-romney-economic-issues-mitt-romney?_s=PM:POLITICS (quoting Hilary Rosen: “What you have is Mitt Romney running around the country, saying, ‘Well, you know, my wife tells me that what women really care about are economic issues’ . . . . Guess what? His wife has actually never worked a day in her life.”). Hilary Rosen responded shortly after by apologizing for offending Ann Romney and other stay-at-home mothers, but reiterating her point that “it is not a choice that most women have in America today.” Hilary Rosen, Ann Romney and working moms, CNN (Apr. 12, 2012), http://articles.cnn.com/2012-04-12/opinion/opinion_ann-romney-hilary-rosen_1_mitt-romney-women-gender-gap?_s=PM:OPINION.

[6] See, e.g., Pamela Sitt, An open letter to new Yahoo CEO Marissa Mayer, TODAYMoms (July 18, 2012, 12:25 PM), http://moms.today.com/_news/2012/07/18/12811482-an-open-letter-to-new-yahoo-ceo-marissa-mayer?lite (“There are plenty of working moms in this country who struggle with maddeningly short maternity leaves—out of financial necessity, not by choice. . . . [Y]ou’re not exactly helping their cause.”); Kara Baskin, The Marissa Mayer Dilemma: Is There a ‘Right’ Time to Have a Baby?, Boston.com, (July 17, 2012, 12:00 PM), http://www.boston.com/community/moms/blogs/24_hour_workday/2012/07/baby-marissa-mayer-ceo-google.html (“[Mayer is] clearly unprepared for the reality of caring for a newborn.  I can’t help but think that something is going to get short shrift from Mayer, whether she likes it or not.”).

[7] Patricia Sellers, New Yahoo CEO Mayer is pregnant, CNNMoney (July 16, 2012, 11:13 PM), http://postcards.blogs.fortune.cnn.com/2012/07/16/mayer-yahoo-ceo-pregnant/ (“I like to stay in the rhythm of things. . . . My maternity leave will be a few weeks long and I’ll work throughout it.”).

[8] The phrase is borrowed from the cover headline of Time’s coverage of the attachment parenting method. See supra note 4.

[9] Compare Sarah Fister Gale, Sorry—You Can’t Guilt Trip Me About Bottle Feeding My Kids, Jezebel, Aug. 15, 2012, http://jezebel.com/5934750/sorry–you-cant-guilt-trip-me-about-bottle-feeding-my-kids?tag=babies (“Taking care of an infant is an exhausting, emotional, and draining time, and the last thing new mothers need is their loved ones, local politicians, or random strangers grabbing their breasts while telling them how to raise their babies and live their lives.”) with Sasha Brown-Worshman, Breast Is Best & Saying So Is Not ‘Bullying’, The Stir, (Aug. 22, 2011), http://thestir.cafemom.com/baby/124741/breast_is_best_saying_so (“The fact is, breast milk is the best thing for young babies.  Go ahead and throw stones at me.”).

[10] See, e.g., Alex Williams, Just Wait Until Your Mother Gets Home, N.Y. Times, Aug. 12, 2012, http://www.nytimes.com/2012/08/12/fashion/dads-are-taking-over-as-full-time-parents.html?_r=1&ref=fashion (profiling “economically privileged” New York City stay-at-home dads who describe themselves as the “new normal.”).  In May 2012, The New Yorker magazine ran a cover illustration of a mother walking onto a playground and finding that every other parent with children was a male. Cover, The New Yorker, May 7, 2012, available at http://archives.newyorker.com/?i=2012-05-07.

[11] See Williams, supra note 10.

[12] Lisa Belkin, The Opt-out Revolution, N.Y. Times, Oct. 26, 2003, http://www.nytimes.com/2003/10/26/magazine/26WOMEN.html?pagewanted=all.  Belkin later praised Anne-Marie Slaughter’s Atlantic article by saying she “hope[d Slaughter’s article] becomes the most widely talked about commentary on mothers and work since . . . Sandberg’s] address to Barnard’s graduating class last year. . . . We may have heard all this before—but never from so accomplished a professional woman.” Lisa Belkin, Anne-Marie Slaughter: Why One Woman Reached The Top, Then Left, The Huffington Post (June 21, 2012, 10:41 AM), http://www.huffingtonpost.com/lisa-belkin/women-having-it-all_b_1611906.html.

[13] Louise Story, Many Women at Elite Colleges Set Career Path to Motherhood, N.Y. Times, Sept. 20, 2005, at A1, available at http://www.nytimes.com/2005/09/20/national/20women.html?pagewanted=all.

[14] Id.

[15] This term is usually attributed to Linda Hirshman’s article critiquing the third-wave “choice” approach to feminism. Linda Hirshman, Homeward Bound, The American Prospect, Nov. 21, 2005, http://prospect.org/article/homeward-bound-0 (“[L]iberal feminists abandoned the judgmental starting point of the movement in favor of offering women ‘choices.’  The choice talk . . . provided an irresistible solution to feminists trying to duck the mommy wars.  A woman could work, stay home, have 10 children or one, marry or stay single.  It all counted as ‘feminist’ as long as she chose it.”).  Notably, her article opens with a discussion of Lisa Belkin’s 2003 “Opt-Out Revolution” piece in The New York Times. Id. For an excellent discussion of Hirshman’s article and her later book based on the article, see Sandra Tsing Loh, I Choose My Choice!, The Atlantic, July/Aug. 2008, http://www.theatlantic.com/magazine/archive/2008/07/i-choose-my-choice/306847/.

[16] For one summary of this argument and its implications for working mothers, see Pamela Stone, Panel One: Professional Women and Work/Life Conflict, 27 Women’s Rts. L. Rep. 27, 28 (2006).  For feminist blog commentary on the idea of choice feminism, see, e.g., Jane Elliott, Where ‘Choice Feminism’ Has Got Us, Across the Pond: A Feminist Blog (Apr. 25, 2009, 12:11 PM), http://femsacrossthepond.wordpress.com/2009/04/25/where-choice-feminism-has-got-us/; On Choice Feminism, Fannie’s Room (June 27, 2012), http://fanniesroom.blogspot.com/2012/06/on-choice-feminism.html.

[17] See Belkin, supra note 12.

[18] Bernie D. Jones, Preface, in Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance ix, ix (Bernie D. Jones ed., 2012).

[19] Id.

[20] Bernie D. Jones, Introduction: Women, Work, and Motherhood in American History, in Women Who Opt Out, supra note 18, at 3, 12.

[21] Contents, Women Who Opt Out, supra note 18, at vii.

[22] Pamela Stone & Lisa Ackerly Hernandez, The Rhetoric and Reality of Opting Out, in Women Who Opt Out, supra note 18, at 33, 54.

[23] Id. at 42.

[24] Id.

[25] Id. at 43.

[26] Id. at 47.

[27] Kerstin Aumann & Ellen Galinsky, The Real “Opt-Out Revolution” and a New Model of Flexible Careers, in Women Who Opt Out, supra note 18, at 57.

[28] Id.

[29] Id. at 60.

[30] Id. at 61.

[31] Id. at 60.

[32] See generally id. at 63–84.

[33] Slaughter, supra note 2, at 97.

[34] Susan J. Lambert, “Opting In” to Full Labor Force Participation in Hourly Jobs, in Women Who Opt Out, supra note 18, at 87, 87–92.  Overall, 7.3% of women in hourly work would prefer fewer hours, while 27.4% of women would prefer more hours. Id. at 89.

[35] Id. at 91.

[36] Id. at 97–98.  Lambert recently summarized her argument in a New York Timesi editorial piece.  Susan J. Lambert, When Flexibility Hurts, N.Y. Times, Sept. 20, 2012, at A27, available at http://www.nytimes.com/2012/09/20/opinion/low-paid-women-want-predictable-hours-and-steady-pay.html?ref=opinion.

[37] Contents, Women Who Opt Out, supra note 18, at vii.

[38] Maureen Perry-Jenkins, The Challenges to and Consequences of “Opting Out” for Low-Wage, New Mothers, in Women Who Opt Out, supra note 18, at 103.

[39] Id. at 109.

[40] Id.

[41] Id. at 116.

[42] Joan Williams commented on the supposed Slaughter-Sandberg debates about professional women by concluding that both were right: “Sandberg, like Slaughter, is trying to help other women.  She’s just grasped a different part of the elephant.” Joan Williams, Slaughter vs. Sandberg: Both Right, The Huffington Post, (June 22, 2012, 5:35 PM), http://www.huffingtonpost.com/joan-williams/ann-marie-slaughter_b_1619324.html.

[43] Joan C. Williams & Jamie Dolkas, The Opt-Out Revolution Revisited, in Women Who Opt Out, supra note 18, at 151.

[44] Id. at 160.

[45] Id. at 163.

[46] Id. at 151.

[47] Id. at 170.

[48] Perry-Jenkins, supra note 39, at 110.

[49] See Baskin, supra note 6; Sitt, supra note 6.

[50] Slaughter made a similar point about the importance of women in national politics in her Atlantic article, writing, “The best hope for improving the lot of all women . . . is to close the leadership gap. . . . Only when women wield power in sufficient numbers will we create a society that genuinely works for all women.  That will be a society that works for everyone.”  Slaughter, supra note 2, at 89.

DSC_9152

Book Review: The Right to Be Parents

Book Review

Jean Strout*

The Right to Be Parents: LGBT Families and the Transformation of Parenthood.  By Carlos A. Ball.  New York, NY.  New York University Press (2012).  239 pages.

Click here to access a PDF version of the book review.

If there is one word to describe Carlos A. Ball’s new book, The Right to Be Parents: LGBT Families and the Transformation of Parenthood,[1] it is humanizing.  The book is ostensibly meant to provide a history of LGBT parenting and the courts since the onset of the gay rights movement, from custody and visitation to reproductive technology and adoption.  However, as Ball acknowledges, family law is largely defined by state courts.[2]  The field has unifying themes—such as the focus on best interests of the child[3]—but the vast majority of cases turn on specific facts, not on challenges to the law.[4]  This exacerbates the problems that any fifty-state, forty-year survey of law would confront: the story of LGBT parenthood must be constructed by picking and choosing individual cases and weaving them together.

Ball does a surprisingly good job creating a cohesive and moving narrative.  However, The Right to Be Parents suffers from his attempt to streamline the story of LGBT parenting law into a manageable package.  Some of the most vital chapters of the story, from the influence of the AIDS crisis to the multifaceted struggles of LGBT parents of color, are not given the attention they are due.  These omissions prevent The Right to Be Parents from offering a complete picture of LGBT parenting law.

The Right to Be Parents necessarily leaps across space and time in an effort to capture important and poignant moments in LGBT parenting law.  The first chapter alone visits 1970’s Washington,[5] Texas[6] and Virginia[7]; Alabama,[8] North Dakota[9] and Mississippi[10] in the new millennium; and several other times and places along the way.  The setting shifts seamlessly from trial, to appellate, to supreme courts.  Ball has chosen some of the most compelling cases in this area, telling story after story of good, loving parents whose children are taken away from them solely because of their sexual orientations.  The book’s emphasis is always on the injustice of destroying or preventing loving relationships between parents and children.  Ball further humanizes LGBT families by including photos and details of their lives that rest far outside the facts of any given case.[11]  This structure makes for very interesting reading; The Right to Be Parents often reads like a collection of particularly heart-rending short stories.

Unfortunately, in Ball’s descriptions of cases, the law sometimes seems like a side note to the stories themselves.  Although I greatly appreciate Ball’s departure from abstract and unmoving legal scholarship, his legal analysis can be simplistic.  The book’s conclusion seems to be that before the 1970s, LGBT people nearly always lost their parenting cases because of their sexualities; now, they only sometimes lose.  Drawing more specific conclusions is, of course, extremely difficult when analyzing such a breadth of state case law.  However, Ball seems to shy away from a more complex exploration of why case law has changed.  His explanation seems to be that both laypeople and jurists are coming to their senses and becoming more tolerant of LGBT parenting.

Although this is certainly true, there are also many people, events, and statutory changes that reflected and reinforced this process.  For instance, issues like gay marriage,[12] sodomy laws,[13] the influence of religion on the views of gay parenting,[14] the AIDS epidemic,[15] and the tender-years doctrine[16] pop in and out of sight throughout the book.  Ball does make an attempt to exposit the major gay rights organizations that have emerged in the last few decades.  However, the connections between political advocacy and legal results are often obscured.  For example, we do not learn why sodomy laws were repealed or how that affected LBGT parenting cases.  We do not learn how the rampant fear of HIV-positive parents gradually faded, or see the fall of the tender-years doctrine.  A more thorough exploration of the rise and fall of legal concepts and cultural moments that embodied prejudice would have been helpful in understanding the interaction between LGBT law and culture over the past forty years.

The organization of the first two chapters offers an example of the void in exposition.  These chapters describe the struggles of LGBT parents to maintain custody and visitation with their children after divorce from heterosexual spouses.  The first chapter is devoted to lesbians and the second to gay men, but the takeaway is the same: the presumption that homosexuality, or at least open homosexuality, harms children has gradually eroded.[17]  Both chapters help reveal the court’s historical preference for “discreet” homosexuality; in many cases, the decisions hinged on whether the parent was willing to give up living with a same-sex partner in exchange for contact with the child.[18]  Both chapters also capture the fascinating idea that it is not being raised by a gay or lesbian parent, but being exposed to the homosexual lifestyle that is harmful to the child—and the court’s belief that living as an open homosexual was a selfish choice that good parents would not make.[19]  Given all of these similarities, it is unclear why Ball separates the two chapters based on gender.  Mention of the AIDS crisis[20] somewhat distinguishes the chapter about fathers, and because of the tender-years doctrine, the lesbian cases generally focus on custody while the gay cases center on visitation.[21]  Still, in a book that ultimately argues for more fluid and less gendered parenting roles, more discussion of how lesbian and gay parenting cases are viewed differently legally and culturally is warranted before dividing parents based on gender alone.

The book is at its best in chapters three and four, when it confronts situations where LGBT parties are on both sides of parenting cases.  In these cases, LGBT families have been planned through sperm donation and surrogacy; the main issue is whether biology or intentionality should predominate in making parental rights decisions.[22]  These chapters examine the interesting ethical dilemma that arises for LGBT advocates when a client’s legal goals conflict with the best interests of the greater LGBT community.[23]  In chapter three, “Breaking Up is Hard to Do,” Ball describes the horrifying results of some lesbian breakups.  In these cases, despite deciding to conceive and raise the child as a couple, biological mothers attempted to keep their former partners from having any contact with the child because the partners had no biological link to him.[24]  The LGBT legal community largely sided with the non-biological parents, since relying on biology alone would prevent children from having two gay or two lesbian parents.[25]

Even more interesting is the case of Ry in chapter four.  Ry was a child parented by two lesbians and conceived with sperm donated by a gay friend.[26]  When Ry was nine years old, the sperm donor began a long legal battle for parental rights.[27]  Both parties fought to be defined as the rightful members of the two-parent, nuclear family—the sperm donor by emphasizing his biological role, and the mothers by emphasizing his lack of a parent-child relationship.[28]  Both parties relied on an “all-or-nothing” approach to parenthood.[29]  Ball argues that this approach actually undermines LGBT rights by reinforcing the traditional family model.[30]  The parties missed an opportunity to redefine parenting in a more balanced and diverse way, advocating that adults can have a multiplicity of legally protected roles in a child’s life.[31]  This process has begun in some states with the advent of equitable or ‘de facto’ parenthood, a legal doctrine giving some protection to non-biological parents who have played a role in raising the child.[32]  Chapters three and four are the highlight of The Right to Be Parents because they reveal an underlying tension: whether LGBT parents should attempt to fit their families into the existing heteronormative framework, or expand it to encompass a more diverse definition of “parent.”

Ball himself missed an opportunity in neglecting to address intersectional identities in his book.  Although the principal cases overtly used gender and sexual identity as primary factors, child custody cases usually involve a wide-ranging look at the parties’ entire lives.  Family history and support, finances, racial identity, work, character, criminal records—many of these factors come into play in a custody decision.  In adoption cases, financial ability and racial and cultural matching have been particularly important issues.  By focusing only on sexuality and gender identity, Ball missed an opportunity to explore how race and class impact the court’s perspective on a case.  This may have been an attempt to simplify an already complicated issue.  However, it ended up minimizing or even erasing the stories of LGBT people who are not white and middle or upper class.

The Right to Be Parents purports to explore LGBT parenting law.  However, only one case mentions bisexuality,[33] and the sixth chapter discussing transgender parenting cases seems strangely tacked on.  While the rest of the book is divided by gender, all transgender parents are lumped together; where other chapters focus on a certain type of parenting case, several types are represented in the chapter on transgender parents.  Although this chapter is an admirable effort at inclusiveness, especially given the small pool of transgender parenting cases, the chapter feels incomplete.  The truth is that only the “L” and the “G” get any real traction in The Right to Be Parents.

Ball’s book does not go as far in illuminating the evolution of LGBT parental rights as one might wish.  Still, it is extremely valuable as a summary of a vast area of law and as a storytelling device.  Ball skillfully brings together the stories of gay and lesbian families spanning the country and the decades.  The Right to Be Parents is a poignant look at the way the law has and continues to devalue and destroy the relationships between LGBT parents and their children.

 

Cite as: Jean Strout, Book Note, Harv. J.L. & Gender, (Aug. 2012) (reviewing Carlos A. Ball, The Right to Be Parents: LGBT Families and the Transformation of Parenthood (2012)), www.harvardjlg.com/2012/08/book-review-right-to-be-parents.


* J.D. Candidate, Harvard Law School, Class of 2014.

[1] Carlos A. Ball, The Right to Be Parents: LGBT Families and the Transformation of Parenthood (2012).

[2] See id. at 15.

[3] Id. at 23.  The “best interests of the child” is the standard used in custody and visitation cases.  It “purposefully grants trial judges broad discretion to take many different factors into account.”  Id.

[4] Id. at 13.  “Even though the law of LGBT parenting also frequently addresses big questions . . . they arise mostly in highly individualized litigation, as parties go before the courts to determine whether the best interests of particular children will be promoted by creating or maintaining a relationship with a particular LGBT person or couple.”  Id.

[5] Id. at 21.

[6] Id. at 25.

[7] Id. at 39.

[8] Id. at 56.

[9] Id. at 51.

[10] Id. at 56.

[11] E.g., id. at 31.

[12] See, e.g., id. at 125.

[13] E.g., id. at 23, 75.

[14] E.g., id. at 105.

[15] E.g., id. at 70.

[16] Id. at 61, 192.  The tender-years doctrine is a presumption that it is in a young child’s best interests to be cared for by the mother, rather than the father, after divorce.  Id. at 61.

[17] See id. at 34, 47, 79.  Now, courts generally must find a ‘nexus’ between the parent’s sexual orientation and the harm to the child before LGBT status can be considered in a custody or visitation decision.  Id. at 47.

[18] See, e.g., id. at 56.

[19] See, e.g., id. at 68.

[20] Id. at 70.

[21] Id.

[22] See id. at 89–90.  Biology consists of a genetic connection between parent and child.  Intentionality focuses on whether the biological parent consented to a parenting relationship between the child and a third party, and whether and for how long the third party functioned as a parent.  Id. at 100–01.  Intentionality is reflected in the equitable doctrine of ‘de facto’ parenthood.  See infra note 30.

[23] Id. at 89.

[24] Id.

[25] Id.

[26] Id. at 115–16.

[27] Id. at 117.

[28] Id. at 120–21.

[29] See id. at 132.

[30] Id. at 124.

[31] Id.

[32] Id. at 98–99.  The Wisconsin Supreme Court identified four elements of equitable de facto parenthood: “(1) that the legal parent consented to and fostered the relationship between the petitioner and child; (2) that the petitioner and child lived together in the same household; (3) that the petitioner functioned as parent ‘by taking significant responsibility for the child’s care, education, and development’; and (4) that the petitioner had a ‘parental role for a length of time sufficient to have established with the child a bonded, dependent relationship.’”  Id. at 98, quoting In re Custody of H. S. K.-H., 533 N.W.2d 419, 428 (Wisc. 1995).

[33] Id. at 70.

at home in the law wide

Book Review: A Critique of Jeannie Suk’s Portrayal of Criminal Protection Orders in At Home in the Law

 

Book Review

A Critique of Jeannie Suk’s Portrayal of Criminal Protection Orders in At Home in the Law

Krista Anderson*

At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy.  By Jeannie Suk.  New Haven, CT.  Yale University Press (2009).  216 pages.

Click here to access a PDF version of the book review.

I. Introduction

In her book, At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy, Professor Jeannie Suk discusses the use of criminal protection orders as a weapon in the war against domestic violence.  Suk argues that criminal protective orders have been employed to deprive domestic violence victims of the autonomy to make their own choices in their intimate relationships.  At Home in the Law received the 2010 Herbert Jacob Book Prize for new, outstanding work in law and society scholarship.[1]  Despite its warm reception by legal academics,[2] Suk’s account gives short shrift to the value of criminal protection orders.  She makes assumptions and logical leaps that lead her to conclude criminal protection orders function to reduce rather than enhance the autonomy of domestic violence victims.  A closer look at the statutes, empirical evidence, and logical claims Suk cites reveals that her argument misses important realities experienced by domestic violence victims.  Suk raises valid concerns about the importance of structuring solutions to domestic violence with an eye on victim autonomy, but fails to support her thesis with empirical evidence.

This critique proceeds in three parts.  In Part I, I summarize Suk’s descriptive and normative discussion of criminal protection orders.  In Part II, I correct the factual errors in Suk’s account, including omissions and overstatements and explain how her narrative is weakened by the corrections.  In Part III, I take issue with two of her central normative criticisms of criminal protective orders.  First, I critique Suk’s argument that criminal protective orders create “proxy” crimes by criminalizing otherwise “innocent” conduct.  Second, I disagree with Suk that criminal protection orders generally function to reduce the autonomy of domestic violence victims.  I argue that criminal protection orders actually function to enhance the autonomy of domestic violence victims particularly in regards to their batterers. 

  1. Summary of Suk’s Description and Criticism of the Use of Criminal Protection Orders

Suk purports to offer a merely descriptive account of how the war against domestic violence, through the deployment of criminal protection orders, has reduced the autonomy of domestic violence victims.[3]  Suk asserts that temporary and permanent criminal protection orders are often issued against the will of domestic violence victims, focusing her discussion on the practice of the Manhattan District Attorney’s Office (D.A.’s Office).[4]  Suk selects this particular D.A.’s office because advocates of the war on domestic violence view it as “at the forefront of efforts to combat domestic violence.”[5]

Suk catalogues the routine procedures for obtaining criminal protective orders at the D.A.’s Office.  The D.A.’s Office treats all crimes by one family or household member against another family or household member as domestic violence crimes.[6]  All domestic violence crimes are treated with a “mandatory domestic violence protocol.”[7]  This protocol requires mandatory arrest if there is probable cause to believe the suspect committed a domestic violence crime, even if the victim objects.[8]  The D.A.’s Office has a no-drop prosecution policy for all domestic violence arrests even when the victim is unwilling to cooperate with the prosecution.[9]  Because of victims’ frequent unwillingness to cooperate, over half of domestic violence prosecutions in the D.A.’s Office result in dismissal.[10]  At arraignment, prosecutors at the D.A.’s Office are required to seek a “no contact” temporary order of protection that not only prevents the defendant from visiting the victim or the victim’s children at home, school, or work, but also prevents all contact with the victim, including phone, email, voicemail, and third-party contact.[11]

Suk describes how temporary protections orders are usually granted, even when contested.[12]  Defense attorneys usually do not seek a hearing to contest the temporary protection orders.[13]  Where hearings are requested, they are usually cursory and do not allow for a careful consideration of the particular facts.[14]  The New York case People v. Forman established that while it is constitutional for the initial temporary order of protection to be granted without an opportunity for hearing, the defendant is entitled to a prompt adversarial evidentiary hearing after the issuance of the order.[15]  Suk notes that even when the defendant owns the home from which the temporary protection order excludes him, under Forman the court may grant the initial temporary protection order without a hearing.[16]  The Forman court balanced the “defendant’s private interest is his home” against “the public interest in the supervision of home space” and found the public interest in supervision outweighed the defendant’s private interest in his property. [17]

Once a temporary order of protection is granted, Suk asserts, the state closely monitors the defendant to ensure he is not violating the order.[18]  If the defendant visits or contacts the victim, even at the invitation of the victim, the defendant can be criminally prosecuted for violating the order.[19]  Suk claims that police officers make regular, unannounced visits to homes with a history of domestic violence, during which visits they arrest defendants in violation of protection orders.[20]  Even when there is insufficient evidence for conviction, she says the D.A.’s Office may attempt to keep the case active as long as possible to prolong the police’s ability “to monitor the defendant.”[21]

Suk’s discussion of the protocol of the D.A.’s Office—and of criminal protection orders generally—is far from merely descriptive in nature.  Rather, Suk’s book constructs a normative argument about how the use of criminal protection orders is alarming.  First, Suk takes issue with what she views as the practice of prosecuting protective order violations as a proxy for prosecuting domestic violence.[22]  In Suk’s view, protective orders criminalize “presence in the home,” conduct that is not criminal but-for the existence of the protective order.[23]  Because domestic violence is difficult to prove, and presence in the home is relatively easy to prove, Suk claims prosecutors prosecute protective order violations rather than the underlying scourge of domestic violence.[24]  Where a “no contact” order is in place, proof of a phone call can suffice to prove a violation of the order.[25]  Suk further claims that protective orders have the advantage of preventing the target crime through the prevention of the proxy crime.[26]  Suk seems alarmed that through the “legal conflation of presence in the home and criminal violence,” police presence is required in the home.[27]

Second, Suk argues that in the “normal course of DV prosecution,” the state’s use of criminal protective orders amounts to “state-imposed de facto divorce.”[28]  When a defendant is convicted of a domestic violence crime, the court may impose a final order of protection, which may last two to eight years.[29]  Alternatively, the prosecutor may obtain a final order of protection as a result of a plea bargain, in which a reduced sentence is traded for a final order of protection.[30]  As a result of a final order of protection, a married couple may be prohibited from emailing, calling, visiting, or writing one another.[31]  Thus, through a final order of protection, without the consent of either party, Suk argues that the state substantively ends the marriage between the parties.[32]  Suk asserts that neither incarceration nor divorce puts as final an end to an intimate relationship as a final order of protection does.[33]  Finally, Suk complains that de facto divorce goes into effect without the benefit of “traditional criminal process” or “proof of a crime.”[34]

Suk acknowledges that a protective order results in a reallocation of power within a domestic relationship, but downplays the value of this reallocation of power.[35]  As described above, once a domestic violence victim reports a violation of a protective order, the D.A. Office’s mandatory domestic violence protocol goes into effect.[36]  Once the protocol is initiated, a victim is powerless to reverse its course, so a single report can trigger “the full consequences of enforcement.”[37]  Suk argues a criminal protective order is not “a strategic tool that shifts power” to a domestic violence victim, but a weapon the state employs to effectively end an intimate relationship.[38]  
 

  1. Concerns with Suk’s Description of Criminal Protection Orders

Before addressing Suk’s normative criticisms of criminal protection orders, I must address her descriptive errors, omissions, and overstatements.  Without an accurate picture of the facts, it is impossible to reach an accurate conclusion about the effects of criminal protection orders on victim autonomy. 

  1. Suk Fails to Prove Police Routinely Monitor the Homes of Protective Order Recipients to Detect Violations of the Order

Suk claims that police officers make “routine unannounced visits to homes with a history of DV” and arrest defendants if they are present.[39]  The single source Suk directly cites for this proposition, the City of New York’s Domestic Violence Fact Sheet, states, “NYPD’s Domestic Violence Unit conducted 76,602 home visits in 2007, a 98% increase since 2002.”[40]  The factsheet does not reveal what a home visit is or under what circumstances a home visit by the NYPD occurs.[41]  Suk characterizes the purpose of the home visits as monitoring the homes of protective order recipients to determine if a batterer is present in violation of the order.[42]

There are two problems with Suk’s characterization of the home visits.  First, home visits are not conducted for the purpose of monitoring the home for the possible violation of a protective order.  New York City’s Domestic Violence Police Program (DVPP) pairs a police officer with a domestic violence counselor from Safe Horizon, a victims’ service agency, to visit domestic violence victims, once, several days after an episode of domestic violence is reported to the police.[43]  The counselor offers the victims assistance with safety planning and other social services.[44]  If the alleged batterer is present, the police officer will inform him that the “police will be monitoring the household.”[45]  In a randomized experiment, researchers demonstrated that recipients of DVPP’s follow-up visit experienced increased “confidence in the police” and were more likely to call the police if a future incident of violence occurred.[46]

 Suk describes the home visits as a monitoring or enforcement mechanism for protective orders,[47] but the timing of the visits contradicts this purpose.  The home visits are designed to occur only a few days after the incident, but hearings for temporary orders of protection are usually not held until about ten days after the incident,[48] and hearings on final orders of protection do not occur until much later.[49]  Furthermore, as a mathematical matter, Suk’s characterization of such visits as “routine” is an overstatement.  Police responded to over 229,354 domestic violence incidents in 2007 but only conducted 76,602 “home visits.”[50]  This is hardly the program of invasive police monitoring for protective order violations in victims’ homes that Suk describes.[51]

The second trouble with Suk’s characterization is both logical and constitutional.  Suk states the existence of a protective order not only permits but requires police presence in the home.[52]  Suk claims to be concerned only with police interference with victims’ autonomy.[53]  Presumably, then, Suk is not concerned with police monitoring at the request of victims who wish the police would enforce protective order violations to the fullest extent of the law, and is concerned only with police entering the home against the will of victims to monitor for protective order violations. 

Suk repeatedly asserts that once a victim obtains a protective order, the police will have an active presence monitoring the home for possible violations.[54]  What she fails to describe, however, is how exactly the police will be entering the home to monitor against the will of the victim.  A protective order, whether civil or criminal, does not abrogate the Fourth Amendment rights of the protected party.  The limited resources of police departments make it extremely unlikely that the police arrive uninvited at the home of a protective order recipient for the purpose of determining whether a batterer is present in violation of a protective order,[55] while the Fourth Amendment protection against unreasonable searches and seizures prevents the police from entering the home without the express consent from the victim or a search warrant obtained with probable cause.[56]  Thus, a victim who does not wish the police to enter her home can simply decline to allow them in.  Suk fails to provide any data to support the proposition that the police enter the homes of protected parties against their will unless exigent circumstances—such as a 911 call made by the victim or a neighbor—indicate an emergency.[57]

Suk’s critique of criminal protection orders hinges on the idea that the police can, and do, enforce criminal protection orders against the will of domestic violence victims.  If criminal protection orders are only enforced when domestic violence victims report a violation, then Suk’s argument unravels.  Suk’s thesis is that the war on domestic violence substantially reduces the autonomy of men and women vis-à-vis the state.[58]  Suk makes a compelling case that protective orders reduce the autonomy of suspected batterers, but absent her claim of unwanted police enforcement of protective order violations, Suk fails to explain how protective orders reduce the autonomy of domestic violence victims.

Theoretically, it is possible that a person with an order of protection against him could be persuaded by the state not to contact the protected party despite her insistence that she will not report violations of the protective order.  Yet Suk does not make this argument, and I suspect she avoids making it for the same reason she fails to cite any data that state-imposed de facto divorce exists in fact rather than merely in theory.  State-imposed de facto divorce exists, if at all, extremely rarely.  Suk has provided no data to contradict the conclusion that where a protected party opposes a criminal protection order, she will not report violations of the order, and the state simply does not have the bandwidth, inclination, or access to the homes of victims required to discover violations on its own.  In some jurisdictions, as a matter of policy, prosecutors do not seek protection orders when the victim objects that the order would be “pointless” because the state is powerless to prevent two willing people from contacting or visiting one another.[59]  Where a victim invites the defendant to violate the order, the specter of police monitoring does not suffice to dissuade the defendant from accepting the invitation.  Suk has offered no evidence to the contrary.  In sum, Suk’s theory of state-imposed de facto divorce is divorced from reality. 

  1. Suk Mischaracterizes the Prevalence and Nature of “Permanent” Orders of Protection

Suk repeatedly portrays temporary criminal protection orders as automatically granted in domestic violence cases.  The reader is left with the understanding that in the majority of domestic violence cases the state obtains a permanent “no contact” protective order.  Both of these portrayals are factually inaccurate. 

Suk claims that state-imposed de facto divorce is “routine,”[60] yet the large majority of domestic violence prosecutions do not result in a final order of protection.  In 2002, for example, no more than 34.5% of domestic violence cases resulted in conviction by guilty plea or by trial.[61]  Even assuming the prosecutor sought and obtained a final order of protection in every one of these cases, at least 65.5% of domestic violence prosecutions did not result in a final order of protection,[62] but the actual number of final orders of protection is certainly less.  

While the issuance of final orders of protection is common at plea or sentencing, it is not automatic.  Final orders of protection, like temporary orders of protection, are unlikely to be granted where the standard of proof is not met.[63]  Where the defendant contests a temporary order of protection, the prosecution must prove “danger of intimidation or injury” to the victim in order to prevail.[64]  “Reasonable factual support” is necessary for the issuance of a temporary protective order.[65]  Even where the prosecution succeeds in obtaining a temporary order of protection over a victim’s objection and the case is not dismissed, the prosecution will not necessarily obtain a final order of protection.  First, not all prosecutors at the D.A.’s Office seek a full “no contact” order when the victim objects.[66]  Second, judges do not grant orders of protection in every case.  In New York City, when complainants request an order of protection be dropped or modified from full to limited, judges often consider the victim’s preference.[67]  As Gavin and Puffet note, “Judges vary in their policies on this subject, but most report that in making the decision they consider the nature and severity of the allegation, the defendant’s criminal history, the stage of the case, and extenuating factors such as children and finances.”[68]

Suk is emphatic that final criminal protection orders are even more powerful than incarceration at ending intimate relationships because, unlike incarceration, full “no contact” criminal protection orders prohibit visits, phone calls, letters, and emails.[69]  Trial courts do have the discretion to issue final orders of protection absent a victim’s consent,[70] but where the protected party objects to a final order of protection, some courts have held that telephone and mail contact should be allowed under the order.[71]  Where limited protection orders but not full “no contact” orders are granted despite the objection of the protected party, Suk’s objection loses its force.  A limited protection order permitting contact between the parties is clearly less invasive than incarceration.  Under a limited protection order, as opposed to incarceration, the parties are free to communicate with one another as often as they choose.  Furthermore, under both limited protection orders and “no contact” protection orders, if the protected party objects to the order she will not report violations to the police and the state is unlikely to discover the violations.  The state is particularly unlikely to discover unreported violations of the communication prohibitions in “no contact” orders.  Conversely, incarcerated persons have little privacy in their personal relationships.  Inmates’ phone calls are frequently taped and monitored for evidence that can be used against them in their criminal cases.[72]  Therefore, even where a protected party objects to a protection order, the protection order is much less burdensome on an intimate relationship than incarceration. 

Lastly, even if unintentionally, the terms “final” or “permanent” are deceptive.  In New York, the length of permanent criminal protective orders is capped by statute.  The statutory cap for felony offenses is eight years, five years for class A misdemeanors, and two years for all other offenses.[73]  Suk admits her critique of criminal protection orders was directed at misdemeanor domestic violence for which “serious physical injury” is not at issue.[74]  Thus, the state-imposed de facto divorce she is most concerned with would last two to five years under the statute.  Suk asserts that even when a final order of protection lasts only two years, the relationship will most likely dissolve.[75]  Either the parties will obey the order and cease any contact, or disobey, resulting in “repeated arrests and felony charges.”[76]  Suk’s assertion that disobeying a protection order at the invitation of the protected party will result in repeated arrests and felony charges is unsupported. 

  1. Suk’s Critique of Criminal Protection Orders Fails to Appreciate  the Prevalence and Pattern of Domestic Abuse in Reality

Before addressing my concerns with Suk’s normative arguments, I must lay an additional factual foundation that is strikingly missing from Suk’s depiction of the consequences of domestic violence reform.  Suk’s account lacks all mention of the severity and nature of domestic violence.  Suk states her goal is to “give shape to the novelties of the law reform,” a contribution that will help us determine “if this regime is worth its costs.”[77]  Suk describes At Home in the Law as an “effort to focus the lens” so that we can see what is necessary to determine if we are happy with the direction of the law reform.[78]  Yet Suk’s effort is inadequate—a discussion of the merits of a solution is incomplete without an appreciation of the problem the solution seeks to remedy.  A criticism of modern airport security practices has little force if it merely catalogues practices that allegedly invade passenger privacy.  To determine whether an invasion of our privacy or autonomy is an acceptable component of a solution, we must understand the size and nature of the threat.  The force of Suk’s criticism is drained when viewed in light of the size and nature of the epidemic of domestic violence.  The costs she catalogues, while not insignificant, are acceptable in light of the overwhelming imperative of saving lives and reducing the incidence of domestic violence. 

  1. Prevalence of Domestic Violence

Noticeably absent from Suk’s discussion of domestic violence reform is an appreciation of the extreme costs of domestic violence for society.  For the purpose of critiquing Suk’s narrative, a complete exposition of the costs is neither necessary nor possible, but a brief summary of the problem will illuminate the significance of the omission.  Each year, 1.5 million women are assaulted or raped by an intimate partner and more than 1,000 women are killed by an intimate partner.[79]  More women are killed each year by intimate partners than Americans were killed in one of the World Trade Center towers on September 11, 2001.[80]  Every year 500,000 women are victims of stalking.[81]  The leading cause of injury for women ages fifteen to fifty-four is domestic violence.[82]  Research indicates somewhere between 960,000 and 3 million women are physically abused by their husband or boyfriend each year.[83]  In 2004, almost 2.2 million people called a domestic violence hotline while seeking an escape from a domestic violence crisis.[84]  Society also bears a cost for intimate partner violence: “the health-related costs of intimate partner violence exceed $5.8 billion each year.”[85]  These statistics underscore the urgency of finding a solution to domestic violence, yet Suk’s critique of the war on domestic violence is divorced and detached from any discussion of the epidemic of domestic violence. 

  1. Nature of Domestic Violence

Suk’s critique is rife with subtle attacks on the domestic violence protocols at the D.A.’s Office, but she fails to account for the fact that these very protocols were created in response to the distinctive nature of domestic violence.  There is a rich literature discussing the modus operandi of batterers and the commonalities between domestic violence victims.[86]  Unlike physical assaults outside of intimate relationships, “[b]y the time most cases of domestic abuse reach a prosecutor's desk, a history and pattern of abuse has been well established by the couple.”[87]  “Perpetrators in domestic violence cases control their victims through fear and intimidation. . . . [T]he fear of threats cause [sic] as much psychological trauma as physical abuse.”[88]  Suk’s concern with punishing criminal defendants for violations of protective orders rather than for physical assaults[89] belies her lack of understanding that the primary harm in domestic violence relationships is usually psychological rather than physical.  It is worth noting again that Suk limits her entire critique of criminal protection orders to misdemeanor assaults that do not involve “serious physical injury.”[90]  Because Suk’s narrative fails to account for the distinctive nature of domestic violence, Suk overemphasizes the importance of physical violence in inquiring whether state intervention is justified. 

  1. Historical Under-Enforcement of Domestic Violence Crimes

Suk fails to account for the fact that strict domestic violence protocols were developed as a prophylactic measure in response to the widespread failure of law enforcement officers to take domestic violence crimes seriously.  As discussed at some length by both the majority and dissent in the Supreme Court’s Castle Rock v. Gonzales decision, the American criminal justice system has long failed to protect victims of domestic violence.[91]  Because domestic violence cases were historically considered noncriminal, the Court noted, “police assigned domestic violence calls low priority and often did not respond to them for several hours or ignored them altogether.”[92]  Even within the last fifteen years, a “deep reluctance to incarcerate domestic violence offenders” persists.[93]  Lack of sufficient police investigation and prosecutor unwillingness to press charges remain serious obstacles to justice for domestic violence victims in many American jurisdictions.[94]  At the outset of her critique on criminal protection orders, Suk assures the reader that her critique is aimed at misdemeanor domestic violence, where “serious physical injury” is not involved.[95]  Many misdemeanor domestic violence charges do, however, involve serious physical injury, yet prosecutors charge or plead down the cases to misdemeanors “despite facts suggesting the conduct constituted a felony.”[96]  Suk repeatedly cites concerns about ongoing police monitoring of protective order violations, but she cites no evidence that such monitoring occurs.  In fact, research suggests probation departments are notoriously unlikely to follow up on truancy at batterer intervention programs and fail to communicate with probation officers.[97]  Suk’s narrative portrays a vigorous enforcement regime where domestic violence cases are prosecuted to the fullest extent of the law.  This narrative sharply contrasts with a well-documented history of failure to prosecute domestic violence crimes.  For example, an American Lawyer study followed domestic violence arrests in eleven jurisdictions in 1995.  “Of the 140 arrests made in the eleven communities, 95 never made it to conviction, plea, or acquittal.”[98]  Even cases in “no-drop” jurisdictions mysteriously get dropped.[99]  Suk’s criticism of stringent domestic violence policies and protocols would benefit from a greater appreciation of their origin: a systematic unwillingness of police departments and district attorneys to take domestic violence crimes seriously. 

  1. Suk’s Normative Arguments Against Protective Orders are Deficient

Though Suk’s narrative claims to be merely descriptive, Suk’s critique of criminal protective orders also contains normative deficiencies. 

  1. Suk Dismisses Protective Order Violations as Proxy Crimes

Suk’s characterization of protective order violations as mere proxy crimes demonstrates her misunderstaning of domestic violence dynamics.  While Suk correctly points out that protective order violations are easier to prosecute than crimes of physical domestic violence,[100] she fails to appreciate how the presence of the batterer in the protected party’s home is a harm in and of itself.  Suk implies the presence of batterers in the home is somehow unfairly labeled “harmful or offensive” by the law.[101]  Suk claims the criminalization of presence in the home makes the unwarranted assumption that the batterer’s presence “makes the home a dangerous place for the family.”[102]  The criminalization of protective order violations is not merely instrumental to the underlying goal of punishing batterers for violence.  The purpose of protective orders is to create a safe space for victims to live without fear. 

When a batterer without invitation enters the home of his victim, especially in violation of a court order, the victim often has a reason to fear physical harm.  In New York, the violation of protective orders is a per se violation of a criminal statute against menacing.[103]  Menacing is the crime of placing a person in fear of “death, imminent serious physical injury or physical harm.”[104]  A protective order “is confirmation that the history of mistreatment exceeds acceptable or excusable levels, and has become so egregious that the . . . [protected party’s] own efforts cannot vindicate her autonomy.”[105]  By violating a protection order, a batterer is often evincing intent to isolate his victim from the lifeline connecting the victim to the court system that has promised to protect her.[106]  Especially in the case of temporary criminal protection orders, where the protected party will be subsequently called as a witness against her batterer, violations of protective orders often manifest intent to silence the protected party through fear and intimidation.[107]  Protective orders serve as a tool to guarantee a protected party a legal recourse when her batterer, through unwanted contact or visits, causes her to fear harm.  Prosecutions of violations of protection orders are prosecutions for robbing domestic violence victims of the peace of mind they need to live autonomously apart from their batterers. 

  1. Suk Fails to Account for the Myriad Ways Criminal Protective Orders Enhance the Autonomy of Protected Persons

Suk claims criminal protective orders often substantially reduce the autonomy of protected parties.  Suk comes to this erroneous conclusion because she fails to adequately account for the following facts: (1) domestic violence reduces the autonomy of domestic violence victims vis-à-vis their batterers; (2) protection orders give protected parties the right, not the obligation, to seek enforcement of the order; and (3) if the protected party does not report a violation, it is unlikely anyone else will do so.[108]

In her narrative, Suk portrays domestic violence victims as twice victimized: physically harmed by a batterer and robbed of autonomy by the state.[109]  Suk misses a crucial point: domestic violence is not merely a physical crime; it is also a theft of autonomy.[110]  Much as prison guards control the actions of inmates through the threat of force, in a relationship with domestic violence, incidents of physical assault often serve to underscore the seriousness of the constant threat of physical violence.  Physical violence is the most legally actionable manifestation of a pattern of intimidation, control, and isolation by batterers that rob the victim of her liberty.[111]

Suk decries the state’s interference with victims’ intimate relationship choices, but Suk’s critique ignores the reason domestic violence victims so frequently refuse to cooperate with prosecutions against their batterers.  Domestic violence victims often refuse to cooperate with prosecutions because they are often susceptible to “intimidation or coercion” by batterers.[112]  The psychological effects of battering can be so pronounced that domestic violence victims often believe that because they deserve to be battered and that their batterers do not deserve to be punished.[113]  At the point the state intervenes to seek a criminal protection order for a domestic violence victim, the victim typically has already been subject to “systematic intimidation” at the hands of her batterer.[114]  Thus, the state is unable to accurately assess whether a victim objects to a protection order of her own free will or as a result of systematic intimidation and psychological abuse. 

By issuing a criminal protection order over the objection of a domestic violence victim, the state gives a domestic violence victim the choice to seek state enforcement of the order.  A criminal order of protection gives a domestic violence victim a tool for creating a safe zone in which she can regain her autonomy.  A criminal protection order can legally require the batterer to leave the home and allow the victim to stay in the home pending a further resolution of property disputes in probate or civil court.[115]  If she chooses, the victim may call the police to report every violation of the order.  Castle Rock v. Gonzales notwithstanding, many state statutes require police officers to arrest a suspect accused of violating a protective order.[116]  As previously established, the state does not monitor the homes of victims to detect unreported violations of protection orders.  With the exception of a loud or violent argument alerting the neighbors to call the police, it is unlikely the police would detect a protective order violation against the wishes of a protected party.  Thus, a criminal order of protection arms a domestic violence victim with a shield she may use at her discretion, and allows her to live in her home without being subject to violence, intimidation, or fear by her intimate partner. 

V. Conclusion

            My purpose in critiquing Suk’s portrayal of criminal protection orders is to bring her objections down to size.  As I sought to demonstrate, her concerns about state-imposed de facto divorce are grounded in theory rather than in reality.  Unwanted protective order violations are not mere proxy crimes, but assaults on the emotional well-being of protected parties.  Protection orders, whether criminal or civil, largely function to enhance the autonomy of protected parties by arming them with a tool they may use to enhance their safety. 

            That said, Suk’s concerns that the state is invading the privacy and autonomy of domestic violence victims are not without merit.  She is right that the autonomy of domestic violence victims is of paramount importance and that any affront to that autonomy must be carefully scrutinized.  No invasion of victim privacy or autonomy vis-à-vis the state should be tolerated if it is not substantially outweighed by an increase in victim autonomy vis-à-vis her batterer.  The intrusions the state has made on the autonomy of domestic violence victims should be scrutinized and critiqued.  To the extent these critiques prove that intrusions are in fact harmful to the autonomy of domestic violence victims, statutes, policies, and procedures should be rewritten to better effectuate victim autonomy in regards to both her batterer and to the state. 

            Yet Suk has failed to prove that criminal protection orders function to end intimate relationships against the will of protected parties.  Because the state does not typically enforce protective orders against the will of protected parties, criminal protective orders increase the power and autonomy of protected parties vis-à-vis their batterers.  This advantage comes at the price of minimal invasion into the privacy of protected parties.  The invasion of the home by the state that Suk decries in her book is vastly overstated.


* J.D. Candidate, Harvard Law School, Class of 2012; University of Texas, B.A., B.B.A.

[1] Winners Of The Law And Society Association Herbert Jacob Book Prize, Law & Soc’y (Mar. 31, 2012, 1:23 PM), http://www.lawandsociety.org/prizes/ jacob_prize_winners.htm.

[2] See, e.g., Sherman J. Clark, What We Make Matter, 109 Mich. L. Rev. 849, 849 (2011);
Elizabeth F. Emens, Regulatory Fictions: On Marriage And Countermarriage, 99 Calif. L. Rev. 235, 250 n.65 (2011).

[3] Jeannie Suk, At Home in the Law 7 (2009).  Suk’s purpose is to describe the “substantial reductions in the autonomy of women and men vis-à-vis the state.”  Id.

[4] Id. at 35 (citing Richard Peterson, N.Y. City Criminal Justice Agency, The Impact of Manhattan’s Specialized Domestic Violence Court 1 (2004)).   

[5] Id

[6] Id.

[7] Id. at 36. 

[8] Id.

[9] Id. at 35–36. 

[10] Id.

[11] Id. at 37–38.   

[12] Id.

[13] Id. at 38. 

[14] Id.

[15] Id. at 40 (citing People v. Forman, 546 N.Y.S.2d 755, 766 (Crim. Ct. 1989)). 

[16] Id.

[17] Id

[18] Id. at 38.

[19] Id. at 40.   

[20] Id. at 38 (citing City of N.Y., Domestic Violence Fact Sheet Calendar Year 2007, available at http://www.nyc.gov/html/ocdv/downloads/pdf/FactSheet2007_Update.pdf (last visited Mar. 5, 2012)).  See infra note 39and accompanying text.  Suk does not cite a source for the assertion that if a defendant is present at a follow up home visit, he is arrested. 

[21] Suk, supra note 3, at 38.  Suk does not explain the nature of this increased “monitoring.”  Suk does not cite examples of the increased monitoring or any data to suggest the D.A.’s Office or any other D.A.’s office employs this strategy.  Suk further does not explain what, if any, constitutional theory permits a temporary order to abrogate a defendant or victim’s Fourth Amendment protections against unreasonable searches and seizures. 

[22] Id. at 14. 

[23] Id. 

[24] Id. 

[25] Id. 

[26] Id. at 15. 

[27] Id. at 16.

[28] Id. at 35. 

[29] Id. at 42 n.55.  Final orders of protection may last eight years for a felony, five years for a class A misdemeanor, and two years for all other offenses.  N.Y. Crim. Proc. Law § 530.12(5) (McKinney 2008).  

[30] Suk, supra note 3, at 42. 

[31] Id. at 43. 

[32] Id. at 43–44. 

[33] Id. at 44. 

[34] Id. at 45. 

[35] Id. at 46–47. 

[36] Id. at 46. 

[37] Id.  

[38] Id. at 46–47.

[39] Id. at 38 (citing City of N.Y., Domestic Violence Fact Sheet Calendar Year 2007, supra note 20(“NYPD’s Domestic Violence Unit conducted 76,602 home visits in 2007, a 98% increase since 2002.”)).   

[40] Id. at n.35. 

[41] Id. at 38.

[42] Id.

[43] Robert C. Davis & Juanjo Medina-Ariza, Results from an Elder Abuse Prevention Experiment in New York City, U.S. Dep’t of Justice: Nat’l Inst. of Justice 2 (Sept. 2001), available at https://www.ncjrs.gov/pdffiles1/nij/188675.pdf [hereinafter Elder Abuse Prevention Experiment in New York City].  The Domestic Violence Police Program was formerly called the Domestic Violence Prevention Project.  See id.; see also Victim Services: Programs & Initiatives, City of N.Y.: Mayor’s Office to Combat Domestic Violence, http://www.nyc.gov/html/ocdv/html/services/police_initiatives.shtml (last visited Apr. 8, 2012) (“The program unites a case manager from Safe Horizon with police officers who together provide social services and law enforcement intervention to families reporting domestic violence to the police. Clients are identified through police reports, and the teams offer help through letters, calls, and follow-up investigations in the home.”); For Legal Services, Safe Horizon, http://www.safehorizon.org/index/get-help-8/for-legal-services-15.html (last visited Apr. 8, 2012):

 

The Domestic Violence Police Programs (DVPP) team a Safe Horizon caseworker with a police officer to conduct home visits and follow up on cases of reported domestic violence.  Caseworkers offer crisis intervention counseling and advocacy for victims of domestic violence to help them in working with the police and the District Attorney’s Office. 

 

Id.  Thus, the home visits do not occur as part of a police-monitoring program, the purpose of which is to catch a batterer in violation of a protection order.  Instead, the home visits are conducted in coordination with a domestic violence counseling program that informs a domestic violence victim about services available to her in the days following a reported domestic violence incident. 

[44] Elder Abuse Prevention Experiment in New York City, supra note 43, at 2. 

[45] Id. 

[46] Id.

[47] Suk, supra note 3, at 38. 

[48] Richard C. Pfeiffer, City Attorney, Columbus, Ohio, A Guide to Protection Orders The Court and Community Resources (Jan. 2002), available at http://www.fccourts.org/drj/protectionorders.html#05.

[49] Suk, supra note 3, at 42–43.

[50] City of N.Y., Domestic Violence Fact Sheet Calendar Year 2007, supra note 20..

[51] Suk does not discuss it, but court monitoring of protective order violations is actually common.  “All of the courts [in New York City] conduct compliance monitoring through regular post-sentence court appearances.  The monitoring judge may increase or decrease the frequency of appearances based on the defendant’s compliance.”  Chandra Gavin & Nora K. Puffett, Center For Court Innovation, Criminal Domestic Violence Cases in New York City Criminal Courts 23 (2005).  Nonetheless, without the active police monitoring for protective order violations that Suk imagines, it is unclear what, if any, evidence of protective order violations is available at these hearings.

[52] Suk, supra note 3, at 38. 

[53] Id. at 6–7. 

[54] See, e.g., id. at 38. 

[55] This is an assertion unsupported by Suk’s footnotes. 

[56] Mapp v. Ohio, 367 U.S. 643 (1961). 

[57] See Payton v. New York, 445 U.S. 573 (1980).

[58] Suk, supra note 3, at 7. 

[59] Anonymous Interview with Malden Assistant Dist. Attorney (Dec. 7, 2011). 

[60] Suk, supra note 3, at 42. 

[61] Gavin & Puffet, supra note 51, at 4.

[62] See id.

[63] See N.Y. Crim. Proc. Law § 530.12 (McKinney 2008). 

[64] Id.; People v. Forman, 546 N.Y.S.2d 755, 763 (Crim. Ct. 1989) (affirming the constitutional sufficiency of the standard). 

[65] Forman, 546 N.Y.S.2d at 759. 

[66] See Gavin & Puffet, supra note 51, at 12, 14, 16, 19, 30 (some of the five boroughs routinely seek limited protection orders rather than full protection orders); Forman, 546 N.Y.S.2d at 766 (“[T]he importance of defendant’s interest in his home, the severity of the deprivation imposed through exclusion from the home, and, typically the need to resolve conflicting issues of fact credibility as to the underlying family conflict, require that a trial type hearing be provided [shortly after the initial order is granted].”)

[67] Gavin & Puffet, supra note 51, at 4.

[68] Id.

[69] Suk, supra note 3, at 43. 

[70] See People v. Monacelli, 750 N.Y.S.2d 690, 691 (App. Div. 2002). 

[71] See, e.g., People v. Goldberg, 791 N.Y.S.2d 172 (App. Div. 2005). 

[72] William Glaberson, Abuse Suspects, Your Calls Are Taped. Speak Up, N.Y. Times, Feb. 25, 2011, at A1. 

[73] N.Y. Crim. Proc. Law §§ 510.12(5), 510.13(4) (McKinney 2008).

[74] Suk, supra note 3, at 36. 

[75] Id. at 48.

[76] Id.

[77] Id. at 53. 

[78] Id. at 7. 

[79] See Judith A. Smith, Battered Non-Wives And Unequal Protection-Order Coverage: A Call For Reform, 23 Yale L. & Pol'y Rev. 93, 94 n.9 (2005) (citing Patricia Tjaden & Nancy Thoeenes, U.S. Dep’t of Justice: Nat'l Inst. of Justice, Extent, Nature, and Consequences of Intimate Partner Violence 10 (2000), available at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf [hereinafter Tjaden & Thoeenes, Extent, Nature, and Consequences] (“The study surveyed 8000 women by telephone.  The study also concluded that because many women are re-victimized, an estimated 4.8 million rapes and assaults are perpetrated against women each year.”)); see also Katherine van Wormer, Reducing the Risk of Domestic Homicide, 9 Soc. Work Today 18 (2009).

[80] Catharine MacKinnon, Women’s September 11th: Rethinking the International Law of Conflict, 47 Harv. Int’l L.J. 1, 4 (2006).

[81] Smith, supra note 79, at 94 (citing Tjaden & Thoeenes, Extent, Nature, and Consequences, at 10).

[82] Id. (citing 140 Cong. Rec. 27,821 (1994) (statement of Rep. Snowe)).  Domestic violence injures more women than car accidents, muggings, or rapes.  Id.

[83] Domestic Violence Statistics: National, Domestic Violence Res. Ctr., http://www.dvrc-or.org/domestic/violence/resources/C61/ (last visited Mar. 5, 2012) (citing U.S. Dep’t of Justice, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends (Mar. 1998); The Commonwealth Fund, Health Concerns Across a Woman’s Lifespan: 1998 Survey of Women’s Health (May 1999)). 

[84] Id.

[85] Id.  “Of that amount, nearly $4.1 billion are for direct medical and mental health care services, and nearly $1.8 billion are for the indirect costs of lost productivity or wages.”  Id.

[86] See generally Alafair S. Burke, Domestic Violence As A Crime of Pattern and Intent: An Alternative Reconceptualization, 75 Geo. Wash. L. Rev. 552, 612 (2007) (arguing criminal law must adapt its procedures to the unique aspects of the phenomenon of domestic violence); Jennice Vilhauer, Understanding the Victim: A Guide to Aid in the Prosecution of Domestic Violence, 27 Fordham Urb. L.J. 953 (2000) (describing how the unique underlying dynamics of domestic violence create special challenges for prosecutors). 

[87] Vilhauer, supra note 86, at 958. 

[88] Id. 

[89] Suk, supra note 3, at 14. 

[90] Id. at 36 (emphasis added). 

[91] 545 U.S. 748, 759–62, 779–781 (Stevens, J., dissenting). 

 

Colorado General Assembly joined a nationwide movement of States that took aim at the crisis of police underenforcement in the domestic violence sphere by implementing “mandatory arrest” statutes.  The crisis of underenforcement had various causes, not least of which was the perception by police departments and police officers that domestic violence was a private, “family” matter and that arrest was to be used as a last resort.

 

[92] Id. (citing Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1662–63 (2004)). 

[93] Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence, 39 Wm. & Mary L. Rev. 1505, 1513–14 (1998).

[94] Id.  Decades of police indifference to domestic violence crimes left victims with little confidence in law enforcement.  Suk’s critique of police “home visits” is particularly myopic in light of the fact that such visits have been proven to increase victim confidence in law enforcement.  See supra note 46and accompanying text. 

[95] Suk, supra note 3, at 36. 

[96] Hanna, supra note 93, at 1521. 

[97] Id. (citing Melissa Hooper, Note, When Domestic Violence Diversion Is No Longer an Option: What to Do with the Female Offender, 11 Berkeley Women's L.J. 168, 170–71 (1996) (finding that 54% of the defendants on diversion had no contact with probation officers for more than four months); Donald J. Rebovich, Prosecution Response to Domestic Violence: Results of a Survey of Large Jurisdictions, in Do Arrests and Restraining Orders Work? 176, 187 (Eve S. Buzawa & Carl G. Buzawa eds., 1996) (finding that tracking of probation fulfillment was rare in most jurisdictions)).

[98] Hanna, supra note 93, at 1521 (citing Alison Frankel, Domestic Disaster, Am. Law., June 1996, at 69–73).  

[99] Id. 

[100] Suk, supra note 3, at 14–15. 

[101] Id.

[102] Id. 

[103] N.Y. Crim. Proc. Law § 120.14 (McKinney 2008).

[104] Id. 

[105] Tom Lininger, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, 87 Tex. L. Rev. 857, 898–99 (2009) [hereinafter Lininger, The Sound of Silence].

[106] Id. 

[107] Id.

[108] See infra notes 111–116and accompanying text.  Suk argues that neighbors might call the police to alert them not of a protective order violation but of a “disturbance.”  Suk, supra note 3, at 45.  Neighbors are, of course, most likely to call the police not when they merely see a defendant present in a home but when they hear a violent argument ensuing.  How would the neighbor become aware of the existence of a protective order? 

[109] See generally Suk, supra note 3, at 35­–54. 

[110] While I draw from generalizations and patterns that researchers studying the phenomenon of domestic violence have found to be generally true, I admit the generalizations may not apply to all domestic violence relationships.

[111] Evan Stark, Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, 58 Alb. L. Rev. 973, 1024 (1995). 

[112] Davis v. Washington, 547 U.S. 813, 833 (2006). 

[113] Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 783 (2005) (“[T]he so-called ‘autonomy’ of the accuser is illusory in many domestic violence cases.”).

[114] Lininger, The Sound of Silence, supra note 105, at 870.

[115] People v. Forman, 546 N.Y.S.2d 755, 766 (Crim. Ct. 1989).

[116] See, e.g., N.Y. Crim. Proc. Law § 140.10 (McKinney 2008).  But see Castle Rock v. Gonzales, 545 U.S. 748 (2005) (holding that enforcement of a restraining order does not constitute a property right for 14th Amendment purposes). 

 

deanspadebook

Book Review: Normal Life

 

Review by Alexandra St. Pierre*

Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of the Law.  By Dean Spade.  Cambridge, MA.  South End Press (2011).  256 pages.

Click here to access a PDF of the book review.

Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of the Law takes a radical view of the current movement for trans and gender nonconforming rights.   Dean Spade not only questions the current trajectory of the trans right movement, but also the effectiveness and widespread use of rights-based law reform in general.  Spade critiques the condition of current state-based inequality and discrimination in all forms throughout the United States and calls for a return to the more grassroots-based organizations of the 1960s and 70s, where the movements were spearheaded by members of the discriminated group and the goal was transformative change.  The language in Normal Life is somewhat provocative, for example using “criminal punishment system” instead of “criminal justice system.”[1] Combined with the radical positions espoused, the book will not convince anyone who is not already in agreement with Spade’s views—and Spade is probably fine with that.  Nevertheless, even without subscribing to Spade’s far-reaching ideas, one can see that there is a lot of work to be done in the area of trans rights and that current reform strategies are not sufficient by themselves to address existing problems.

This book review will first consider Spade’s discussion of the politics of neoliberalism and its effect on the formation of institutions and creation of laws, setting the foundation for his later arguments about rights-based strategies.  It will then discuss Spade’s argument about the ineffectiveness of these strategies and other factors that have contributed to a disconnect between the needs of the community and the efforts at reform.  The review then outlines Spade’s  reframing of the pertinent issues and the application of this new framing to current laws.  Lastly, this piece walks through some of the solutions Spade offers, specifically member-based organizations.  This review ultimately concludes that Normal Life is more informative than truly persuasive, at least for those who do not come to this book already conceptualizing rights-based reform as ill-equipped to effect true reform.

  1. I. Neoliberalism
  1.  

Normal Life begins with a discussion of the rise of “neoliberalism” in the United States.  Spade uses the term to mean the trend in U.S. “policy changes like privatization, trade liberalization, labor and environmental deregulation, the elimination of health and welfare programs, increased immigration enforcement, and the expansion of imprisonment.”[2]  This chapter is quite expansive in scope, including a short yet broad criticism of U.S. free trade agreements, [3] media and governmental policies of racialized control,[4] the increase in private non-profits,[5] and the rise in the number of people imprisoned in the United States as a result of the creation of new criminal laws and enhanced sentencing.[6]  According to Spade, these changes have resulted in a decrease in real wages and redistribution of wealth that expanded the gap between rich and poor.[7]  This disparity and resulting lack of opportunities helps provide the basis of his later claims that, as activists for social change, advocates for trans rights need to recognize that values have shifted.  Thus, they should demand a change in, or even abolishment of, the institutions that perpetuate these unfair circumstances.[8]

However, if the reader is not already convinced of the violence and oppression that occurs at the hand of the state, the discussion here of neoliberalism likely will not convince her. While Spade provides a lot of factual support for the claims about imprisonment from which his claims seem logically drawn, many of Spade’s sources for information about free trade agreements and the non-profit industrial complex come from self-described radical organizations that create their own media to help spread their story.[9]  While I in no way mean to impugn the journalistic integrity of these organizations or of Spade’s book, I simply mean to point out that the story he is telling comes from a positional view and is supported by others with similar views and, as a result, is less likely to persuade those who are not already like-minded.  This is unfortunate because, as Spade mentions, trans issues are often lumped into the same category as lesbian and gay issues, and the lesbian and gay movement has focused on a rights-based strategy.  A more neutral story-telling device might have convinced new minds that a structural problem exists and that change is necessary on this other level, furthering the debate even more.

  1. II. The Problem with Current Legal Reform Movements—Specifically the LGBT Movement
  1.  

As told in Normal Life, in the fight for trans equality, the most common legal struggle has been to secure two types of legislation: antidiscrimination and hate crime laws aimed at protecting people based on their gender identity and/or expression.[10]  However, Spade points out that these laws have been ineffective at ending negative behavior and attitudes towards people of color, women, lesbians and gays, and people with disabilities; he sees no reason why such laws would be, or even have been, effective for trans people.[11]  With respect to race and antidiscrimination laws, he calls into question the constitutional framework of equal protection doctrine that advances what Critical Race Theorists call a “perpetrator perspective,” “imagining that the fundamental scene is that of a perpetrator who irrationally hates people on the basis of their race and fires or denies service to or beats or kills the victim based on that hatred.”[12]  In promoting a perpetrator perspective of racism, a number of problems occur with the antidiscrimination laws that inherently promote such a view, including disallowing programs aimed at remedying discrimination, such as affirmative action, ignoring conditions that “stem from and reflect long-term patterns of exclusion and exploitation” rather than individual conscious bias, and reinforcing the status quo by requiring claims to be framed in such a way that the plaintiff complaining of discrimination is exactly the same as the discriminating party, save for one characteristic that is different and gives rise to the discrimination.[13]  These ideas are not new, as evidenced by their adoption by Critical Race Theorists, and they have been advanced by feminist scholars as well.[14]  In this tradition, Spade argues that not only would discrimination laws be ineffective if applied in the same manner to trans individuals, this past history of failure makes it unreasonable to think it would have more than a marginally beneficial effect on trans individual’s lives, given that trans people usually have “more complicated relationships with marginality.”[15]

Spade’s arguments against hate crime laws are slightly more unconventional, and also slightly less persuasive.  His first argument is that hate crime laws have no deterrent effect.[16]  While this seems intuitively true on the basis of the fact that “people do not read law books before committing acts of violence and choose against bias-motivated violence because it carries a harsher sentence,”[17] Spade provides no statistics or other type of support to reinforce this point.  His next argument decries the strengthening and legitimization of the criminal punishment system that he claims hate crime laws necessarily entail.[18]  I understand the legitimization argument in the abstract sense that advocating for laws that entrust the existing criminal punishment system to recognize trans and gender nonconforming individuals and defend them is essentially adopting the position that the system itself is trustworthy and capable.  However, the fact that hate crime laws actually strengthen the criminal punishment system is not as clear.  In the case of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, a federal hate crime law that specifically addresses violence against trans people, it provided “enormous resources to the criminal punishment system.”[19]  I agree that bestowing additional resources on the criminal punishment system increases its clout generally and reinforces the idea of the system as a legitimate authority, a frightening possibility if one believes “the criminal punishment system is the most significant perpetrator of violence against trans people.”[20] But Spade does not discuss whether all hate crime laws come with similar funding structures or whether the funds have any specific restrictions on them in terms of how they can be used.  Absent such resources, the argument that the system is strengthened by such laws is less persuasive when the only real change is enhanced sentences for violators of statutes that supposedly are underenforced.

According to Spade, the rise of the non-profit industrial complex has contributed to this misplaced emphasis on certain types of legal reform.[21]  In Spade’s narrative, the shift in politics during the growth of neoliberalism and the dismantling of governmental service programs in the 1960s and 1970s led to an increase in non-profits, whose leadership was made up of white, upper-class individuals who, with their specialized graduate degrees, focused on business management models and efficiency.[22]  As a result, there was a significant shift in priorities toward stabilizing “structural inequality by legitimizing and advancing dominant systems of meaning and control rather than making demands for deeper transformation.”[23]  This has the effect of “marginalizing or overtly excluding the needs and experiences of people of color, immigrants, people with disabilities, indigenous people, trans people, and poor people.”[24]  This shift to a focus on inclusion and incorporation into the mainstream led to the focus on marriage equality for same-sex couples as a way to provide more benefits and services to their constituencies; however, Spade argues that it “ignores how race, class, ability, indigeneity, and immigration status determine access to those benefits and reduces the gay rights agenda to a project of restoring race, class, ability and immigration status privilege to the most privileged gays and lesbians.”[25]

Spade seems to strongly disapprove of organizations such as Gay and Lesbian Advocates & Defenders and the Gay and Lesbian Association Against Defamation; however, even after reading Normal Life I am not ready to decry the work of such organizations nor dispose of the current non-profit model altogether.  Nevertheless, I found the critique of the non-profit sector refreshing.  There is a tendency in the public interest community at large to assume that efficient, well-run non-profits that secure considerable grant funding are automatically providing beneficial services.  Spade’s assessment offers an important reminder that non-profits exist to help the people who are marginalized and that it is their experiences that should inform the running of the organization, regardless of who is in charge and what their background entails.  Spade also provides some interesting ideas about new ways to structure non-profits, discussed below, that demonstrate promise.

  1. III. A New Way of Thinking

So if marriage equality, hate crime laws, and antidiscrimination legislation are not the answer, where should the trans movement turn to effect changes in the lives of trans individuals?  Citing Michel Foucault, Spade argues that we should look to laws and policies that effect “disciplinary” and “population management” modes of power to identify ways to create more transformative change.[26]  Disciplinary modes of power enforce norms that create notions about different types of people and how they should behave.[27]  “Population management” modes of power have to do with the distribution of services and opportunities to a particular swath of the community that give one a better chance at life.[28]  According to Spade, the analysis as applied to trans issues occurs less often at the population level, and looking at the governmental institutions and policies in this way opens up a new analytical framework and exposes many questionable practices.[29]

One such question that arises after reevaluating the laws and policies at a population management level, as filtered through a viewpoint of trans concerns, is the collection of gender data in almost every type of government and commercial setting where identity verification is necessary.[30]  Conflicts arise when the identification document of a trans person varies from the outward manifestation of their sexual identity or a separate identification document.[31]  These conflicts occur despite the fact that almost every state and federal agency has slightly different requirements for how or whether one can change their different identification documents to accord with their understanding of themselves.[32]  The effort to classify them into one category or another makes trans people vulnerable when exposed to gender segregated facilities and when attempting to access health care.[33]  However, these kinds of problems are less susceptible to rights-based reform and the “emergence of politics and resistance strategies that understand the expansion of identity verification as a key facet of racialized and gendered maldistribution of security and vulnerability” are necessary.[34]

It is hard to imagine a society where we are not asked to provide our gender to fly on planes, get a driver’s license, and apply to college; declaring our gender has become such a pervasive part of our everyday experience that we have stopped questioning why the information is really necessary.  Even when not required to give the information, we provide it at every opportunity, from decorating our children in colors that—per societal constructs—designate their gender to correcting people via email when they mistakenly use the dis-preferred pronoun of Mr. instead of Ms., and vice versa.  Spade recommends a wholesale reevaluation of the need of the government for gender identifying information, but I am curious as to which instances, if any, Spade believes it is appropriate to require someone to disclose such information.  Even though in the end the exercise will still essentially be one of line-drawing, an examination of the reasoning behind the line will provide insight into our views about gender and their place in society.

  1. IV. The Solution
  1.  

The last segment of the book is where Normal Life is at its best.  In this portion of the book, Spade (somewhat) stops reiterating the problems with non-profits and reform strategies he has outlined so far and offers concrete solutions and changes to the rights-centered law reform stance.  He advocates for a culture of non-profits that are willing to recognize multiple areas of need and collaborate where necessary to meet those needs, including advocating for policy change at the legislative and institutional levels, changing public opinion through the creation of independent media and educating the public, and providing critical services such as food, legal assistance, and medical and mental health care.[35]  The most important recognition the non-profit community needs to make is that community power and autonomy is the only way to ensure that the community’s needs are not forgotten and sacrificed to the ideals of the current leaders of the movement.[36]

Most of Spade’s suggestions involve mobilizing the trans community, beginning by getting people in touch with others who have similar stories and backgrounds.  The most interesting of his solutions was the creation of membership-based organizations.[37]  These organizations offer leadership development models and programs to members to teach them community activism and help them become effective advocates in their own lives and the community in general.[38]  While I am sure this model might be too radical for some, it seems to me like a unique way to empower members of the community to help themselves and each other.  The model also allows the community itself the ability to reevaluate the impact and desirability of the organization’s efforts on the lives of those who it aims to assist.

  1. V. Conclusion
  1.  

Regardless of whether one buys into Spade’s radical reframing of the current state of inequality in the United States, there are obviously many issues surrounding discrimination against trans individuals, and these conditions are exacerbated by the intersection of multiple vectors of race, poverty, and disability.  The reform strategies in place today to eradicate such barriers are at least to some degree ineffective and yet perpetuated on a regular basis.  Again, this book is not likely to convince anyone that prisons should be abolished; to the extent that Spade is looking first to promote awareness and empowerment in his constituency of trans and gender nonconforming people who are poor, disabled, and/or of color, I think he is unbothered by that result.  However, Normal Life highlights many problems with the current rights-based model and provides some forgotten and unique solutions, none of which needs to be taken wholesale to be informative or effective.


* J.D. Candidate, Harvard Law School, Class of 2013.

 

[1] Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of the Law 90 (2011).

 

[2] Id. at 33–34.

 

[3] Id. at 52–53.

 

[4] Id. at 53.

 

[5] Id. at 59–61.

 

[6] Id. at 53–54.

 

[7] Id. at 50.

 

[8] Id. at 69.

 

[9] Id. at 72 n.6 (citing books published by INCITE! Women of Color Against Violence); id. at 73 n.15 (citing an article published by Toward Freedom).

 

[10] Id. at 79.

 

[11] Id. at 81–83, 94 n.7 (listing cases that have interpreted restrictive behavior, such as limiting bathroom use for trans people to the bathroom corresponding to their birth sex, as nonviolative of antidiscrimination laws protecting trans individuals). 

 

[12] Id. at 84, 95 n.11 (citing Alan David Freeman, Legitimizing Racial Discrimination Through Anti-Discrimination Law: A Critical Review of Supreme Court Doctrine, in Critical Race Studies: The Key Writings That Formed the Movement 29–45 (Kimberlé Crenshaw ed., 1996)).

 

[13] Id. at 86–88.

 

[14] See Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 6 (2011) (“The point is, because sex is conceived as a difference, and equality is understood as based on sameness in the Aristotelian approach of  ‘likes alike, unlikes unalike,’ the worse the inequality gets, the more disparate its social reality becomes, the less this legal approach can do about it, hence the more equal protection doctrine operates to institutionalize it.”).

 

[15] Spade, supra note 1, at 87.

 

[16] Id. at 82, 87.

 

[17] Id. at 87.

 

[18] Id. at 87–89.

 

[19] Id. at 162.

 

[20] Id. at 90.

 

[21] Id. at 59.

 

[22] Id. at 59–60.

 

[23] Id. at 59.

 

[24] Id. at 65.

 

[25] Id. at 62.

 

[26] Id. at 105.

 

[27] Id. at 104.

 

[28] Id. at 110.

 

[29] Id. at 128.

 

[30] Id. at 142.

 

[31] Id. at 144–45.

 

[32] Id.

 

[33] Id. at 146–50.

 

[34] Id. at 154.

 

[35] Id. at 180–81.

 

[36] Id. at 181.

 

[37] Id. at 188–89.

 

[38] Id. at 190–91.

 

 

 

DSC_9152

Book Review: Gender and Culture at the Limit of Rights

A student review of Gender and Culture at the Limit of Rights, edited by Dorothy Hodgson.

Philadelphia, PA.  University of Pennsylvania Press (2011). 312 pages. 

Review by: Brooke Willig*

Click here to access a PDF version of the book review.

Drawing on diverse case studies from the United States, Africa, Latin America, and Asia, Dorothy Hodgson’s anthology Gender and Culture at the Limit of Rights seeks to expose many of the assumptions and implications underlying the current clamor for “women’s rights a[s] human rights.”[1]  A critical look at how rights-based frameworks incorporate and transform local gender relations, the book frames itself around global understandings of “gender,” “culture,” and “rights.”  Despite the anthology’s perhaps overly ambitious aims, the contributors successfully prevent the work from devolving into vagueness and generalities through close readings of specific cultural moments and skillful evocations of pivotal motifs.  Each author employs a different methodology and perspective—from analysis of historical images[2] to close reading of one female politician’s radio interview[3] to recollections of personal interactions with rural Egyptians[4]—but the anthology coalesces around shared concerns for the over-valuation of human rights frameworks as a means of advancing women’s rights.  The anthology’s breadth and evenhandedness, however, force it to fall short of the promise of its introduction; though the contributors derive valuable insights from their portraits of global gender relations, they fail to synthesize these insights to draw out major themes or answer serious questions Hodgson originally sets out.  That each piece largely pursues its own agenda seems in fact to be a product of the anthology’s most coherent and emphasized theme: the primacy of expression and need for individualized discourses in gender struggles.  This commitment, both stylistic and substantive, to the “complexity of . . . subjectivit[y]”[5] may well carry important implications for the role of human rights in gender justice, but ultimately keeps the work from delivering a central or formative message on the subject.

To examine the potential and limitations of the “women's rights are human rights” strategy, the book’s contributors look specifically at the way rights-based protocols have been analyzed, deployed, and legislated to create particular visions of gender in divergent historical and geographical settings.  Hodgson constructs an ambitious framework in which to situate these examinations.  In “Part I: Images and Interventions,” she asks contributors to “examine the discursive power of certain gendered assumptions and ideologies in the formulation and implementation of human rights”[6] as they evaluate the promulgation and use of specific cultural representations of women.  “Part II: Travels and Translations” seeks to show “how the production and circulation of human rights discourses have been engaged, appropriated, challenged and reworked in different communities”[7] by compiling essays on the “vernacularization”[8] of human rights and the direct effects of human rights work on local communities.  Last, “Part III: Mobilizations and Mediations” invites the reader to compare “distinct gendered experiences, expressions, and mobilizations of rights.”[9]

The essays expose fundamental flaws in human rights interventionism with especial repercussions for women.  For example, as Pamela Scully notes, the “practice of human rights is burdened by a colonialist understanding of culture that smuggles ideas of backwardness and savagery”[10] and that “tends to register this backwardness through gender,”[11] as shown by the pivotal role that the image of the suffering African women played in motivating the first transnational humanitarianism movement.[12]  Human rights work can thus make double victims out of women: it first inspires many home cultures to objectify and regulate women, as they seek to counter its western influence by idealizing women as pure embodiments of traditional culture and “private” objects, beyond the reach of a liberal democratic movement that separates state intervention and private life.  Salma Maoulidi, for instance, shows how “any intervention involving women becomes a key concern of those in power”[13] in Zanzibar, who then “insist on a disparate treatment for women [in such forms as modesty and marriage restrictions, in order] . . . to preserve their . . . personality as a people.”[14]  Second, humanitarian intervention allows humanitarians themselves to objectify women by treating them as embodiments of a repressive culture, emblematic victims rather than self-constructed individuals who may reasonably wish to maintain “savage” cultural practices like circumcision or polygyny.[15]

The anthology exposes as a second flaw in the human rights movement its activists’ equation of development of human rights with progress for women, suggesting instead that practices deemed human rights violations by outsiders may in fact serve to empower or enable women locally.  Both Scully and Hodgson notably question the vociferous opposition to female genital cutting, positing that forbidding women to teach the custom may significantly undercut the role of female elders in African society and thereby reduce women’s overall ability to aggregate status and power. [16]  Maoulidi similarly problematizes the much-decried use of early or arranged marriages, showing how Zanzibari families defensively used such unions to forestall hostile, politically-mandated intermarriages and consequent familial ruin.[17]  The anthology also gestures at the possibility that humanitarian aid may conversely hinder gender justice.  For instance, while admitting that humanitarian intervention served to create greater space for women to develop and express their rights, Caroline Yezer highlights the significant emasculating consequences of the de-militarization of rural Peru, which, in turn, inspired widespread nostalgia and appetite for the troubling authoritarianism and traditional gendering of the pre-conflict state.[18]

More fundamentally, the contributors expose the gender bias in human rights’ structural privileging of the public over the private sphere.  As has long been documented, the success of women’s rights requires intrusion into a private sphere to which women have been subordinated. Yet current rights frameworks provide inadequate state-run mechanisms to compel private actors to enter civil society.[19]  The human rights movement’s total reliance on states to negotiate, implement, and enforce rights then poses a heightened danger for women, whose domestic isolation often forces them to face sexual violence and political inequality without legal recourse.  At the same time, the essays remind us, the human rights movement retains a necessarily transnationalist grounding, which treats the development of national laws and rights as a means to international justice rather than an end unto itself.  This approach, however, creates its own problems for women, many of whom fight for women’s rights only to reclaim national and cultural citizenship,[20] and who face additional logistical difficulties in becoming part of a transnational movement.[21]

As it teases out these tensions inherent in “women’s rights a[s] human rights,” the book finds its true strength in the construction and elaboration of subtle motifs through disparate essays.  For one, though Hodgson claims to have concentrated discussion of images in Part I, contributors throughout emphasize specific, vivid portraits of women as a critical means of both interpreting and promulgating women’s rights.  Scully opens the anthology with the most direct indictment of an image, focusing her critique of human rights on its preoccupation with the “figure of the black woman vulnerable to terrible depredations”[22] found in literature and pamphlets, a belittling portrait that Scully argues impelled the abolitionist movement and still impels modern humanitarian intervention against “African patriarchy.”[23]  Hodgson also weighs the potential against the peril inherent in the image of the African woman: she compares the Maassai Women’s Development Organization’s (“MWEDO”) valuable humanitarian efforts with that NGO’s exoticization and misperception of Maasai women, as it literally capitalizes on Maasai female appearance (“they make good photo-ops!”)[24] and fixates on representations of genital mutilation rather than less graphic, if more grave, problems like economic disparity.[25]  Even images created by women themselves in pursuit of gender justice are shown to carry mixed messages: as with Oaxacan women’s self-descriptive rallying cry of “short, fat, and brown, and the face of Oaxaca,”[26] such representations often contain a self-deprecating undertone that mitigates against their progressive purpose.  These recurrent images thus ask the reader to remain critical of even—perhaps especially—those materials meant to inspire gender advocacy and, in so doing, provide a microcosm of the book’s central critique of human rights frameworks: human rights, like the images they rely upon, may circumscribe women’s potential even as they seem to increase it through access to aid and politicization.

More centrally, the essays subtly underscore the primacy of gendered voices.  Grounding their analyses in transcripts of Kenyan women’s radio addresses,[27]  Indian street plays decrying domestic violence,[28] Egyptian campaigns to end harassment through text messages,[29] interviews with women taking over Mexican media,[30] and poetry from a male immigrant detainee, [31] the contributors demonstrate the value of human rights in literally giving voice to the repressed or underrepresented.  Indeed, the authors repeatedly reference the recent case of Jessica Gonzales, who sued the police for failing to enforce a protection order against her estranged husband as he kidnapped and murdered their three children,[32] as a hopeful symbol for the women’s human rights movement.[33]  After state officers and U.S. courts, who purport to recognize human rights, denied relief, Gonzales refused to be silenced and became the first American woman to successfully demand a direct hearing by the Inter-American Commission on Human Rights ("IACHR”).[34]

The contributors’ concern for and reliance on individual voices, however, serves equally to highlight the limitations and suppressive elements of human rights frameworks for gender justice.  For one, Robyn Rodriguez, in her discussion of male immigrant detainees, reveals human rights workers’ reliance on stock narratives emphasizing treaty violations or the individual’s economic contributions to society in crafting rights claims to appeal to public enforcers.  She contends, however, that only by allowing men to refuse these stock narratives and instead make unique, affective claims about their familial obligations and associations will they be able to rebut judicial bias and avoid the injustice of the immigration system.[35]  The human rights movement also stifles expression when NGOs claim to speak for indigenous women’s interests, thereby forcing those women to combat their false representation by both men and activists and to find voice enough to declare that “these are not our priorities.”[36] This struggle is particularly difficult when humanitarians have first provided the terms of gender justice, some of which literally cannot be translated.  Hence, the process of “vernacularization” posited by Levitt and Merry becomes essential:[37] particularly for women with less access to public speech and transnational debate, key human rights discourses must be translated and re-negotiated in local contexts, allowed to arise or adapt organically to native women’s issues rather than imposed wholesale.[38]  Indeed, this vernacularization must be so open as to recognize even the absence of speech as a part of its positive process, as Stephen’s discussions with Oaxacan women remind us that the very concept of speech itself is not gender-neutral, and that the feminization of silence remains a major obstacle in bringing women to the public sphere and women’s rights to the private.[39]  Thus, while organic and progressive speech remains their aim, activists cannot force women speak up when to do so would simply be to impose masculine standards of speech on women.  Activists must also create a visible space for the long-obscured “center-women,” who operate behind the scenes, [40] and encourage these seemingly silent women to influence or control speech, even if they cannot yet produce it.  Only by acknowledging both women’s silence and their local reinterpretations of human rights discourses as valuable “other kinds of leadership,”[41] the book suggests, can human rights workers fully incorporate and promote native women’s interests.

If the book reaches this key analysis through motifs and examples, however, it shows serious fissures in its attempt to directly engage the major terms of debate.  First and foremost, the anthology fails to live up to its claim to truly examine gender rather than women.  LGBT issues pop up only cursorily, with no essay focusing on the framing of sexual orientation through human rights discourses.[42]  Similarly, though Hodgson’s introduction avers that one must understand “the meanings and practices of being a ‘man”” in order to understand those of women,[43] only two essays directly confront the relationship between masculinity and human rights, and even these essays allow their claims about the emasculating effects of humanitarianism[44] or the stigmatization of male homosociality in human rights litigation[45] to go largely undeveloped.  Moreover, though almost every essay concurs that women are used globally to (literally) embody local culture,[46] no contributor addresses why other groups—children, in particular, spring to mind—do not or perhaps cannot serve as additional or alternate cultural centers.

The book also fails to adequately address the inherent gendering of human rights as a concept, focusing instead on how particular human rights discourses hinder or obscure women’s rights in specific cultural contexts.  Though several essays decry human rights’ dependence on the idea of the autonomous, secular male citizen, for instance, they spend little time investigating the basis for that reliance, nor do they suggest whether human rights is theoretically incapable of, or merely averse to, accommodating a communal, religious, and/or female model.  Other fundamental questions are raised and left unanswered by the essays’ look at the basis of humanitarianism: if, as Scully contends, human rights work is necessarily motivated by empathetic concerns for vulnerability,[47] do human rights workers essentially feminize or emasculate those currently without or seeking rights?   Can activists successfully dissociate weakness or victimhood from gender when they consistently label women as the most in need of external intervention?  Moreover, should we nevertheless encourage NGOs to achieve their aims without painting those they help as victims, weak, and in need of rescue, even if they are capable of un-gendering notions of victimhood?  These and other critiques of the essential gendering of humanitarianism linger at the edges of the anthology, playing a weak second fiddle to critiques of its effect on known women’s issues and women’s rights violations like domestic violence, arranged marriages, and women under Islam.[48]

The anthology further falls prey to endemic problems of disaggregation, allowing its essays to evaluate human rights concepts without a shared emphasis or direction.  Indeed, some essays barely use the term “human rights,” looking exclusively at the progression of a women’s issue in a location and merely mentioning in passing that transnational discourses have shaped the local movement.[49]  Only a few essays (namely, those of Scully, Merry, Stephen, and Mary Jane N. Real[50]) consciously build off each other by each directly questioning human rights’ ability to incorporate concerns for gender and culture.  The result is a collection of insights on a topic, rather than a directed investigation into the controlling question the introduction explicitly sets out: how can the intersection of gender and culture reveal the limitations of human rights?  More problematically, this aggregation of disparate insights leaves the work without a clear and cohesive message, even a provisional one.  The authors’ quest to neither “easily celebrate [n]or condemn the current ascendancy of the ‘women’s rights are human rights’ framework”[51] is laudable in its commitment to a thorough and neutral critique, but their deliberate evenhandedness leaves the work’s defining statement as the vague truism that human rights frameworks present both advantages and disadvantages in pursuing gender justice.  Perhaps, given the centrality of such frameworks to the current women’s rights movement, the anthology’s acknowledgment of the difficulties of applying human rights to gender struggles represents a more powerful expression of dissent than its seeming equivocation would lead an unfamiliar reader to believe.  However, one still cannot help but wish these authors would expand, if not strengthen, their critiques beyond acknowledgment of human rights’ imperfection.  If they cannot fully celebrate or condemn the movement, they can still probe more deeply into its first principles to see if its implementation can be successfully modified, or to use the complexity of the issue to craft more definite or nuanced solutions.

Ultimately, then, the book’s strongest message must be found in its unstated yet persistent emphasis on individual, local voices, which can perhaps be elevated to a cautious approbation of culture in effectuating women’s rights and human rights work.  This is, of course, not to suggest that the contributors condone the continuation of oppressive or misogynistic practices in the name of culture, but rather that they repeatedly recognize the significant role played by local culture in the key process of “vernacularization.”[52]  Indeed, if there exists a consistent enemy of the contributors, it is notably not the cultural repressors so vilified by foreign activists, but the activists who seek to impose human rights from the outside, heedlessly trampling culture and local voices in the process.[53]  The lauded prioritization of vernacularization and its interweaving of rights with culture also entail an acceptance of varying directions of gender justice, even if the methods or issues chosen “are not our priorities.”  It seems no coincidence that Hodgson’s own piece takes “These Are Not Our Priorities” as its title, nor that the book and individual essays pointedly refuse to take any stand on what those priorities should be.[54]  Rather, the anthology demands that women and activists maintain only one priority: commitment to enabling women to express and demand their rights—women’s or human—in their local cultures.  Human rights frameworks, the anthology suggests, are most effective and least problematic when used to “create[ ]space for alternative . . . discourses regarding gender identity,”[55] and understood as discourses meant to foster different, original, and organic expression.  In portraying this nuanced and cautiously optimistic vision of the role of human rights discourses in enabling gender justice, Gender and Culture at the Limit of Rights succeeds beautifully.

  


 


* J.D. Candidate, Harvard Law School, Class of 2014.

 

[1] Dorothy L. Hodgson, Introduction to Gender and Culture at the Limit of Rights 1 (Dorothy L. Hodgson, ed., 2011).

 

[2] See Pamela Scully, Gender, History, and Human Rights, in Gender and Culture at the Limit of Rights, supra note 1, at 17, 20–21.

 

[3] See Ousseina D. Alidou, Muslim Women, Rights Discourse, and the Media in Kenya, in Gender and Culture at the Limit of Rights, supra note 1, at 180, 180.

 

[4] See Lila Abu-Lughod, The Active Social Life of “Muslim Women’s Rights,” in Gender and Culture at the Limit of Rights, supra note 1, at 101, 114–18.

 

[5] Robyn M. Rodriguez, Fighting for Fatherhood and Family: Immigrant Detainees’ Struggles for Rights, in Gender and Culture at the Limit of Rights, supra note 1, at 200, 203.

 

[6] Hodgson, supra note 1, at 6.

 

[7] Id. at 8.

 

[8] Id. (quoting Peggy Levitt and Sally Engle Merry, Making Women’s Rights Human Rights in the Vernacular: Navigating the Culture/Rights Divide, in Gender and Culture at the Limit of Rights, supra note 1, at 81).

 

[9] Id. at  9.

 

[10] Scully, supra note 2, at 19 (quoting Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice 226 (2006)).

 

[11] Id.

 

[12] See id. at 20–21.

 

[13] Salma Maoulidi, Between Law and Culture: Contemplating Rights for Women in Zanzibar, in Gender and Culture at the Limit of Rights, supra note 1, at 32, 33.

 

[14] Id.

 

[15] See, e.g., Dorothy L. Hodgson, “These Are Not Our Priorities”: Maasai Women, Human Rights, and the Problem of Culture, in Gender and Culture at the Limit of Rights, supra note 1, at 138, 150­–51, 153–54; Scully, supra note 2, at 27.

 

[16] See Hodgson, supra note 15, at 153–54; Scully, supra note 2, at 30.

 

[17] See Maoulidi, supra note 13, at 45.

 

[18] See Caroline Yezer, How Not to be a Machu Qari (Old Man): Human Rights, Machismo, and Military Nostalgia in Peru’s Andes, in Gender and Culture at the Limit of Rights, supra note 1, at 120, 129–30.

 

[19] See, e.g., Sally F. Goldfarb, A Clash of Cultures: Women, Domestic Violence, and Law in the United States, in Gender and Culture at the Limit of Rights, supra note 1, at 55, 60 (referencing works by Goldfarb, Catharine A. MacKinnon).

 

[20] See, e.g., Maoulidi, supra note 14, at 53 (discussing women’s fighting for a role in determining Zanzibari political identity).

 

[21] See, e.g., Hodgson, supra note 15, at 141–42 (describing how triple marginalization of indigenous African women delayed the first continent-wide conference of indigenous women until 1998).

 

[22] Scully, supra note 2, at 21.

 

[23] Id. at 30.

 

[24] Hodgson, supra note 15, at 151–52.

 

[25] Id. at 154.

 

[26] Lynn Stephen, The Rights to Speak and to Be Heard: Women’s Interpretations of Rights Discourses in the Oaxaca Social Movement in Gender and Culture at the Limit of Rights, supra note 1, at 161, 161.

 

[27] See Alidou, supra note 3, at 180.

 

[28] See Levitt and Merry, supra note 8, at 92–93.

 

[29] See Abu-Lughod, supra note 4, at 109.

 

[30] See Stephen, supra note 26, at 161.

 

[31] See Rodriguez, supra note 5, at 200.

 

[32] See Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).

 

[33] See, e.g., Goldfarb, supra note 19, at 64, 76; Levitt and Merry, supra note 8, at 98–99.

 

[34] See, e.g., Goldfarb, supra note 19, at 76; Levitt and Merry, supra note 8, at 98–99.  Indeed, as Goldfarb notes, “[Gonzales’s] hearing before the [IACHR] was the first time she was able to speak in a legal forum about her ordeal.”  Goldfarb, supra note 19, at 240 n.13 (emphasis added).  The IACHR ultimately found for Gonzales, holding that the United States had failed to protect Gonzales and her children from domestic violence, denying their rights to equal protection, and had violated Gonzales’s right to judicial protection under the American Declaration. See Lenahan (Gonzales) v. United States, Case 12.626, Inter-Am. Ct. H.R., Report No. 80/11 ¶ 5 (July 21, 2011), available at http://www.oas.org/en/iachr/decisions/2011/USPU12626EN.doc.

 

[35] See Rodriquez, supra note 5, at 201–02.

 

[36] Hodgson, supra note 15, at 154.

 

[37] The other contributors’ persistently allude to this concept.  See, e.g., Abu-Lughod, supra note 4, at 102, 117; Stephen, supra note 26, at 161.

 

[38] See Levitt and Merry, supra note 8, at 91.

 

[39] See Stephen, supra note 26, at 171, 178 (describing how Oaxacan women “became public leaders who spoke and were heard ‘like men’”).

 

[40] Id. at 178 (citing Karen Brodkin, Caring by the Hour: Women, Work, and Organizing at Duke Medical Center 132 (1988)).

 

[41] Id. at 178.

 

[42] Cf., Levitt and Merry, supra note 8, at 95 (describing one organization’s claim that “lesbian rights are human rights”); Maoulidi, supra note 14, at 50 (mentioning heightened criminalization of homosexuality in Zanzibar following LGBTI advocacy).

 

[43] Hodgson, supra note 6, at 4.

 

[44] See Yezer, supra note 18, at 129.

 

[45] See Rodriguez, supra note 5, at 207.

 

[46] See, e.g., Maoulidi, supra note 14, at 32 (“Women became the ultimate cultural icons through which a society would resist cultural intrusion and assimilation.”).

 

[47] See Scully, supra note 2, at 20–21.

 

[48] The explicit focus of essays by Goldfarb, Maoulidi, Abu-Lughod and Alidou, respectively. Yezer does consider a broader picture of human rights’ gendering, but is more concerned with the effects of the masculine “insecurities” wrought by humanitarian intervention than with investigating the fundamental gendering of human rights theory.  See Yezer, supra note 18, at 121.

 

[49] See, e.g., Alidou, supra note 3, at 197 (concluding, somewhat perfunctorily, that an examination of language in a Kenyan radio broadcast “clearly shows Kenyan Muslim women’s exposure to global transnational Muslim women (feminist) discourses”).

 

[50] Mary Jane N. Real, “Defending Women, Defending Rights: Transnational Organizing in a Culture of Human Rights,” in Gender and Culture at the Limit of Rights, supra note 1, at 218.

 

[51] Hodgson, supra note 6, at 2.

 

[52] See supra notes 36–41 and accompanying text.

 

[53] See, e.g., Hodgson, supra note 15, at 150; Rodriguez, supra note 5, at 211; Scully, supra note 2, at 30; Yezer, supra note 18, at 134.

 

[54] Goldfarb’s essay stands out as the only piece to make clear policy recommendations; however, foremost among even these is the idea of “woman-defined advocacy,” which “incorporate[s] women’s own narratives” and allows women “to set priorities and decide on strategy.”  Goldfarb, supra note 19, at 70.

 

[55]Alidou, supra note 3, at 181.

 

 

old-books

Book Review 1 — In Defense of Women: Memoirs of an Unrepentant Advocate

A student review of Nancy Gertner's 
In Defense of Women: Memoirs of an Unrepentant Advocate

Boston, MA.  Beacon Press.  264 pages.  $26.95 (hardcover).
 
Posted: February 16, 2012 at 9:02 p.m.

Review by: Elizabeth Jensen
Harvard Law School
Class of 2014

Click here to access a PDF of the book review.

In Defense of Woman is more than a story about a feminist attorney.  It is the story of a woman who entered a still bigoted profession, and carved her way.  It is the story of the clients she took on and the causes for which they fought.  Gertner writes candidly about the costs as well as the rewards of her life in law up to her appointment as a federal judge in 1993.  For aspiring female attorneys, Gertner’s book is an insightful read. 

Since the start of her career in 1975, Gertner early began keeping a “Sexist Tidbits” file, the kernels of many of her book’s stories.[1]  These anecdotes could have the effect of moving the reader from outrage to outrage, pulled along by a sense of anger at an anti-women establishment, but Gertner’s candid writing and thoughtful insights keep the work from falling into this trap. The sexist comments by judges, comments about plaintiffs and about herself, the news clippings and court room incidents that arose from the entrenched old boys network—all are painted into a portrait in shades of gray rather than in black and white.

We get an idea of Gertner’s motivation and shaping forces through her description of her close relationship with her very traditional father (he did not approve of her mother working or driving).[2]  Gertner writes that through their debates—really more like arguments—she learned to disagree vehemently while still respecting and even loving her opponent; that growing up she did not have women role models doing what she wanted to do; and that although she loved and respected her mother, she did not want to become her, or so she thought.[3] As a young female attorney she forged her path without clear guideposts.

Much of Gertner’s professional life was spent, as suggested by her book’s title, defending women: sexual harassment, sexual discrimination, malpractice, battered women, abortion, lesbian women seeking custody of children. The book tells the stories of Gertner’s life and her cases, recalling the legal choices as well as the personal decisions behind them, both client decisions and decisions she made about her own professional and moral compass.

Gertner writes fluidly about the legal strategizing, her prose painting firm, clear strokes.  Her first case, defending anti-Vietnam activist Susan Saxe in a murder charge stemming from a bank robbery, presents both the ideological and procedural considerations. Saxe was a defendant heavily involved in her own case, and wanted the legal team “to reflect her feminism.”[4]  Gertner had to teach herself legal procedure.  Legal work was like “learning a language”[5] and immersion was the way to learn quickly.  She describes in deft detail the intense preparation for court and the payoff: an unexpected victory in her first major case.

The Saxe case went for months before Gertner and her team nailed down a substantive argument.  Throughout her book, Gertner emphasizes the creative thinking needed for substantive reasoning.  These creative arguments are a good window into the evolution of the law, of the evolving definitions of medical malpractice and sexual harassment.  Gertner utilizes an advocate’s approach as she presents these issues, leaving the reader curious about as to what Gertner herself thought of the decisions and compromises she made. 

Though we’re left wondering how Gertner the lawyer felt about some of the gray she encountered in her work, discussing controversial issues through the lens of cases and stories gives the work emotional pull. While we wish to hear the reflections of the advocate, her silence leaves room for readers to reflect for themselves on the gray areas.  The case of a physiatrist who started a sexual relationship with his client illustrates this point.  At the time, there were questions about whether such conduct even qualified as malpractice.[6]  He called it “therapy”[7] and said that his client’s problems were not his fault, as “she was a ‘global disaster’ long before they met.”[8]  As expected, Gertner argued passionately against this self-serving characterization. She writes that in this environment, not knowing much about medical malpractice was unexpectedly “a strength.”[9]  She would focus her argument on how the exploitation and dehumanization of the situation ran directly counter to the purposes of therapy.  It was a new concept of malpractice, but one that fit well within the existing framework.

In the end, she writes of the legal process as a kind of “‘law cure”’ that helped her client develop agency and confidence far more than her years of therapy ever did.[10]  At the same time, the client did not consider herself to be an actor in the ongoing evolution of the meaning of medical malpractice.  When asked later to testify in another case brought against the same physiatrist, her former client refused.[11]  Gertner ends the chapter with a discussion she had with her hairdresser. He tells her about a jury on which he had served.  It was a malpractice case against a psychiatrist for sexual improprieties.  Without other women coming forward, the jury was unable to convict.  Gertner asks the defendant’s name and learns that it was Dr. X, the defendant from her own case.[12]  She does not write of any emotional response she had to the news, and it is left to the reader to reflect on the choice of the client not to testify and what it means that Dr. X continued his practice. 

Both the Saxe case and the Dr. X case are illustrative of the way in which Gertner combined “‘insider privileges’” with an “‘outsider consciousness.’”[13]  For Gertner, being a successful woman in the profession required carving out an identity in the old boys network.   However, this familiar theme could have been further elaborated.  While Gertner was clearly an outsider to the traditional old-boys network, her atypical clients and innovative arguments provided the foundation on which to build a successful and distinguished career.  Such clients and causes of actions meant the outsider was coming into the courtroom.  While the existence of the Sexist Tidbits file was itself a coping mechanism for the sexism she encountered, Gertner’s own success seems in some ways to belie the difficultly of the problem.  In many ways, Gertner seems to credit her very outsider status as giving her the opening she needed to carve out her place in the system, a circumstances which could have been further explored throughout the work.

As a young woman, Gertner was better able to relate to certain clients and young jurors, and was seen as a more appropriate face for certain causes.  She was the “flower child” lawyer,[14] the female advocate with the seventies sensibility and the Yale law school training.[15]  This outsider status gave her cachet and media attention, providing a strong, early foundation on which to build a successful practice.  One wonders how Gertner’s experience compared to young male lawyers, right out of law school, who did not have an outsider hook to carve out a courtroom identity. 

Gertner’s story is also one of transition from the “flower child”[16] advocate into a more traditional professional role.[17]  She recalls that early on she was opposed to what she thought professionalism meant, as she felt that it “separated the lawyer from the client [and] encouraged elitism.”[18]  This attitude changes, and the reader yearns for more self-reflection on this point. Certainly, there is plenty to suggest that the transition to the more professional route was not smooth.  When working with her male partner to defend a political corruption case, her male partner would get the press.[19]  Though Gertner had practiced law for over twelve years, some still assumed that he was the one pulling the strings.

When she took high profile cases which were traditionally handled by the male establishment and not linked with what might be viewed as women’s causes, she gathered even more fuel than usual for her Sexist Tidbits file.  She writes that in truth these high profile political cases belonged to her male partner, not herself—she was brought in for her trial expertise. [20]  While Gertner argued and won against many male attorneys and carved out a place in the male-dominated courtrooms, the cases in which she developed her skills involved female clients or women’s causes.  Even when she later took a main role in the trial for the case, she was not given credit in the press.  Despite successful and extensive trial work she was not considered among the “top trial lawyer[s]” appropriate for a notorious political case.[21]  The idea that there may be certain areas of the law in which men assume women are not found or should not be taken seriously is a major issue that deserved further exploration in the book.  As a reader I would have liked more discussion about the differences between being a female attorney working on “feminist issues” versus working on traditional, male dominated cases. 

After the political corruption cases, Gertner discusses another incident which may be considered a woman’s issue, a rape case—but in this case, she represents the alleged perpetrator. Though at first reluctant to take the case, she ultimately does because she believed he was innocent.[22]  She talks of his case in a chapter entitled “A ‘So-Called’ Feminist,” starting the story at the end, when her feminist credentials are challenged for taking and winning the case.[23]  From the side of the defendant, the reader can see the dangers when the pendulum, even in the case of rape, swings too far in the direction of the accuser.  Her discussion illustrates the role politics played in the case. It had become politically risky to find against a plaintiff in a rape case, as courts were reluctant to “send the wrong message” in this developing area of law.[24]  Believing her client’s innocence, Gertner won a victory even more sweeping than she could foresee, setting a precedent which pushed the pendulum back toward defendants by giving judges greater ability to overturn cases by giving them the option to review psychotherapy-patient records.[25]  Beyond merely recognizing the shades of gray in the system, Gertner herself was willing to take on shades of gray herself, and endure the political flak from groups that saw the world in black and white.  She ended up pushing the pendulum in both directions, setting up a deep-seeded impression of the need for balance which would be invaluable for the next stage of her career.                 

Gertner ends her book with her appointment as a federal judge.  It is a testament to the engaging prose and lively insights that on reaching the end of the book, one wants to know more of that next chapter of her life and her perspective from the bench.  Gertner writes about the female judges she encountered, usually followed by the observation that they were the first female judge in that district or the only female judge on that panel.  There is a sense of satisfaction as Gertner joins their ranks in the end.   

 


 

[1] Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate xi (2011).

 

[2] Id. at 13.

 

[3] Id. at 127.

 

[4] Id. at 16.

 

[5] Id. at 30.

 

[6] See id. at 70–71.

 

[7] Id. at 67.

 

[8] Id. at 68. 

 

[9] Id. at 69.

 

[10] See id. at 72.

 

[11] Id. at 80.

 

[12] Id. at 82.

 

[13] Id. at 53.

 

[14] Id. at 16.

 

[15] Id. at 53.

 

[16] Id. at 16.

 

[17] Id. at 110.

 

[18] Id. at 15–16.

 

[19] Id. at 111.

 

[20] Id. at 108.

 

[21] Id. at 110.

 

[22] Id. at 155­–56.

 

[23] Id.

 

[24] Id. at 168.

 

[25] Id. at 174.

 

 

 

gertner_feature3

In Defense of Women: Panel Discussion and Book Reviews

Click the image to see the full-size poster.

Panel Discussion

Coinciding with the publication of Judge Nancy Gertner's new book, In Defense of Women: Memoirs of an Unrepentant Advocate, the Journal of Law & Gender is joining with the Harvard Law School Library, the Harvard Women's Law Association, and the Harvard American Constitution Society to sponsor a panel discussion on women in the law.

Panel members will include Judge Gertner, Dean Martha Minow, Professor Carol Steiker, Attorney General Martha Coakley, and NPR's Robin Young.

Join us Tuesday, February 21, at 6 p.m. in Austin Hall West 111. Refreshments will be served.

Book Reviews

Journal members Amy Chmielewski, Elizabeth Jensen, and Laura Wolf offer reviews of Judge Gertner's new book.

Excerpt from Amy Chmielewski's review:

But reading Judge Gertner’s memoirs may prompt readers to ask another question in response: what is lost when judges’ voices are confined to the courtroom—when the legal profession abides by the fiction that judges, once appointed, can and should easily efface their past experiences, their personalities, preferences, and politics?  Surely we are more honest when we acknowledge that judges come to the bench not as blank slates, but as palimpsests.  Surely the profession is made richer by accounts like Judge Gertner’s that force us to face the complexities of human nature that law and legal ethics sometimes instruct us to ignore.

Click here to read the full review. 

Excerpt from Elizabeth Jensen's review:

Much of Gertner’s professional life was spent, as suggested by her book’s title, defending women: sexual harassment, sexual discrimination, malpractice, battered women, abortion, lesbian women seeking custody of children. The book tells the stories of Gertner’s life and her cases, recalling the legal choices as well as the personal decisions behind them, both client decisions and decisions she made about her own professional and moral compass.

Click here to read the full review.

Excerpt from Laura Wolf's review:

Irony of ironies, one of the reasons Gertner is so successful is because no one gave her a break.  The media ignored her, judges chided her, and yet she persisted.  Being a woman—excluded from the “boy’s club”—and a young attorney gave her no choice but to be innovative.  In the Saxe case, to undermine witness testimony identifying a purple dress allegedly belonging to the defendant, Gertner asked a number of women in the courtroom to wear various shades of purple.This had the best effect imaginable: the witness picked out a dress in court that failed to match the shade of the dress found by the police.

Click here to read the full review.

old-books

Book Review 2 — In Defense of Women: Memoirs of an Unrepentant Advocate

A student review of Nancy Gertner's 
In Defense of Women: Memoirs of an Unrepentant Advocate

Boston, MA.  Beacon Press.  264 pages.  $26.95 (hardcover).
 
Posted: February 16, 2012 at 9:02 p.m.

Review by: Amy Chmielewski
Harvard Law School
Class of 2013

Click here to access a PDF of the book review.

In August of 2010, several months before In Defense of Women was released, a Boston Globe writer questioned the book’s propriety.[1]  Calling its title “very unjudicial,” he wondered: can a clear line be drawn between past and present?[2]   When a judge reflects upon her career as a civil-rights and criminal-defense attorney, does she undermine her obligation to refrain from commenting on matters that may come before her?[3]

            But reading Judge Gertner’s memoirs may prompt readers to ask another question in response: what is lost when judges’ voices are confined to the courtroom—when the legal profession abides by the fiction that judges, once appointed, can and should easily efface their past experiences, their personalities, preferences, and politics?  Surely we are more honest when we acknowledge that judges come to the bench not as blank slates, but as palimpsests.  Surely the profession is made richer by accounts like Judge Gertner’s that force us to face the complexities of human nature that law and legal ethics sometimes instruct us to ignore.

  1. The Advocate and the Jurist

            Nearly all of the 260-odd pages of In Defense of Women focus on the author’s experiences as an advocate, especially during the early years of her career.  But, in a sense, Judge Gertner is as much a part of the narrative as Advocate Gertner.  The book’s preface begins with an anecdote: in the late 1990s, both the author and Sonia Sotomayor—then sitting on the Second Circuit—were invited to give advice to a group of aspiring judges at Yale Law School.[4]  Justice Sotomayor counseled the students to be outstanding performers in school and in the profession, but moreover, she warned them to tread carefully, to have “clear principles” but avoid becoming associated with “controversial causes.”[5]   Then Judge Gertner outlined her own path to the bench, the highlights of her professional and personal life: begin by defending a “lesbian, feminist, radical anti-Vietnam War activist accused of killing a police officer” in a hugely high-profile case, then “take every abortion case in the Commonwealth of Massachusetts,” and just in case you haven’t made your political bent clear enough, marry the legal director of the ACLU’s Massachusetts chapter.[6]

            As her memoir illustrates, Judge Gertner applied for a seat on the federal bench not in spite of her controversial background, but because of it.  In a meeting with Senator Edward Kennedy that may have won her the Senator’s support, she asked him point-blank to recommend a civil-rights lawyer to the judiciary.[7]  Doing so would not only signal the Senator’s support for civil rights, it would “validate the career path” for aspiring civil-rights lawyers.[8]  A risky strategy, of course, but it worked.

            In Defense of Women ends with a brief account of the author’s confirmation process.   Unsurprisingly, it was bumpy and uncertain—though not for the reasons a reader might expect.[9]  While Judge Gertner refrains from commenting directly on the politics of the confirmation process in the abstract, this section of the book invites readers to consider the state of judicial nominations today.  It is difficult to imagine Gertner’s nomination surviving the current Senate, where the confirmation of so-called “activist” judges are routinely stalled or blocked altogether.  As a result, 90 of 858 judgeships on the appellate and district courts were vacant as of January 2011.[10]   Many would-be appointees accused of “activism” have had careers that look downright tame compared to Gertner’s (take, for example, Caitlin Halligan, whose appointment to the D.C. Circuit has been stymied in part because as Solicitor General for the state of New York she signed her name to briefs arguing that gun manufacturers should not be shielded from tort liability).[11]

            What does it mean when an “unrepentant advocate,” or even a dedicated public servant, is unable to ascend to the federal bench, despite being eminently qualified for the job?  Gertner’s career illustrates what we are in danger of losing.  Perhaps her career sends a hopeful message as well—an assurance that, indeed, it is possible for our representatives to abandon political deadlock and help build a judiciary that better reflects the breadth and richness of the legal profession. 

  1.    Lessons for Young Lawyers and Law Students

While In Defense of Women is the kind of book capable of attracting a wide audience, it often seems to speak in particular to new or aspiring lawyers and law students.  When the first chapter opens, the narrator is young, just a few years out of school.  She lives in a Cambridge one-bedroom, drives a beat-up car, and has only recently come to accept the fact that sometimes her job requires her to put on a dreaded suit.  Her idealism has managed to survive three years of law school, and then leads her to make the sorts of keen but risky choices that would come to define her career.  Nancy Gertner is barely thirty years old, and has almost no trial experience, when she takes the lead to defend Susan Saxe, accused of the felony-murder of a Boston police officer killed during a bank robbery conceived as an anti-Vietnam protest.[12]  The trial results in a hung jury—in many senses an unlikely victory—although Saxe pleads guilty rather than face the chance of conviction following a second trial.[13]

            Enthralled by this early coup, the reader is pulled into a coming-of-age story.  We discover how much the young Gertner still has to learn.  Readers follow the author as she learns to command a courtroom, to reconcile her interests with those of her clients, and to reap the benefits of her “outsider” status (the author reflects, “I was in a position to make choices that others would not.”[14]).  Readers also witness Gertner’s journey through young- and middle-adulthood.  Gertner falls in love with and then marries a colleague; she raises two children; she outgrows the firm that launched her career.  Young lawyers who fear moments of transition in their careers, or who doubt that they can raise a family while engaging in meaningful work, should find the memoir reassuring. 

            Just as I query whether Nancy Gertner could be confirmed to the federal bench in our current political environment, I also wonder whether a newly minted lawyer today would be able to forge a career path similar to Gertner’s.  A voice—perhaps a cynical voice—within me says ‘no,’ pointing to the differences between the legal landscape today and that of the 1970s, before large firms became huge firms, and when the high costs of litigation were not yet astronomical.  It’s also hard to ignore the confluence of happy fortuities that allowed Nancy Gertner to become the lawyer she is.  For example, were it not for Susan Saxes’s idiosyncrasies, which led her to seek out a young woman lawyer instead of a seasoned man with dozens of acquittals under his belt, Gertner would not have had such a spectacular opportunity so early in her career.[15]  But of course, once Gertner had the Saxe case, it was clearly a combination of wit, talent and extreme dedication, much more than luck, that propelled her to success.

  1.      Conclusion

            As In Defense of Women reminds us, judges are lawyers.  Speaking as both lawyer and judge, Nancy Gertner counsels young and aspiring members of the legal profession to take control of their careers, rather than surrender control to colleagues, superiors, or clients; to take intelligent risks; and to understand lawyering as an ethical endeavor. 

            She also prompts us to consider what we want and expect from our federal judiciary.  As the author explains, she never intended to end up on the bench; in fact, in the early years of her career, she longed to be a law professor.[16]  With academia in mind, Gertner was free to support controversial causes and argue for novel interpretations of the law.  Today’s future judges, it seems, cannot do the same.  They are surely wiser to follow Justice Sotomayor’s advice and lie low.[17]  And sadly, in so doing, they may find that they cannot be the kinds of lawyers they want to be.


[1] Jonathan Saltzman, Judge’s book raises some eyebrows; Gertner memoirs focus on her decades as advocate for women, Boston Globe, Aug. 19, 2010, at B1.

 

[2] Id.

 

[3] Id.

 

[4] Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate ix (2011).

 

[5] Id.

 

[6] Id. at x.

 

[7] Id. at xiii.

 

[8] Id.

 

[9] See id. at 243–45.

 

[10] Carl Tobias, Where are all the federal judges? Why 90 empty seats threaten American justice, The Christian Science Monitor, Jan. 5, 2011, http://www.csmonitor.com/Commentary/Opinion/2011/0105/Where-are-all-the-federal-judges-Why-90-empty-seats-threaten-American-justice.  See also Carol J. Williams, Federal logjam leaving judges’ seats empty in federal courts, L.A. Times, Aug. 30, 2010, http://articles.latimes.com/2010/aug/30/nation/la-na-judicial-logjam-20100831.

 

[11] See Charlie Savage & Raymond Hernandez, Filibuster by Senate Republicans Blocks Confirmation of Judicial Nominee, N.Y. Times, Dec. 6, 2011, http://www.nytimes.com/2011/12/07/us/senate-gop-blocks-confirmation-of-caitlin-halligan-as-judge.html; Brief of the New York State Attorney General as Amicus Curiae Supporting the City of New York’s Cross-Appeal and Reversal of the Portion of the District Court's Decision Addressing the Constitutionality of the CAA, City of New York v. Beretta, 524 F.3d  384 (2008) (Nos. 05-6942-cv, 05-6964-cv, 05-6711-cv, 05-6673-cv), 2006 WL 5582282.  See also People ex rel. Spitzer v. Sturm, Ruger & Co., 309 A.D. 2d 91 (N.Y. App. Div. 2003).

 

[12] Gertner, supra note 4, at 1, 35.

 

[13] Id. at 47–49.

 

[14] Id. at 59.

 

[15] Id. at 16–18.

 

[16] Id. at 7.

 

[17] Id. at ix.