Tag Archives: Family Law


Windsor, Federalism, and the Future of Marriage Litigation

Mark Strasser*

In United States v. Windsor,[1] the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).[2] Now that section 3 has been invalidated, section 2 of DOMA may also be challenged.[3] The constitutionality of DOMA section 2 was not before the Windsor Court, so the Court could not have been expected to address its validity directly. Nonetheless, the Windsor opinion provides surprisingly little express guidance with respect to whether section 2 also violates constitutional guarantees.[4] Further complicating any analysis of that section’s validity is that the section has not been authoritatively construed. The constitutionality of section 2 (and even its being subject to challenge) will depend greatly on its authoritative interpretation and, in addition, on a clear articulation of the constraints, if any, on the power of a state to refuse to recognize a marriage validly celebrated in a sister domicile. If section 2 is construed narrowly and is found not to afford states a power that they do not already possess, then it would seem immune from challenge; however, in that event, a key provision of several state mini-DOMAs will lose even the veneer of legality.

Part II of this Article discusses Windsor. Part III examines that decision’s possible implications for section 2 of DOMA, including some possible constructions of the provision and some of the differing constitutional implications of these alternate constructions. Part IV analyzes Windsor’s possible implications for state same-sex marriage bans. The Article concludes that while Windsor could have been clearer with respect to its implications for section 2 and for some of the state same-sex marriage bans, the most plausible interpretation of Windsor establishes the constitutional invalidity of DOMA’s section 2 and of many state mini-DOMAs, in part if not in whole.

Article: Strasser, Windsor, Federalism and the Future of Marriage Litigation

Citation: Mark Strasser, Windsor, Federalism and the Future of Marriage Litigation, 37 Harv. J. L. & Gender Online 1 (2013).

* Trustees Professor of Law, Capital University Law School, Columbus, Ohio.

[1] 133 S. Ct. 2675 (2013).



[2] 1 U.S.C. § 7 (1996).



[3] 28 U.S.C. § 1738C (1996).



[4] Justice Kennedy merely mentioned it in his opinion. See Windsor, 133 S. Ct. 2675, 2682–83 (2013) (“Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.”).




A Response to Laurie Shrage’s “Is Forced Fatherhood Fair?”

By Jean Strout

On June 12, 2013, feminist scholar Laurie Shrage published an opinion piece in the New York Times decrying “forced fatherhood” as an injustice.[1] In her piece, Shrage supports child support reform, which would excuse from child support obligations “a naïve man who, in a moment of exuberance with a girlfriend, allows his name to be put on a birth certificate, and a man whose only tie to a child is biological.”[2] Shrage’s suggestion smacks of “financial abortion,” which men’s rights advocates have long championed: the man is freed from financial responsibility if the woman refuses to abort the fetus.[3]

Shrage constructs child support as a “punishment” aimed at controlling men’s sexual behavior.[4] This view neglects the most important motivator of compulsory child support: the best interests of the child. Shrage also fails to address alternatives to child support: if biological fathers don’t pay, who will?

Compulsory child support does not need to be viewed as a punishment for men, or as a construction of fathers as nothing but financial providers. Shrage argues that while women have the option to abort a fetus, men have no control over whether the child is born, and are saddled with responsibilities if it is. Leaving aside the practical and moral obstacles to abortion for many women, the different reproductive rights of men and women result from the differential physical consequences of pregnancy and birth:

It is not necessarily a sign of anti-male bias, as men’s advocates contend, that a man’s ability to control his income and his labor isn’t accorded the same respect as a woman’s ability to control her body. In our culture, bodily autonomy is seen as a more fundamental value than property; that’s why chopping off an offender’s finger seems to us far more barbaric than stiff financial penalties or even forced labor.[5]

Under this framework, it makes sense that a woman cannot be compelled to surrender her body to gestating a fetus, while a man can be compelled to financially contribute to his child once it has been born. The fact that women can decide whether to abort or not, and thus have control over whether they become parents, is the result of a biological reality. People get to have more control over what happens in their bodies than what happens to their wallets.

That doesn’t mean that compulsory child support is fair. As Shrage rightly argues, the characterizations of men who seek to terminate child support obligations for unwanted children as selfish, irresponsible, or even evil should be challenged. As Cathy Young points out:

 If men who want a right to be released from their parental obligations seem callously egocentric to many people, that’s how women who want abortion on demand look to many anti-abortion advocates. It should make us ponder the fact that, while paternal desertion is often cited as evidence of male irresponsibility and selfishness, more than a million American women every year walk away from the burdens of motherhood.[6]

Child support may seem unfair in some circumstances, but it is not a punishment; it is a way to protect innocent children from being punished for being conceived by a parent who didn’t want them. Children are indisputably expensive, and many expenses are directly related to the child’s well being, such as safe housing, medical care, and nutritious food. The child’s right to thrive should trump the parent’ interest in avoiding the financial burden; courts should not “subordinate the constitutional rights . . . of the child to those of one of the parents.”[7] It is true that the best interests argument makes less sense at economic extremes. In Massachusetts, for example, the minimum child support payment for one child is $20 a week.[8] The $20 a week minimum applies even if the custodial parent (usually the mother) has no other source of income. Nobody would argue that $20 a week is enough to support a child, so mandatory child support is clearly not sufficient to ensure the child’s well-being. The best interests argument also makes less sense when the custodial parent has a more than adequate income, or when the non-custodial parent (usually the father) must pay a certain percentage of their income even though much less would suffice to properly take care of the child. In the context of higher-income parents, maintaining proportional child support obligations can be explained in two ways: punitive treatment of fathers (making them feel the loss of income) or a sense that the child morally deserves more money because his genetic father has more money.[9]

The best interests argument gains strength when the child’s well being is considered more holistically. For instance, in 1982 the New York District Court rejected a father’s argument of reproductive fraud[10] as a defense to payment of child support.[11] The New York District Court rested its decision on consideration of the psychological, as well as financial, well-being of the child: allowing fraud as a defense to child support demands “would create a new and inferior category of an out-of-wedlock child based upon the circumstances of conception and would subordinate the constitutional rights and other interests of the child to those of one of the parents.”[12] This category of child would be acutely aware that the biological father did not want them to be conceived, and would be at a financial disadvantage compared to ‘wanted’ children; the same concerns apply to a financial abortion option. Shrage mentions the interests of the child in relation to the challenges of “manag[ing] a lifelong relationship with an absent but legal father.”[13] However, she doesn’t acknowledge the psychological toll of having legal proof that your biological father never wanted you.

Nor does Shrage explain how children’s needs will be paid for, if not by the men who helped bring them into the world. She vaguely suggests that “the government has other options, such as mandatory sex education, family planning counseling, or community service.” These programs are laudable (although I am unsure of the meaning of “community service” in this context), but they are not mutually exclusive with compulsory child support. They also do nothing to provide relief for a child that has already been brought into this world.

If we accept as a society that children need to be adequately cared for, we must also accept that someone must pay. If the custodial parent can’t do it, the burden must necessarily fall on the other parent or on the state. Just as there are objections to forcing a father to pay for child he wanted, there are practical and normative problems with asking the state to pay. It can be seen as a moral wrong, in that biological fathers are able to escape obligations to children they helped bring into the world. It increases the burden on taxpayers, who must pay for the abdication of parental responsibility.[14] This appears especially egregious in cases where the biological fathers can easily afford to pay support. State provision of child support also opens the door to government policing of women’s lives and finances.

Most importantly, the ‘welfare state’ and programs providing support for families are persistently politically controversial and underfunded; it is probably politically impossible to pass the full burden of child support onto the state in the near future. Consequently, as a practical matter, the father may be the only source of support available. If Shrage wants to free fathers from the burdens of accidental pregnancy, she needs to offer an alternative to poverty.

Finally, Shrage skirts the practical question of how to tell when a pregnancy is “accidental,” rendering the father eligible to avoid paying child support. What if, as is probably most often the case, the man and woman never discussed what would happen if pregnancy resulted? It is unclear whether the legal line would be drawn at reproductive fraud (however defined), or whether lack of or failed contraceptive use would be enough to make a pregnancy ‘accidental.’ Determining the circumstances of conception would require a complex investigation encompassing the pair’s sexual and romantic history, and would likely devolve into a he-said/she-said dispute about promises, commitments and ejaculations.

Male disempowerment in the area of abortion, combined with legal support obligations and negative stereotypes of fathers, has sparked violently outspoken responses from ‘men’s rights’ and ‘father’s rights’ advocates, many of whom have extreme views about the extent to which men should be able to control women’s bodies and avoid responsibility for their genetic children.[15] There are valid concerns underlying the vitriol, and the goals of those who wish to challenge gendered stereotypes about parenting will be furthered if we can look past the extremists and understand the plight of men who are “forced” into fatherhood. However, we need to think carefully about whose rights we are privileging. Shrage constructs the problem as two-sided: women have more rights, men have fewer. But she forgets the children.



[1] Laurie Shrage, Opinion, Is Forced Fatherhood Fair, N.Y. Times, (June 12, 2013, 9:00 AM), http://opinionator.blogs.nytimes.com/2013/06/12/is-forced-fatherhood-fair/.

[2] Id.

[3] Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women’s Sexuality, 56 Emory L.J. 1235, 1244 (2007).

[4] Shrage, supra note 1.

[5] Cathy Young, A Man’s Right to Choose, Salon.com (Oct. 19, 2000, 12:47 PM),

http://www.salon.com/2000/10/19/mens_choice/; see also Hendricks, supra note 15, at 367 (“An obligation to pay for the support of a child is entirely different in nature from either the physical imposition of compulsory pregnancy or the relational imposition of compulsory parenting.”).

[6] Id.

[7] Inez M. v. Nathan G., 451 N.Y.S.2d 607, 609 (1982).

[8] Massachusetts Child Support Guidelines Worksheet; M.G.L. c. 208 § 28 (2012).

[9] See, e.g., Pamela P. v. Frank S., 443 N.Y.S.2d 343, 348 (N.Y. Fam. Ct. 1983) (“The child is entitled in this court's opinion to no less a standard of living than his father's, because it indicates the likely level that the child would enjoy if he had been born into the still-prevalent circumstance of an intact family or a father willingly sharing his custody and care.”).

[10] Advocates of a reproductive fraud defense would include within its definition pregnancies that result from false claims of birth control use and pregnancies initiated using sperm that the parties explicitly or implicitly agreed would be disposed of. Myrisha S. Lewis, Sex and Statutory Uniformity: Harmonizing the Legal Treatment of Semen, 7 Charleston L. Rev. 235, 267 (2012). Reproductive fraud is also referred to as contraceptive fraud and birth control fraud. Id. In Inez v. Nathan G., the father argued that the failure to terminate a pregnancy as promised consisted reproductive fraud. 451 N.Y.S.2d at 609.

[11] See Inez M. v. Nathan G., 451 N.Y.S.2d. at 609.

[12] Id.

[13] Shrage, supra note 1.

[14] See Linda C. McClain, “Irresponsible” Reproduction, 47 Hastings L.J. 339, 423–424 (1996) (“Contemporary feminists identify male irresponsibility as a cause of unwanted pregnancy, abortion, single motherhood, family poverty, and family violence, often critiquing the ways that law permits or perpetuates such irresponsibility.”).

[15] [15] See, e.g., Dalton Conley, A Man's Right to Choose, N.Y. Times, Dec. 1, 2005, at A33.


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.


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). 



Batterers As Agents of the State: Challenging the Public/Private Distinction in Intimate Partner Violence-Based Asylum Claims

A man in Africa grew up in a country where has been raised to believe — through social traditions, tribal rules, and everyday practice — that members of his tribe are inferior to and dependent on a dominant tribe. The man believes that he is no less a human being than members of the dominant tribe and that he deserves to live free of fear. He joins a dissident group and hands out pamphlets advocating equality. Shortly thereafter, a group of thugs who are members of the dominant tribe beat him and threaten to kill him. "You seem to think that you are in a position to defy us," they say. "You seem to think that you are equal to us. We shall remind you of your place in this society." The beatings and threats continue and the man eventually seeks help from the police. The police, most of whom are members of the dominant tribe, are unwilling to help. "You are in a bad situation but we cannot do anything to interfere. Our laws and our culture prohibit it. Just keep your mouth shut from now on and try to avoid these people." Other members of the man's tribe are intimidated upon seeing how their fellow tribe member has been treated for his behavior, and some of them stop their dissident activities.

After another particularly bad beating, the man finally escapes. He makes his way to the United States and applies for asylum on the basis of two grounds: (1) his political opinion opposing the domination of the elite tribe; and (2) his membership in the particular social group of the subjugated tribe.


[button link=”http://harvardjlg.com/wp-content/uploads/2012/02/Batterers.pdf” style=”download” color=”silver”]View Full Article (PDF)[/button]


Unsex Mothering Responses: Kimberly Mutcherson


Unsexing Care: Beyond Gendered Parenting Terms

A Response to Darren Rosenblum’s Unsex Mothering: Toward a Culture of New Parenting

Kimberly Mutcherson[1]

One thing that can be expected from a formerly pregnant man is interesting commentary about the parenting experience that follows that pregnancy.  Professor Rosenblum’s piece, Unsex Mothering: Toward a New Culture of Parenting,[2] does not disappoint in this regard.  His reflections on unsexing mothering are provocative and engaging.  Given the stimulating nature of the topic and my general interest in seeing traditional gender roles complicated and dismantled in the interest of equality, I was surprised to find myself not totally convinced by the project.  Sympathetic though I am to Professor Rosenblum’s overall goal—finding  space for parenting that does not force parents into rigid and confining roles based on biosex—I found myself pinpointing gaps in his narrative that left with me significant questions.  By the end of his piece, I was concerned that his goal might be even more difficult to attain than one might think at first glance.

I am fascinated by Professor Rosenblum’s notion of unsexing motherhood specifically and unsexing parenthood in general.  As he notes, this project is particularly salient for families that already eschew traditional notions of gender and family, such as families headed by same-sex or transgender parents, yet there is also significant room for other families to benefit from such a shift.  Certainly, Professor Rosenblum is not the only man who identifies with the part of himself that mothers.  As I read his piece, I was reminded of a blog called Mommy With a Penis,[3] penned by a gay man raising two adopted children with his husband.  These men challenge an entrenched orthodoxy about what it means to be a mother and resist the notion that “mother” is a label that requires a particular biosex or gender identification.  No doubt, challenges of this sort have been and will continue to be critical to the diversification of family life.

Missing, however, from Professor Rosenblum’s narrative was any substantial discussion of the myriad ways in which “mother” and “mothering” are highly loaded terms whose perceived grant of power is not equally distributed.  He explains in his piece that responsibility for children is a driver of women’s second-class status at work and then notes that “[t]his split varies along constructions of race, culture, class and ethnicity—indeed motherhood and fatherhood differ along these axes.”[4]  Although he is clear that mothers and fathers do not exist in isolation, but rather are understood and constructed in a world in which demographic categories matter, throughout the piece, Professor Rosenblum seems to be primarily concerned with families of privilege.  When he writes about the rise of the “Grizzly Mama”[5] or the “opt-out” revolution,[6] he is writing about a subset of women, many of them white, for whom embracing the power of motherhood, such as it is, is in fact a choice.  This is a choice made within particular social constructs, but it is still more of a choice than is available to many women for whom mothering is, at least in part, a site of oppression, government intrusions on privacy, and denigration. 

Motherhood does not mean the same thing to all people, and its social meaning is different depending upon who mothers.  No doubt motherhood confers power on some for whom motherhood is freely chosen and who can exercise some control over how they mother.  For others, however, motherhood involves significant and intrusive state oversight of parenting choices, substantial economic hardship, and in some cases even violence.  That this is true suggests to me that Rosenblum’s story cannot simply end with the idea of mothering being unbound from gender.  For if the social construction of “mother” and capacity for mothering varies across race, class, sexual orientation, immigration status, marital status, and other categories of difference, it will surely differ across biosex as well, and perhaps in ways that Rosenblum does not anticipate and/or in ways that undermine the goals of an unsexing process.  To not grapple with the intersectional realities of motherhood, I fear, means that it is impossible or at least difficult to understand what would make a project of unsexing successful.

In a similar vein, I left the piece unconvinced that the goal should be to first unsex mothering and fathering, which Rosenblum argues “may lead toward the diminution of the terms’ distinctions, and may even serve as a precursor to unsexing parenting.”[7]  He goes on to suggest that unsexing “mother” and “father” might mean that these terms come “to carry less meaning than ‘parent,’ but that is a side effect rather than the principal purpose of unsexing mothering and fathering.”[8]  At this point, I found myself wondering why this should be the case.  For, it strikes me that an equally if not more powerful goal than creating space for people to mother no matter their biosex, a move that so many will blindly resist, is the goal of creating spaces in which men provide care.  In other words, the goal here need not be for men to call themselves mothers and women to call themselves fathers but for men to be thought of as eager and talented caretakers and for women to be free to reject such a role as natural and intuitive. 

The point to be made on a larger scale isn’t that men can “mother” as that term has been understood.  Rather, because I am unconvinced that women benefit in such a scheme as it remains premised on the idea that gender—represented by the use of the gender specific term “mother” rather than the gender neutral term “parent”—still matters when it comes to caretaking.  Continuing to use that gendered pronoun does not do enough work to discard the idea that womanhood is synonymous with the ability and desire to provide care.  Rosenblum makes this argument himself when he writes that ideally the unsexing of mothering “will eventually lead to a conception of ‘fathering’ and ‘parenting’ as legitimate caretaking.”[9]  This move does not first require continuing to privilege mothers and mothering, no matter the biosex of those assuming these labels, as the primary site of parenting.  Plus, I worry that continuing to use the categories of mother and father also reinforces the notion of primary parents and secondary parents.  This too, I fear, will too frequently mean that women, not men, no matter the title they embrace, will bear the brunt of caretaking responsibilities.

My resistance to the attempt to unsex mothering has both a theoretical and a practical component.  On the practical end, I have two concerns.  First, while it is clear that Rosenblum’s piece is about mothering as a practice, I found myself wondering whether he leaves any room for mothering and the term “mother” as simply descriptive terms.  In other words, if stripped of normative content, is there any harm in referring to a person who identifies as a woman as a mother and to a person who identifies as a man as a father?  If harm is not a given, then the problem is not so much the need to re-define certain words, but to create a different culture within which those words are deployed.  I can imagine a world in which we use the word mother not to conjure a particular parental role, but in a neutral fashion, and we imbue the word parent with the other important notions of caretaking that should rightly be shared among those who assume primary responsibility for a child’s upbringing.  Second, I worry about the stickiness of gender identification and the reality that most of the circumstances in which men are given or take on roles traditionally gendered as female are in places that are on the fringe, where assuming those roles is intended for comedy, or, more perniciously, to pillory women.  If I am right about this, then I am concerned that many men—perhaps most men, but particularly heterosexual men—will not see the potential for liberation in a world in which they too can be “mothers.”  This is not to say that there aren’t men like Professor Rosenblum who find strength in embracing the term mother, but I imagine substantially more resistance to that shift than one might find among men and women who believe that good parenting has no gender.

I am drawn in by Professor Rosenblum’s call for a new culture of parenting.  Like him, I am excited by the existing examples we have in a social, political, and legal context that suggest that while good parenting has substantial normative content, it is without a gender.  But his call for unsexing mothering left me pondering a children’s book called Are You My Mother?[10] in which a baby bird confronts a series of different animals and objects, including a cow and a piece of construction equipment, before happily stumbling upon his real mother, another bird who briefly left him in search of food.  I think that Rosenblum and I would agree that the end goal is not in the titles, but in the acts of care that we ask of all good parents and for which gender is irrelevant.

[1] Associate Professor of Law, Rutgers School of Law—Camden.

[2] Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012).

[3] Mommy with a Penis, http://mommywithapenis.blogspot.com/ (last visited February 3, 2012).

[4] Rosenblum, supra note 2, at 67.

[5] Id. at 72.

[6] Id. at 71.

[7] Id. at 79–80.

[8] Id. at 80.

[9] Id. at 83.

[10] P.D. Eastman, Are You My Mother? (1960).


Unsex Mothering Responses: Kellye Testy

She’s Not My Mother, She’s My Parent

A Response to Darren Rosenblum’s Unsex Mothering: Toward a Culture of New Parenting

Kellye Testy[1]

Professor Rosenblum is right, but my son got there first.  Michael had the idea of “unsexing motherhood” back in 1995.  I thought it was brilliant then and still do.  I have come to believe during the intervening sixteen years that unsexing mothering is also critical for the welfare of children and the progress of gender equality.  My kids come first—so, first, a little more about Michael, and then a little more about Rosenblum’s exciting article.[2]

Michael was small then.  His muscled little legs stuck straight out from the front seat of our 1991 Toyota Corolla, which he named “Silver Bullet.”  Maybe I focus on his size because now that he is 21 he fully takes up the legroom of any car’s front seat.  Maybe I focus on his size because I came to see how wise he was when he was such a little boy.  For whatever reason, that’s the first image that comes to mind when I think of the day his pre-school friend asked him about me, “Michael, is that your mom?” as the three of us drove off in the fall field trip caravan to see how apple cider is made.

His backseat friend might have asked the same question of anyone.  Kids like to know who they are with, and there’s a certain status in having your mom be one of the drivers on a school field trip.  More likely, the friend was a little puzzled because he had probably seen another woman drop Michael off at pre-school in the mornings and assumed she was Michael’s mom. 

His assumption was correct. Tracey had given birth to Michael five years earlier on September 26, 1990, with his sister, Alex, and his father, Gene, waiting anxiously to greet him.  Tracey is my partner; she and the kids and I had begun living together the previous fall.

I remember how quickly Michael responded to that question, “Is that your mom?”  Without pausing or turning his head, he replied, “No, she’s not my mother, she’s my parent.”  That either satisfied his friend or puzzled him into changing the subject, for in the next minute he was on to other topics, including whether I had any treats in the car and how long it would take to drive to the apple farm.  For Michael and his friend, this exchange was likely never revisited again—certainly not between them and likely not in either of their minds.  For me, it was one of those moments that altered forever how I thought about my personal and professional life.

It altered my professional life because at the time I was teaching a new course and writing about law, gender, and sexuality.  All of the materials we had covered about the conflation of gender and sexuality in law and culture suddenly took on new meaning.  As my students often say, I “got” it.  Michael’s answer to his friend amplified for me the thickly gendered roles of parenting and how those roles constrain both men and women.  Michael’s answer also amplified for me how narrow our law was in insisting on just two parents, and how deeply challenging same-sex parenting was to traditional notions of parenting—not only due to sexuality but also due to gender.

Michael’s answer also created a seismic shift in my personal life.  For the first time I realized that the fact that Michael already had a mother and father did not keep me from being a parent to him.  Indeed, his answer made clear that he thought of me as a parent already even though the law did not recognize me as one nor did I yet recognize myself as one.  This insight brought me both pleasure (he trusts me, I have a place in his life) and fear (could I measure up, did I want this commitment?).  I realized that I did not have to be his “mother” or his “father” to be his “parent.”  I could just be me, and indeed, to this day both kids refer to me as “my Kellye.”  “My Kellye,” a “parent,” neither “mother” nor “father.”  

Our family was fortunate that some years later the law recognized what we already knew:  our children had three parents.  I adopted the children with both their mother’s and their father’s consent in 2003, when Michael was 13 and his sister was 15.  At the proceeding, the judge asked each child whether they wanted me to adopt them legally.  Alex made a passionate speech about justice and equality; Michael, with head down and hands in his pockets, said only, “I don’t know what the big deal is, she’s always been my mother.” 

What had taken place in eight years to make me now his “mother” when at five he had been so clear that I was his “parent” but not his “mother”?  Arguably two things, both of which Professor Rosenblum understands.  One is that the intervening years had conditioned Michael and us into society’s expectation that a parent had to be one or the other—a mother or a father.  And since I was biologically a woman, he had two mothers.  The second change, though, was that during this period I also occupied a space in his life that mapped onto traditional “motherhood” more closely than “fatherhood.”  While I did play a lot of sports with him, I was also the primary parent in our house for many of the years of his early life when my partner practiced law at a big firm and I had more schedule flexibility as a professor.  I did most of the cooking, got them to and from school, made special “treat trays” at night during movies, was at home during school breaks, and generally have a strong nurturing (“mothering”) disposition to go along with all of those more specific tasks.  In other words, my role and my biology fit more closely with our culture’s sexed view of motherhood.

When I left being a professor to become a law school dean in 2004, I often felt that I had also left my role as a “mother.”  My work life made me a much less involved and present parent.  Did I become a father?  My role in many ways started to look much more like traditional notions of fatherhood: gone from early morning to late at night, clearly the “bread winner,” limited involvement in school and home activities, etc.  I often wondered if I had been in this role earlier in the kids’ lives whether they would have come to think of me as their “mom.”  Probably—for exactly the reasons Professor Rosenblum points out: motherhood belongs to women. 

I am sure that many men were and are doing far more “mothering” of their children that has not been and is unlikely to be recognized any time soon.  While I agree that it would be best for our children and society to unlink parenting from gender, Professor Rosenblum’s well-founded argument will have an uphill battle.  As many have noted, gender roles run deep and are fiercely policed in our world.  Moreover, when sexism has denied and taken so much from women, what incentive is there to let go of one of the places where female superiority is often recognized—mothering?  In the short term, that is a hard question to answer.  In the longer term, of course, Professor Rosenblum is right: sex roles imprison us all. 

While I am not optimistic that Professor Rosenblum’s words will have much impact, I do think that his life will.  I hope he appreciates how transformative his everyday acts of parenting are: in ways large and small, he and his partner are unsexing motherhood every day.  He may not be his child’s mother, but he is her parent.  And that is all that matters.

[1] Dean and James W. Mifflin University Professor of Law, University of Washington School of Law.


[2] Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012).




Unsex Mothering Responses: Elizabeth M. Schneider


The Conundrums of Unsexing Parenting

A Response to Darren Rosenblum’s Unsex Mothering: Toward a Culture of New Parenting

Elizabeth M. Schneider[1]

Darren Rosenblum’s interesting and provocative article, Unsexing Mothering: Toward A New Culture of Parenting,[2] raised many issues for me, personally and intellectually.  As a long-time feminist legal activist and biological mother who has argued for, cared deeply about, experienced, and observed many attempts at egalitarian parenting, the idea of a new “culture of parenting” is intriguing.

Rosenblum writes from the perspective of a new parent in a same-sex marriage.  He starts with his own experience of being in the world with his daughter and social responses that view him as inadequate because he is not the baby’s “mother.”  Reading between the lines, Rosenblum wishes in some sense to be the baby’s “mother” (also true in his prior article, Pregnant Man,[3] poignantly describing the surrogacy process which led to his daughter’s birth), so he can experience social legitimacy as a (or the) “primary parent.”  But he also wants to “unsex” mothering so that there will be a greater fluidity of parenting roles for all parents.  These are issues which feminist legal scholars and activists have struggled with for a long time both in heterosexual and same-sex relationships.

I see this article in its historical context—part of a long process of different cultural phases dealing with unequal sex roles in parenting, starting, as Rosenblum describes, with Frontiero[4] and its progeny in the 1970s. Early cases that established parental leave—like Danielson v. Bd. of Higher Educ.,[5] brought by a father who wanted that opportunity, which I worked on at the Center for Constitutional Rights as a law student—were important.  Despite many victories for parental leave, men in general did not actually take leave for many complex reasons, including ones that Rosenblum discusses.  Many men in heterosexual couples simply did not want to assume substantial parental responsibility—not just on leave but also within the ongoing relationship.  In a sense, I think many younger women today in opposite-sex couples have given up on aspirations of equality in parenting (or at least that is what I hear from students and others I know in this generation).  This is one aspect of the “new maternalism” that Naomi Mezey and Nina Pillard describe.[6]  Here, Darren’s discussion of the operation of the Swedish system of parental leave is useful and instructive.

There are many obstacles to unsexing mothering, including not only “biosex” but deep cultural conditioning and socialization that is historically rooted but continues in all of us.  This includes not just parenting, but caretaking more broadly.  Women are trained to be caretakers, not just mothers of children, but for others.  I don’t want to overstate this, but in many opposite-sex couples, the woman is caretaking for elderly parents or parents of the partner, other family members, ill siblings or friends as well.  Many men simply don’t want to (or don’t know how to) take on caretaking responsibility for others.  Martha Fineman’s move from the “neutered mother”[7] to her recent work on vulnerability and the human condition[8] tells that story.  It is also true that while mothering may be critical to many women’s identities, mothering is also a loaded place of enormous blame, huge risk, and self sacrifice that is experienced differently by women in different situations, as I detail in my book Battered Women and Feminist Lawmaking.[9]  And then there is male privilege.  How do all of these factors operate differently in same-sex, or transgender relationships?  Are there differences in relationships of gay men, lesbians or transgender individuals?  How do race, class, ethnicity and age (just for some other factors) impact these experiences?  As Rosenblum wants to be considered a “mother,” do others want to be considered “fathers”?  Hard to know, I think.  But there is no question that Rosenblum has opened a conversation about the ways in which same-sex marriage and/or parenting by gay men can open the possibility of more fluid gender roles in parenting.  I am delighted to be part of this ongoing conversation.

[1] Rose L. Hoffer Professor of Law, Brooklyn Law School.


[2] Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012).


[3] Darren Rosenblum, Noa Ben-Asher, Mary Ann Case, Elizabeth Emens, Berta E. Hern­andez-Truyol, Vivan M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, & Beth Jones, Pregnant Man?: A Conversation, 22 Yale L.J. & Feminism 207 (2010).


[4] Frontiero v. Richardson, 411 U.S. 677 (1973).


[5] 358 F. Supp. 22 (S.D.N.Y. 1972).


[6] Naomi Mezey & Cornelia Nina Pillard, Against the New Maternalism, 18 Mich. J. Gender & L. __ (forthcoming 2012).


[7] Martha Fineman, The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies (1995).


[8] Martha Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale L.J. & Feminism 1 (2008).


[9] Elizabeth Schneider, Battered Women & Feminist Lawmaking (2000). 



Unsex Mothering Responses: Beth Jones


Un-Sexing Single Mother Parenting of Boys

A Response to Darren Rosenblum’s Unsex Mothering: Toward a Culture of New Parenting

Beth Jones

Rosenblum’s article, Unsex Mothering,[1] applies in some ways to every different type of parenting.  As a single mother of twin eleven-year-old boys, I personally relate most to the portions regarding single parents and non-traditional parenting.  When I was not a single parent, I was married to my children’s father while my mother also lived with us.  I feel incredibly lucky to have had my mother be a stand-in parent rather than simply a grandparent.  When I was learning to do everything necessary for my children, she was there with her experience and insight whenever I needed it.  I can’t count the ways my mother helped me, from day-to-day chores to advice and emotional support.  To her credit, my mother never tried to force me to parent “her” way, and my children quickly learned what behavioral differences were expected with each of us. 

Primarily, I have been a single parent.  I became one when my children were just under one-year-old.  Being the youngest of four girls, I had no experience with children, especially boys.  I have frequently been described as an over-analyzer, and there were many topics Rosenblum discussed that I also contemplated while planning my parenting style.  I was raised almost exclusively by a single mother, and while my children’s father has joint custody, it has always been important to me that my children feel entirely complete and balanced when with me.  I decided very early to play what I considered both the “mother” and “father” roles.  While I thought of it not as “unsexing” but more as “both-parenting,” I think it equates to something similar. 

Living in Oklahoma, there is no shortage of societal norms that are expected to be followed.  While I disagree with many of them, I use these biased ideas—girls and boys only behaving the way their sex dictates, Christianity being the only widely accepted religion—to help my children not only learn to coexist with all types of people, but to show them that while people may be closed-minded and sometimes hurtful, it doesn’t mean those same people don’t care deeply for others or aren’t trying to live how they feel is best for them.  As a parent, I think that teaching children equality shouldn’t include references to sex or gender unless the situation has already included it in the issue.  For example, I would not tell my sons that they could not have something because it was intended for girls, but if a classmate picks on them for liking pink or doing something considered feminine, we discuss the likely background of that statement, why it shouldn’t affect my sons’ interests or opinions, and how to address the situation in the future, if necessary.  I try to remove the emotion from these issues when feelings and self-respect might be hurt and help my children analyze the situation objectively, recognizing that the offending child’s own home life and parental influence led them in that direction.  As a result, they have learned to stand up for themselves without being unnecessarily hurtful to the offending child. 

I also agree with Rosenblum’s assessment that, “children may benefit from new people engaging in childcare while they maintain their connection to adults who are former partners of a parent.”[2]  While a parent may dissolve her personal relationships at any time, her decision doesn’t have to dictate when a child should terminate a relationship with that person.  Many parents don’t consider the impact another person or family will have on their children, or that their feelings are just as invested in this new person as the parent’s—especially if those people mysteriously disappear one day.  My children maintain friendships with someone now with whom I haven’t had a relationship in over six years.  They enjoy spending time with him on occasion, and they feel secure in knowing that their relationship with him can continue without my involvement.  My hope is that by helping my children see the personality behind each person rather than relying on superficial labels, they will naturally look into a person’s character as they mature.  I won’t call it the end result, as my children are only half grown, but the current result is that my children are comfortable with all ages and types of people, can converse with adults or with children on respectively different levels, and know when to show appropriate respect and how to stand up for themselves without pushing their beliefs on others.  If they should choose to become parents later in life, I would not be surprised if they practice unsexed parenting themselves rather than traditional father roles.

[1] Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012).


[2] Id. at 86.