Tag Archives: Sexual Violence


Transforming Campus Culture to Prevent Rape: the Possibility and Promise of Restorative Justice as a Response to Campus Sexual Violence

Alletta Brenner[1]

Though feminists have long argued that rape is linked to sex discrimination,[2] legal responses to rape tend to ignore the ways that social and cultural norms contribute to sexual violence.[3] One exception, however, exists in the context of federal anti-discrimination law under Title IX, which applies to colleges and universities that receive federal funds. Under the legal framework established by Title IX, rape constitutes a form of severe sexual harassment, to which educational institutions are legally obligated to respond.[4] An institution’s failure to do so is considered evidence of sex discrimination and may subject it to both federal penalties and civil liability.[5] Recently, this obligation was further strengthened by the passage of legislation that codifies particular aspects of what campus grievance processes for rape survivors must include and requires schools to take affirmative steps to transform campus culture to prevent rape.[6]

Despite this clear legal mandate, rape remains a serious and enduring problem at colleges and universities in the United States. Indeed, roughly one in five female students are victims of rape at some point in their post-secondary education.[7] If we add to this the substantial numbers of male[8] and transgender[9] students who experience sexual violence also, it is clear that the scope of the problem is huge. The overwhelming majority of these rapes are “acquaintance rapes”—nonconsensual sex between students who have some pre-existing social relationship.[10] As these numbers indicate, many institutions fail to take adequate steps to respond to and prevent campus sexual violence.[11]

In a related article, Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and Harm in Feminist Theories of Rape,[12] which was published in the Summer 2013 issue of the Harvard Journal of Law and Gender, I argued that feminist theories of rape tend to be imbued with dichotomous ways of thinking that limit both theoretical frameworks for understanding sexualized violence, and practical legal proposals for how to better prevent and respond to it. In that article I argued feminists should adopt an intersectional view of such violence that treats it as a rupture in the process of human recognition. This approach, which emphasizes the individualized effects of sexualized violence, attempts to draw attention to the ways that the construction and performance of identities can contribute to dehumanization and seeks solutions that help to re-humanize both victims and perpetrators. I concluded by arguing that a possible alternative to addressing sexualized violence may look like the emerging practice of restorative justice.

This second article aims to translate the theoretical foundation offered in Resisting Simple Dichotomies into a concrete proposal for real-world practice. In many ways, college campuses offer a rich environment for developing radically new ways of thinking about and responding to rape. For, as much as rape is a particularly serious problem on campuses, it occurs within a social and institutional framework that offers profound possibilities for the mobilization of social change.

The starting point of this paper is the premise that campus grievance processes should be more survivor-oriented and equitable. Applying an intersectional view of how and why campus rape occurs, I argue that colleges and universities should seek to engage the broader student community in dialogue and utilize the grievance process as a means of both holding offenders accountable and preventing future rapes. Restorative justice offers one model for how schools might augment their campus grievance processes to respond to acquaintance rape cases to achieve these goals. Though a restorative justice approach may not be appropriate in every case, I argue that it may provide significant benefits for some survivors and offenders, and help to fill the gaps between existing preventative and remedial approaches.

Full Article: Brenner, Transforming Campus Culture

[1] J.D., Harvard Law School, 2014.

[2] See generally Susan Brownmiller, Against Our Will (1975) (arguing that rape is a product and tool of male domination); Lorenne M.G. Clark & Debra J. Lewis, Rape: The Price of Coercive Sexuality (1977) (arguing that rape was an expression of perceived male entitlement to the control and use of female sexuality),

[3] See Susan Estrich, Rape, 95 Yale L.J. 1087 (1986) (arguing that the law of rape fails to protect women from acquaintance rape because it simultaneously considers the fact of social context, in that the victim and perpetrator know each other, to imply consent while failing to account for how social context sets up the necessary conditions for sexual coercion); Catharine Mackinnon, Women’s Lives, Men’s Laws 240–48 (2005) (arguing that criminal law fails to account for power imbalances between victims and perpetrators and that rather than using a consent standard, rape law should employ a standard of whether the sex was “wanted”).

[4] Under Title IX, once an incident of campus rape has occurred, schools must “take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again.” See U.S. Department of Education Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties 2–4, 15 (2001).

[5] Id.

[6] Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-14, Sec. 304, 127 Stat 54, 89­–92 (2013) (codified at 20 U.S.C.A. § 1092).

[7] According to the most comprehensive study available, roughly twenty to twenty five percent of women are raped at some point while in college. See Bonnie S. Fisher, et al., U.S. Dep't of Justice, The Sexual Victimization of College Women 10, 17 (2000). See also American College Health Association, National College Health Assessment Spring 2012 Reference Group Executive Summary 5 (2012) (confirming that approximately 3.5 percent of college women reported being raped in a 12-month period).

[8] See Christopher P. Krebs et al., The Campus Sexual Assault Study: Final Report 5.5 (2007) (finding that 6.1 percent of male students were victims of completed or attempted sexual assault during college). But see Mary E. Larimer, Amy R. Lydum, Britt K. Anderson, and Aaron P. Turner, Male and Female Recipients of Unwanted Sexual Contact in a College Student Sample: Prevalence Rates, Alcohol Use, and Depression Symptoms, 40 Sex Roles 295, 301–02, 305–06 (1999) (reporting findings of study where undergraduate males reported unwanted and coerced sexual activity at levels comparable to those of their female counterparts).

[9] See Rebecca L. Stotzer, Violence Against Transgender People: A Review of United States Data, 14 Aggression & Violent Behav. 170, 177–78 (2009) (surveying data and concluding that all transgender persons have an especially high lifelong risk of multiple types and incidences of violence, particularly sexual violence).

[10] See Fisher, supra note 6, at 17 (finding that more than ninety percent of female college rape victims know their attacker); Larimer, supra note 7, at 305–06 (finding that coercive sex experienced by male students was perpetrated by other students, usually female).

[11] See Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 Loy. U. Chi. L.J. 205, 210–24, 235–44 (2012) (discussing deficiencies in colleges’ and universities’ systems for responding to sexual violence and the way that inadequate enforcement of federal laws aimed at improving responses exacerbates the problem).

[12] Alletta Brenner, Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and Harm in Feminist Theories of Rape, 36 Harv. J. L. & Gender 503 (2013).

navy image

Rape Victims Suffer due to Lack of Protections in Article 32 Hearings

Christina Gilligan*                                  

“Were you wearing a bra?”

“Were you wearing underwear?”

“Did you feel like a ho the next day?”

“How wide do you open your mouth during oral sex?”

The above list of questions reads like an example a professor of evidence might provide her students of inquiries disallowed by the Federal Rules of Evidence since 1978.[1] However, defense attorneys asked the above questions to an alleged sexual assault victim just two weeks ago, subjecting the twenty-one-year old woman to more than 24 hours of draining questioning over 5 days.[2]

This young woman, a Naval Academy midshipman, is just one of the estimated 26,000 members of the U.S. Military who experienced “unwanted sexual conduct” in 2012.[3] Her story and the legal framework that forced her to answer the inappropriate, embarrassing, and – ultimately – irrelevant questions above highlight the dire need for change in the U.S. Military’s treatment of sexual assault victims. Those instituted by Defense Secretary Chuck Hagel last month are not nearly sufficient.[4] This blog post seeks to explore that legal framework and the space it leaves open for defense attorneys to engage in bullying and victim-blaming during Article 32 hearings.

The Background

According to her testimony, the female midshipman attended a Toga and Yoga Party at an off-campus location referred to as the Naval Football House on April 14, 2012.[5] She drank heavily and remembered little of what happened that night.[6] Over the next few days, the then-twenty-year old woman encountered rumors and posts on social media sites that led her to believe that she had been sexually assaulted by three of her classmates.[7] However, out of fear, she was initially reluctant to make any sort of formal report and did not “want the case to go anywhere.”[8]

This reluctance to report the occurrence of a sexual assault is common among victims in the armed services. Through anonymous surveys and sampling research, the Pentagon estimated that about 26,000 personnel in the U.S. Military experienced “unwanted sexual conduct” in 2012, up nearly thirty-five percent from 2010.[9] Yet, the reporting rates of such crimes in the military are startlingly low – just 3,374 sexual assaults were formally reported in 2012.[10] Victims who report sexual assaults not only risk retaliation from the accused or their superiors and isolation from their peers, but also are unlikely to see results – fewer than one in ten sexual assault cases in the military results in sexual assault conviction.[11]

The prevalence of sexual violence in the military has recently garnered much media attention and has been addressed by national leaders, including President Obama and members of Congress.[12] Still, only four months after President Obama informed Naval Academy students that “those who commit sexual assault . . . threaten the trust and discipline that make our military strong,” the midshipman above experienced firsthand the military legal system’s lack of regard for the dignity and protection of victims.[13]

The Legal Framework

As members of the armed forces, the defendants in this case – if they are tried – will be tried under military law in a military court, or a court-martial. Courts-martial are governed by the Uniform Code of Military Justice (UCMJ),[14] an act passed by Congress, and the Manual for Court-Martial (MCM), an executive order that details and expands on the laws in the UCMJ. The MCM also provides discussion on the Military Rules of Evidence.[15] The Military Rules of Evidence include Rule 412, the military counterpart to the federal rape shield rule barring evidence of the victim’s past sexual experiences and sexual predisposition.[16]

Under the UCMJ, once a military member has been accused of a crime or has a charged levied against him, he has a right to a “thorough and impartial investigation of all the matters” set forth in the charges prior to appearing before a court-martial.[17] This investigation must include an “inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.”[18]

Further, under the MCM, the majority of the Military Rules of Evidence do not hold in the investigative proceedings – although Rule 412 still applies to Article 32 hearings, at least in theory.[19] However, the relaxation of the other evidence rules and procedural safeguards during the hearings, coupled with the MCM’s guidance that “the defense shall be given wide latitude in cross-examining witnesses,” [20] often leads to the virtual abandonment of the protections of Rule 412 in practice, as described in the case above.

As noted by Melinda Henneberger and Annys Shin, Article 32 hearings are often compared to grand jury proceedings, as the purpose of an Article 32 hearing is to determine whether the trial or court martial is warranted. However, unlike grand juries, Article 32 hearings take place in public and include defense attorneys – who, under the looser procedural rules of pre-court martial investigation, may subject the victim to scathing and open-ended cross examinations.[21] Furthermore, as demonstrated by the experiences of the midshipman victim above, questions often are asked during Article 32 hearings that no civilian court in any state in the country would allow.[22] In fact, a practice guide for attorneys defending military members accused of sexual assault advises using the Article 32 hearing as an opportunity for a “prudent practitioner . . . to explore any potential MRE 412 evidence and build a foundation for success at an MRE 412 hearing, or on cross-examination at trial.”[23]

The Conclusion

Thus, the structure of Article 32 hearings allows for defense counsel and other officials to play fast and loose with important procedural and evidentiary protections, rendering victims even more vulnerable and totally undermining the purpose of Rule 412. As Robert Canaff, a former prosecutor who has worked with the military on improving its sexual assault procedures, noted Article 32 proceedings are so difficult for victims of sexual assault that “a lot of cases die there as a result.”[24] In a context where sexual assault is so wildly unreported, the neglect of these cases and the harsh treatment of the victims cannot be sustained.

In May, President Obama stated, “For those who are in uniform who’ve experienced sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs.” The MCM – which explicitly advises the broad cross-examination of victims in Article 32 hearings – is an executive order. Thus, the time has come for President Obama to honor his commitment to sexual assault victims and tighten the safeguards for Article 32 hearings.



* JD Candidate, 2014.

[1] Fed. R. Evid. 412. Rule 412 rendered inadmissible, subject to some exceptions, (1) evidence offered to prove that any alleged victim engaged in other sexual behavior, and (2) evidence offered to prove any alleged victim’s sexual predisposition, subject to several exceptions. Today, nearly all jurisdictions in the United States contain similar rape shield provisions.


[2] Ruth Marcus, In Navy rape case, defense lawyers go wild, Wash. Post (Sept. 5, 2013), http://articles.washingtonpost.com/2013-09-05/opinions/41788666_1_defense-lawyers-three-midshipmen-military-academies.


[3] Craig Whitlock, Obama delivers blunt message on sexual assaults in military, Wash. Post (May 7, 2013), http://www.washingtonpost.com/world/national-security/possible-military-sexual-assaults-up-by-33-percent-in-last-2-years/2013/05/07/8e33be68-b72b-11e2-bd07-b6e0e6152528_story_1.html.


[4] Secretary Hagel has “directed each branch of the military to create a legal advocacy program for victims, standardized prohibitions on inappropriate relations between recruiters and recruits, ensured that pretrial hearings are conducted by military lawyers and provided commanders with the option to reassign or transfer the accused.” However, Secretary Hagel has not called for reforms to move the prosecution of sexual assault outside of the chain of command. Nation Action & Sarah Arnold, Despite Changes, Advocates for Victims of Sexual Assault in the Military Continue to Fight for Reform, The Nation (Aug. 16, 2013), http://www.thenation.com/blog/175794/despite-changes-advocates-victims-sexual-assault-military-continue-fight-reform#. Further, neither Secretary Hagel nor Congress has instituted any major effort to directly reform the protections for sexual assault victims during Article 32 hearings. Melinda Henneberger & Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013), http://articles.washingtonpost.com/2013-08-31/local/41638697_1_roger-canaff-sexual-assault-unwanted-sexual-contact.


[5] Ali Weinberg, Woman at center of alleged Naval Academy gang rape testifies for first time, NBC  News (Aug. 28, 2013), http://usnews.nbcnews.com/_news/2013/08/28/20237247-woman-at-center-of-alleged-naval-academy-gang-rape-testifies-for-first-time?lite.


[6] Id.


[7] Annys Shin, Hearing in Naval Academy rape case concludes, Wash. Post (Sept. 3, 2013), http://articles.washingtonpost.com/2013-09-03/local/41709760_1_accuser-defendant-female-midshipman.


[8] Id.


[9] Craig Whitlock, Obama delivers blunt message on sexual assaults in military, Wash. Post (May 7, 2013), http://www.washingtonpost.com/world/national-security/possible-military-sexual-assaults-up-by-33-percent-in-last-2-years/2013/05/07/8e33be68-b72b-11e2-bd07-b6e0e6152528_story_1.html.


[10] Id. With respect to the low rate of reporting, Senator Claire McCaskill has said, “That is the crux of the problem here, because if a victim does not believe that the system is capable of believing her, there’s no point in risking your entire career.” Id.


[11] Id.


[12] Id.


[13] Valerie Strauss, Text: Obama’s speech at U.S. Naval Academy graduation, Wash. Post (May 24, 2013), http://www.washingtonpost.com/blogs/answer-sheet/wp/2013/05/24/text-obamas-speech-at-u-s-naval-academy-graduation/.


[14] Uniform Code of Military Justice, 10 U.S.C. §§ 801 – 946.


[15] Manual for Courts-Martial (2012 Edition).


[16] Mil. R. Evid. 412.


[17] Art. 32, Uniform Code of Military Justice, 10 U.S.C. § 832.


[18] Id.


[19] Rule 405, Manual for Courts-Martial (2012 Edition).


[20] Id.


[21] Ruth Marcus, In Navy rape case, defense lawyers go wild, Wash. Post (Sept. 5, 2013), http://articles.washingtonpost.com/2013-09-05/opinions/41788666_1_defense-lawyers-three-midshipmen-military-academies; Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013), http://articles.washingtonpost.com/2013-08-31/local/41638697_1_roger-canaff-sexual-assault-unwanted-sexual-contact.


[22] Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013), http://articles.washingtonpost.com/2013-08-31/local/41638697_1_roger-canaff-sexual-assault-unwanted-sexual-contact.


[23] Kevin Smith, Navigating the Rape Shield Maze: An Advocate’s Guide to MRE 412 (2000), available at https://www.jagcnet.army.mil/DOCLIBS/ARMYLAWYER.NSF/c82df279f9445da185256e5b005244ee/bf1ce48e50d5be4385256e5b0054ce07/$FILE/Article%201.pdf.


[24] Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013), http://articles.washingtonpost.com/2013-08-31/local/41638697_1_roger-canaff-sexual-assault-unwanted-sexual-contact.



Tempering Idealism with Realism

By C. Quince Hopkins

This Article evaluates the potential use of "responsibility initiatives" in gender-based violence, with a specific focus on adult intimate partner violence.  This Article analyzes the law's role in furthering victims' recovery from the trauma caused by gender-based violence through promoting acceptance of responsibility by offenders.  Perpetrators of abuse often minimize or outright deny their abuse when asked about it by family, friends, and even their victims.  In cases of acquaintance sexual assault, this denial is often firmly rooted in offenders' cognitive distortion, which leads them to believe their victim in fact consented.  The denial of the victim's experience of the assault as clearly unwanted causes unique and devastating trauma to victims, and yet the core of our criminal justice response to sex offenses facilitates this denial rather than acceptance of responsibility by offenders.

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No End in Sight

By Stephanie M. Berger

There is no dispute that human trafficking is a pervasive problem.  The International Labor Organization and the United States State Department estimate that there are more than 12 million people in “forced labor and sexual servitude” worldwide.  The State Department estimates that between 14,500 and 17,500 people are trafficked into the United States annually.  Sex trafficking, specifically, undoubtedly occurs in the United States — all one needs to do is read the local newspaper to find horrific accounts of women and children enslaved and abused in major cities across the country.  However, there is no way to know exactly how many trafficking victims in general and sex trafficking victims specifically exist in the United States, in part due to the United States’ problematic conflation of human trafficking and prostitution.  This conflation has enshrined the ideals of abolitionist feminists, who believe that prostitution is inherently coercive and abusive, and has refused to acknowledge the pro-work position that views prostitution on a spectrum including both forced and voluntary sex work.  Abolitionist ideals have most recently taken hold in End Demand efforts, which focus on criminalizing, punishing, and shaming men who buy sex as purported solutions to both prostitution and human trafficking.  This Article takes a pro-work position and aims to demonstrate the potential harms of End Demand policies.  It also proposes more productive methods for addressing human trafficking in the United States.

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VAWA Reauthorization—It’s More Than Politics

VAWA Reauthorization—It’s More Than Politics

Caitlin Pratt*

The keynote speaker at this year’s Harvard Journal of Law and Gender symposium, Transcending Barriers: Strategies for Change in Transgender Rights, was Professor Dean Spade. In the context of discussing his approach as a scholar and practitioner, which he calls critical trans politics, Professor Spade questioned what he calls the U.S. narrative that law change (law reform) is the answer for groups experiencing violence and marginalization.[1]

Professor Spade acknowledged the reality that changes are generally made incrementally but cautioned us to measure our incremental steps thoughtfully.[2] He offered examples of questions we can ask ourselves to help us determine whether a particular change is really a step forward or if it will actually move the law in the wrong direction.[3] They are:

  • Are we leaving anybody out? Are we dividing the constituency? Are we leaving out some of the most vulnerable people?
  • Will this provide actual relief? Or is it just window dressing to make the state or the system look better?
  • Will this build or expand harmful systems? Or will it help dismantle them?[4]

The recent debate in Congress over the reauthorization of the Violence Against Women Act (VAWA) brought the importance of this analysis into striking relief for me. Below, I will provide some background on VAWA and the debate over its reauthorization this year. I will then analyze the differences between the competing bills in terms of the questions set forth by Professor Spade.

What is VAWA?

President Bill Clinton signed the original Violence Against Women Act[5] on September 13, 1994.[6] VAWA was the first federal legislation that acknowledged domestic violence and sexual assault as crimes.[7] It also included a provision giving victims the right to sue their attackers in federal court, but this was struck down by the Supreme Court in United States v. Morrison.[8] In addition, the law provided federal resources to encourage community-coordinated responses to violence.[9]

Congress has reauthorized VAWA twice—in 2000 and 2005.[10] The reauthorization in 2000 improved the foundation established by the 1994 legislation by creating a victim legal assistance program and by expanding the definition of crime to include dating violence and stalking.[11] The 2005 reauthorization created new programs to meet the emerging needs of communities working to end violence.[12]

VAWA expired in 2011,[13] and Congress is currently debating its reauthorization. Both the House and Senate have passed reauthorization bills. The Senate version passed on April 26, 2012 by a vote of 68 to 31, with 15 Republicans in favor and no Democrats against.[14] The House version was introduced the next day and soon thereafter passed by a vote of 222-205.[15] The vote was largely along party lines with 6 Democrats voting in favor and 23 Republicans opposed.[16] The two bills are very different in ways essential to victims.

House v. Senate

The differences between the House and Senate bills to reauthorize VAWA are not just political—they have important policy implications.

The key differences between the bills have been highlighted by domestic violence advocacy groups[17] and break down neatly in terms of the questions offered by Professor Spade:

  • Are we leaving anybody out? Are we dividing the constituency? Are we leaving out some of the most vulnerable people?
    • The House bill excludes victims who are lesbian, gay, bisexual, transgender, or queer (LGBTQ).[18]
    • The House bill fails to protect Native American women by limiting access to justice on tribal lands.[19]
    • The House bill makes immigrant victims of domestic violence less safe. It makes the immigration process longer and allows abusers to participate in it.[20] It also limits the U-visa program, which encourages and protects non-citizen victims who work with law enforcement to bring abusers to justice.[21]
    • The House bill undermines VAWA housing protections.[22] It fails to require housing providers to adopt certain emergency housing plans and notify victims of their rights at critical housing junctures (for example, at eviction).[23]
  • Will this provide actual relief? Or is it just window dressing to make the state or the system look better?
    • The House bill imposes large mandatory minimum sentences on abusers.[24] This is a “solution in search of a problem,” which can actually hurt victims by discouraging them from reporting abuse.[25]
    • The House bill includes additional auditing requirements that divert money from victim services to bureaucracy even though there is strong evidence that grants are currently being used effectively.[26]


I see the current VAWA debate as case-in-point for Professor Spade’s argument that some “incremental change” actually moves the law backward and for his cautioning that we must be thoughtful when engaging in law reform.

I cannot be sure whether Professor Spade would unqualifiedly support the Senate bill to reauthorize VAWA despite its many advantages over the House bill. I imagine he would be concerned, for example, by the immigration provisions, which could be seen as reinforcing harmful systems (immigration) by creating exceptions to bad rules (immigration prohibitions) rather than getting rid of them. By contrast, I am absolutely certain that Professor Spade would oppose the House bill.

The Republican bill is not just a smaller step forward than the Senate bill. It is a giant step backward—for the law, for victims of domestic violence, and for our society. The House bill does not just happen to meet each of the qualifications laid out by Professor Spade, it is the reason he is concerned.

This bill is part of a divide and conquer strategy. Rather than protect all victims of domestic violence, it separates victims into two groups: those who are worthy of protection and those who are not. And those who are not are the most vulnerable. It aims to separate those who are used to being separate—historically marginalized groups such as LGBTQ, immigrants, and Native Americans.

Victims of domestic violence will have their strongest voice together. Those who seek to divide them want to weaken their voice and thereby make them easier to ignore. Being ignored is not good for victims. The House bill is not good for victims.

Cite as: Cite as: Pratt, Caitlin, VAWA Reathorization–It’s More Than Politics, HARV. J.L. & GENDER ONLINE BLOG, http://harvardjlg.com/2012/07/vawa-reauthorization-its-more-than-politics (July 11, 2012)

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

[1] Dean Spade, Assistant Professor, Seattle Univ. Sch. of Law, Keynote Address at the Harvard Journal of Law and Gender Symposium: Transcending Barriers: Strategies for Change in Transgender Rights (Mar. 30, 2012), available at http://kiwi6.com/file/c5zx5tb08s.

[2] Id.

[3] Id.

[4] Id.

[5] Violence Against Women Act of 1994, Pub. L. No. 103-322, § 40001 (1994) (prior to 2000 amendment).

[6] Violence Against Women Act, National Network to End Domestic Violence, http://www.nnedv.org/policy/issues/vawa.html (last visited July 1, 2012) [hereinafter NNEDV].

[7] Id.

[8] 529 U.S. 598 (2000).

[9] NNEDV, supra note 6.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Violence Against Women Reauthorization Act of 2011 (S. 1925), GovTrack.us, http://www.govtrack.us/congress/bills/112/s1925 (last visited July 1, 2012).

[15] Violence Against Women Reauthorization Act of 2012 (H.R. 4970), GovTrack.us, http://www.govtrack.us/congress/bills/112/hr4970 (last visited July 1, 2012).

[16] Id.

[17] For more information and more comprehensive summaries, see, e.g., Ann Garcia, Crosby Burns, and Lindsay Rosenthal, The Top 10 Ways the House Version of the Violence Against Women Act Neglects Domestic Violence Victims, Center for American Progress (May 18, 2012), http://www.americanprogress.org/issues/2012/05/vawa_top10.html; FACT SHEET: NTF opposition to HR 4970, National Task Force to End Sexual and Domestic Violence Against Women, http://4vawa.org/pages/fact-sheet-ntf-opposition-to-hr-4970 (last visited July 2, 2012);

[18] FACT SHEET: NTF opposition to HR 4970, supra note 17.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] FACT SHEET: NTF opposition to HR 4970, supra note 17.

[25] Id.

[26] Id.


Taking Rape Seriously: Rape as Slavery

In bedrooms and back alleys, at parties, in offices, and within families: rape happens, rape is real. At this very moment, there are approximately twenty million women in the United States who have been raped during their lifetime, and in one year, over one million women are raped in the United States. The numbers are staggering, but not unfamiliar. One in four women are victims of attempted or completed rape in the United States.

Despite the devastating and continuing prevalence of rape in the United States, estimated state rape conviction rates are as low as two to nine percent of total instances of rape (reported and unreported). At the state level, a local robber is thirty percent more likely to be convicted than a rapist, and a rape prosecution is twice as a likely to be dismissed vis-a-vis murder prosecution. Similarly, federal conviction rates for non-rape crimes, such as immigration and narcotics crimes, average as high as ninety-six percent. In effect, the rift between the widespread perpetration of rape and sexual assault and the minimal prosecution and conviction of rapists questions the commitment and priority of law enforcement, lawmakers, courts, and the public in treating rape as seriously before the law as it is treated in name. If rape is serious, why don't we take rape prosecution seriously enough?


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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.


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