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Abstract:
This preview of United States v. Stevens will soon appear in the Charleston Law Review's annual Supreme Court Preview. Of those cases on the Supreme Court of the United States 2009-2010 docket, the one likely to generate the most media attention is United States v. Stevens. The case pits free speech against animal welfare, and, like many First Amendment cases, is creating some otherwise unlikely allies. As of this writing, twenty-two amicus briefs have been filed in the case, with hunters and publishers joining forces against animal protection advocates and law enforcement. Stevens is also legally significant in that the United States argues that interstate commercial use of depictions of animal cruelty may be banned because they cause social harms and lack any significant value. If the Court agrees, it could create a new category of unprotected speech, something it has not done since 1982, when it found that child pornography is unprotected speech in New York v. Ferber. This outcome would mark a significant shift in the Court’s recent trend to expand, not narrow, First Amendment protections. Ultimately, this case comes down to what the Court values more - protecting animals or protecting free expression. This preview details the arguments presented by both sides and discusses the long-term implications of the case on both animal law and the obscenity doctrine.

Obscenity, First Amendment, Free Speech, Animal Law, Pornography

Abstract:
Does consent excuse violence against another? Generally, it does not. Recently, however, criminal defendants charged with violence against their sexual partners have asked courts to treat violent sex or sadomasochism (S/M) as a sport, like prize fighting and hockey. While most courts have refused to do so, a recent New York case, People v. Jovanovic, let stand a ruling that effectively permits a defendant to argue consent as a defense. This Article argues that the liberal argument treating S/M as a matter of sexual autonomy fails to account adequately for the history and practical application of the doctrine of violent consent. It concludes that by recognizing consent in the S/M context, the law is evolving in a direction that could lead to the glorification of sexual violence, rather than the sexual liberation of consenting adults.

sexual violence, domestic violence, consent, criminal law, sport, sadomasochism

Abstract:
In recent years, there has been much media attention and increased law reform efforts to address the phenomenon of the international trafficking of women and children for the purposes of sexual exploitation. In contrast to international trafficking, however, we know very little about, and have done almost nothing to address, domestic trafficking since the passage of the Mann Act in 1910. This article explores the domestic trafficking of girls for the commercial sex industry. It argues that the motives as to why girls end up in the sex industry is often misunderstood. The domestic trafficking of girls is symptomatic of a much larger problem in American life and politics. Much of the feminist-inspired literature on children and the sex industry has been enormously helpful in identifying the many ways in which girls, and increasingly boys, are exploited. But it also has had the tendency to ignore the fact that path leading from bad boyfriend to self-medication, to addiction, to turning tricks, and, in some cases, to death, is paved with hope that she will one day find love in a good man.

girls, commerical sex, trafficking, teenage girls

Abstract:
Throughout the country, prosecutors have begun to mandate victim participation in domestic violence cases. In this Article, Professor Hanna examines the tensions that arise when the state uses its powers to compel women to assist in the prosecution of their batterers. Although feminist theory has been responsible for increased attention to domestic violence, it does not adequately address the tensions between state accountability and victim autonomy. Professor Hanna illustrates these tensions with dilemmas that she confronted while prosecuting domestic violence cases. Using a pragmatist approach to explore these issues more deeply, Professor Hanna argues that prosecutors can decrease the costs associated with mandated participation by reducing their reliance on victim testimony. She also outlines practical steps that prosecutors can take to achieve this goal. Professor Hanna concludes that prosecutors must take the choice of prosecution away from the victim if they are serious about sending a clear message that domestic violence is criminally unacceptable.

domestic violence, feminist theory, criminal law, prosecution, gender

Abstract:
In this paper, adapted from the Ruth Bader Ginsburg keynote lecture at the Ninth Annual Women and the Law Conference at the Thomas Jefferson School of Law, Professor Cheryl Hanna examines the concept that a man's home is his castle as it relates to the historical doctrine of chastisement and modern Supreme Court Cases which implicate domestic violence. She reviews the cases of Myra Bradwell and Tracy Thurman, as well as Georgia v. Randolph, Castle Rock v. Gonzales, and Lawrence v. Texas. She argues that while the Court continues to use this language to support arguments in favor of privacy, Professor Hanna looks skeptically on this rationale for privacy in the context of intimate relationships. Instead, she argues that the law should abandon a man's home is his castle and instead focus on the due process liberty interest in individual autonomy as articulated in the reproductive rights cases and more recently in Lawrence v. Texas.

Domestic violence, gender, women's rights, search and seizure, fourth amendment, privacy, autonomy

Abstract:
This is an amicus brief that was submitted in a case before the Kentucky Supreme Court. The court rejected the brief without explanation. At issue was the applicability of Kentucky's rape shield statute in a civil case. The case involves a young woman who was an in patient at a medical facility where she was raped by a staff person. The brief provides the history of rape shields statutes and legislative intent, as well as policy arguments as to the importance of applying rape shield statutes in civil cases. The brief was authored by Professor Cheryl Hanna and Vermont Law School student Taylor Neff, in consultation with other advocacy groups.

evidence, rape shield laws, rape, victim rights

Abstract:
Current explanations for girl violence remain incomplete. They fail to explain why three out of four violent female offenders have a female victim - and in fifty percent of the cases, that victim is an acquaintance. Current theories do no explain why girls are attacking girls, nor do they account for the motive behind the violence that these girls themselves articulate. In this Article, I argue that in order to develop a richer understanding of, and therefore address, female juvenile violent crime, we have to examine the phenomenon through the lens of female relationships with other females. My focus here is solely on intra-gender relationships - the battle among the sexes - and what that analysis can tell us about why very good girls can sometimes be awful. There is growing evidence to suggest that violent girls are not fighting back against boys - as "oppression" theorists have suggested, nor are they trying to be boys, as "liberation" theorists have suggested. In far too many cases, girls are trying to attract boys at the expense of other girls.

I examine the current status of Title IX and suggest that the rationale behind gender equity in sports can have enormous implications for juvenile justice in the next millennium, particularly if we examine violent behavior through the lens of female competition. No "model" programs currently have any physical or athletic components, nor do they directly address girls' relationships with other girls. Thus, I argue that we need to take female competition out of the closet. "Model" programs should be far more explicit about the complicated nature of female relationships, and, to that end, incorporate competitive athletics as one means of channeling female aggression into a more productive and healthy arena than a street fight or a bathroom brawl. A review of the current research on female athletics suggests that the earlier girls start to play sports and the longer they stay in the game, the better their lives tend to be.

Title IX, girls, girl violence, female juvenile offenders, sports, female aggression

Abstract:
In this essay, Professor Hanna explores (and pokes a little fun) at the "greening" of America. She argues that the success of the environmental movement will depend on its ability to transform from a movement that is based on consumerism to a larger political and social agenda.

essay, environmentalism, consumerism

Abstract:
This is the Brief of Amici Curiae Vermont Network of Domestic and Sexual Assault et. al., in support of petitioner filed in the United States Supreme Court case of State of Vermont v. Michael Brillon 08-88. At issue in the case is whether delays caused by the defendant and/or his counsel can serve as the factual predicate for a claim that the state violated a defendant's Sixth Amendment right to a speedy trial. This brief calls to the Court's attention the impact that its ruling could have on victims of domestic and sexual violence. In these cases, defendants and their counsel often delay cases and manipulate the court system to their strategic advantage. The concern is that if the Vermont Supreme Court decision is allowed to stand, abusers will have increased incentive to engage in these behaviors with the hope that the case will be dismissed either because the victim decides no longer to participate or because the case is dismissed for lack of a speedy trial. This will frustrate the ability to prosecute these cases, put victims and the public at risk, and undermine the integrity of the criminal justice system.

The case is set for argument January 13, 2009.

domestic violence, sexual violence, intimate partner abuse, criminal law, sixth amendment, right to a speedy trial

Abstract:
This article explores the phenomenon of girl violence by examining teen dating violence and girls' experiences with intimate abuse both as victims and as perpetrators. While there is a tendency to view women's experiences as victims of violence as separate and distinct from their experiences as inflictors of violence, the two phenomena are interrelated. A girl's violent victimization can lead her to victimize someone else, just as her own violence can lead her to violent victimization. Indeed, recent research suggests that boys and girls who have been victims of violence are more likely to perpetrate adolescent violence. Moreover, any exposure to violence within an intimate relationship puts a girl at risk of finding herself in the criminal justice system. One factor that may fuel the increase in girl violence is girls' willingness or desire to become sexually involved with boys. While much data suggests that sex and violence coexist in violent dating relationships, the relationship between the two has never been clear. One could assume that boyfriends use violence to initiate a sexual relationship. Recent research on teenage dating violence, however, indicates that violence most often happens after a young couple has consensual sex. Thus, engaging in sexual activity within a dating relationship appears dramatically to increase the risk of physical and sexual violence.

Abstract:
In this essay, Professor Hanna discusses Beecham v. Leahy, the Vermont case which legalized abortion prior to Roe v. Wade. She argues one way to reframe the reproductive rights debate is to examine more deeply the law's specific treatment of women in the regulation of abortion. If what we really care about is the well-being of women, as those on both sides of this debate claim, then allowing women to make their own decisions within this context is the most crucial aspect to women's full rights of citizenship. We must acknowledge, however, that some women are harmed within this context and have a right to access legal remedies. For example, restraining orders against intimate partners who sabotage birth control or coerce them into terminating a pregnancy, or the ability to sue doctors who engage in malpractice. And, most important, we must improve the material conditions of women's lives as to prevent unwanted pregnancies and to ensure that no woman has to make the trade-off between motherhood and education, a career, or basic survival. These two strategies, both promoting autonomy and preventing victimization, can and must be equally pursued as we reproduce women's rights.

abortion, reproductive rights, women's rights, feminism

Abstract:
This article is based upon a presentation given at the St. John’s University School of Law, Journal of Legal Commentary symposium 'Thinking Outside the Box: New Challenges and New Approaches to Domestic Violence.' In recent years, the United States Supreme Court has considered a number of cases with implications for domestic violence victims. The article argues that broadening and expanding advocacy before the Court by filing amicus briefs is an important and imperative strategy to pursue. It begins with an overview of Vermont v. Brillon, a case on the Court’s 2008-2009 docket in which the author filed an amicus brief on behalf of eighteen organizations in the domestic violence advocacy community. Reflecting on this case and others before the Court, the author suggests that there are some lessons that can be learned about Supreme Court advocacy. She argues that advocates should develop a more deliberate process of reviewing petitions for certiorari, expand advocacy to include a wider range of cases, ensure that only committed domestic violence advocates define the interests of victims, and foster alliances with the those advocacy groups committed to sexual autonomy and reproductive rights.

United States Supreme Court, Speedy Trial, Domestic Violence, advocacy, amicus brief, interests of victims, sexual autonomy, reproductive rights

Abstract:
In this comment, Professor Hanna explains why she believes Professor Lininger's article is so important: it develops a test for getting around the problem created by the Supreme Court for the prosecution of domestic violence murders. The problem created in Giles is that prosecutors are required to prove that the defendant had the specific intent to silence his victim when he killed her, before allowing forfeiture of confrontation rights. However, Professor Lininger's article grabs onto language in the majority and concurring opinions suggesting that lower courts are permitted to infer that intent, and develops three per se rules for when it is appropriate. She believes that since this test focuses on the broader context of domestic violence, as opposed to focusing on just the moment the murder occurred, it should help prosecutions of domestic abusers.

She also focuses on the question of whether advocates for the victims of domestic abuse should emphasize the gender bias in these crimes, showing how the law treats women unfairly in this context, or whether they should de-emphasize it in order to win over the likes of Justice Scalia. After discussing the issue, she concludes that trying to win over Justice Scalia is pointless because he is too committed to originalism in the Confrontation Clause context to be affected either way by the disparate impact this has on women.

Domestic violence, Evidence, Giles v. California, Confrontation Clause, Supreme Court advocacy

Abstract:
This was Cheryl Hanna’s keynote address at the Second Annual Laura’s March, in remembrance of Laura Kate Winterbottom and a fundraiser for the Women’s Rape Crisis Center, on September 6 at Oakledge Park in Burlington. Seven Days is publishing her remarks to underscore the ongoing effort to eradicate violence toward women. Hanna is a professor at Vermont Law School and a constitutional scholar.

domestic violence, violence against women, rape, sexual assault

Abstract:
In responding to Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006), Professor Hanna argues that concerns about the over-enforcement of domestic violence laws, including court-ordered no-contact orders, are overstated. Rather, she argues that for autonomy to flourish, the criminal law must "come home" to protect the rights of women to live without fear of physical and emotional violence.

domestic violence, women's rights, criminal law, battered women

Abstract:
In this book review, Professor Hanna reviews four recent books dealing with violence against women: Sex, Violence, and Crime: Foucault and the “Man” Question, by Adrian Howe; Women, Violence, and the Media: Readings in Feminist Criminology, edited by Drew Humphries; A Deafening Silence: Hidden Violence against Women and Children, by Patrizia Romito; and Coercive Control: How Men Entrap Women in Personal Life, by Evan Stark. Each of these books makes a timely and important contribution to the field, particularly for lawyers and legal scholars who often do not fully consider the social and political context of male violence against women. Each work makes a valuable contribution; read together they evince a far deeper sense of connectedness between disciplines and provide a global approach to problems of gendered violence.

book review, violence against women, sex, violence, crime, Feminist Criminology, Adrian Howe, Drew Humphries, Patrizia Romito, Evan Stark

Abstract:
This paper is a working draft of an article that will be published in the MIchigan Jornal of Gender and Law as part of their symposium Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory. In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a private, intimate relationship. These tensions between individual autonomy and state interests are beautifully explored in Big Love. Drawing on themes presented in the series, this paper asks if there is any principled way to make the distinction among those relationships in which there is some physical or psychological harm inflicted and those in which the state has proscribed a relationship because of some moral or social harm it allegedly causes. There are four case studies presented to prompt readers to try to answer the question of when consent should be a defense to otherwise proscribed activity. I conclude that the future of feminist legal theory depends on its ability to remain ambivalent about the tensions presented in the consent doctrine as applied to contexts such as polygamy, prostitution, sadomasochistic sex, obscenity, and domestic violence. Big Love seeks to persuade us to accept ambivalence and to be open to changing our minds because of the complicated nature of women’s (and men’s) lives; feminist legal theory ought to persuade us to do the same.

domestic violence, obscenity, polygamy, prostitution, sadomasochism, consent, feminism, legal theory

Abstract:
This essay examines Evan Stark's model of coercive control and what this paradigm shift might mean for the law. Coercive control can help redefine both criminal offenses involving domestic violence and defenses available to women who kill their abusers. This redefinition would shift the law away from incident-based violence and towards a more comprehensive and accurate paradigm that accounts for the deprivation of a woman’s autonomy within the context of an abusive relationship. Such a change would likely provide more effective state intervention into what were once considered private relationships. Yet, this approach may also have some unintended consequences, including refocusing the law on a victim’s mental state and complicity in her own abuse rather than on the harm caused by abusive men. Thus, while the law should more fully account for coercive control, it must be cautiously optimistic in implementing Stark’s proposed reforms.

domestic violence, intimate partner violence, coercive control, criminal law, battered women self-defense

Abstract:
This article examines the trend of girl violence, particularly in the context of girls in gangs. The emergence of girls, gangs, and violence raises two questions for the criminal justice system. First, why are girls becoming more violent? Second, how should the criminal justice system respond to what is likely to be an ongoing trend? Existing answers to the first question are largely unsatisfactory, falling into the trap of polemic discourse. Current theories posit these girls as either liberated, autonomous beings accessing male power structures through violence, or as oppressed victims trapped in a violent world created and maintained by men. Some still deny that young women are becoming more dangerous. What one thinks the legal system ought to do with these girls depends on where one falls in the liberation-oppression debate described above. Some argue that for girls, like boys, there are no excuses for violence; others argue that for girls, unlike boys, there are many.

This article has three criticisms of current research. Most academic discourse about female violence is completely disconnected from popular culture, which strongly influences the lives of young women. [ Much of it is written in such coded language that it is completely inaccessible to anyone outside the academy, let alone those who are the subject of the text. This Article is intentionally written with popular references to break down the wall that insulates those of us in the academy from the rest of the world. Second, most current theories view violence from a social constructionist viewpoint, arguing that it is essentially learned behavior. This viewpoint fails to understand the biological underpinnings of aggression. Aggression is part of human nature for both men and women. It is from this biologically-informed starting point that we ought to analyze the rise of female violence. Third, and most importantly, both liberation and oppression theories fail to recognize that women's violence is not just about the battles we fight against men, but the battles we fight for them. Most explain female aggression as women fighting back against men, such as when a woman kills her abuser. True? Sometimes. But I argue that it is only part of the picture. It is imperative to distinguish between motives. Granted, some female violence is, at its core, a battle between the sexes, an extreme manifestation of our hatred for men. However, this Article suggests that most female violence is a battle among the sexes, rooted in our hatred of other women, an extreme manifestation of our love for men.

girls, gangs, violence, aggression, female juvenile defendants

Abstract:
In this short essay, Professor Hanna reflects upon Loving v. Virginia and how that precedent might help predict the future of same-sex marriage. This essay appears in a special edition of Seven Days, commemorating the recent passage of the Marriage Equality Act in Vermont.

same-sex marriage, vermont, marriage equality