Sexual Assault by Federal Actors, #MeToo and Civil Rights
50 Pages Posted: 27 Feb 2019
Date Written: February 13, 2019
Calls for accountability for gender violence have permeated public discourse in the aftermath of the #MeToo movement. While much public attention has focused on high profile individuals accused of harassment, less attention has been paid to sexual assaults of more vulnerable and marginalized people, including low wage workers, lesbian, gay, bisexual, transgender and gender non-conforming people, and undocumented immigrants. In addition, while calls for accountability have targeted Hollywood, employers, universities, and even the Catholic church, relatively little outcry has focused on the longstanding and under-recognized problem of sexual assaults by government actors. This article focuses on sexual assault by federal actors, and considers in particular the problem of sexual assault of undocumented immigrants, including people living in or traveling to the United States to seek asylum.
The #MeToo movement has rightly focused public attention on the need for accountability by those who commit and facilitate gender violence. It has created a valuable moment for reflection and advocacy for laws and policies that better prevent and redress gender violence. Social science makes clear that leadership at the top and policies and practices holding both institutions and individuals to account are the best approach to preventing and redressing gender violence. Civil remedies, including remedies under civil rights laws, are an essential tool in the mix of needed responses. But advocacy efforts have not focused on the federal government’s civil rights accountability for sexual assault committed by those who act in the federal government’s name. The Bivens doctrine, which provides the avenue of redress for sexual assaults by federal actors as a constitutional violation, has been increasingly narrowed. It provides no mechanism for institutional accountability; the Supreme Court recently declared that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity”. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).
This Article uses calls for reform of employment discrimination law as a point of comparison, and demonstrates that the federal government’s liability for sexual assault and harassment falls short of emerging accountability norms. It argues that limitations are not justified by traditional policy concerns, such as federal officials’ policy-making prerogatives and concerns about financial burdens. This historical moment calls for revisiting outdated legal doctrines, to bring them in line with current understandings of accountability, so that our legal frameworks better advance fairness and equality.
Keywords: civil rights, gender, gender violence
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