Legal Momentum Briefing Room

SB 1070 Copycat Bills Threaten Health and Safety of Immigrant Women and Children

Sixteen states have introduced legislation similar to Arizona's SB 1070, the controversial immigration law blocked by a federal judge last July. Legal Momentum submitted an amicus curiae brief in that case, which detailed the severe harm SB 1070 would have caused immigrant women and their children.

SB 1070 makes it a misdemeanor for non-citizens to be in Arizona without documentation. The law also makes it a crime to shelter, hire or transport undocumented immigrants and forces police to check the immigration status of anyone suspected of being undocumented. Legal Momentum successfully argued that, if implemented, these provisions would threaten immigrant women’s health and safety, increase the risk that immigrant women would be separated from their children and punish immigrant women victims of violence.

Over the past two decades, Congress and the Department of Homeland Security (DHS) have made major strides in addressing the barriers to safety immigrant women face, particularly immigrant victims of domestic violence, trafficking, and sexual assault. Thanks to Legal Momentum, the 2000 and 2005 reauthorizations of the Violence Against Women Act (VAWA) included specific provisions to help immigrant women victims of violence, including the U visa and the T visa. Legal Momentum, in partnership with the Vera Institute for Justice, also trains local law enforcement agencies on using these visas.

SB 1070 copycat bills threaten this work. Immigrant women will be reluctant to seek help or report crimes for fear of being detained or deported. Currently, fewer than 20% of immigrant women victims of violence who are undocumented or who have temporary legal status seek help from law enforcement, compared to more than half of women victims of violence in the general population. Fewer undocumented women are likely to report crimes or seek aid if states enact SB 1070 copycat laws.

Legal Momentum believes that reforms in immigration laws and policies will be most effective in improving conditions of immigrant women and their families when they are grounded in an understanding of the challenges and circumstances confronted by many immigrant women in America.

• Learn more about Legal Momentum's work on gender bias and immigration reform.
• Learn more about Legal Momentum's Immigrant Women Program.
• Learn more about Legal Momentum.

High School Cheerleader Dismissed From Squad After Refusing to Cheer for Her Rapists

In 2008, a sixteen-year-old cheerleader reported that she was raped by a basketball player at her school. The girl, known as H.S., said that she was at a party when Rakheem Bolton and a fellow athlete pushed her into a bedroom and locked the door. They proceeded to sexually assault her. Bolton was arrested, but not charged.

Instead of advocating for the victim and working to create a safe educational environment, officials at H.S.'s school encouraged her to avoid the cafeteria and homecoming so as not to raise attention to the issue. But she declined to take part in the school officials' "out of sight, out of mind" approach, and instead refused to cheer for Bolton. She sat on the sidelines while her teammates cheered "Two, four, six, eight, ten, come on, Rakheem, put it in." She was dismissed from the team for her actions. "As a team, I cheered for them as a whole. When he stepped up to the free-throw line, it didn't feel right for me to have to cheer for him after what he did to me," she said.

Bolton eventually pleaded guilty to a misdemeanor assault charge, and H.S.'s family sued the school district for inhibiting free speech. But the suit was dismissed as "frivolous" and the family was ordered to reimburse the school's costs. A Circuit Court of Appeals upheld the ruling, "stating that a cheerleader serves as a 'mouthpiece’ for the school' and that H.S.'s refusal to cheer "constituted substantial interference with the work of the school because, as a cheerleader, [she] was at the basketball game for the purpose of cheering, a position she undertook voluntarily."

Now, her lawyer, Laurence Watts, is appealing the case to the Supreme Court over whether or not her refusal to cheer in fact constituted "substantial interference with the work of the school." The case also has implications for student free speech.

"All I wanted was for somebody to come forward and say, 'Yes, it happened,'" H.S. said. But it's clear that for school officials and the Court of Appeals, this was not their intention. Instead, they attempted to protect "the work of the school," which meant glossing over rape accusations, criminalizing victims, and fostering an educational environment where students are discouraged from addressing sexual assault and violence head on. 
   
In December, Legal Momentum reported on efforts by the U.S. Department of Justice to address shocking rates of sexual violence on college campuses across the U.S. In addition to direct measures by the Department, a bipartisan group of members of the U.S. House of Representatives introduced the Campus Sexual Violence Elimination Act (SaVE Act), a bill that would expand and clearly define the expectations of colleges and universities in their approach towards the prevention and response to sexual assault. This aggressive approach towards combating sexual violence must be enacted throughout all educational institutions, including secondary education.

The ongoing existence of sexual assault within educational institutions is a fundamental human rights abuse that must not be tolerated. Rather than victimizing survivors of sexual assault, educational institutions must work to fight against rape culture and create safe learning environments for all students. Ensuring that students, especially women, are able to live and study free of sexual harassment, sexual violence, and fear is a critical component of any successful educational institution.

• Learn more about Legal Momentum's work on behalf of women victims of violence.

Administration, Congress Take Critical Steps Towards Combating Sexual Assualt on College Campuses

Sexual violence has long been a major problem on college campuses across the U.S. It is now finally receiving the attention it so desperately deserves. Joseph Shapiro of National Public Radio reports, “The United States Department of Education is announcing ‘voluntary resolution agreements’ with two schools that had been criticized for the way they'd handled assaults. And new legislation in Congress would expand and clarify the responsibility of colleges and universities.”

A U.S. Department of Justice funded study estimates that one out of five college women will be sexually assaulted, usually when alcohol is involved. Last winter, Shapiro, along with other journalists from the Center for Public Integrity, investigated the failure of schools and the government agency that oversees them to adequately address sexual assault on their campuses in a series called “Seeking Justice for Campus Rapes.”

The cases that prompted the investigation occurred at Eastern Michigan University and Notre Dame College of Ohio. In December 2006, 22-year-old Laura Dickinson was raped and murdered by a stranger and fellow Eastern Michigan University student after he broke into her dorm room. The convicted man had already been arrested for break-ins on campus and kicked out of school dorms, yet was allowed to remain a student. For 10 weeks, campus officials led Dickinson’s family to believe she died from natural causes.

The second incident occurred in 2006 at Notre Dame of Ohio, when two students told the dean of students that they had been sexually assaulted by the same man. It took weeks for the assaults to be reported to the police, because the dean said she was asked by the women to keep the information confidential. The dean was eventually indicted but later acquitted of failing to quickly notify law enforcement authorities.

Under the federal Clery Act, schools have an obligation to warn other students of crimes on campus. Under Title IX, schools must act swiftly and effectively to end and prevent sexual harassment, sexual assault, and rape.

In response to the series, Russlynn Ali, assistant secretary for civil rights at the U.S. Department of Education, discussed new actions developed to address this crisis with NPR and the Center for Public Integrity. Information provided in the discussion includes:

- Eastern Michigan University and Notre Dame College of Ohio taking measures to prevent sexual assault and to investigate assaults when they do happen. The agreements between the Department and the schools also issues for officials from the Department to regularly visit the campuses to ensure progress is being made.

- Ali's department has begun two similar investigations at Ohio State University and of the West Contra Costa Unified School District, in Richmond, California. The second investigation was prompted by an alleged gang rape of a 15-year-old girl after she attended a homecoming dance.

- Offers from Ali to the University of Notre Dame in investigating a recent rape allegation by a student who later committed suicide.

Perhaps most notable is the recent move by a bipartisan group of members of the U.S. House of Representatives to introduce the Campus Sexual Violence Elimination Act (SaVE Act), a bill that would expand and clearly define the expectations of colleges and universities in their approach towards the prevention and response to sexual assault. The bill’s provisions include –

- “Anytime a student reports being a victim of sexual violence — including stalking and date or domestic violence — schools are then required to explain, in writing, their rights to notify law enforcement and receive help from the school to report the incident. Schools must also tell students their rights to obtain a protective order from a local court. And the school is then obligated to help enforce those protective orders. Schools would be required to hold prevention campaigns, to help students avoid sexual violence and to know how to report it and get counseling if they become a victim.

- The bill would also require schools to start teaching what's considered one of the best approaches to prevention: something called ‘bystander education.’ The idea is to teach everyone — men and women — that they can prevent sexual assaults, and that they have a responsibility to do so. It's similar to campaigns to stop drunk driving by spotting a friend who's had too much to drink and hiding his car keys, giving him a ride or calling a taxi.”

S. Daniel Carter, director of public policy for Security on Campus, an advocacy group for ending campus violence, helped develop the bill and says it is a critical component of ending campus-based violence. Without a bill, the federal government’s approach is not sufficient to effectively address the nationwide problem. "Without a clear national framework set in statute and regulation, it's still going through one school at a time. And not making these changes across the board, which is what we really need to do if you're going to change the big picture,” he said.

Legal Momentum heralds this aggressive approach towards combating sexual violence. The ongoing existence of sexual assault, especially on college campuses, is a fundamental human rights abuse that must not be tolerated. The U.S. Department of Education’s measures and SaVE Act are critical steps towards ensuring the safety of all students.

- To read "Administration, Congress Take Steps to Address Sexual Assaults On Campus,” click here.

- To read “Seeking Justice for Campus Rapes,” click here.

- To learn more about Legal Momentum's Violence Against Women Program, which combines public policy advocacy, education, and precedent-setting litigation to expand and enforce laws aimed at preventing sexual assualt and protecting victims, click here.

 

 

Wal-Mart's Female Employees Deserve Their Day in Court

In 2001, several female Wal-Mart employees discovered that their male counterparts were paid more for comparable jobs and were promoted more often. The female employees decided to sue their employer collectively under Title VII, the federal law that prohibits employment discrimination based on sex – but the case has never been heard on its merits. For almost ten years Wal-Mart has insisted that its one million female employees do not constitute a class suffering from pay discrimination.

The federal district court judge who heard the case in 2004 ruled that they did. In April 2010, the Ninth Circuit Court of Appeals agreed.

Now Wal-Mart has filed a Petition for Certiorari with the Supreme Court, in hopes that the court will strike down the Ninth Circuit’s ruling. If the Supreme Court does not uphold the Ninth Circuit’s decision, each woman employee would have to file individual suits against the largest corporation and private employer in the United States.

Wal-Mart’s employment statistics clearly demonstrate that their women employees were paid less than their male counterparts in every region of the country for the same jobs. Legal Momentum agrees with The New York Times Editorial Board – the Supreme Court should uphold the Ninth Circuit’s ruling to allow Wal-Mart’s female employees to proceed as a class. It is clear that this case should be heard on its merits. All of Wal-Mart’s female employees deserve their day in court.

Learn more about Legal Momentums' work on Employment Rights for women.

In Arizona, a Vital Ruling for Immigrant Women

On July 28, 2010, Judge Susan R. Bolton of the U.S. District Court for the District of Arizona issued an order that blocks the most controversial parts of Arizona's immigration enforcement law (SB 1070) from going into effect.

Seven lawsuits had been filed against the law, challenging its constitutionality and alleging that it would have led to racial profiling. Judge Bolton conducted hearings on three of those suits – including the Friendly House challenge (which Legal Momentum's amicus brief supported) and the U.S. Department of Justice (DOJ) challenge, which was filed after the Friendly House case.

Judge Bolton's partial preliminary injunction order relates directly to the DOJ case and has been incorporated into the Friendly House case as well. Her order states that the DOJ would likely prevail on the merits in showing that certain Sections of SB 1070 are preempted by federal law.

Accordingly, the order blocks the sections that would require:

•  officers to check a person's immigration status while enforcing other laws;

•  immigrants to carry their "papers" at all times; and

•  immigrants to refrain from seeking work.

The order also enjoins officers from conducting warrantless arrests of individuals based on a belief that a person may have committed a public offense that would make her removable from the U.S.

Judge Bolton expressly stated that the "United States is likely to suffer irreparable harm" unless the sections described above are enjoined. While enjoining those provisions today, Judge Bolton also stated that: "There is a substantial likelihood that officers will wrongfully arrest legal resident aliens. ... By enforcing this statute, Arizona would impose a 'distinct, unusual and extraordinary' burden on legal resident aliens that only the federal government has the authority to impose." 

Judge Bolton also noted the particular harm SB 1070 would cause victims of violence (most often women), stating that U and T visa applicants and self-petitioners for relief under the Violence Against Women Act would not have the documents SB 1070 required immigrants to carry to prove their lawful status.

While the remainder of SB 1070 will take effect as scheduled tomorrow (including provisions that: require AZ state officials to work with federal officials on immigration matters; permit AZ residents to bring private lawsuits against AZ law enforcement officers who adopt policies that restrict enforcement of federal immigration laws, and amend the definitions of certain existing AZ state crimes), Governor Brewer may not enforce the "detain and verify," "identity document," "job seeker restriction," or "arrest for removability" provisions that were the primary subjects of the concerns expressed in Legal Momentum's amicus brief.

- Read the order by U.S. District Judge Susan Carbon striking down sections of the Arizona immigration law.

- Read the Amicus Brief that Legal Momentum submitted in Friendly House v. Whiting case.  View the list of organizations that signed on in support of Legal Momentum's brief.

- Read the Plaintiff's brief in Friendly House v. Whiting, arguing against SB 1070. 

- Learn more about Legal Momentum's Immigrant Women Program.

On 38th Anniversary of Title IX, Legal Momentum Works to Ensure Equal Opportunity in All Fields

This month marks the 38^th anniversary of the passage of Title IX, one of the most critical federal education laws to have ever been enacted.  The 1972 law requires gender equity in all educational programs that receive federal funding. "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” reads the law. Title IX has drastically altered girls’ participation in school athletics, and as a result has significantly improved their lives, from higher self-esteem to academic success. Yet, the necessity of Title IX is not relegated solely to the playing field. Indeed, the law affects all aspects of education and is critical for ensuring equal opportunities for girls in every arena, including economic security or workplace equity.

In April, Legal Momentum noted that Obama has taken on a reinvigorated approach to ensuring the successful implementation of Title IX.  The Bush administration took backwards steps towards enforcing Title IX, making it easier for schools to avoid their duties to provide equal opportunities for girls. Now the Obama administration is reversing this method, applying a multi-faceted approach to determining girls’ interest.  This new approach reflects a deeper understanding of the importance of equal opportunities for both girls and boys. Studies have shown a strong correlation between athletic girls and better grades, higher self-esteem, and lower pregnancy rates.

“Dr. Betsey Stevenson, an economist at the Wharton School of the University of Pennsylvania, conducted a study that shows that increasing girls’ participation in sports improves women’s education and employment.  Indeed, she argues that the enactment of Title IX partially explains the 20 percent increase in women’s education and 40 percent increase in employment for 25 to-34-year-old-women – ‘It’s not just that the people who are going to do well in life play sports, but that sports help people do better in life.’

Title IX has also been found to make a difference in women’s long-term health.  A recent study by Dr. Robert Kaestner, an economics professor at the University of Illinois at Chicago, analyzed rates of obesity and physical activity of women who were in high school during the time Title IX was taking effect with similar women from earlier time periods.  The study found that ‘the increase in girls’ athletic participation caused by Title IX was associated with a 7 percent lower risk of obesity 20 to 25 years later, when women were in their late 30s and early 40s.’”

The dramatic influence that sports have on girls’ lives illustrates the critical need for equal opportunities for girls in all areas. Whether it be sports or carpentry, girls deserve the same opportunities as boys. Thus, on the anniversary of Title IX, Legal Momentum continues to use the law to help advance economic security and a path into the workforce for low income urban girls. Indeed, Legal Momentum’s Pipeline Project works to enhance participation by women and girls in training for higher-wage jobs in the construction trades, and to increase compliance with laws barring discrimination in education and employment. In 2009, more girls entered “non-traditional” programs such as plumbing, electrical and carpentry in several large New York City high schools. Through its training, recruitment, and outreach activities, in partnership with seven New York City Career and Technical Education (CTE) schools, Legal Momentum has helped to double and triple the number of girls entering “non-traditional” job skills training programs. If these girls complete the program, they can expect to earn on average $200 more per week than girls typically earn graduating from traditionally female training programs such as cosmetology. By providing education and job training in all fields, including those traditionally dominated by men, women are given the power to make informed choices about their own careers and lives. 

Thus, despite the monumental strides set forth by Title IX 38 years ago, the law does not only apply to sports. The inspiring and significant impact sports have on the remainder of girls’ lives attest to the importance of Title IX in all fields. On the anniversary of Title IX, Legal Momentum is using the law to help combat occupational segregation in high school job training programs for urban youth. Legal Momentum’s work on the Pipeline Project, among many others, is a testament to our dedication to the mission of Title IX and our belief that all girls receive equal opportunity in all aspects of life.

• To read Legal Momentum’s pamphlet, “Ensuring the Economic and Personal Security of Women and Girls,” click here.
• To learn about Legal Momentum’s Equality Works program, click here.
• To read Legal Momentum’s Obama Administration Takes Steps Towards Ensuring Enforcement of Title IX, click here.

Legal Momentum Files Amicus Curiae Brief in Effort to Block Arizona’s SB 1070

Legal Momentum’s Immigrant Women Program has filed an amicus curiae brief in support of a lawsuit filed in Arizona federal court to block implementation of the state’s notorious immigration law, S.B. 1070. The brief, filed in conjunction with Manatt, Phelps & Phillips, LLP, pertains to the lawsuit, Friendly House v. Whiting, brought by the American Civil Liberties Union (ACLU), the Mexican American Legal Defense and Education Fund (MALDEF), the National Immigration Law Center and the Asian Pacific American Legal Resource Center.

The brief outlines key areas where Arizona’s new law undermines federal civil rights protections for immigrant women and their families, including those who are victims of violent crime. The law is an evisceration of decades of humanitarian incentives by Congress to protect the health and safety of all people living in the United States, regardless of legal status.

The brief notes that over the past two decades, the United States Congress and the Department of Homeland Security (DHS) have made major strides towards addressing the vulnerabilities of immigrant women and the widespread barriers to help that are experienced by immigrant victims of domestic violence, trafficking, and sexual assault. Many laws have been enacted to protect these women and families, rights that Congress has called essential for the prevention of violence against women. Specific laws have been established to protect immigrants from arrest or deportation when they report crimes or participate in prosecution. In addition, federal law guarantees that all persons, without regard to immigration status, have access to programs and services necessary to protect life and safety, including shelter, emergency medical services, victim assistance, soup kitchens and disaster relief.

Yet Arizona S.B. 1070 is a direct assault on all of this. Of the countless devastating consequences of the law, it threatens the safe and health of immigrant women and children, it increases the risk that immigrant mothers will be separated from their children, and it punishes immigrant victims of violence.

S.B. 1070 puts immigrant women and their children at risk of being detained or arrested any time they leave their homes. Those in need of aid and federal services will no longer seek help because of fear. These critical services include, but are not limited to, Emergency Medicaid for immigrant women and children, shelters and transitional housing, and community-funded health clinics offering urgently needed health care, including child care.

Additionally, S.B. 1070 devastates the right of a mother to safely care for her children, regardless of legal status. Children will perpetually be at the risk of losing their mothers, who will face the constant threat of deportation in all locations, including the workplace, the home, and even places of worship. Children who are separated from their mothers will be placed in the overburdened foster care system because S.B. 1070 disregards federal “sole-caregiver” humanitarian release protections that offer primary caretaker parents alternatives to detention. In Arizona, 84 percent of children with at least one immigrant parent are U.S. citizens.

Because they are unable to participate in the family law cases that ensue after separation, immigrant mothers often face permanent termination of parental rights. Separation and the subsequent placement of the child in foster care is in nobody’s best interest, especially mothers and their children.

Finally, S.B. 1070 punishes immigrant victims of violence by hindering victims’ ability to report a crime without fear of persecution. In their pursuit of detaining undocumented immigrants, Arizona law enforcement is even allowed to stake out rape crisis centers and domestic violence shelters, locations even federal law enforcement are strongly cautioned against operating in. Currently, fewer than 20 percent of battered immigrant women who are undocumented or who have temporary legal status seek help from law enforcement, compared to more than half of battered women generally. These numbers will drastically fall with the implementation of S.B. 1070, as victims will rightly fear deportation and persecution by Arizona law enforcement.

Indeed, S.B. 1070 will cause irreparable harm to immigrant women and children and must be immediately stopped. Legal Momentum’s brief concludes, “SB 1070 deters immigrant women from so much as leaving their homes, let alone from affirmatively contacting law enforcement or going to schools, health care providers and social service agencies related to the care and nurturing of their children. The law chills the exercise of legal rights, stops pursuit of justice system remedies, and cuts off immigrant women and their children from federally funded services that protect life and safety and prevent significant morbidity and mortality among immigrant women.”

 

Same-Sex Couples Are Covered by the Violence Against Women Act

Gay couples fall within the scope of the protections of the Violence Against Women Act (VAWA), the Justice Department has clarified. Federal prosecutors may use the law in cases of interstate stalking and domestic violence, regardless of the victim or defendant’s sex. “The text, relevant case law and legislative history all support the conclusion” that the law’s criminal provisions “apply when the offender and the victim are the same sex,” wrote David J. Barron, the acting assistant attorney general of the Justice Department’s Office of Legal Counsel. The office’s decision will now be used as legal guidance for federal prosecutors across the country.

Legal Momentum, along with countless other organizations, worked tirelessly to get the VAWA passed in 1994, and reauthorized in 2000 and 2005. A third reauthorization should occur next year. The law made major strides towards protecting victims of violence, including making it a federal crime to cross state lines with the intent of committing domestic violence, stalking, or violating a protection order. However, in its passage, the VAWA also omitted significant components of the law that Legal Momentum had supported and helped draft. One of the vital components was struck down by the Supreme Court in 2000. The provision allowed individuals to sue their rapists in federal court based on violation of civil rights. This ruling fails to understand that rape is a sometimes a biased crime and an attack against women.  

In addition, the VAWA did not specifically address the enforcement of the law in same-sex relationships. In the midst of an ongoing, national debate over same-sex marriage, and the 1996 Defense of Marriage Act which defined terms such as “marriage” and “spouse” as categories only existing between a man and woman, the applicability of VAWA to same-sex relationships became blurred. However, in the memorandum, Mr. Barron explains that the tone and gender-neutral language of the VAWA reflects Congress’ original intention for the laws to cover both heterosexual and same-sex couples. Additionally, the VAWA includes terms not included in the Defense of Marriage Act, such as “dating partner” and “intimate partner.” These terms apply equally to same-sex relationships as heterosexual ones.  “It is true that the statute is entitled the Violence Against Women Act, but other provisions of the Act make clear it applies to conduct perpetrated against male, as well as female, victims,” Mr. Barron wrote.  

Legal Momentum hails the Justice Department’s decision as a critical step towards the successful protection of victims of domestic violence, sexual assault, stalking, and dating violence. In our work to on VAWA, Legal Momentum drafted and advocated for provisions that applied to all individuals, regardless of their gender or sexual identity. This long welcome clarification will dramatically alter countless lives, and must be disseminated and implemented swiftly and effectively. 
 
To read The New York Times’  “Gay Couples Gain Under Violence Against Women Act,” click here.

For more information on Legal Momentum’s work on the VAWA, click here.

Why Don’t More Women Sue Their Rapists?

In a recent article on Slate.com, Claire Bushey examines the practice, or lack thereof, of women who sue their rapists. She explains that ten years ago, the Supreme Court struck down a vital component of the Violence Against Women Act (VAWA) that allowed individuals to sue their rapists in federal court based on violation of civil rights claims. In 1994, Christy Brzonkala, a student at Virginia Tech, sued two football players for raping her. She sued both the players and the school under the VAWA’s civil rights policy. Yet, in United States v. Morrison, the Supreme Court ruled that “Congress had overstepped its constitutional authority by creating a federal remedy in the criminal-justice realm that usually falls to the states” and that Brzonkala’s case could only be heard by state, not federal courts.

This ruling has drastically affected the number of women suing their rapists, Bushey explains. While there has been a sharp rise in women filing lawsuits following a rape, the ruling makes it extremely difficult to obtain representation or compensation when suing a rapist. Even when the plaintiff wins (which is common), the rapists are often incapable of paying even the lawyer’s fees. In turn, few lawyers will take these types of cases. Instead, rape lawsuits generally go after third-party defendants, those who have money. These defendants are often employers, such as rent-a-cops or nursing homes, that don’t effectively screen their employees.

In contrast, the VAWA’s civil rights clause encouraged courts to award attorney’s fees to successful plantiffs, making it easier for women to obtain representation and thus sue their individual rapists. The clause also extended the statute of limitations to four years, enabling victims more time to deal with the devastating impacts of a rape and mount a case. But when the Supreme Court struck down these clauses, they did away with these measures and in turn made it increasingly difficult for women to sue their attackers.

Bushey argues that the ability to sue one’s rapist is particularly critical because of the failure of criminal courts to effectively prosecute rapists. She writes:

“Victims need the weapon of a lawsuit because the criminal courts don't always serve their interests. A 2004 study of sex crimes in Philadelphia and Kansas City, Mo., found that only half of the cases that resulted in an arrest were prosecuted. When prosecutors who doubt a victim's story are unwilling to press criminal charges, a civil suit allows the victim a different measure of justice. Juries determine guilt using a lower burden of proof; instead of deciding whether a defendant is guilty ‘beyond a reasonable doubt,’ a plaintiff need only demonstrate that ‘a preponderance of the evidence’ points to guilt, making it easier for victims to prevail. Victims don't send their rapists to prison by suing them, but the damages they can win are another form of punishment. Damages can also help replace a rape victim's lost income and pay for counseling. ‘The criminal case is about paying your debt to society,’ Dion says. ‘The civil case is about [perpetrators] paying their debt to the victim.’

Along with its practical importance for victims, VAWA promised a more abstract kind of benefit that was lost when the Supreme Court struck down the relevant portion of the law. Introducing the legislation in 1990, then-Sen. Joe Biden pointed out that more than 90 percent of sex crimes are committed against women. And yet, he argued, ‘we ignore the implication: a rape or sex assault should be deemed a civil rights crimes, just as 'hate beatings' aimed at blacks or Asians are widely recognized as violations of their civil rights.’ Even when states address rape victims' practical concerns by extending the time they have to sue or encouraging courts to award attorney's fees, they don't challenge the public to rethink rape as an attack on women because they are women—in other words, as a form of discrimination.”

Indeed, in order to successfully sue rapists, the essential components of the VAWA struck down by the Supreme Court must be reinstated. Rape is a civil rights crime and a discriminatory attack against women and must be understood as such. All legislation should accurately reflect this understanding if we are to successfully work to prevent violence against women.

For Claire Bushey's article on Slate.com, click here.

Legal Momentum Applauds Senator Franken’s Amendment to Guarantee Sexual Assault Victims Their Day in Court

In 2005, a 19-year-old Halliburton/KBR Contractor named Jamie Leigh Jones was drugged, gang raped by her coworkers in Iraq, and imprisoned in a shipping container for 24 hours without food or water when she tried to report the assault. Halliburton/KBR stationed security guards outside the shipping container and warned Jones that she would lose her job if she left Iraq for medical treatment.   

Through a sympathetic security guard, Jones contacted her father who, with the help of their congressmen, sent agents from the American Embassy in Iraq to free his daughter. Though Army doctors who examined Jones stated that she had been anally and vaginally raped, her rape kit “disappeared” in the hands of KBR security officers.  

The Justice Department declined to investigate the case and a fine-print clause in Jones’s KBR contract barred her from pressing criminal charges in U.S. courts.  Instead, Jones’s contract mandated arbitration – with an arbiter approved by KBR - in secret, with no right to an appeal.

After 15 months in arbitration, Jones took KBR to court to fight the company’s mandatory arbitration policy. In September, the 5^th Circuit Court of Appeals ruled in her favor, stating that her allegations were not related to her employment with Halliburton/KBR and therefore not subject to arbitration. 

To ensure that no other women would have to endure the emotionally brutal and unjust process that Jones faced, Senator Al Franken (D-MN) introduced an amendment to the FY2010 Defense Appropriations Bill that would prohibit contracting with defense companies that force their employees into mandatory binding arbitration in sexual assault cases. 61 organizations, including Legal Momentum, endorsed Senator Franken’s amendment. On October 6, the Senate passed the amendment by a vote of 68-30.  

Legal Momentum applauds Senator Franken and his Senate colleagues for recognizing the importance of granting sexual assault victims their day in court. All sexual assault victims struggle with the decision to report their abuse, fearing traumatic police investigations and court procedures. Victims like Jamie Leigh Jones, who courageously told and retold her story, should be encouraged to report assault for their safety and their community’s safety. Mandatory arbitration shrouds these cases in secrecy, hiding the victims who bravely decide to report and retraumatizing them through an unjust process.   

The House has yet to vote on their FY 2010 Defense Appropriations Bill. Legal Momentum encourages them to pass the Bill with Senator Franken’s amendment intact.

For more information:

• Read Senator Franken’s press release on the amendment.
• Read Jamie Leigh Jones's harrowing story from ABC News.
• Read the opinion of the 5th Circuit Court of Appeals in Jones v. Halliburton.
• Read Maiming the Soul: Judges, Sentencing, and the Myth of the Nonviolent Rapist, which prosecutors and parole/probation still use to inform judges about the lasting impact of rape of any kind, by Legal Momentum's National Judicial Education Program Director Lynn Hecht Schafran.