The War on Women

[Iamwhomiam]

[smiths]

[Allegro]

Project Willow wrote recently an artist statement for one of her paintings. The exhibited piece shows in the Lounge along with its introduction.
Thank You, PW.

This is Project Willow’s artist statement.
(I added the link.)

The Doubleness of Sex For Women

It’s nearly 30 years ago now that I read an essay by feminist author Joanna Russ, from her collection, Magic Mommas, Trembling Sisters, Puritans & Perverts, entitled Pornography and the Doubleness of Sex For Women. The phrase, the doubleness of sex for women, stayed with me all this time. Indeed, I often hear it echo in my mind when I’m working on sex or sexual abuse related imagery, which in my case, is rather frequent. Russ says,


”Sex is ecstatic, autonomous, and lovely for women. Sex is violent, dangerous, and unpleasant for women. I don’t mean a dichotomy (i.e., two kinds of women or even two kinds of sex) but rather a continuum in which no one’s experience is wholly positive or negative, and to which different women will give very different weightings.”

Russ did an excellent job of outlining the pitfalls in various, and sometimes competing, feminist approaches to sex and pornography, which she argues can arise from these differential experiences and their interpretations. What struck me most however, was her description of how culture affects experience in the bedroom. How intimate can we get with those who would be our oppressors, or after sexual trauma, or having internalized our objectification, or in the face of the many fearful possibilities that sex can entail? Much has changed since she wrote her essay, but some basic realities remain, and old ideas we thought long vanquished have found new breath.

There is a great push backwards, made up of what seems like an odd confluence of processes, from actual backlash to the various inevitable products of hyper‐consumer culture, where every tiny impulse is measured and exploited to the greatest degree. Even as women make great strides in academia and the workplace, and in some cases begin to out perform men, we see a renewed and growing pressure on them to dress and behave in ways that accentuate their status as sex objects. The concurrent growth of porn into what is now banal ubiquity has an alarming number of women seeking, of all things, cosmetic genital surgery.

The concentration of wealth and power in our increasingly unregulated corporatist system, the attendant, further destruction of community and non‐material social values, and the extinguishing of voices that can’t be exploited in the marketplace or for the political benefit of those who control it, all provide fertile ground for the right, and it is newly reinvigorated. We’re having to re-fight old battles, but on a different field, one where the old stark lines between the sexes are intersected with a host of other classifications. Many young men perceive that they are victims of the system too, and openly resent women who dare to draw attention to the unique inequities we still face as females.

Despite years of feminist activism on rape, the sexual abuse survivor movement, and the resulting social gains and institutional changes, rates of child sexual abuse remain pandemic, and 99% of all rapists go free. The doubleness of sex for women obtains, and perhaps is just as complicated, but in different ways, than it was thirty years ago. Our battle for physical autonomy and sexual agency continues, against a system that exploits some of the worst aspects of patriarchal culture, and nearly everyone and every thing, for the sake of profit, and its unfortunate child, the rise of a reinvigorated right.

[seemslikeadream]

Paul Ryan’s Pregnant Pause by Roxana Badin
October 30th, 2012
Some rights reserved by DonkeyHotey


WHEN DURING THE VICE-PRESIDENTIAL debate Martha Raddatz asked Paul Ryan what role his religion has played in his own personal views on abortion, Ryan was quick to explain not only the central role of religion in his life, but his family’s and his political party’s:

I don't see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do. My faith informs me about how to take care of the vulnerable, of how to make sure that people have a chance in life. […] Now, you want to ask basically why I'm pro-life? It's not simply because of my Catholic faith. That's a factor, of course. But it's also because of reason and science […] I believe that life begins at conception.

The “vulnerable” in Ryan’s charge, the “people” in need of a chance in life, were not women, but blastocyst embryos. Ryan was appealing to parens patriae (literally, “father of the people”), a doctrine which state courts have often used in the past to, among other things, compel medical treatment of in utero fetuses. This would not have been lost on the ticket’s radical ‘pro-life’ supporters, even if it was lost on the public at large. It was a high-five to a radical agenda that is pro-life when it comes to zygotes, but not to women involved in their conception.

Under parens patriae, the state has the power, and even the duty, to protect individuals not otherwise able or willing to protect themselves. If Roe v. Wade were overturned during a Romney presidency — an eventuality that Romney himself has made clear is his goal — abortion would be remanded to the states, exactly the way it had been before the 1973 Supreme Court ruling.

States could not only pass zygote personhood legislation without constitutional challenge (either by amending a state’s constitution or by making it a law), but, under parens patriae, could intervene in all sorts of medical and scientific cases, such as stem cell research and in vitro fertilization. There would be no limit.

In the debate, Raddatz followed up Ryan’s life-at-conception declaration by asking if those who support pro-choice should be worried under a Romney administration. Ryan looked at the camera, frowned, paused for two seconds, and took a deep breath.

The pause and accompanying body language seemed to indicate a deep moral crisis for the Wisconsin congressman. But, if the earnest expression — more of a boy screwing up the courage to explain why his baseball shattered the neighbor’s window than of an ambitious politician — convinced you of his sheepish sincerity, you’re underestimating him. Ryan has been called “the Republican Party’s intellectual leader” and is seen by the party as the future of the GOP. The wide-eyes with which he has been trying to answer the abortion question since Romney selected him are those of a driven zealot.

Six weeks before the debate with Raddatz, Ryan tried to sidestep the question of whether abortion should be banned even in cases of rape by deferring to Romney. “The method of conception doesn’t change the definition of life,” he told one reporter, and then quickly followed up the hauntingly robotic syllogism with:

Let’s remember, I’m joining the Romney ticket and the president makes policy and the president, in this case, the future president, Mitt Romney, has exceptions for rape, incest and life of the mother, which is a vast improvement to where we are right now.

In those last weeks of August before the Republican Convention, Ryan, arms akimbo, worked gymnastically around the rape issue, supporting Romney’s exception for it, but, at the same time, insisting that he is proud of his pro-life record. He also repeated — as Romney has — that life begins at conception — a more anodyne statement than his rape position.

Most important to Ryan and to the rest of the Republican party, Ryan needed to extricate himself from the dreaded Todd Akin, the Missouri congressman and pro-life pontificator whose flatulence on abortion — specifically, about “forcible” and therefore “legitimate” rape (woman held at knifepoint) versus the non-forcible, illegitimate variety where abortion should not be available (a thirteen year old girl “consensually” impregnated by a twenty-five year old man; a college woman pregnant from a drunken date rape, etc.) was affecting the Republican party very badly.

On the eve of the Republican Convention, Ryan, Romney and the entire GOP national political apparatus “launched a swift and ruthless crusade against Akin,” as the Washington Post put it, pulling funds from Akin’s campaign for the senate seat in Missouri and urging him to step down. Akin, probably not appreciating the knife in his back, especially from Ryan, his ant-abortion, zygote-as-legal-person bill co-sponsor, refused.

Ryan and Akin co-sponsored 16 anti-abortion bills together, including the Sanctity of Human Life Bill, in which the term “forcible rape” originated; this federal “personhood” bill also included language that endowed a fertilized egg the same legal rights as a human being. But, with Akin going public about the controversial belief, shared, in fact, by other fringe extremists in the movement like Ryan, that women’s bodies actually shut down to stop pregnancies in cases of rape (the trauma setting in motion biological blocks so a woman cannot conceive), Ryan was quick to throw him under the bus. Romney was trailing Obama by 10-22 points among women and Akin’s comments looked sure to steer the Republican Convention narrative away from the economy — a topic that was meant to unify the party and attract swing female votes. Republican strategists, publicly and privately, knew that Akin’s theory of a biological shut down was bogus and knew that any suggestion that forcing a woman to bear a child resulting from a rape was just too appalling for the majority of Americans. Akin was noticeably absent from the Convention.

By the time Ryan was debating Joe Biden with Raddatz on October 11, the Republicans had successfully kept abortion (Akin’s comments about rape and all) off the table for much of September, attention focused instead on Romney dissing 47 percent of the country. Without any mention of abortion in the first presidential debate, all Ryan needed was one more deflection. So, after his pregnant pause, he said:

We don't think that unelected judges should make this decision; that people through their elected representatives in reaching a consensus in society through the democratic process should make this determination.

The lack of any affirmative declaration to overturn Roe v. Wade might’ve lulled viewers, eager to hear about taxes and gas prices, into thinking that all Ryan wanted was the abortion issue to be decided democratically. But, what Ryan was revealing was his deep-seated belief that any involvement of the courts at all has always been illegitimate and always will be. This is the very far fringe of the anti-choice movement, the same fringe that supports the pseudo-science of female biological blocks and has been working around Roe v. Wade on the state level by passing legislation that has effectively shut down abortion clinics in states like Mississippi. From Ryan’s perspective, because the Constitution doesn’t explicitly mention any right to privacy, the Constitution has no place protecting pregnant women. The Constitution doesn’t define a “person” either, and it was noted by the Court in Roe that there is no real indication that the concept has any pre-natal application: another reason Ryan and other extremists would rather the pesky Constitution be set aside.

Putting the issue of a rape exception in this context is useful because it makes clear that it is a red herring in this election. The main issue is personhood, which both Romney and Ryan enthusiastically support. There has been little in-depth consideration about what the candidates mean when they say that life begins at conception, now uttered so frequently that it has become part of the white noise of the stump. Discussions in the press have been scarce. One newspaper even confused the GOP ticket’s position by stating that it supports rights for the unborn fetus. To be clear, Roe v. Wade already acknowledges that the state’s interest in potential human life can be compelling enough to override a woman’s constitutional right. No one, Republican or Democrat, is publically contesting that. It is only the extent to which such a right is qualified that is at issue.

Dangling over the dustbin, Roe has been maligned and mischaracterized with such fervor it’s useful to remember why it is so valuable. Roe not only upheld the right to privacy, but defined its “contours,” recognizing that the right is not absolute. The Court balanced it against the state’s interest according to the fetus’s “viability” — the point at which a fetus is able to live outside the womb. It acknowledged a state’s legitimate interest to intervene to protect potential life (yielding only to the woman’s right to protect her own life and health), and that this can be “compelling” enough to override the woman’s right. Though subsequent Supreme Court decisions eliminated Roe’s trimester framework, permitting states to regulate abortion prior to viability so long as the regulations do not impose an “undue burden,” for over 30 years Roe has weathered religiously motivated attacks and protected the fundamental right of individual liberty from government encroachment, firmly placing personal and moral choices with the individual.

What Ryan and Romney are after with “personhood” is to undo Roe v. Wade entirely. Personhood USA, the largest anti-abortion organization, counts Newt Gingrich, Michelle Bachmann, Rick Perry, Ron Paul and Rick Santorum as signatories to their Republican presidential candidate pledge, which reads in relevant part:

If elected President, I will . . . to the best of my knowledge . . . only appoint federal judges and relevant officials who will uphold and enforce state and federal laws recognizing that all human beings at every stage of development are persons with the unalienable right to life.

It is a pro-life referendum machine that uses the tag line “protecting the pre-born by love and by law.” Their primary mission is to “serve Jesus by being an advocate for those who cannot speak for themselves” — the zygotes. Personhood USA spokesperson Rebecca Kiessling explained:

As someone who really cares about rape victims, I want to protect them from the rapist, and from the abortion, but not the baby. A baby is not the worst thing that could ever happen to a rape victim — an abortion is.

Back in August, when Ryan and Romney publicly condemned Akin, Personhood USA condemned Ryan and Romney for allowing a rape exception, giving the ticket the moderate public image it so sorely needed. Setting the rape exception aside, however, Romney and Ryan’s personhood position are in lock step with both Akin and Personhood USA, as is the GOP platform — despite the fact that half of America does not share their religious views. Religions have varying views on when life begins. The Talmud states that life begins at birth, while Buddhists, Baptists and Muslims see life starting anywhere from fertilization to 40 days from conception. Unlike the Catholic or Mormon Churches, none of these groups prohibit abortions outright.

Ryan may insist that his view is based on “reason and science,” but there is no consensus about when human life begins among scientists, philosophers, ethicists, or sociologists. Embryonic development is a process. There is no scientific consensus on what marker should be used — is it when the soul arises? Consciousness, brain function? Some biologists argue that life begins at fertilization, some at gastrulation, some at birth. The medical community is also split on the issue. If fertilization is the start of life, then are all objects, such as hydatidiform moles, created by the union of sperm and egg also life? Michael Gazzaniga, a biopsychologist who served on George Bush’s bioethics council in 2006 has stated:

A fertilized embryo is not a human – it needs a uterus, and at least six months of gestation and development, growth and neuron formation, and cell duplication to become human. To give an embryo created for biomedical research the same status even as one created for in vitro fertilization (IVF), let alone one created naturally, is patently absurd. When a Home Depot burns down, the headline in the paper is not “30 Houses Burn Down.” It is “Home Depot Burned Down.”

With nearly one week left before Election Day, it’s unlikely that undecided voters will delve very deep to explore what’s radical about the Romney-Ryan ticket, or what makes their religious views so dangerous to the country. Both men are adept enough at hiding their allegiance to the extreme fringe of their party and its fervent desire to dictate people’s moral choices, emphasizing instead their love of small government, and mischaracterizing their most partisan efforts as shining examples of cooperation. When Ryan is asked about the Sanctity of Life Bill he is so proud of, he describes it as a bi-partisan effort, even though the bill was passed with 235 Republican and only 16 Democratic votes — the latter given only on condition that language about forcible rape be removed. As the GOP spends its final millions of dollars on TV ads they will continue to steer voters away from this issue. Let’s hope they recall that pause and the look in Ryan’s eyes.

[sw]

The neighborhood newspaper that covers a very small, affluent neighborhood in the Dallas area, The Park Cities People, has recently covered some high profile minor involved rapes. The reader comments always blow me away.

[Krysos]

The neighborhood newspaper that covers a very small, affluent neighborhood in the Dallas area, The Park Cities People, has recently covered some high profile minor involved rapes. The reader comments always blow me away.


http://www.parkcitiespeople.com/2012/10 ... more-26692

I know it's almost like some of the commenters are saying that the rapist is innocent until proven guilty. WTF??

[Allegro]

The Violence Against Women Act and Double Jeopardy in Higher Education
Stanford Law Review, 10OCT12 | by Andrew Kloster, Justice Robert H. Jackson Legal Fellow at the Foundation for Individual Rights in Education

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor.[1] While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus.

The bill requires all institutions receiving federal funding to develop:

Procedures for institutional disciplinary action in cases of alleged domestic violence, dating violence, sexual assault, or stalking, which shall include a clear statement that—

. . . .

(III) both the accuser and the accused shall be simultaneously informed, in writing, of—

. . . .

(bb) the institution’s procedures for the accused and the victim to appeal the results of the institutional disciplinary proceeding . . . .[2]

This language is ambiguous, but appears to go further than the April 4, 2011, “Dear Colleague Letter” (DCL) issued by the Department of Education’s Office for Civil Rights (OCR), which interpreted Title IX to require that if a university provides a right to appeal in sexual assault cases, then it must provide an appeal for both the accuser and the accused.[3] The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused.[4]

Setting aside the massive rise in federal micromanagement of college disciplinary proceedings,[5] both the DCL and the proposed language in VAWA raise serious, unsettled issues of the application of double jeopardy principles in the higher education context. As noted in Goss v. Lopez,[6] the leading Supreme Court case on point, students facing disciplinary action in school have substantial liberty and property interests at stake, interests that demand due process. However, the Goss inquiry into the adequacy of process simply requires additional, unspecified process the greater the penalty involved, and to date the Supreme Court has refused to identify a list of procedural rights in college disciplinary hearings.[7] Without delineating what constitutes minimum process under Goss, permitting rehearing threatens the fundamental constitutional rights of students.

“Double jeopardy” can refer to two distinct concepts. First, double jeopardy can refer to the formal constitutional right, as enshrined in the Fifth Amendment, not to be tried more than one time for the same criminal offense. As discussed more below, this does not just implicate formal criminal trials, but may also protect defendants in quasi-criminal proceedings such as college disciplinary hearings. Second, double jeopardy can refer to the general concept that it is not fair in any proceeding, criminal or otherwise, to keep revisiting the same factual issues time and again, including the issues that would be revisited if an accuser were afforded the right to appeal an acquittal in a college disciplinary proceeding. These principles are found in the Due Process clauses of the Fifth and Fourteenth Amendments, and sometimes find their expression in common law concepts, such as res judicata.[8]

Fifth Amendment Prohibitions on Double Jeopardy

Whether the Fifth Amendment prohibition on double jeopardy in criminal trials applies in the context of public colleges rests on the general framework found in Hudson v. United States[9] for assessing whether a statute is “criminal.” The first step is to determine whether a statute is intended by the legislature to be “civil” or “criminal,” and the second step asks whether the statutory scheme (even if facially “civil”) is sufficiently “punitive, either in purpose or effect,” for the purpose of attachment of double jeopardy. This statutory inquiry relies on a number of traditional factors, including:

(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.[10]

To some extent, it could be argued that college disciplinary proceedings can fit each of the Hudson factors (although it is unlikely that these arguments would succeed, given current case law in this context). An accused student’s brief would apply Hudson as follows: expulsion, the most serious single punishment available in higher education, (1) is a restraint on the ability of a student to study and find a job; (2) is regarded as a punishment; (3) is usually reserved for those actions involving actual knowledge; (4) is primarily geared towards deterrence and retribution; (5) is often, as is the case in disciplinary hearings involving sexual assault, meted out for behaviors that are already criminal; (6) often has no alternative purpose—indeed, permanent expulsion, as the academic equivalent of the death penalty, can by definition have no rehabilitative function; and (7) can be excessive. While not all college disciplinary proceedings involve accusations of criminal activity, it is not uncommon for criminal activity to be at the heart of those proceedings. Moreover, even when those hearings involve violations of rules that do not implicate criminal law—for example, accusations of plagiarism—it is difficult to ignore the punitive nature of the proceedings.

As noted above, however, courts have so far declined to find a Fifth Amendment prohibition on double jeopardy in the college context. In one case, State ex rel. Fleetwood v. Board of Education, predating Hudson, a court summarily declared that a second suspension for the same underlying conduct was “civil in nature.”[11] In Students for Sensible Drug Policy Foundation v. Spellings, a more recent class action suit assessing the constitutionality of a federal statute which prevented drug offenders from receiving federal student loan monies, the Eighth Circuit applied both steps of the Hudson analysis to find the prohibition to be civil in nature.[12] However, the Eighth Circuit found that the fourth and fifth factors were met, and that several of the other factors were only set aside on balance (for instance, the punishment was not excessive or enough of an affirmative restraint), implying that a federal education statute might, in another context, violate double jeopardy protections.

Importantly for the court, the only potential sanction applied to a student in Hudson was the withdrawal of funds. In the VAWA case, by contrast, the only possible statutory sanction is the removal of federal funding from universities, While possible sanctions against students include expulsion by the university and social stigma associated with the underlying charges, it is difficult to connect these penalties to the statute itself. Thus, whether a federal statute violates the formal strictures of the Fifth Amendment prohibition on double jeopardy remains to be seen, but it is certainly closer to the line than the statute in Fleetwood.

Due Process Prohibitions on Repeat Proceedings

A stronger case can be made, however, that double jeopardy in the public college disciplinary context is prohibited by the due process concerns posed by repeating a disciplinary procedure. Both public and private colleges must be concerned with fundamental fairness and accuracy in their disciplinary proceedings—principles violated when colleges hold disciplinary proceedings predicated on the same underlying conduct multiple times in an attempt to find the accused guilty rather than innocent. As civil libertarian Wendy Kaminer has noted in the Atlantic, “you’d have to regard the protection against double jeopardy as a mere constitutional technicality to believe that schools should dispense with it. Or you’d have to assume that, as a general rule, fairness requires convictions and provides multiple opportunities to obtain them.”[13]

The constitutional guarantee of fair proceedings is secured in the Fifth and Fourteenth Amendments to the Constitution, and these due process guarantees apply not only to court proceedings, but on the public campus. Put another way: “For students facing discipline at public universities, the Constitution shapes the proceedings: Federal courts view the student’s continued enrollment as a protected property interest, immune from arbitrary state action.”[14] Indeed, some jurisdictions recognize that even private universities may not act arbitrarily or capriciously in meting out discipline to students.[15]

The Goss v. Lopez inquiry, mentioned above, into the adequacy of college disciplinary process is fact-bound, echoing the procedural due process balancing test outlined in Mathews v. Eldridge: courts must balance the interest of the individual adversely affected by official action against the government interest involved, including the costs of the additional procedural safeguards, and against the risk of error inherent in the current process.[16] Applying this analysis, circuit courts rarely delineate specific formal requirements, preferring district courts to require “more formal procedures” as the potential penalties appear greater. Put another way, Goss and subsequent university discipline cases hold that the more the process looks like an adversarial process or even a criminal trial (here the due process analysis echoes the double jeopardy analysis in Hudson), the stronger the constitutional due process protections required.[17]

To see why repeating an academic judicial process violates due process, therefore, it is useful to see where a repeat procedure does the most damage. One argument by some courts and advocates minimizes the individual interest prong of the Mathews analysis, contending that because students accused of misconduct are not risking imprisonment, for example, universities can subject students to subsequent trials. These advocates contend that college disciplinary proceedings should be fluid, granting wide discretion to administrators to mete out punishment in line with pedagogical goals.

Ironically, those in favor of fluidity in college disciplinary proceedings often also contend that prohibitions on repeat proceedings are not necessary because college disciplinary proceedings are formally analogous to civil suits. Since defendants in civil trials do not risk imprisonment, and since student code penalties are civil in nature, they assert that it does not violate due process to allow retrials in these situations.[18]

However, while college disciplinary proceedings are not perfectly analogous to criminal trials, neither are they perfectly analogous to civil suits. Indeed, defendants in civil trials have many rights that offset the unfairness posed by the possibility of rehearing. In civil suits, there are robust rules of evidence and procedure designed to protect both parties. Parties can settle, and have discovery rights and at least some right to a jury. Finally, in civil suits, there is not usually a stigma associated with a loss in court; by contrast, a student found guilty of academic misconduct or rape is may be excluded from higher education and at a disadvantage in the job market. As noted in Goss:

‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,’ the minimal requirements of the Clause must be satisfied. . . . If sustained and recorded, [charges leading to suspensions of up to ten days] could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment. [19]

In fact, these contrasts between formal civil suits and college disciplinary proceedings point towards greater need for prohibitions on repeat proceedings, given the absence of other, mitigating procedural safeguards.

For example, a student accused in state court of felony theft has the right to a lawyer, to a jury, to an appeal, to have evidence disclosed, to cross-examine witnesses, to present witnesses, and, if certain conditions are met, possibly to have a conviction expunged. A student sued for civil fraud in state court has many of the same rights.

By contrast, if the same student is later tried in a college proceeding, it might go something like this: On day one, the student receives a letter from the dean stating that he or she is accused of theft. On day two, the student turns in a sheet of paper detailing his or her side of the story. On day three, the student receives a letter of notification that he or she has been found not guilty, based on the whole record. In such a situation, it is fundamentally unfair to allow the university to reopen the case the next year at the behest of the student’s accuser and revisit the same record. Because there are fewer procedural safeguards, repeated proceedings can do much more damage to the fairness of a proceeding on campus than in the civil context.[20]

The unfairness of retrial at the behest of the accuser does not just involve the arbitrariness of allowing repeat proceedings against the accused; rather, rehearing has real consequences for the accuracy of the proceedings. For example, as time progresses, the memories of witnesses fade, reducing the accuracy of factual determinations. Some colleges partially mitigate this by establishing a set time period within which to bring allegations of academic or other misconduct. But even when witnesses still have strong memories, testifying about factual circumstances for a second time may be unnatural to them and sound rehearsed, ruining the credibility of even truthful witnesses. This cuts both ways: victims could also appear less credible and guilty parties could be unfairly exonerated. As a result, university counsels drafting hearing procedures would do well to limit appeals to determinations of the applicability of conduct codes (matters of “law”) rather than determinations of fact. At the least, where determinations of fact are appealable, a higher burden of proof should be placed on the appellant, to comport both with an initial presumption of innocence of the accused (when appealing an acquittal) and to justify having a lower proceeding at all (when appealing an acquittal or a conviction).

Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.


1. See Jonathan Weisman, Women Figure Anew in Senate’s Latest Battle, N.Y. Times (Mar. 14, 2012), http://www.nytimes.com/2012/03/15/us/po ... enate.html.

2. Violence Against Women Reauthorization Act of 2011, S. 1925, 112th Cong. § 304 (as introduced in the Senate, Nov. 30, 2011).

3. See 20 U.S.C. §§ 1681-88 (2011); see also “Dear Colleague” Letter from Russlynn Ali, Assistant Secretary, U.S. Dep’t of Ed., Office for Civil Rights, at 12 (Apr. 4, 2011), available at http://www2.ed.gov/about/offices/list/o ... 201104.pdf (“If a school provides for appeal of the findings or remedy, it must do so for both parties.”).

4. While neither the DCL nor the proposed language in VAWA are limited to appeals of matters of fact, this article will only address such appeals.

5. This micromanagement truly puts “unconstitutional conditions” doctrine under strain. See Richard Epstein, Title IX or Bust, Defining Ideas (Feb. 7, 2012), http://www.hoover.org/publications/defi ... cle/107626.

6. 419 U.S. 565 (1975).

7. See James M. Picozzi, Note, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L.J. 2132, 2133 (1987) (“To this day . . . the Supreme Court has never specified what those more formal procedures should be or when they should be required.”). For a more recent discussion, see Furey v. Temple Univ., No. 09-2474, 2012 U.S. Dist. LEXIS 108874, at *57-61 (E.D. Pa. Aug. 3, 2012). See also Lisa Tenerowicz, Note, Student Misconduct at Private Colleges and Universities: A Roadmap for “Fundamental Fairness” in Disciplinary Proceedings, 42 B.C. L. Rev. 653 (2001).

8. See, e.g., Ashe v. Swenson, 397 U.S. 436, 444 (1969) (holding that the Double Jeopardy Clause incorporates the broader, historical common law principle of collateral estoppel); See also Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1812 (1987) (“[T]he root, commonsense idea underlying double jeopardy is generalizable beyond criminal cases: Government should not structure the adjudication game so that it is ‘heads we win; tails let’s play against until you lose; then let’s quit (unless we want to play again).’” ).

9. 522 U.S. 93 (1997). Determining whether such constitutional prohibitions apply to a similar scheme at a private university requires an antecedent showing of state action by that university, something which this article does not address.

10. Id. at 99-100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)) (alterations and internal quotation marks omitted).

11. 252 N.E.2d 318, 321 (Ohio Ct. App. 1969) (per curiam).

12. See Students for Sensible Drug Policy Found. v. Spellings, 523 F.3d 896, 901-02 (8th Cir. 2008).

13. Wendy Kaminer, What’s Wrong with the Violence Against Women Act, Atlantic (Mar. 19, 2012)(arguing that while the formal prohibitions of the Fifth and Sixth Amendment are not applicable in the college disciplinary context, fundamental fairness demands similar prohibitions), http://www.theatlantic.com/national/arc ... act/254678.

14. Curtis J. Berger & Vivian Berger, Academic Discipline: A Guide to Fair Process for the University Student, 99 Colum. L. Rev. 289, 290 (1999); see also Goss v. Lopez, 419 U.S. 565, 574 (1975).

15. See Ahlum v. Administrators of Tulane Educ. Fund, 617 So. 2d 96, 98-99 (La. Ct. App. 1993); Coveney v. President & Trs. of College of Holy Cross, 445 N.E.2d 136, 138 (Mass. 1983); Abbariao v. Hamline Univ. Sch. of Law, 258 N.W.2d 108, 113 (Minn. 1977).

16. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

17. See, e.g., Furey, supra note 7 at 398. (“If an institution decides not to allow counsel or cross examination to avoid an adversarial hearing and the additional administrative burden and cost, it must make sure that the hearing it does provide is fair and impartial.”).

18. See, e.g., Edward N. Stoner II & John Wesley Lowery, Navigating Past the “Spirit of Insubordination”: A Twenty-First Century Model Student Conduct Code with a Model Hearing Script, 31 J.C. & U.L. 1, 13 nn.46 & 48-49, 57 (2004).

19. Goss, 419 U.S. at 574. Furthermore, many prospective employers and educational institutions require previous transcripts. For an example of the Goss stigma in action, see the case of Caleb Warner at the University of North Dakota, who was falsely accused of rape and, until the school disciplinary sanctions were overturned, prohibited from attendance at every university in the state. Justin Pope, On Campus, Debate over Civil Rights and Rape, Bos. Globe (Apr. 21, 2012), http://articles.boston.com/2012-04-21/n ... e-campuses. In addition, after false rape accusations at Duke University, “demonizing” of the innocent students continued even after their exoneration. See Peter Applebome, After Duke Prosecution Began to Collapse, Demonizing Continued, N.Y. Times, Apr. 15, 2007.

20. Some courts might find that such a scheme also violates a due process right to notice, however. See, e.g., Waln ex rel. Waln v. Todd Cnty. Sch. Dist., 388 F. Supp. 2d 994, 1007 (D.S.D. 2005).

[justdrew]

how is this any different from the left wing mentality that seeks to redistribute wealth from the rich to the poor?

eh eh eh

no you don't. That is not what "the left" seeks AT ALL, we'd like to see the fruits of everyone's collective industry shared more fairly with those who do the work that makes the fruits. This requires organized for-hire labor.

Also, a cursory investigation of economics would show you that a system wherein all funds flow up to a small minority is not long-term functional. Redistribution is an essential function of any economy, without it there's no money in circulation.

no one loves the idea of a "welfare queen" just popping out little baby paychecks. First off, I'd say it's fairly rare occurrence, and second, what choice do we have? Take the kids? Sterilize the mom? Leave them to fend for themselves and possibly turn to crime?

you seem to forget that we live in a society. Society, look it up. I had to "pay more" for health insurance (when I had it) in order to pay for breeders to cover their children. I didn't force them to have kids, why should I pay more? Because it's the decent thing to do. Same with all the other crap that get's built or done or whatever with "my money" - get over it, you want to live independently, go befriend a bear and move to the woods. Oh way, you don't actually own sufficient land to be self-sufficient? Well, welcome to the society of humans on earth, it's not a perfect place you may have noticed. but we get along ok, together.

As I said, each side has their own justifications for the redistribution. The wealthy see themselves as rugged industrialists that power the society and provide the opportunities for the lower classes, and the welfare queens feel as though they are justified because they believe they live in an inherently unjust society. Spare me the condescension until you actually understand what I'm saying or where I'm coming from, please. It's astonishing to me how presumptuous and outright rude the left has become in the last 15 years. What ever happened to being non-judgmental and open-minded? Is that not a liberal value? I SAID I have more compassion for the poor than I do for the rich already so I don't know why you constantly need to keep treating me as though I'm parroting Ayn Rand. I even specifically said in an earlier post that I don't think it's proper for the unfortunate to not receive medical care, clothing, food, etc. I agree with you that it's the decent thing to do, ultimately, to pay for the people that can't take care of themselves but it's also the decent thing for the ones that are capable of paying for themselves to do so also instead of gaming the system. If you don't like it when bankers do it you shouldn't excuse it when it's coming from less effective scammers either. And yeah, it is time for bed. Night.

ok then. All you need to realize is that birth control is a standard part of healthcare for women and needs to be covered by health insurance. It was already covered by many plans, now it's simply codified as a requirement that it be covered. There is no program in place by which the gubamint just pays for all women's birth control, that's not what's been done.

[Project Willow]

http://www.guardian.co.uk/world/2012/nov/14/ireland-abortion-law-woman-death

Ireland 'should change abortion law' after woman's death


Savita Halappanavar, 31, died of septicaemia a week after being found to be miscarrying while at a Galway hospital. Photograph: The Irish Times

The case of a woman denied an abortion at an Irish hospital who later died of blood poisoning must prompt the state to loosen its almost total ban on terminations, a member of one of the coalition parties in Dublin has said.

Two investigations – one by Ireland's health executive, the other by the hospital – are now under way into the circumstances of the death of the 31-year-old dentist at University Hospital Galway (UHG) who was denied a medical termination and allegedly told: "This is a Catholic country."

Savita Halappanavar's death has highlighted how the ban even can prevent women with life-threatening medical conditions getting an abortion in Irish hospitals.

She had turned up at UHG on 21 October and was found to be miscarrying but died of septicaemia a week later. She had asked medical staff several times over a three-day period to terminate the pregnancy.

An Irish Labour deputy in the Dáil, Patrick Nulty, said that in light of Halappanavar's death there was "pressing and urgent need" for parliament to "show responsibility and legislate", calling on his party and its Fine Gael partners to press ahead with reforming the abortion law.

It is understood her family is now considering taking legal action, arguing that the foetus should have been removed earlier to save the woman's life.

Her husband, Praveen Halappanavar, said her repeated requests were turned down because she was 17 weeks pregnant and staff could detect a foetal heartbeat. The 34-year-old engineer has since revealed that his wife spent two and a half days "in agony" until the foetal heartbeat stopped.

After the dead foetus was removed, he said, his wife was taken to the hospital's intensive care unit where she died on 28 October.

Recounting her final days in UHG, he said: "Savita was really in agony. She was very upset, but she accepted she was losing the baby. When the consultant came on the ward rounds on Monday morning Savita asked if they could not save the baby could they induce to end the pregnancy. The consultant said: 'As long as there is a foetal heartbeat we can't do anything.'

"Again on Tuesday morning, the ward rounds and the same discussion. The consultant said it was the law, that this is a Catholic country. Savita [an Indian Hindu] said: 'I am neither Irish nor Catholic,' but they said there was nothing they could do.

"That evening she developed shakes and shivering and she was vomiting. She went to use the toilet and she collapsed. There were big alarms and a doctor took blood and started her on antibiotics.

"The next morning I said she was so sick and asked again that they just end it, but they said they couldn't."

He recollected the moment he heard that medical staff were moving his wife into intensive care.

"They said they were shifting her to intensive care. Her heart and pulse were low, her temperature was high. She was sedated and critical but stable. She stayed stable on Friday but by 7pm on Saturday they said her heart, kidneys and liver weren't functioning. She was critically ill. That night, we lost her."

The hospital said it could not discuss the details of an individual patient with the media but expressed its sympathy to the family.

A spokesman for the hospital, which is part of a group of medical centres in western Ireland, said: "Galway Roscommon University Hospitals Group (GRUHG) co-operates fully with coroners' inquests. In general, in the case of a maternal death, a number of procedures are followed, including a risk review of the case and the completion of a maternal death notification form.

"External experts are involved in the review and the family of the deceased are consulted on the terms of reference, are interviewed by the review team and given a copy of the final report."

The taoiseach, Enda Kenny, said he would not be rushed into any measures while the two independent inquiries were under way.

His health minister, James Reilly, is understood to have received a report meanwhile from a group of experts exploring the possibility of reforming Ireland's abortion laws. Women who have had terminations in England for medical reasons called on Reilly on Wednesday to publish the findings as soon as possible in the light of Savita Halappanavar's death.

"I think it would be only appropriate that the two investigations that are being carried out here are concluded," Kenny said.

At present the coalition government is preparing a report on possible legal reforms of abortion legislation in the light of a European court ruling in 2009 that declared the absolute ban to be a breach of women's human rights.

Nulty, TD for Dublin West, said: "The heartbreaking tragedy of the death of Savita Praveen Halappanavar is something which should cause every citizen in our republic to pause and reflect."

He added that the government should no longer "hide behind reports and delay tactics. It must act to protect women and their health. This issue cannot be swept aside and ignored as successive governments have done."

Intervention by the European court of human rights has forced Ireland to make some minimal changes to its abortion ban. Since the 1992 X case, in which a 14-year-old rape victim took on the state's ban not only on her having a termination in Ireland but also on her travelling abroad for an abortion, there have been some exceptional circumstances.

Since Europe ruled that there was a risk to the child's life if she was forced to go ahead with the pregnancy, guidelines have been set down on these rare and exceptional cases.

Ireland's Medical Council guidelines state that "abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother".

It adds: "Under current legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide."

The guidance also informs doctors that they "should undertake a full assessment of any such risk in light of the clinical research on this issue".

And it advises that "rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving.

"In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby."

However, such decisions are often left to the discretion of individual doctors and their medical teams. The pressure group Terminations for Medical Reasons Ireland, which campaigns for women whose babies would die if they went full term into their pregnancies, points out that in many cases some Irish doctors will not even advise women on their rights to travel abroad for abortions, let alone recommend emergency terminations in Ireland.

[DrEvil]

They forgot "Illiterate's".

[Hammer of Los]

...

I must be fully half the things on that list.

But what are P.K's?

...

[Iamwhomiam]

Plitically korrects

[Project Willow]

The State of Female America
Flanders/Ensler/VDay

Live stream
http://livestre.am/4eeZo

Info
https://secure.onebillionrising.org/page/contribute/the-state-of-female-america

[Allegro]

Million Women Rise is a collective of women who work autonomously as volunteers, without any corporate sponsorship or formal funding. We promote real change that is based on truth, unity, peace and love. We rely on the support of donations to keep our voice autonomous.

We need to raise £18,000 by March 2013 for the next march to take place. These funds will go towards costs including volunteer training, public liability insurance, stage hire, audio equipment for Trafalgar Square, and other related activities.

POST 2992

[Allegro]

JC Honey Campbell is a Million Women Rise shero.


^ Born in Flames | Host, Honey

YOUTUBE NOTES. (Jan Oxenberg & Lucy Winer from The Independent, November 1983) “Born in Flames opens ten years after a social democratic revolution when America is starting to swing to the right again. Women, lesbians and minorities who were instrumental in the transformation of society are losing their jobs: a familiar last-hired /first-fired scenario which feeds their doubts about the practical impact of this “revolution.” On the day a pacifying wages for housework policy is announced, a coalition of women led by Flo Kennedy takes over a national news cast to dramatize the suspicious prison death of Adelaide Norris, leader of the Women’s Army.

In this her first narrative feature film, editor and ex-art critic/painter Lizzie Borden creates a kaleidoscope portrait of women splintered into dozens of different political factions. With its ragged on-the-run look, the film itself has a street style as tough as the members of the Women’s Army. Scenes shift abruptly, cutting from trashy urbanscapes to the flicking video of incessant TV newscasts on the “deteriorating situation.” A dose of sci-fi? Yes, but we instantly recognize the status-quo voice of the media, as well as a rich landscape of voices of our own. On Phoenix Radio, Honey talks, offering politics based on her intuitions and background. On Radio Regazza, Adele Bertei raps for the people who will chase any excitement.

And the pages of the Socialist Youth Review speak in measured bourgeois intellectual phrases, defending the regime and avoiding the deficiencies of social-democratic policies on women and other “out” groups. As music by The Bloods, Ibis and Red Crayola pounds, events overtake these groups: the Women’s Army—the only faction without a media voice—lays plans for an open revolt.…”