Soon after Native American Diane Millich and her non-Indian husband got married, they moved into her home, located on the Southern Ute Indian reservation where she grew up. Millich’s husband began routinely abusing her, and within a year she suffered “more than 100 incidents of being slapped, kicked, punched and living in terror[.]” Millich made numerous attempts to call her local tribal and county police for help during these episodes of violence. In fact after one instance of beating his wife, Millich’s husband himself called the sheriff to report what he had done. Because he knew that there was nothing the sheriff could do. That no help would come. That he would never be prosecuted for what he did. Why? Because Millich was a Native American, Millich’s husband was not, and he was abusing her on tribal land. And because of these circumstances, as Millich later observed, “The law couldn’t touch him.” Unfortunately Millich’s circumstance is not an isolated oversight of the law. Many Indian women have not been able to seek help or justice because they happened to be trapped in this scenario: an Indian victim of a non-Indian abuser on tribal land. A recent amendment to the Violence Against Women Act (VAWA), however, was passed to change all this.
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This Article responds to the alarm recently sounded by the American College of Obstetricians and Gynecologists over “birth control sabotage”—the “active interference [by one partner] with [the other] partner’s contraceptive methods in an attempt to promote pregnancy.” Currently, sabotage is not a crime, and existing categories of criminal offenses fail to capture the essence of the injury it does to victims. This Article argues that sabotage should be a separate crime—but only when perpetrated against those partners who can and do get pregnant as a result of having sabotaged sex. Using the principle of self-possession—understood as a person’s basic right to self-ownership—this Article argues that women have a self-possessory interest in maintaining their reproductive capacity in its non-pregnant state during and after having sex to the extent they seek to establish with the use or planned use of contraception. Sabotage by sexual partners—typically male—violates this interest and merits criminal punishment. This Article proposes statutory language to criminalize sabotage that should be added to the revision of the Model Penal Code currently underway. Not only would this addition likely survive any Equal Protection challenge, it would arguably serve to strengthen the existing constitutional right to non-procreative sex by setting meaningful limits on one partner’s ability to interfere unilaterally with the other partner’s contraceptive decisions.
“Balance” is an elusive concept in the domestic violence field. Equilibrium can always be threatened by tension between attorney and client, between the parties and the legal system, and, of course, between the parties themselves. Abusive relationships are inherently unbalanced; the abusive partner maintains power and control by systematically overcoming the will of the other partner, often using violence and coercion. When an abuse case enters the legal system, therefore, the playing field is anything but level.
In the summer of 2013, the country waited anxiously for the Supreme Court to issue rulings in two landmark gay marriage cases that had the potential to fundamentally alter the institution of marriage in the United States. Advocates and opponents of same-sex unions fiercely debated the issue, but although the two sides’ positions were widely divergent, each emphasized the unique role of marriage in the social, personal, and legal fabric of life. Edie Windsor, the named plaintiff in the lawsuit seeking to strike down § 3 of the Defense of Marriage Act (DOMA), agreed. Ms Windsor had been in a committed relationship with her partner for forty years prior to their marriage in 2007. Yet she stated that the transformation after entering into the legal union “was profound” and that she has “asked everybody since who gets married after long-term relationships, ‘Did it feel different the next day?’ and the answer is always ‘Yes, absolutely.’”
In this Article, I critically examine the role of normative masculinity in determining the shape and scope of the criminal law doctrine of rape by fraud, which purports to criminalize sexual intercourse procured through certain material deceptions. In application, the rape by fraud doctrine is exceedingly narrow—deceptively induced sexual intercourse is rarely criminalized as rape, despite deception’s profound impact on the voluntariness of sexual consent. As the Article explains, the rape by fraud doctrine is thus in tension with the prevailing view that rape law principally protects a thick norm of individual sexual autonomy. Despite this tension, the narrowness of the rape by fraud doctrine is frequently defended, often by those who are most committed to individual autonomy elsewhere in rape law.
Through an analysis of court decisions and academic commentary, I demonstrate that those defenses largely rest on appeals to a romanticized ideal of the practice of seduction. I illuminate the link between seduction and a prevailing ideology of normative masculinity that allocates social status for men on the basis of demonstrations of sexual conquest. That ideology perpetuates narratives in which women, through their capacity to grant or withhold consent, hold power over men when pursued as objects for sex. Indeed, within this account, the transgression of women’s power is what makes sexual conquest worthy of masculine status. Deceptions used to procure sex are criminalized only in exceptional cases where the narratives of interpersonal power break down. Thus, the rape by fraud doctrine can be seen as codifying existing limits on masculine status transfer. Ultimately, I argue that understanding the rape by fraud doctrine in terms of normative masculinity exposes an important continuity between contemporary rape law and rape law historically, in which rape was a crime against men’s property interest in women.