Fair Courts

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Rape
Reproductive Rights: Contraception
Abortion: what is the question?
Divorce
Blame
School Choice
Historically Unfair Treatment
Lesbian Child Custody Rights
Lawsuit Abuse
Remembering, being heard, and thinking ahead
Petitions, phone calls, and emails
My voice in our system

As women, there are so many political/judicial issues that directly affect us. When we recognize this, we can learn the issues and make informed choices at the voting booth. The following are judicial issues that pertain to women and their ability to receive fair treatment in the courts:

For women, rape might appear to be an open and shut case; if we do not consent to sex, a rape has been committed. Unfortunately, it is not this simple in the courts. Rape is often very difficult to prove. The lack of consent is one element of proving a rape, but in many states, this is not enough to prove that a rape has occurred.

The common law definition of rape is "sexual intercourse achieved by force or threat of force without consent of the victim". By requiring force or the threat of force, the legal system perpetuates the myth that a rapist is a strange man who jumps from behind the bushes at night. In addition, when there is a force or threat of force requirement, non-physical or non-imminent threats are not enough to prove a rape. As if this does not make proving rape difficult enough, many states also require the proof of "reasonable resistance" on the part of the rape victim.

With the current rules in many jurisdictions, it is difficult for women in an abusive relationship to prove rape because 1) the abuse might be emotional so there might not be physical force or 2) the fear and submission to sex might be due to past violence and not a contemporaneous threat. For example, in State v. Alston, a woman broke off an abusive relationship with her boyfriend. The woman saw her abusive ex-boyfriend some time much later and they had sex. Even though the ex-boyfriend did not physically force the woman to have sex, there was implicit threat of force due to past incidents. A lower court convicted the man but he appealed and a higher court reversed the conviction due to a lack of physical force.

Another complexity with the force or threat of physical force requirement is that courts distinguish between offers and threats. The difference might seem clear, an offer makes you better off and a threat makes you worse off. However, sometimes the difference is murky and two cases, demonstrate this. In Thompson, a higher court reversed the conviction of a high school principal who told a female senior that she would not graduate unless she "slept"¥ with him. The senior had sex with the principal in order to graduate. According to the higher court, the principal did not threaten the young woman, he offered her something, and that was not sufficient to constitute a rape.

Similarly, in Commonwealth v. Mlinarich, a higher court reversed the conviction of a man who had custody of a teenage girl who had previously been in a juvenile detention facility. The man told the girl that he would return her to the facility if she did not have sex with him. She complied. Even though the man was initially convicted, he appealed and the higher court said that he made the child an offer and did not threaten her. Luckily some states have abolished the threat and reasonable resistance requirements, but they are in the minority.

Spousal rape was unheard of in our legal system until the 1970s. Until then, a husband could not have raped his wife by the definition of the crime. Now, spousal rape is a crime in all fifty states. Shockingly, North Carolina, the last state to abolish spousal rape, did not do so until 1993. In California the legislature has determined that whenever a woman says "no", even if she originally said "yes," the continuation of forced intercourse constitutes rape.

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The ability to obtain contraceptives is a right that many of us take for granted. It was not until the 1970's that the buying and selling of contraceptives was legal, nationally, for all women. In some states, a doctor who so much as counseled her patient on contraceptives could be held criminally responsible.

The banning of contraceptives dated back to 1873 with the Comstock Act. This was a federal statute that prohibited the sale and distribution, through US mail, of pornography and obscenity. Contraception (and information about contraception) and abortion fell into the category of "obscenity" and the act was used to ban contraception, abortion, and information disseminated about them. Contraceptives were forbidden for even married couples until a 1965 Supreme Court decision, Griswold v. Connecticut, allowed the distribution of contraceptives to married women.

The Court proclaimed that married couples deserve a level of privacy and that decisions about contraception fall into this zone of privacy. Even though the decision was not unanimous, enough justices believed that privacy was protected by the Constitution to create a majority and make the legality of contraceptives for married women the law of this land.

In 1972, the right to obtain contraception was extended to all women after the Supreme Court decided Eisenstadt v. Baird. Contraceptives are often not considered medicine by insurance companies, although many pay for pills to help men have erections.

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Abortion was not legalized until 1973 with the famous Supreme Court case Roe v. Wade. This decision is very well known but there was a lesser-known Supreme Court case dealing with abortion only a little more than a decade ago.

A 1989 Pennsylvania statute required that, except in narrowly defined medical emergencies: (a) a woman wait 24 hours between consenting to and receiving an abortion; (b) the woman be given state-mandated information about abortion and offered state-authored materials on fetal development; (c) a married woman inform her husband of her intent to have an abortion; and (d) minors' abortions be conditioned upon the consent, provided in person at the clinic, of one parent or guardian, or upon a judicial waiver. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court held 5-4 that all restrictions, except for the husband-notification requirement, are constitutional.

For supporters of a woman's right to make her own decisions, laws that treat her body as a subject for public policy, are considered a step backward. However, people who focus on every fetus as a separate person, no matter what the circumstances, regard this narrowing of Roe v. Wade as positive because it lessens the situations for which abortion will be legal.

Is this a religious question, a medical question, or a human rights question? There are many people who regret abortions, but still believe that each woman is capable of making the correct decision for herself and should have the right to do so. With a president who holds personal religious convictions and intends to use them to populate the court system, it is possible that there could be further restrictions placed on abortion.

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Divorce is not a subject that most of us like to think about. But what happens when a marriage dissolves? Who gets the car? The house? How are the bank accounts divided? With divorce rates steadily rising, these are questions that more and more of us will have to answer.

States differ when it comes to the way in which their courts handle property division when couples divorce. There are three types of division jurisdictions: common law/title, community property, and equitable distribution. The title, or common law, method of dividing property divides property on the basis of who holds title, meaning whichever partner's name is on a deed, for example, is entitled to that property when the marriage ends. Mississippi is the lone state that divides based on title. Nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) divide the marital estate (earnings and assets accumulated during the length of the marriage) in half.

The remaining forty states use the equitable distribution method. Equitable distribution might sound like another name for community property, the division in half, however in equitable distribution the property is divided as the judge sees fit. This might mean that as much as 2/3 of the property goes to the higher wage earner. The division of assets after a divorce relates to pay equity since women, on average, earn 73 cents for every dollar men earn, unless we live in a community property state, we are often awarded less than our husbands.

In Re the Marriage of Graham is a case about a couple who divorced after the husband completed his masters in business administration degree. The wife had contributed significantly to the funding of her husband's education. Even though she worked while her husband went to school, the court decided that a degree was not divisible.

As women, we understand that the issue is not so much whether the degree itself is divisible but rather whether the increased income from the degree is divisible. A court in O'Brien v. O'Brien, found that a medical license did constitute marital property because of the earning potential that it possesses. Most states now agree that education is marital property but there is still a debate over the extent.

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Hollywood sometimes deludes us into thinking that if you help someone commit a crime or are involved in a crime in any way, you can be charged with "aiding and abetting". This is false. It is important for us to know that aiding is not a separate crime. When a person encourages or in anyway purposefully facilitates a crime, he or she can be charged for the actual substantive crime and will receive the same punishment as the "principal" (the person who physically commits the crime). This is called accomplice liability.

There is another way to be blamed for a crime that you did not physically commit. If you agree (conspire), to commit a crime and someone else carries out the crime, you can still be convicted of the actual crime. According to the Pinkerton Doctrine (see Pinkerton v. U.S.), if you conspire, you intend for a crime to be committed. The Pinkerton Doctrine uses conspiracy as a proxy for accomplice liability.

Since husbands and wives live together, it is much easier to presume that each partner is aware of the other's activities. Additionally, accomplices and conspirators can be convicted even if the actual perpetrator is found innocent or is never even charged.

This issue made headlines in December of 2000 when President Clinton pardoned Amy Pofahl and Kemba Smith who each were serving 24.5-year sentences for helping conceal their significant other's drug dealing activity. They were each charged with money laundering and conspiracy to distribute drugs. These women were convicted and received long sentences despite the fact that they never sold drugs. They were sentenced as if they had in fact distributed drugs. Additionally, Amy Pofahl's husband served only five years and Kemba Smith's boyfriend was killed and never charged.

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Those of us who have children want the best for them. This includes education. Not all of us have the money to send them to private school. Therefore, should the government use public funds to help us send our children to private or parochial school? This is a major political and legal debate (see, Tocqueville was right! In America disagreements become law suits).

The Supreme Court recently decided Zelman v. Simmons-Harris and found Cleveland, Ohio's voucher plan (where the government gives a parent a written statement worth money, a voucher) to be constitutional. This plan allows the use of public funds to pay religious school tuition. Those opposed to the plan thought that the use of vouchers for religious schools violated the constitutional separation of church and state. A majority of the Court rejected this argument stating that the plan gives parents a choice and does not force parents to enroll their children in religious schools.

President George W. Bush supported this decision and is an advocate of vouchers. Democrats and Republicans remain divided on the issue of vouchers. It is likely that there will be similar court cases about the use of vouchers in the coming years.

Among the questions involving school choice: does every school have to accept every child whose parents have a voucher? Public schools may not turn a child down. Does a suburban public school or a religious school have a right to accept public money for some children, but not for all? Can a school say that it doesn't have room for a child with a voucher, or does the law allowing school choice require a choice of a particular school?

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Affirmative action is a system of policies that is meant to remedy past discrimination. Originally conceived as a remedy for racial discrimination, affirmative action initiatives began to include women in the 1960s. Affirmative action often takes the form of setting aside a certain percentage or number of "seats" (either in the workplace or in school) for racial minorities and women. These are known as quotas.

The use of quotas and other affirmative action initiatives is a major political and judicial issue. Some feel that affirmative action is needed to counter built-in discrimination and support set-asides (places held for historically less advantaged groups of people). Others see affirmative action as reverse discrimination against individual white males whose personal merit should be rewarded.

The debate over the legality of affirmative action has made it all the way to the Supreme Court. The most notable case is Regents of the University of California v. Bakke (1978). In this case, the Supreme Court decided that race can be a factor when choosing from a pool of qualified applicants for admission to colleges or universities. However, the court found that the University of California's method of reserving 18 seats in each medical school class for minority students was unlawful.

The use of a precise quota was a constitutional issue in this case, because the University of California is a state school and the equal protection clause of the 14^th Amendment requires that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

A state school is viewed as a state actor and therefore subject to the 14^th Amendment.

The Court took a similar position in Johnson v. Transportation Agency, Santa Clara County (1987) when it held that since minorities and women were severely underrepresented in some job categories, employers can use race or gender as a factor in selecting among qualified job applicants. The fact that the Court in both Bakke and Johnson stressed the use of gender and race as a factor when choosing from qualified applicants defeats the argument that affirmative action operates counter to rewarding merit.

Since the 1990s, there has been a trend to eliminate all forms of gender and race based affirmative action. For example, in 1995 the Regents of the University of California voted to stop using affirmative action programs at all University of California campuses. Since 1997 for graduate schools and 1998 for undergraduate admissions, admissions officers at the University are no longer allowed to use race, ethnicity, or gender as a factor in admissions decisions.

However, others, including the University of Michigan, believe that diversity of a student body is critical to a modern American education and, without using quotas, do award extra admission "points" to historically underserved minority students. The Supreme Court will judge anew in 2003 with the Bush administration joining in the case against the university on grounds that the point system is a quota, although diversity can be a goal.

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It is estimated that gays and lesbians are parents to between 6 and 14 million children in America. While some lesbians have biological children either through natural conception or artificial insemination, there has been a sharp increase in lesbian (and gay) adoption in the last decade. Gay and lesbian parenting has legal implications when same-sex relationship or heterosexual relationships (with one gay, lesbian or bisexual partner) end. Just as the break up of the traditional heterosexual couple with children leads to issues of custody and visitation, same-sex break ups can lead to the same questions when children are involved.

When a gay or lesbian parent has children in a heterosexual relationship that has come to an end, it is not an unlikely scenario for the straight parent to use the sexual preference of the other to try to win custody of the child. A slight majority of states do not let sexual orientation alone determine custody. Instead, they only take sexual orientation into account when there is a connection between a parent's sexuality and harm to the child.

There are also legal issues for gays and lesbians who choose to adopt children. First, gay adoption is not legal in every state. Florida and New Hampshire have laws prohibiting gay and lesbian individuals from adopting children. Additionally, when a gay or lesbian couple seeks to adopt a child (assuming they are living in a state where it is legally permissible), most states only grant one partner parental rights. This can obviously pose a problem when the couple splits up or one of them dies.

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In the criminal law system, a victim of a crime does not bring the offender to court. Instead, the government prosecutes offenders on behalf of victims. By contrast, when someone is wronged in a non-criminal way, our civil system allows her to bring suit, if there is a valid legal claim. Examples of civil wrongs (torts) include when a person is injured by an honest mistake (negligent injury), a person's reputation is falsely damaged (defamation), or a person is cheated or hurt by intentional lying (misrepresentation).

Torts can be intentional or negligent, but they are not crimes; someone accused of committing a tort will not go to jail. The remedy in tort law is the payment of money to the person who was wrong if the jury (or judge) finds in the plaintiff's favor.

If you have ever turned the television on during a weekday you will know that there are several court shows. The People's Court, Judge Joe Brown, and Judge Judy are only a partial list of these types of shows. Lawsuits are common in this culture and television is reflective if this. Although most suits settle out of court (the defendant will agree to pay a sum of money to the plaintiff if the plaintiff agrees to drop the suit), settlements can be costly for defendants. Even if the defendant has not committed the tort she is accused of, she will often settle to save time, money in lawyers' fees, and sometimes to avoid negative publicity.

With lawsuits becoming commonplace in our society, you have to wonder: Are people abusing the civil system? Do we need tort reform? Most doctors are in favor of tort reform because they are often the targets of lawsuit abuse. It is not unusual for surgeons and OB-GYNs to pay $100,000 a year for insurance in New York and Florida. This is almost twice the median family income of Americans.

Proponents of reform have suggested having a limit on the amount of money a plaintiff can receive. Others remind us that when caps are set the people with the least amount of money to live on or to pay experienced lawyers are the ones that suffer the most.

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Voting is not the only action that can be taken. We can individually pay a lawyer and/or we can join a class action law suit where many individuals hire a lawyer and pool their stories and their money to take action against more powerful people or organizations that have acted unfairly. Lawsuits bring publicity to those with less power.

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A powerful delivery system is our voting record. Each legislator needs to be reminded that we watch how they vote on new laws and that women are registered and remember when they vote. Each president needs to know that we remember who is appointed a judge. According to the 2000 Census, we are currently a majority of the voting age population. In fact, women outnumber men in every age category over 20 years of age. There is strength in numbers and we must leverage this power by putting our voices, votes, and money when and where it will make a difference

We must also be aware that change is possible because change has occurred. Change occurred because groups of women joined together and spoke up. For example, spousal rape is a crime in every state and force is no longer a requisite to proving rape in some states. It took more than a hundred years to make that change. But there is more work to be done!

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Where do I turn for help? When do I have a case?

When we discover laws that adversely affect us, such as rape laws and custodial laws, it is our responsibility to petition and write to our representatives. When legislatures are thinking about laws that affect us, there are political action watchdog groups that will alert us to the need to send a message to our particular representatives. Once any of us signs up with a group that represents our personal views, that group will e-mail alerts. Since our representatives are elected, in order to be taken seriously, they need to know that women do vote.

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Will politicians see us as a voting block? We know that we are diverse and have unique needs as well as needs in common. But there are always others that agree with us, and in a representative democracy where majority rules, it makes sense to join up with those that agree with us.

Part of our problem is that we have learned to live within the system. To accept our lot by avoiding the public hot spots and focusing just on our personal situations. WomenMatter reminds us that our personal lives have political potential when we keep up and speak up and vote.

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