Polymorphous Perversity

Hiatus

2012-01-01T12:05:00.000-05:00

This blog is on hiatus. Occasional postings may appear. Please peruse the blogroll.

Hiatus

2009-10-28T12:07:00.001-04:00

This blog is on hiatus. Occasional postings may appear. Please peruse the blogroll.

BDSM case goes to the Supreme Court

2009-10-28T12:03:00.000-04:00

cross-posted from hunter of justice

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions, saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed. Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

PA Supremes say prison may ban porn to prevent "objectification"

2009-07-22T07:37:00.000-04:00

The Pennsylvania Supreme Court this week unanimously rejected a challenge to the state's broad ban on sexually explicit printed materials in prisons. The court did not state conclusively that the ban is constitutional, but held that the plaintiff prisoner had not met the heavy evidentiary burden that courts generally require in order to take a case of prisoners' First Amendment rights to trial.

Here's what Pennsylvania prohibits any prisoner to obtain:

(1) materials in which the purpose is sexual arousal or gratification; or (2) the material contains nudity which means showing the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple (exposure through “see through” materials is considered nudity for purposes of this definition).

Infelicitously for his case, the particular plaintiff here was serving a sentence for rape. Even more infelicitously, he represented himself. And to make matters worse, the evidence he was prepared to present consisted of affidavits from fellow prisoners asserting that viewing nudity did not have ill effects on their rehabilitation or day-to-day conduct.

Interpreting a handful of Supreme Court precedents, the court held that a prisoner faces a heavy burden to take a case of individual constitutional rights to trial. The state's burden, it said, is simply to articulate a "rational connection" between its censorship standards and any "legitimate penological interest." If the state can meet that low bar, the prisoner must then present specific facts that call that basic rationale seriously into question. The court was silent as to how a pro se prisoner is to meet this burden in a First Amendment case, where calling into question the state's rationale would seem to require access to expert witnesses, social science research, or the like. In other words, if the state can come up with any rationale that the court will "buy" in the abstract, a prisoner would seem to need substantial outside assistance to take the case to trial.

Be that as it may, the court found that the state's asserted goals were rational, and that the prisoners' affidavits did not raise any genuine question about their validity. What were those goals? The primary rationale accepted by the court was that:

the pornography ban serves to foster the rehabilitation of inmates, including sex offenders like [the plaintiff], and is consistent with inmate treatment objectives, particularly discouraging inmates from “objectifying” others, rather than treating them as individuals.

The court also accepted the state's reasoning that pornography in the prison would lead to a "hostile work environment" for prison staff. While the workplace-harassment rationale, and the idea that pornography will have a particularly dangerous effect on persons convicted of any sex offense, are not new, I believe the "objectification" rationale is not as frequently seen.

While it may seem remarkable - at least to those familiar with philosophical and feminist debates over the concept of "objectification" - that courts would accept this vague rationale at the level of abstract, unsupported logic, one must keep in mind the litigation context. As the litigation around same-sex marriage demonstrates, the ability to overcome vague government interests under a "rationality" test often depends on the ability to go toe-to-toe with the state in contesting its logic. That is to say, a pro se prisoner lacks not only the ability to gather sophisticated evidence in a case like this, but also the resources to engage in the kind of sophisticaed legal argument that may be necessary merely to ge to trial.

Remembering Dr. Tiller

2009-06-09T11:35:00.000-04:00

Last night I went with my wife to the Religious Coalition for Reproduce Choice memorial service for Dr. George Tiller last night at the National City Christian Church. It was a very moving service, with Dr. Leroy Carhart delivering the euology for his colleague and friend.

Most people didn't understand Dr. Tiller's work - they didn't understand the basic facts about what late-term abortions are, who has them and why. I urge you to read this article which explains the facts and the stories of women who have had these procedures. I would also recommend visiting IAmDrTiller.com, which collects the stories of the people who dedicate their lives to making abortion, safe, legal and accessible.

Individuals and private organizations will keep up the important work of clinic defense, but it is now up to the U.S. Justice Department, along with state and local governments, to take meaningful steps to monitor and prevent threats and acts of terrorism against abortion providers throughout the country.

Reduced posting

2009-06-08T09:15:00.000-04:00

This blog will see reduced posting for a short while because I am busy with actual lawyer things. As a small consolation, I leave you with this off-topic but mildly amusing snippet from a recent environmental decision in the Ninth Circuit:

We begin with the cross-appeal, which contests the dismissal of the [claims against the] Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.

I like to imagine the lawyers getting postcards of deer from their friends for months.

Not a crime to show dirty pictures of onself to a teen old enough to consent to sex

2009-05-29T13:30:00.000-04:00

The usual Creep Caveat applies to this post.

Here's another case dealing with exhibiting harmful matter to a minor. In Salter v. State, 2009 WL 1409484 , the Indiana Court of Appeals overturned such a conviction on the ground that the statute was vague as applied to pictures sent over the Internet to a young woman of 16. The court reasoned that since the state set the age of sexual consent at 16, the "harmful matter" statute failed to provide clear notice to the defendant that he could legally have sex with the woman but could not legally send her pictures of his erect penis.

We understand Salter's argument to be that he had no way of knowing that pictures of his genitals would be considered “harmful” to M.B., given that, under Indiana law, he could have been naked in front of M.B. and had sex with her without violating any law. Again, we must agree.

...By setting the legal age of consent at sixteen, the Indiana legislature has made an implied policy choice that in-person viewing of another person's genitals is “suitable matter” for a sixteen- or seventeen-year-old child. That being so, how could Salter have known that a picture of his genitals would be “harmful,” that is, not “suitable,” for M.B.? Asked another way, if such images are harmful to sixteen- and seventeen-year-old children, then why would our legislature allow those children to view the same matter in-person, in the course of sexual activity?

One judge dissented, noting that the defendant didn't have a sexual relationship with the young woman involved, and that the harmful matter statute did not depend on a minor's consent. But given that the young woman here sent the defendant semi-nude pictures of herself as well, it seems fair to say that there was some kind of consensual sexual relationship here, albeit an online one. It would be truly bizarre if it were legal for two people of whatever age to have sex, but illegal for them to have cybersex. I am aware, however, that in the eyes of many people over 35, anything involving the Internet is automatically twice as dangerous.

(N.B. - the court's opinion makes no mention of the defendant's age.)

Though originally nabbed because of this online relationship with a teenager, Mr. Salter was also charged with something even more unsavory: possession of child pornography. This included not just the pictures of the 16-year-old created and sent by her, but also pictures of unknown, younger children apparently obtained from the Internet. Mr. Salter was clearly liable for possession of the latter (but not the former, because Indiana sets the age for defining child pornography at the age of sexual consent, 16). But the prosecutor decided to go for a bigger sentence by charging him with creating child pornography, on the basis of his downloading the images and burning them to CD. The court (again 2-1) following the reasoning of the New Jersey Supreme Court (State v. Sisler) in concluding that simply copying preexisting digital images does not fall within the ambit of a statute targeted at the actual production of child pornography. The court reasoned that copying a digital images is analogous to simple possession, not to creating a new image.

The court therefore reversed these convictions as well. It noted that the state could not prosecute Salter for simple possession as to the images of the 16 year old regardless, and might have screwed itself out of charging him with possession of the other images because of the state's Successive Prosecution Statute. Which hopefully will teach that prosecutor a lesson.

Craigslist bows to states' pressure, axes "Erotic Services"

2009-05-14T13:40:00.000-04:00

This week Craigslist announced that, pursuant to a deal with several state attorneys general, it will be eliminating its "Erotic Services" section. The news media have framed the pressure on Craigslist as a response to recent crimes against people who used the site. Connecticut Attorney General Richard Blumenthal, who spearheaded the effort, has pitched his campaign alternately as aimed at preventing trafficking and child exploitation, and as a plain morals campaign against "pornography, nudity, and open offers of sex for money." Craigslist initially vowed to require posters on Erotic Services to enter credit card information, but the state officials wouldn't settle for that, so the site is no replacing the section with a new "Adult" section, in which each post will be pre-screened by Craigslist employees.

A coalition of organizations advocating for sex workers released this statement:

With Craigslist’s recent announcement that its Erotic Services category will be discontinued within the week, hundreds of thousands of erotic service providers will become more vulnerable to dangerous predators. Eliminating erotic listings as Connecticut Attorney General Richard Blumenthal and others propose will only drive us further underground.

Policing the masseuses, phone workers, pro-dominants, and escorts using Craigslist fails to protect those of us who are coerced into the sex industry. Preventing the use of Craigslist advertisements also eliminates the advantage of screening clients online, which makes for a safer work experience by filtering out potentially dangerous individuals. Furthermore, keeping us offline hinders police investigations of violent crime. In the Boston murder of Julissa Brisman, it was online tracking that enabled the police to identify the suspect. One has to wonder: are the Attorneys General examining the evidence or simply enforcing their moral values?
“Removing the erotic services category from Craigslist does not help prevent violence against escorts and other sex workers. It only pushes me and people like me out of the places where advertising is available,” said Jessica Bloom, a sex worker from Sex Workers Action New York (SWANK). In the face of increasing criminalization, we insist upon respect. As mothers, daughters, brothers, and members of your community, we claim that sex work is real work, work that we are entitled to conduct in safety. As such, we must be accorded the human right of full protection under the law.

Sex work activist Miss Calico has this to say about the move:

It’s true that Craigslist is a major advertising venue, for prostitutes but also sex workers of all kinds: the largest in the nation. Its loss will have a distinct effect on the people who use it. Here’s how it works: we advertise to attract the clients we want, and screen to eliminate the clients we don’t, but the number of clients we need stays the same. Anything that hurts our methods of attracting clients, like the shutdown of Erotic Services, will affect how stringent our screening can afford to be. It’s pretty clear to me that Craigslist has just made its sex workers more marginalized and more at risk.

Now, Craigslist has no responsibility to provide an advertising venue. But if Attorney General Richard Blumenthal is trying to make sex workers safer, he’s going about it all wrong. He doesn’t need to protect us from ourselves, or from our clients. He needs to protect us from criminals.

At the Sex 2.0 conference this past weekend, Melissa Gira analogized the panic over Craigslist to New York City's "cleanup" of Times Square. Both spaces came to represent the threat of sexual corruption encroaching on "normal," "decent" places. Targeting these spaces allowed politicians to simultaneously appear to be both protecting moral purity and addressing real social problems of crime, etc., without really addressing those problems at all. As Miss Calico points out, sex work isn't going away, and the short term effects of driving online sex work advertising "underground" -- at least until some other site replicates the efficiency, anonymity and ubiquity of Craigslist -- could be harmful both for sex workers and for law enforcement.

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As a side note, none of the news reports or press releases indicate what kind of legal claims the state governments might have had against Craigslist. I've previously mentioned the question of federal immunity under Section 230 of the Communications Decency Act with regard to a still-pending public-nuisance suit targeting "Erotic Services." The Ninth Circuit Court of Appeals recently held, in an egegrious case of revenge porn, that Yahoo! might have lost its 230 immunity only because its staff specifically promised the plaintiff to take the offending material down.

UPDATE: Here's some further analysis of Craigslist's likely legal defense under CDA from the Electronic Frontier Foundation. (More, too, from the Citizens Media Law Project which notes the site's previous efforts to ensure Erotic Services isn't use to exploit children.) Of course, settlements like this are based not only on likelihood of success but on business decisions about public relations and litigation costs. They have previously won litigation over discriminatory preferences in their housing ads, but that doesn't mean they're eager to go through the process again. Ditching Erotic Services was clearly more desirable for Craigslist than fighting several state governments in court and in the media.

Sex 2.0 and "I Am a Sex Worker" PSA

2009-05-12T10:37:00.000-04:00

I attended the Sex 2.0 conference in Silver Spring, MD this past weekend, and it was an absolute blast. It was great to meet bloggers and activists I admire (like Elizabeth Wood), catch up with my college classmate and former sex-educator colleague Maria Diaz, see a lot of other familiar faces, and share in discussions of the Internet, social media, sex blogging, erotica, sex work, and sexual freedom activism. One of the many cool things I was turned on to was CARAS, an organization of academics that supports and promotes community-based research on alternative sexualities. Another was this awesome PSA from Sex Work Awareness:

Gender, "deception" and the law, pt. 3

2009-05-10T13:25:00.000-04:00

This is the third post in a series inspired by the Angie Zapata murder trial in Colorado, and in particularly by the suggestion by some people that transgender people who are victims of hate crimes by sexual partners were themselves guilty of "deception." In the first post, I sketched out the traditional narrow legal interpretation of the kind of deception that can vitiate sexual consent. In the second post, I explored possible extensions of this concept and argued against them. This post specifically considers the question of disclosure by transgender people of their sexual anatomy and/or gender history to sexual partners.

Actual gender "deception" cases. A recent article by an Israeli law professor identified five cases internationally in which transgender individuals have been prosecuted for failing to disclose their gender history to sexual partners: two cases in the U.S., one in the U.K., and two in Israel. See Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderland, 32 Harvard Journal of Law & Gender 165 (2009).

In the United Kingdom in 1991, Jimmy Saunders was charged with indecent assault on the basis that he concealed the fact that he was born female from two sexual partners. He was convicted, though the Court of Appeals reduced his sentence.
In Colorado in 1995 - the same state where the Zapata murder took place - Sean O'Neill was charged with false impersonation and sexual assault on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to lesser charges.
In 1997 in Washington state, Christopher Wheatley was charged with sexual assault on the basis that he concealed the fact that he was born female from two sexual partners. He plead guilty.
In Haifa, Israel in 2003, Hen Alkobi was charged with sexual assault and "impersonation of another person" on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to the sexual assault charge, contested the impersonation charge, and was convicted on both charges.
In 2007, another transgender man in Israel was charged with statutory rape as well as "indecedent acts" on the basis that he fraudulently obtained consent from a sexual partner by concealing the fact that he was born female. (My only source for this case is Gross, who does not give a name and says the case was ongoing as of early this year.)

I would be very interested to find out more about these cases than is available in readily-accessible, English-language sources, particularly the U.K. and recent Israeli cases.

Notably, all of these cases involved male-identified transgender persons who had sexual relationships with underage women (and in all but one case, with multiple underage partners). It thus appears that it is peculiarly trans men who partner with women who are in danger of being prosecuted for dating without disclosing (whereas women who partner with men are in more danger of being killed by their partners). Additionally, each of these cases apparently could have been prosecuted solely on charges of statutory rape. Thus, these are not cases of individuals being singled out for prosecution based on failure to disclose, but rather cases that would have been prosecuted regardless based on the involvement of minors - though it is clear that prosecutors and/or judges in these cases did have particular reactions of disgust to these gender-variant defendants, and to their involvement of seemingly unwitting young women in what these authorities no doubt regarded as homosexuality.

As far as I can tell, in only one of these cases -- the U.K. case -- did a court rule that failure to disclose one's anatomy or gender history vitiates consent and creates liability for sexual assault. In the other cases, it appears the defendants simply decided to strike a deal, which made sense given that they were probably liable for statutory rape regardless. The latter cases provide no support for the legal theory that these circumstances negate consent. Even in the Saunders case, it's not clear from secondary sources to what extent this aspect of the prosecution was challenged, or even if the assault convictions themselves (rather than just the sentence) were appealed.

U.K. law today. In 2000, the Law Commission of the United Kingdom specifically recommended that the U.K. Sex Offences Act not be interpreted to treat a failure to disclose transgender status as deception that vitiates consent. The Commission reasoned that this would amount to "the creation of a special rule for transsexuals," and accordingly would likely violate the European Convention on Human Rights, which prohibits discrimination against trans people and guarantees the right to expression and recognition of a person's gender identity. (While the Commission stated this recommendation only in terms of individuals who had undergone sex reassignment surgery, it would probably take a different view now that, under the Gender Recognition Act, the U.K. permits change of legal gender in the absence of surgery.)

Regardless, in 2003 the U.K. revised its sexual offenses law, and narrowed the language concerning deception. Following the traditional approach of American courts, the current language covers only situations of deception about "the nature or purpose of the relevant act" or "impersonating a person known personally to the complainant." Thus, regardless of the Saunders case, it appears that UK law today would not treat failure to disclose anatomy or gender history as rape or indecent assault.

Trans people are not liars. Consider why a transgender person would hesitate disclose their sexual anatomy or gender history to an actual or potential sexual partner. Trans people are not sexual predators looking for unsuspecting victims. They live in a society where their gender identity and expression are not accepted as authentic by many, perhaps most people around them - indeed, where that identity and expression are viewed as mere pretense. They live in a society where fear and loathing of gender variance and homosexuality are intense. These fears are linked by failure to understand or accept trans identities, and manifest most strongly as fears of sexual pollution. These facts are particularly salient for trans people who are young, are just beginning or have recently made a gender transition, and who live in rural or socially conservative areas. Add to this the psychic distress, embarassment and extreme shyness many trans people experience regarding aspects of their sexual anatomy and gender history. Being rejected by a partner who does not accept their gender identity is a painful prospect - as is seeking out partners who will desire them precisely because of not accepting their gender identity.

Given this context, disclosure to potential partners is fraught on all sides for many trans people. The partner who will both accept their identity and still desire them will be rare - depending on geography and other factors, perhaps very rare. At the same time, by not disclosing they are not lying: they are simply living their lives and presenting their authentic gender, as they do in other social relationships. And once an interpersonal connection exists, the prospect of coming out can be frightening, and appear very much easier to postpone or avoid.

Trans people are no more liars when they do not disclose these matters to potential partners than they are liars by simply living their lives. This is who they are. Of course, in a long-term relationship, tiptoeing around the personal details will be difficult and probably unhealthy for the relationship. For this reason, and in response to very real fears of violence, trans people usually do disclose to sexual partners, especially when looking for a lasting romantic relationship. While I have little sympathey for other people's anxieties about being sexually polluted by a sexual partner with the "wrong" body parts, it's never desirable to risk distress to others. But I find it difficult to judge morally, and repulsive to punish criminally, the choice of some individuals, particularly in casual encounters or at the beginning of a relationship, not to come out.

Gender, "deception" and the law, pt. 2 of 3

2009-05-06T13:29:00.001-04:00

In my last post, I began a discussion of the concept of sexual "deception," inspired by the pernicious suggestions of some commentators that transgender hate crime victims such as Angie Zapata themselves committed criminal sexual assault by failing to disclose their anatomy/gender history to sexual partners. I explained that the law has generally construed the concept of criminal sexual deception very narrowly, to include only deception about (a) the nature of the act itself as a sexual act, and (b) the identity of a defendant posing as another person. In this post, I will consider some other potential categories of sexual "deception." In a final post, I will discuss the handful of cases in which transgender individuals have actually been prosecuted on the basis of nondisclosure to sexual partners.

Beyond the narrow categories discussed in my last post, other types of sexual "deception" have been rejected by courts and most commentators as grounds for criminal liability. By contrast, some commentators have taken the view that deception about any fact that the defendant had reason to know would be material to the complainant vitiates consent and constitutes rape. Let's consider what kinds of information that could include.

Fraud in the inducement.

Courts have generally distinguished in this area between fraud in the factum, i.e., about the nature of the act consented to, and fraud in the inducement, i.e., about factors that motivate consent. To state this distinction is to recognize that it is far from an airtight distinction. It's possible to define any personal or circumstantial fact as part of the "nature of the act consented to," but not very meaningful to do so. Consider some common examples:

Promise of love or marriage

Courts once upon a time would punish people who broke such promises to sexual partners with civil judgments (not imprisonment). No longer.

Promise of money.

The failure to pay a promised fee for sexual services seems much more like theft of services than rape - and it no doubt would be treated as such, except inasmuch as the selling of those services was illegal to begin with.

Personal prestige and connections.

"I'm a record producer" or "I'm in a rock band" are the typical examples. But note that this comes in many degrees, and such claims to power, status or wealth may also be implied through conspicuous consumption, name-dropping, and the like.

In all of these circumstances, I think it's fair to say that what's going on is dishonest and sleazy, but bears little resemblance to rape.

Personal characteristics.

This category, of course, includes things like anatomy and gender history. Again, personal characteristics can be described as part of the "nature of the act" or the "identity" of the (putative) perpetrator, but this strikes me as a rather circular word game. Here are a few key examples of personal characteristics that may not be readily apparent, yet would be sexual deal-breakers for some people:

Marital or relationship status
Sexual orientation (esp. identification as gay or bisexual, or sexual history with X gender)
Race, ethnicity, nationality, or caste
Religion
Manner of employment (e.g., involvement with a controversial practice or cause)
Criminal record

I'd go further and state that at least in some situations and for some individuals, not only could these facts be deal-breakers, but if discovered after the fact any of them could cause some individuals deep feelings of shock, disgust and betrayal, as has apparently or allegedly occurred in several cases involving trans people. [This was originally a reference to the Zapata case, but commenters noted that the relevant facts were very much in question in that case.]

Yet do individuals have a right to know these facts? If so, a troubling list of subsidiary questions appears: Do they have a right to know some of these facts but not others? If so, which ones? Is such a list to be determined by how common intense feelings about a particular characteristic (vis a vis sexual partners) are among the general population (or some sub-population)? Unless such a list is codified in a statute, how are individuals to know which personal facts they are bound to disclose? Furthermore, is there an affirmative obligation to disclose to all partners? To all partners that one knows for sure have strong feelings about that personal fact? To all partners that one has reason to believe might have strong feelings about that personal fact? What constitutes reason to believe, and isn't possession of that knowledge by a particular partner often happenstance? Or is the obligation simply not to make affirmative contrary statements? In my view, these problems are intractable, at least as a matter of law.

Additionally, a disclosure obligation will necessarily place the greatest burden on members of socially marginalized groups. Essentially, group members will be forced to wear a scarlet letter with regard to their entire romantic and sexual lives. It strikes me as very problematic to place a societal badge of approval on loathing for certain groups of people, even in the name of protecting the sexual autonomy of others.

Caveat amator.

The notion of "caveat amator" is often mentioned in discussions of sexual deception: individuals ought to be aware of some inherent risks of sexual activity. This logic, quite obviously, can be taken too far, particularly given the larger social context of gender inequality. But it does seem apt with regard to the question of disclosing personal characteristics, and all the moreso the less the persons involved know one another. In a casual sexual encounter, or even early on in dating, it is self-evident that there is a great deal about your sexual partner you do not know. Even if a person makes false statements about him- or herself, the extent of the emotional harm done to the other person will typically vary with the length and depth of the parties' acquaintance. Finding out that my lover of three years has, say, a loathsome personal history will certainly be far more distressing than finding out the same thing about the anonymous stranger I shagged at the bathhouse.

Law versus morality/ethics.

There are a few tangled but distinct questions here:

Whether nondisclosure or false statements to sexual partners should be treated as vitiating consent to sex, so that seemingly consensual sex is regarded as a sexual assault.
Whether nondisclosure or false statements to sexual partners should be subject to legal penalty on some other basis (such as subjecting partners to harmful consequences).
Whether nondisclosure or false statements to sexual partners is immoral or unethical.

It seems obvious to me that, assuming sets (1) and (2) exist, they will each be smaller subsets of (3). There is a great deal of sleazy behavior in sexual relationships that should be condemned and discouraged. But as Alan Wertheimer has noted in his thoughtful book Consent to Sexual Relations, "The law is a blunt and expensive instrument, to be invoked with great reluctance, even at the cost of refusing to sanction some behavior that is clearly wrongful." (Wertheimer devotes a full chapter to the topic of deception, which is worth reading.) Moreover, it seems to me just to take into account factors that may inhibit an individual from immediately disclosing some potentially inflammatory personal facts - particularly their membership in a marginalized social group based on characteristics having no relation to their moral worth or contribution to society.

On the general principle that causing avoidable emotional distress to others is wrong, one could easily recognize a moral imperative to disclose some information to potential partners who might be upset by it. All the moreso in situations where the potential partner will be unwittingly involved in unethical behavior (as with a cheating spouse) or exposed to tangible risks (as with a sexually transmitted infection). While others might disagree, I am hesitant to recognize a strong imperative of this sort on the basis of membership in any socially marginalized group. But regardless of that question, it seems clear to me that nondisclosure in such contexts should not be regarded as vitiating consent to sex.

Gender, "deception" and the law, pt. 1

2009-04-28T14:39:00.002-04:00

Last week, a Colorado jury sentenced Allen Andrade to life in prison for the brutal murder of 18-year-old Angie Zapata. The jury rejected Andrade's attempt to mitigate his crime by arguing he was provoked into a crime of passion following the discovery that Zapata, with whom he'd had a sexual encounter, was a transgender woman. Queer and transgender blogs covered the story of the trial quite thoroughly (I've mentioned it previously too), and I won't recount all that here. Suffice to say that whatever my usual qualms about our criminal justice system, the Zapata verdict was reassuring in its rejection of the desperate but nonetheless vile victim-blaming defense strategy. Still, a number of commentators have predictably placed the blame on Zapata for her own gruesome death by condemning her supposed "deception" about her gender history. (The local paper covering the trial even ran the headline "Andrade: Stunned Victim or homophobe?") Some have gone so far as to suggest that such "deception" of a sexual partner could constitute criminal sexual assault.

The suggestion that transgender people who fail to disclose their gender history to sexual partners are themselves perpetrators of sexual violence owes more to horror of transgender people themselves, and of perceived "homosexual" acts, than to legal interpretation. Yes, many rape and sexual assault statutes state that deception vitiates consent. But the inherently malleable concept of deception has rightly been narrowly interpreted by courts. In this and a subsequent post I hope to sketch out some of the how and why of that interpretation, and why extending it to situations like the Zapata case would be legally untenable and morally unacceptable.

American and British courts have interpreted the concept of deception in rape and sexual assault statutes narrowly, to account for a few obvious situations in which the defendant's conduct obviously vitiates consent and fits within, or closely resembles, the common law concept of battery. See, e.g., David P. Bryden, Redefining Rape, 3 Buffalo Crim. L. Rev. 317, 457-75 (2000). This is a sensible approach, given how malleable and potentially limitless the concept of deception is.

Nature of the act. Courts have regularly said that fraud concerning the "nature of the act" vitiates consent, but by that they mean something very specific: the defendant causes the victim to believe that an otherwise unwanted sexual contact is something else entirely. The classic examples are medical professionals purporting to conduct a clinical examination or deliver a medical treatment.

Mistaken identity. Courts have also recognized identity fraud as vitiating consent, and this also means something very specific: the defendant causes the victim to believe that the defendant is actually some other person altogether. The classic example is the defendant posing as a person's spouse.

Infection, fertility and common-law battery. Several states now criminalize exposure of unwitting sexual partners to a sexually transmitted disease, but this is not classified as a species of rape. Rather, it is considered akin to common-law battery; liability is based not on whether the sexual partner would have consented given certain information, but rather on the potential physical injury. One could also imagine liability for lying about having had a vasectomy, but in this scenario, too, liability would be based not on the notion that consent to sex was vitiated as such, but that the victim would probably have insisted on using contraception. It was not the sex that was unwanted, but the consequences. These statutes are controversial, of course, both as a matter of justice and of public health.

In a follow-up post I intend to sketch the debate over extending the deception concept to other scenarios, and argue that doing so is unwise; and to discuss briefly the handful of cases in which transgender people have been prosecuted for "deception" of sexual partners.

Surfing cable is not "exhibiting harmful matter to a minor"

2009-04-23T17:07:00.000-04:00

The California Court of Appeals recently overturned a conviction for "exhibiting harmful material to a minor," also known as "showing kids dirty pictures." The court ruled that there was insufficient evidence that the television segments involved fit the statutory definition.

Cable is not a crime. Shaun Martin at the California Appellate Report has this assessment of the case:

(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well. So if you're convicted of misdemeanor sexual battery (as David was here in Count II), that's fair.

(2) More relevant to this appeal, however -- and to most of us law-abiding citizens as well-- it's not illegal to be flipping through channels on the television and stumble across an NBC, HBO, or (even) Cinimax program. Even if a 16-year old is present. And even if you (allegedly) linger on a fake sex scene -- e.g., your typical broadcast "waist up, lots of grunting" shot) longer than you should given the audience. That's what's on television nowadays. It's not obscene. And it does not count as illegally "exhibiting harmful material to a minor," for which David was convicted in Count One. Watching regular television simply isn't a crime. Even if it's "Leaving Las Vegas," "American Beauty," or (to your eternal regret) "Showgirls"....

The court noted that there was no way to tell from the sketchy descriptions of the TV segments involved whether, under the terms of the statute, the allegedly "harmful matter" lacked "serious value":

Was the dance by the unclothed female lurid, artistic, or even a cultural or tribal dance? There is no way to know and no reasonable basis for inferring that it lacked such value. As to the 45-second glimpse of the couple presumably having sexual intercourse, was the clip part of a tawdry adult film, a former Academy Award winner being shown on television that night, or even a brief scene from Shakespeare‘s Romeo and Juliet.

Should "exhibiting harmful matter to a minor" be criminal? Although overturning the conviction in this case, the appeals panel made clear that they saw no constitutional or policy problem with the law, and in fact, went out of their way to suggest that the law could and should be drafted more broadly, so as to capture cases like this one. Specifically, they noted that the legislature had narrowed the definition of "harmful matter" in 1988 so that it essentially tracked the Supreme Court's definition of obscenity. The judges suggested, though, that the First Amendment does not require a statute like this to be so narrow, because the statute also required that the exhibiting must be done "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor." The court said this was a case of "mixed speech and expression," and so it would be permissible to reach a broader category of otherwise-protected speech. The court said it "would encourage the Legislature to revisit this issue, given the potential consequences of so narrowly defining harmful matter when it is used to groom young victims for acts of molestation."

I understand the rationale here: it is not the mere exposure of minors to racy material that is punished, but the use of the material to facilitate abuse. But I'm not sure whether it is either necessary or wise as a matter of policy. Not sure whether it's necessary, because there are any number of other things a person might do to "groom young victims for acts of molestation" other than show them pornography -- engage in sexual talk with them, for example, or give them alcohol, or do any number of other things to curry affection and normalize inappropriate intimacy -- and we don't separately criminalize them. Not sure whether it's wise, because the intent factor fails to set clear, objective boundaries on when prosecution is appropriate. Public screenings are clearly exempted, but in any one-on-one interaction there exists the possibility of unintended but untoward appearances. It is at least reassuring, however, that the California Court of Appeals has previously interpreted this law to require a specific intent to entice the minor into physical sexual contact with the defendant, as opposed to encouraging the minor to, e.g., masturbate alone. People v. Jensen, 114 Cal.App. 4th 224 (App. 6 Dist. 2003).

Who cares? Prof. Shaun had these closing thoughts on People v. Dyke:

The fact that the trial court let this count go forward, and that the jury convicted on it, says some pretty damning stuff about the judicial system here. I get the keen sense that this happens not because of some neutral assessment of whether it's in fact illegal to watch television alongside a 16-year old, but rather because we don't like what the defendant allegedly did here and are eager to punish him however we can.

This blog frequently addresses criminal cases in which the defendant clearly committed one or more serious crimes. In such cases, prosecutors regularly reach out for anything in the book to increase the sentence, increase their plea-bargaining leverage, and/or provide a fall-back charge. Not infrequently, they find a statute, or (as here) advance an interpretation of a statute, that could also apply to a significant swath of innocent conduct. I blog on these cases for three reasons: 1) such prosecutorial practices are a misuse of law and the justice system, in violation of the spirit (if not the letter) of the Double Jeopardy Clause; 2) criminal cases involving obvious "bad guys" are one of, if not the most common context in which courts consider potentially inflammatory sex-related topics, such as pornography and BDSM, and provide a window into judges' thinking (and prejudices) about these issues; and 3) the American experience with sodomy laws teaches us that the fact that a law is only ever used to prosecute truly culpable persons doesn't mean that it can't have other harmful effects.

The strip-search case: why the Supreme Court needs more women

2009-04-22T12:47:00.000-04:00

Dahlia Lithwick has written another piece of brilliant, scathing Supreme Court reportage, on yesterday's oral arguments in Redding v. Safford Unified School District No. 1. The case illustrates why it is that Justice Ginsburg might be feeling "lonely" since the retirement of Justice Sandra Day O'Connor:

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter ("Court fails utterly to understand realities of gender pay discrimination") will be Savana Redding ("Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks")....
Editorialists and pundits have found much to hate in what happened to Savana Redding. Yet the court today finds much to admire. And even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen. You might think it traumatic that she was forced to strip down to her underclothes and pull her bra and underwear out and shake them in front of two female school employees. No drugs were found. But even those justices lacking a daughter, a niece, or a uterus had access to an amicus brief in this case documenting the fact that student strip searches "can result in serious emotional damage" and that student victims of strip searches "often cannot concentrate in school, and, in many cases, transfer or even drop out." Savana Redding, herself a data point, described the search as "the most humiliating experience" of her life. Then she dropped out of school. And five years later, at age 19, she gets to listen in on oral argument in Porky's 3: The Supreme Court Says "Panties."
...
David O'Neill from the Solicitor General's office tries to thread the needle between allowing schools to conduct daily strip searches for black sniffy markers and chilling the school district's broad power to search for dangerous contraband. He wants the court to impose a higher standard before schools may conduct a strip search but gets into trouble with Scalia, who wonders what happens after "you search the student's outer garments, and you have a reasonable suspicion that the student has drugs." Scalia's almost chortling when he exclaims, "You've searched everywhere else. By God, the drugs must be in her underpants!"
...
Adam Wolf, the ACLU lawyer who represents Redding, explains that "the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl's naked body." Wolf explains that he is arguing for a "two-step framework," wherein schools can use a lower standard to search "backpacks, pencil cases, bookbags" but a higher standard when you "require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area." This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to "change into a swimming suit or your gym clothes," because, "why is this a major thing to say strip down to your underclothes, which children do when they change for gym?"
This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—"what was done in the case … it wasn't just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!" Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.
But Breyer just isn't letting go. "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."
Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: "Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience."
It gets weirder. Wolf claims school administrators should have known better than to suspect that "Savana was currently concealing ibuprofen pills underneath her underpants for other's oral consumption," noting "a certain ick factor to this." The Chief Justice quickly replies that the ick factor doesn't attach when you are talking about "the brassiere as well, which doesn't seem as outlandish as the underpants, right?"
Oh, ick indeed. The search for a bright line rule about the expectations of student privacy has turned into a fight between a bunch of guys who still say "brassiere."

My incisive legal analysis: ugh.

Law imitates art? The misplaced fixation on surgical status

2009-04-21T10:15:00.000-04:00

Two things have bothered me lately, and it occurred to me that they are connected. One is the difficulty of persuading judges to find for plaintiffs in transgender discrimination cases, particularly in cases involving disputed bathroom use. The other is the overwhelming tendency of pop-culture representations of gender transition to focus on reassignment surgery as the central and defining change, the sine qua non of authentic gender.

As to the latter, I could cite countless examples - including a number of works which I otherwise quite liked, such as Chris Bohjalian's novel Trans-Sister Radio, and the Oscar-nominated film Transamerica. There has been a proliferation of documentaries about trans people in recent years, with most of them reproducing the same medically-focused narrative about the transition process, with surgery as the narrative focal point. Heck, the only two musicals with transgender protagonists both feature titles that refer to the lead character's genitals. More generally, news and entertainment media regularly refer to gender transition reductively as "having a sex change operation," or "preparing for a sex change operation." The terms "pre-op" and "post-op" are thrown around ubiquitously in contexts in which they have no real relevance.

This focus on surgery has been criticized for presenting a distorted view of trans people's experiences. As I've discussed elsewhere, there are any number of reasons -- financial, medical, religious or deeply personal -- why many trans people cannot or choose not to have surgery. Even for those who do, it is often delayed for many years for financial reasons -- insurance coverage for it is rare in the U.S. -- meaning that people lives years and even decades of their lives between a(n otherwise) completed transition and surgery. Perhaps more to the point, surgery is simply not the most important part of the process for most people, even those who eventually have it. After all, in comparison to hormone therapy or other changes, "bottom" surgery makes a less dramatic difference to an individual's overall appearance or experience of their body, and (except in a few delicate situations) makes no difference in an individual's ability to blend in with other members of their (post-transition) gender.

Nevertheless, the dominant discourse on transition says that transition = surgery, and without surgery transition is incomplete or simply has not occurred. This discourse originated in the mid-twentieth century with attempts by both trans people and medical professionals to justify gender transition, against McCarthy-era moral condemnation and disgust, by appealing to society's trust in medical science. (As well as providing reassurance that trans people were not "homosexual." Christine Jorgensen, the first publicly-known transsexual in the US, underwent her highly publicized transition at the height of the 1950s antigay witchunts.) Though since much revised by both trans people and the medical professionals who work with them, this dated and rigid understanding remains overwhelmingly dominant in public perception. What most people know about gender transition comes from surgery-focused pop-culture representations.

Thus, both political and judicial decisionmakers almost invariably start from this ingrained premise. Arguably, pop-culture discourse and legal standards for gender recognition in the context of birth certiciates, drivers' licenses, etc., reinforce one another. Although unspoken, both sources inform decisionmakers in settings that seemingly have nothing to do with legal documentation per se.

Much of the difficulty in workplace discrimination cases, therefore, owes to the fact that employers' demands that restroom use be based on genitals tend to strike judges as so obviously common-sensical that it is very hard to dislodge that notion from their brains. Kastl v. Maricopa County Community College shows the result: uncritical judicial acceptance of justifications by employers that would be obviously flimsy were they not colored by this starting premise.

All of which is to say that representation matter. To criticize a filmmaker for an excessive focus on surgery is no mere aesthetic quibble or personal peeve. It is no surprise that the feminist movement has long devoted considerable attention to cultural criticism as well as more conventional political advocacy. These representations of gender transition in entertainment and news media, as I see it, cumulatively have real, harmful consequences.

Legislative roundup

2009-04-17T09:36:00.000-04:00

Obviously, the big legislative news this month comes from Vermont, which became the first state to legalize same-sex marriages without a court order - and over a gubernatorial veto, no less. Much virtual and literal ink has been spilled on this, so I will only comment on the transparent foolishness of Gov. Douglas's justification for his veto. Rather than defend his veto on its merit, Douglas said the legislature shouldn't be spending time on this issue while there are pressing economic and budget matters. They may be logical criticism of the legislature's action, but it is completely illogical as a justification for a veto, which comes only after the legislative effort has been spent, and serves only to set the stage for the legislature to spent more time on an override.

There's lots more to tell. There were big headlines the same week from DC, where the District Council unanimously voted to recognize out-of-district same-sex marraiges, as marriages. When finalized, the measure will of course be subject to an override by Congress, and we will have to wait and see if the Dems can block any such move.

In Nevada, the governor is threatening to veto an impending domestic partnership bill. And in Washington, the legislature has passed an expansion of the existing DP law.

NY Gov. David Paterson has said he will soon introduce marriage equality legislation there. Not clear yet if it can pass the state Senate, which now has a slight Democratic majority. Reproductive rights advocates in New York are also gearing up for the anticipated reintroduction of a Reproductive Health Act, which would codify the right to contraception and abortion New York law, and remove abortion from the state penal code.

On a second vote, the New Hampshire House passed a gender identity antidiscrimination measure last week, by one vote: 188-187. Thus, it appears that the deciding factor in the previous 149-181 "nay" vote was in fact lawmaker turnout, rather than the success of opponents' deceptive messages on bathroom use. That's encouraging.

Earlier this month, North Dakota's Senate rejected by a 2:1 margin a bill that would have purtported to bestow "personhood" on zygotes and embryos. This is yet another defeat for the putative "personhood" movement, but I suspect their aim is less to actually pass legislation than to use these attention-getting bills as opportunities to promote their dressed-up message of full criminalization. Anway, anti-choice groups did get two wins in the state Senate, passing bills that (like one recently passed in Kansas) would require medical facilities to offer ultrasounds before abortions, and (like one upheld by a federal court last year in South Dakota) require doctors to tell patients that abortion terminates a "human life."

In the U.S., private or public insurance coverage for surgery related to gender transition is very seldom available. In Canada and Europe, it's a different story. But in tough economic times, this coverage is, depressingly but unsurprisingly, first on the chopping block. The province of Alberta has now eliminated its public coverage for transition-related surgery. As noted over at Bilerico, this may not be the last word here, since a human rights tribunal in Ontario last year ordered the reinstatement of such coverage there. Blue Cross/Blue Shield of Michigan has also eliminated coverage, citing the need to cut costs. As also pointed out at Bilerico, this may not actually make financial sense in the long-term, since cutting off access to surgery can have its own health care costs down the line.

Bathrooms in the courts

2009-04-16T09:03:00.000-04:00

My last post dealt with the bogus "issue" of restroom use by trans people in the context of passing civil rights legislation. As NCTE director Mara Keisling recently noted in an interview for Pam's House Blend, that's unfortunately going to be the focus of a lot of work in the next few years. It's also, unfortunately, going to continue to be the focus of some equally if not more difficult work in the courts, in employment discrimination cases. The challenges that "bathroom issues" present in the courts are illustrated by the Ninth Circuit Court of Appeals's recent decision in Kastl v. Maricopa County Community College, 2009 WL 990760 (9th Cir. Apr. 14, 2009) (No. 06-16907; unpublished).

Ms. Kastl was an instructor and student at MCCC in 2000 and 2001, during which time she transitioned from male to female. Following complaints from students about her presents in the women's bathroom, she was instructed that she would be required to use the men's room until she could present proof of having completed genital surgery. (No student ever complained of seeing her genitals.) She was not rehired for the next semester. The case survived a motion to dismiss, but was thrown out on summary judgment (i.e., the court didn't think Kastl had enough evidence to go to trial.)

The Ninth Circuit affirmed. The court recognized that under the law of this and other circuits, discrimination motivated by a transgender (or any other) plaintiff's gender-non-conforming conduct or appearance can constitute illegal sex discrimination. It said that Kastl had presented enough evidence to raise an inference of discrimination. But it also said that the school satisfied its burden of showing a non-discriminatory motive. What the school showed was that students complained about Kastl's presence in the women's room and (in the words of a filing by the school) "expressed concerns regarding their privacy and/or safety." In response, the court said, Kastl had failed to provide sufficient evidence that the school's actions were in fact based on sex-stereotyping discrimination. All this the court said in two paragraphs; both the trial and appellate court opinions give no indication of the actual evidence in the case regarding the school's motivation. The Ninth Circuit added a footnote:

We note that the parties do not appear to have considered any type of accommodation that would have permitted Kastl to use a restroom other than those dedicated to men. After all, Kastl identified and presented full-time as female, and she argued to MCCCD that the men's restroom was not only inappropriate for but also potentially dangerous to her.

But this observation didn't keep the appeals court from throwing out the case. Both the trial and appellate court decisions say next to nothing about what evidence there was concerning the employer's motive.

Despite the sparse opinions, this case illustrates why cases involving disputed bathroom use by trans employees are so difficult to win, even when the employer's actions are (at least to this blogger) obviously discriminatory.

Medical sex. In the trial court, Kastl sought to prove that she was in fact medically female. This is an interesting strategy; if it could be proved, it would presumably demonstrate that the employer's bathroom "policy" was utterly baseless and was simply based on discrimination because of Kastl's gender history. But this strategy is also an uphill battle, whether or not the plaintiff has had genital surgery, because it depends on mustering scientific evidence, and persuading the court, on a complex issue - the criteria for determining "medical" sex - that (as I have discussed elsewhere) medical experts disagree on. Whatever the merits of this strategy in general, it was not successful here, and indeed the court was dismissive of Kastl's attempts to dispute her medical sex.

Flimsiness of employe's reason: "privacy and/or safety." The Ninth Circuit panel apparently believed that students' asserted "concerns about their privacy and/or safety" amounted to a legitimate, nondiscriminatory motive. There is no indication of why students thought their privacy or safety might be threatened, and this is not just because the court's opinion is terse: being around a trans person in the bathroom does not affect anyone's privacy or safety, so long as the toilets have stalls, and trans people are not presumed to be dangerous. That this is so is underscored by the school's focus on genital surgery. How would students' privacy or safety be threatened before the plaintiff's surgery but not threatened afterward? The students wouldn't even be able to tell the difference! It is well-established that the prejudices of third party patrons cannot give an employer a defense, even if those prejudices would have real effects on the employer. This nothing more than a case of third-party prejudice, and in the absence of any evidence to substantiate these concerns, the court should have seen right through them. It should have, but it didn't.

Flimsiness II: "liability." In a similar case, the Tenth Circuit held that an employer's fear of liability consituted a legitimate, nondiscriminatory motive. The court acknowledged that the law would be against any offended person who tried to sue the employer; in the only reported case of this sort, a federal appeal courts rejected claims that permitting a trans person to use the same restroom as the plaintiff constited religious and/or sex discrimination and/or harassment. But the Tenth Circuit said it didn't matter whether an employer would actually be liable, only whether the employer's fear of liability was genuine. This, too, is nothing more than dressed-up "customer preference" scenario, where the employer fears economic consequences from a third party's prejudice toward the plaintiff. Again, the right conclusion would be that this is not a legitimate, nondiscriminatory motive, but the court bought it.

Flimsiness III: Ease of accommodation. The Ninth Circuit acknowledged the possibility that there were options other than firing Kastl or forcing her to use the men's room. In many workplaces, it would be easy enough to provide that either the trans employee, or any person not wishing to use the same bathroom as the trans employee, use a single-person bathroom. While the law does not require "reasonable accommodations" in sex cases as it does in disability cases, the availability of an obvious and cost-free alternative would certainly suggest that the employer's stated motive was a pretext. Unfortunately, an accommodation might well be possible but might not be totally obvious and cost-free. For example, in the Tenth Circuit case the plaintiff was a bus driver, and needed to use various public restrooms around town.

Catch-22. The Ninth Circuit's opinion recognizes that, in contrast to the employer's baseless "privacy and/or safety" concerns, Ms. Kastl had very real reasons for avoiding the men's room. The result is that if employers are permitted to adopt genital-based bathroom policies, most trans people will simply be unemployable. Yet courts in these cases typically treat such policies as obvious and natural, and trans employees' objections to them as frivolous. It might well be difficult to prove the danger of harassment or violence in a particular case, especially since trans employees, quite reasonably, will typically face firing before using the bathroom of their birth-assigned gender. It ought to be possible, however, to bring in evidence from outside the case to establish the reasonableness of the employee's fears. However, courts may well insist that this "Catch-22" theory is only valid when it applies to all members of one gender, and that, like employee dress codes, these policies are permissible because they burden men and women equally.

This theory would fit nicely into the disparate impact concept. Even if it were accepted that such policies are not intentionally discriminatory - or, what amounts to the same thing, based on third-party prejudice - they clearly have the effect of making it impossible for most trans folks to do the job without subjecting themselves to intolerable conditions. In a disparate impact claim, the employer must prove that their policy is based on "business necessity" - something that they clearly couldn't do here. ~~This is one illustration of why, even though there is some good case law out there now, a trans-inclusive ENDA is badly needed.~~ As drafted, however, ENDA would not provide for disparate impact claims based on gender identity. And I think courts are unlikely to accept a disparate impact theory here based on sex, for the same reasons that they may be iffy on disparate treatment claims.

In sum, it is easy to explain why, as a matter of law and as a general matter of fact, a case like this ought, theoretically, to be winnable. But courts are all too willing to accept dubious assertions by employers at face value, and all too ready to discount the assertions of trans people. Even when the facts should support the plaintiff, the court's preconceptions may lead it to see those facts in a way that doesn't support the claim. Add to that potential problems of proof and some uncertainties in current case law, and you have some very, very hard cases to win.

The bathroom canard lives on

2009-04-08T10:28:00.000-04:00

The incessant refrain of those who insist that anti-transgender discrimination should remain legal is "bathrooms, bathrooms, bathrooms." Prohibiting discrimination in jobs, housing and public accommodations is, to hear them tell it, an assault on the privacy and safety of women in children in loos everywhere. Perhaps the most remarkable thing about this parade-of-horribles argument is that it keeps popping up, and seemingly keeps working, despite the fact that more than a dozen states and a hundred localities have proven it false.

The bathroom canard was the main argument of the campaign to repeal my Maryland county's antidiscrimination law last year, before the state's high court ruled that the issue did not belong on the ballot. A similar campaign, based essentially on a "bathrooms" message, did go to the ballot in Gainesville, FL last month, and lost 58%-42%.

But while Gainesville voters rejected this tactic, legislators in New Hampshire apparently bought it, voting 181-149 in the state House to kill an antidiscrimination bill. This was the very same week that the House there passed a marriage equality bill 186-179. (Comparing those numbers shows that the margin by which the antidiscrimination bill failed was smaller than the number of lawmakers who cast a vote on marriage but didn't cast a vote at all on antidiscrimination! That certainly tells you something .) Following this success for proponents of discrimination, the same tactic is now being pushed heavily in Connecticut and Massachusetts.

Of course, this is part of a bigger picture of opponents of LGBT equality seeking to frame equal protection of the law as somehow being a threat to individual rights; the frequent arguments that marriage equality threatens the religious liberty of churches that reject same-sex love are just as dishonest. But they're also easier to know how to respond to - as, for example, the Iowa Supreme Court so eloquently did in the closing paragraphs of its recent marriage decision.

But I think it's harder to know what to say to an uninformed audience in response to the bathroom canard, because from the point of view of people who don't understand or accept trans identities, nondiscrimination ordinances would permit "men" to use the ladies' room and vice versa. Moreover, definitional questions about who "belongs" and who doesn't really seem to bother people. Montgomery County legislators tried to dampen these objections by specifying that the law would not apply to places that were "distinctly private and personal," opponents said this was too vague and implied that nothing short of providing carte blanche for discrimination in restroom use would be satisfactory.

Here are some talking points on the issue of from Transgender Law and Policy Institute, similar ones from the Sylvia Rivera Law Project that address these questions. They rightly focus, I think, on a handful of points:

All transgender people have to use the bathroom somewhere.
Using bathrooms consistent with their birth-assigned gender just does not make sense for trans people: it would often be more upsetting for everyone involved, and would put the trans person at risk of harassment or violence.
People who enter a bathroom with the intent to assault others, or who stalk or harass others in bathrooms, are and will remain punishable, regardless of gender.
Trans and non-trans people are not going to be watching each other potty: bathroom stalls have locking doors for a reason.
There is no evidence of threats to safety in privacy in the many jurisdictions that have adopted these laws.

One wonders how this is going to play out in Congress when a trans-inclusive ENDA is finally introduced. The Alliance Defense Fund's token witness at the historic first House hearing on anti-trans discrimination last year pushed the bathroom line, but I hold out at least some hope that moderate members of Congress can be convinced not to take these objections seriously.

Why Iowa Matters

2009-04-03T11:34:00.000-04:00

Today the Iowa Supreme Court invalidated that state's ban on civil marriage for same-sex couples. The lengthy opinion is available here (PDF). The law profs and other queer bloggers in my blogroll will undoubtedly have many interesting things to say about this decision. Here, in a nutshell, is why I think this decision is so important:

Of the several courts that have ruled for relationship recognition for same-sex couples, this is the first unanimous ruling.
This is also the first such ruling from a court in a non-coastal state.
The ruling clearly rejects any substitute for full equality, such as civil unions.
Much as in Massachusetts, the Iowa Constitution is difficult to amend; it would take at least three years to do so.
The Court's opinion is very, very thorough, smart and readable; it does an especially good job of dismantling the state's arguments about "immutability" and "political powerlessness" (which, as I have discussed here, often trip courts up). Like the decisions of the Connecticut and California courts, this one provides an invaluable road map for other courts addressing this and many related issues. At the same time, the decision reached only as far as it needed to, ruling on Equal Protection grounds alone and sorting out some of the thorny tangles of Equal Protection doctrine while avoiding others when it was clear that, however they were resolved, the Iowa law would fall.

I think this is a momentous decision, indicating that despite the setbacks of Proposition 8 and the string of bad rulings in 2006, litigation is still one among several viable and needed strategies for LGBT equality.

Update: I doubt I can improve upon the great summary and discussion of the opinion over at Leonard Link.

Maryland Senate scares UM into canceling film screening

2009-04-02T16:37:00.000-04:00

A planned screening of the high-budget porn epic Pirates II at the University of Maryland-College Park this weekend has been canceled after state Senate leaders threatened to cut public funding:

The screening of the multiple AVN Award-winning blockbuster was approved by a student programming committee for a Saturday midnight show. The publicity led to a state Senate debate, according to the Baltimore Sun.
"That's really not what Maryland residents send their young students to college campus for, to view pornography,"said Senate President Thomas V. Mike Miller.
Although Miller called the screening a misuse of tax dollars at the state university, Digital Playground actually offered the film to students for free. The event would have cost no state or student funds.
"This incident in Baltimore is very sad, but we are thrilled that our film has sparked a very important debate about censorship," Adella told AVN. "The Pirates II screening was unanimously approved by the student programming committee, and there was no legitimate reason to cancel the event."
Nonetheless, Sen. Andrew P. Harris suggested state budget cuts to deny funding to any higher education institution screening a porn film outside of an official academic course.
Miller backed the proposal. With millions in state funds hanging in the balance, UM President C.M. Mote, Jr. caved in and squashed the planned event after a closed-door debate between school administrators and state Senate officials.

It's safe to assume that the state Senate spent many times more public money in getting this screening stopped than would have been spent on the screening.

No word on whether students plan to sue the school for its cowardly cave-in. If the state actually managed to pass such a funding restriction, it would undoubtedly be invalidated as a naked content-based restriction. Off the top of my head, I see no reason why the University president's decision to cancel the showing should not be similarly unconstitutional.

Mass. lawmakers want to criminalize elder porn

2009-04-02T14:13:00.000-04:00

A couple of geniuses in Massachusetts have proposed to extend that state's criminal child pornography to adults with disabilities and everyone over 60. I say it a lot here, and I'll say it again: No, really.

The Legal Satyricon has a fine post, so I won't belabor the point here:

Mass law defines an “elder” as anyone over the age of 60 (that includes Sylvester Stallone) and a “person with a disability as “a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection.”

There are nightmare scenarios where people, due to mental infirmity, might not be able to give truly informed consent — and in those cases, I too would support measures to punish those who might exploit them. Illinois, for example, reportedly prohibits porn production involving the “severely mentally retarded.” Set aside the fact that we don’t call the mentally disabled “retarded” anymore, and such a law makes perfect sense. I am sure that, more likely than not, someone in such condition would lack the mental capacity to give their consent - and thus we should be jealously protective of their dignity and personal autonomy. C.f. New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech).

But, Reinstein’s law goes way too far.

Believe it or not, there is a market for “elder porn,” as well as “disability porn,” and those markets are served by consenting, healthy, elderly and disabled models. Naturally, some of this market caters to fetishists, but before you start saying “ewwww,” consider that there also happen to be many healthy members of society who don’t believe that sexual desirability ends at 60, nor at any other age, and it’s not just big in Japan. Just as “elderly,” is not necessarily inconsistent with “sexy,” (Sofia Loren and Sylvester Stallone are both over 60) neither is “physically disabled” necessarily inconsistent with “sexiness.” Just ask this wheelchair-bound porn actress.

One of the most utopian things about the internet is that anyone, and I mean anyone, can (no matter what they look like) find a porn site that features models that look just like them. ...
...Reinstein’s law is not limited to commercial porn. In fact, it doesn’t have to be porn at all - since I’d venture to guess that the elderly women who posed nude for this calendar don’t consider it to be “pornographic” or “perverted.”

The worst part is that Rep. Reinstein’s law equates nude photos of the elderly or disabled with child pornography: You can’t make it for any reason whatsoever, not even for private enjoyment, no exceptions, no nothing.

Presumably - hopefully - this one won't get far. If it does though, I suppose we'll see senior citizens arrested for taking their own boudoir pictures too.

Pa. federal judge blocks child porn charges for teens

2009-03-31T08:56:00.000-04:00

Last week I blogged about the federal suit brought by teens and parents in Wyoming County, Pennsylvania, against a local prosecutor who threatened the teens with felony child porn and sexual abuse charges for taking "provocative" photos of themselves on their cell phones.

The federal judge hearing the case has now issued a temporary restraining order (PDF), prohibiting the D.A. from bringing charges against these young women. The judge found it likely that they would prevail in proving that (1) the photos at issue did not violate any law, (2) the teens had a First Amendment right to refuse to participate in a five-week education and counseling program the D.A. sought to force them to attend, (3) the parents had a fundamental privacy right to refuse such a program for their children, and (4) the D.A. retaliated against the plaintiffs for refusing to participate in the program by threatening felony charges.

(A technical note: The judge also rejected the prosecutor's argument that he lacked the power to interfere with state prosecutions. The court explained that the federal "abstention" rule only prohibits federal courts from intervening in ongoing state prosecutions, not threats of prosecution. If the rule applied to threats of prosecution, after all, it could block a lot of pre-enforcement challenges to state laws that, e.g. abridge the freedom of speech.)

Va. court: upskirt photos are illegal peeping

2009-03-28T09:55:00.000-04:00

I previously opined that existing invasion-of-privacy laws should suffice to address the problem of covert "upskirt" photography in public places, because even in public places an individual has a "reasonable expectation of privacy" (as that term has traditionally been defined by courts) under her skirt. I'm pleased to report that the Virginia Court of Appeals agrees (PDF). H/t The Legal Satyricon.

Virginia has a law that was drafted with this kind of peeping in mind, but did not specifically address public places:

It shall be unlawful for any person to knowingly and intentionally videotape, photograph, or film any nonconsenting person ... if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or (ii) the videotape, photograph, film or videographic or still image record is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person’s legs for the purpose of capturing an image of the person’s intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public; and when the circumstances... are otherwise such that the person being videotaped, photographed, filmed or otherwise recorded would have a reasonable expectation of privacy.

The court concluded that:

Under our construction of the statute, a person may, in fact, possess a reasonable expectation of privacy when being victimized in public...
The...requirement that the victim otherwise have a “reasonable expectation of privacy”... is made applicable to both clauses (i) and (ii). Accordingly, the victim’s reasonable expectation of privacy under clause (ii) is in reference to the victim’s intimate parts or undergarments covering those intimate parts—not in reference to the victim’s actual physical location (as in clause (i)).

The court's analysis is quite sensible, though I would note that it is based on the textual structure of this particular law. While this does help to reinforce its conclusion, I would have liked to see the court recognize that that this structural reinforcement is not necessary to reach the conclusion that there is a reasonable expectation of privacy in one's beskirted undergarments. I have confidence, however, that courts would reach the same conclusion under a differently-worded statute, based entirely on this reasoning.

AVN reports on the case, and concludes:

The appeals opinion doesn't disclose what punishment Wilson actually got, but the case should serve as a warning to any adult [film] producer who still thinks this is a viable genre to get into.

By which they clearly mean "if you're really doing it with unconsenting subjects (which should have been obvious to begin with!)." Fake it all you want.

Reproductive rights news from Kansas

2009-03-27T18:19:00.000-04:00

A Kansas grand jury has acquitted one of the nation's handful of late-term abortion providers of 19 charges of performing illegal abortions. State officials have been out to get the Wichita physician for some time now. These charges against George Tiller were pretty technical. Kansas law requires that a second physician sign off on late-term procedures. The prosecutor claimed that Tiller had an illegal financial connection to one of his second-opinion providers. The New York Times reports:

Dr. Tiller’s clinic is one of three in the United States that perform late-term abortions, and he has been reviled by anti-abortion forces for decades. In 1986, a bomb exploded on the roof of his clinic here, Women’s Health Care Services. In 1991, some 2,000 protesters were arrested outside during summer-long protests; in 1993, Dr. Tiller was shot in both arms by an anti-abortion activist while driving away from the clinic. Protests continue there almost daily....

The Rev. Patrick J. Mahoney, director of the Christian Defense Coalition in Washington, called the verdict “a setback.” Mr. Mahoney said that had jurors voted for conviction, “they would have put him out of business.” But Mr. Mahoney, who had predicted that the trial would “energize” anti-abortion forces, said it was a “very technical case” that was not relevant to other legal and legislative challenges to abortion.

Assistant Attorney General Barry Disney, who prosecuted Dr. Tiller, said the quick verdict probably resulted from the fact that the issue before jurors was clear and concise. “There wasn’t a lot for them to go back there and argue,” Mr. Disney said.

During testimony, both Dr. Tiller and Dr. Neuhaus, the only witness called by prosecutors, denied that there was anything improper about their financial relationship. Dr. Neuhaus testified that she misspoke during a 2006 deposition when she called herself a “full-time consultant” for Dr. Tiller.

The trial is not the end of Dr. Tiller’s legal problems. The state Board of Healing Arts is investigating a complaint that mirrors the accusations made in the trial.

Also in Kansas, Governor and ~~Homeland Security~~ Health & Human Services nominee Kathleen Sibelius has signed a law that will require that abortion clinics offer sonograms to patients. The Kansas City Star reports:

The new law also requires the state to make and distribute new pamphlets and a video about abortion and fetal development. And, it requires clinics to post signs telling patients that coerced abortions are illegal....

Last year Sebelius vetoed abortion legislation that included the sonogram provision but also went much further. That bill would have also required the state to collect more data on late-term abortions, given prosecutors more authority to access state abortion reports, and allowed relatives of women receiving late-term abortions to sue the provider if they suspected the abortion was illegal.

Sibelius is pro-choice, but hoped to avoid another showdown with an overwhelmingly antichoice legislature.

NH Legalizing Same-Condiment Marriage

2009-03-27T14:19:00.000-04:00

Or so state Rep. John Cebrowski has it:

"Creamy peanut butter and crunchy peanut butter can't be a peanut butter and jelly," said Rep. John Cebrowski, R-Bedford.

I think that means he opposed the bill. Nevertheless, the state House voted 186-179 yesterday to permit creamy and crunchy peanut butters to marry one another. Vermont is also close to legalizing these sticky, chewy unions, though Republican Governor Jim Douglas says he'll veto the legislation, apparently out of concern for the risk of salmonella.

Exempting minors from child pornography laws?

2009-03-27T09:29:00.000-04:00

Following up on yesterday's post:

Thomas MacAulay Millar, whose post on the Wyoming County, PA case over at Yes Means Yes! I linked yesterday, suggests adding the following exemption to the federal child pornography law (18 USC 2252):

(d) Notwithstanding the foregoing, no person shall have committed a criminal act within the meaning of this section solely by reason of having possessed, transported, shipped, or received a visual depiction wherein the person himself or herself is the only minor depicted.

This makes sense to me. It means that a minor would never be prosecuted for "child pornography" based on depictions of him- or herself. Any adult involved in the production or distribution of that material could still be liable, and minors could still be liable for material featuring other minors. But it would eliminate situations like this, reported Wednesday in New Jersey (h/t DailyKos):

CLIFTON — A 14-year-old girl faces child pornography charges after she allegedly posted nearly 30 nude pictures of herself on a social networking site, authorities said.

Detectives with the Passaic County Sheriff’s Department’s Internet Crimes Unit arrested the teen Tuesday. The National Center for Missing and Exploited Children contacted sheriff’s detectives about someone posting photos of an underage nude girl on a MySpace profile. The center, which monitors social networking sites for illegal images of children, contacted county detectives through the State Police’s Internet Crimes Against Children Task Force, said Bill Maer, the sheriff’s department spokesman.

Following a month-long investigation, detectives discovered that the person posting the pictures was the same person featured in them — the 14-year-old girl. Anyone who was “friends” with the girl through MySpace or knew her full name could have accessed the photos.

The teen was charged with one count of possession of child pornography and one count of distribution of child pornography. She was released into her mother’s custody, Maer said.

The teen reportedly told police she posted the pictures into a photo album for her boyfriend’s enjoyment. More arrests may be forthcoming, Maer said.

It's worth noting that while the National Center for Missing and Exploited Children initially flagged these photos for police, an NCMEC attorney recently criticized the practice of prosecuting minors in cases like this. As these prosecutions and threatened prosecutions continue to multiply, I think the case is building for building exemptions into child porn laws for cases like this. Fixing the federal law would just be a start, however, since to date I believe all the reported cases of this phenomenon have been at the state level.

Thomas's proposed exception wouldn't entirely solve the problem, as I see it; in a case like the Pennsylvania one, where three girls took pictures together, the minors could still be charged based on one another's participation. Putting aside that the material in that case was clearly legal, such a scenario, where multiple minors are each charged with victimizing one another, seems equally unwarranted. This would call for a more complex exemption - one that still allows for prosecutions of minors who are truly exploiting other minors - and how to draft it isn't immediately obvious to me. Additionally, if an exception is warranted for the child porn laws in multiple-minors situation like this, you'd presumably need to write a similar one into "sexual exploitation of a minor" statutes, since there's significant overlap between the two sets of laws.

This could be a sticky wicket, but the issue does need serious consideration. Prosecutions like this are to my mind unconscionable. As Thomas wrote yesterday:

Let me say this loud and clear: charging young women with sex offenses for distributing photographs of themselves is social control by intimidation. It ruins young women's lives to make an example of them, to keep others in line.

(As a side note: where did the media come up with the term "sexting"? It's catchy in a garish soundbite sort of way, but it makes no sense: it's meant to refer to sending pictures, not text.)

Spurious threat of prosecution used to shame teens

2009-03-26T13:49:00.000-04:00

District Attorney George P. Skumanick of Wyoming County, PA isn't content to hop on the bandwagon of prosecuting teens for taking and sharing smutty pictures of themselves and one another under the child pornography laws. No, he's decided to use his legal muscle to put the fear of God (or more accurately, prison) in teens over material that is indisputably legal. Fortunately, these teens did the right thing: called the ACLU, who are helping the youngsters and their parents sue the local prosecutor.

Here's what happened, from the New York Times:

The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.
Mr. Skumanick said he considered the photo “provocative” enough to tell Marissa and the friend, Grace Kelly, that if they did not attend a 10-hour class dealing with pornography and sexual violence, he was considering filing a charge of sexual abuse of a minor against both girls. If convicted, they could serve time in prison and would probably have to register as sex offenders.
It was the same deal that 17 other students — 13 girls and 4 boys — accepted by the end of February. All of them either been caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.
But three students, Marissa, Grace and a third girl who appeared in another photo, along with their mothers, felt the deal was unfair and illegal. On Wednesday, they filed a lawsuit in federal court in Scranton, Pa., against Mr. Skumanick.
They asked the court to stop the district attorney from filing charges against them, contending that his threat to do so was “retaliation” for the families asserting their First and Fourth Amendment rights to oppose his deal.

You go, girls. The ACLU of Pennsylvania's complaint (PDF) describes the content of the pictures:

One photo shows Marissa and Grace, from the waist up, lying side by side in their bras, with one talking on a telephone and the other making a peace sign. The other photo shows Nancy Doe standing upright, just emerged from the shower, with a white towel wrapped tightly around her body just below the breasts. The two photographs, which depict no sexual activity or display of pubic area, are not illegal under Pennsylvania’s crimes code and, indeed, are images protected by the First Amendment.

I've posted about this topic before, and there's an excellent, excellent post about it over at Yes Means Yes!, so I'll just say a few things about this case.

First off, let's note that Skumanick threatened not only child porn charges but also charges of sexual abuse of a minor. The relevant Pennsylvania law makes it a second-degree felony to "knowingly photograph... a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act," including "nudity [that] is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." Pa. Stat. Tit. 18 s 6312. The laws's plain language doesn't exempt minors from prosecution. But the plaintiffs have it right here: while the definition of nudity-for-the-purpose-of-sexual-stimulation is potentially broad, it clearly requires actual nudity, not just topless or underwear-clad pictures.

Second, for basically the same reason, it's patently clear that these girls' pictures wouldn't be "child pornography," but in fact would be fully protected by the First Amendment. Simply put, teens showing a little skin isn't a crime, or the Delia's people would be in big trouble. Indeed, the complaint alleges that:

The plaintiff minors will in the near future want to be photographed in their bathing suits, for instance during the summer when they go to a swimming pool or the beach, to which the respective parents have no objection. They are, however, chilled in their ability to take such photographs because of concern whether Skumanick will find them “provocative.”

Even baring your breasts doesn't make it "pornography," even if the local D.A. thinks it's "provocative."

No, this is a transparent case of a law enforcement official threatening prosecution for plainly legal, indeed constitutionally protected, material, in an attempt to shame and frighten kids away from ever engaging in such constitutionally-protected experimentation again.

Interestingly, the girls' mothers are suing on their own behalf too; the suit frames Skumanic's threats as a threat to parents' constitutional right to direct their children's upbringing and education by forcing them into "a re-education program wherein the girls must discuss why their conduct was wrong and what it means to be a girl."

Finally, it strikes me as more than a little suspicious that Skumanic's spate of prosecutorial threats targeted girls by a 4:1 margin. I doubt this merely reflected which local students were taking, posing in, or passing around racy pictures. More likely, girls were targeted because the main point of the exercise was to enforce traditional notions of female modesty.

OT: The unbearable luridness of abstinence ed

2009-03-26T11:50:00.000-04:00

There's much to be said about stuff like this:

I'll only add: that looks more than a little kinky to me.

OTC restriction for emergency contraception overturned

2009-03-24T10:48:00.000-04:00

In 2006, the FDA approved the emergency contraceptive Plan B for over-the-counter sale for adults, but required that all minors obtain a prescription. Yesterday, a federal judge in Brooklyn, NY ruled that the FDA's decision to restrict sale of Plan B to minors was invali d (PDF), because it was politically oriented, ignored scientific expertise, and violated basic principles of federal rulemaking. The court (1) required the agency to reconsider its decision regarding OTC access for women under 17, and (2) ordered that Plan B be made immediately available over the counter for woman 17 and up.

Quick background for non-lawyers: The federal Administrative Procedure Act requires that all federal agency decisions be developed through a good-faith process of reasoned decisionmaking. Rules that are "arbitrary and capricious" can be challenged in court - which is just what a group of parents, teens and reproductive rights groups did. The teens were clearly injured by the decision, the court found, because getting a prescription and going to a pharmacy can make it much harder to obtain Plan B within its 72-hour effectiveness window. As the court rightly noted, "Any delay encountered during this process may render access to Plan B useless." Additionally, the organizations were prevented by the rule from distributing Plan B to minors.

The court held that the FDA's decision was arbitrary and capricious because the agency overrode its own scientific experts on purely political grounds. Here's the court's summary of its findings:

The FDA repeatedly and unreasonably delayed issuing a decision on Plan B for suspect reasons and, on two occasions, only took action on Plan B to facilitate confirmation of Acting FDA Commissioners, whose confirmation hearings had been held up due to these repeated delays. ...

[Moreover,] the record is clear that the FDA’s course of conduct regarding Plan B departed in significant ways from the agency’s normal procedures regarding similar applications to switch a drug product from prescription to non-prescription use, referred to as a “switch application” or an “over-the-counter switch.” For example, FDA upper management, including the Commissioner, wrested control over the decision-making on Plan B from staff that normally would issue the final decision on an over-the-counter switch application; the FDA’s denial of non-prescription access without age restriction went against the recommendation of a committee of experts it had empanelled to advise it on Plan B; and the Commissioner – at the behest of political actors – decided to deny non-prescription access to women 16 and younger before FDA scientific review staff had completed their reviews.

In light of this evidence, the FDA’s denial of the Citizen Petition [for OTC approval] is vacated and the matter is remanded to the FDA for reconsideration of whether to approve Plan B for over-the counter status without age or point-of-sale restrictions. While the FDA is free, on remand, to exercise its expertise and discretion regarding the proper disposition of the Citizen Petition, no useful purpose would be served by continuing to deprive 17 year olds access to Plan B without a prescription. Indeed, the record shows that FDA officials and staff both agreed that 17 years olds can use Plan B safely without a prescription. The FDA’s justification for this age restriction, that pharmacists would be unable to enforce the prescription requirement if the cutoff were age 17, rather than 18, lacks all credibility.

So, the agency could still decide to restrict sale for some teens, but it will have to base that decision on science, not politics.

(As is often seen on this blog, unjustifiable government decisions beget risible legal arguments. One of the FDA's arguments here was that the minor plaintiffs here lacked standing to sue because they had the support of their parents, and their parents could get Plan B for them without a prescription. The court pointed out the problem with this: under the 2006 rule, a lay person giving Plan B to a minor is illegal. The Government nevertheless argued that this was not a problem because prosecution would be very unlikely - which, the court responded, is hardly the point. You can't justify a law by saying that well, individuals can always break it. Nice try, guys.)

TSA wants to know your gender

2009-03-18T15:12:00.001-04:00

Late last year, the Transportation Security Administration finalized regulations for its soon-to-be-launched "Secure Flight" program, intended to streamling the vetting of passengers and eliminate false matches with its watch list for terror suspects. Under the program, TSA rather than airlines will do the matching, but airlines will be required to obtain and pass along a new set of information from passengers, including their full name, date of birth, and gender. Privacy groups, naturally, oppose the program, which TSA has declared exempt from the federal Privacy Act (PDF). Transgender individuals are also understandably worried by any suggestion of collecting and "matching" gender information.

It's important to note that in this case the purpose is not to match the individual's declared gender against, say, their own passport or birth certificate, but instead to match it against TSA'a watch list for terror suspects. In the new federal rules for Secure Flight (PDF), TSA explains why it is asking about gender:

Many names are gender neutral. Additionally, names not derived from the Latin alphabet, when translated into English, do not generally denote gender. Providing information on gender will reduce the number of false positive watch list matches, because the information will distinguish persons who have the same or similar name. Consequently, TSA is including gender as a required element of the SFPD, which covered aircraft operators must request from individuals and which individuals must provide to the covered aircraft operator.

Thus, TSA has no reason to care about your gender as such - it wants to quickly and efficiently tell whether you might be the same "Lee Anderson" or "Alex Parker" as the one on its list. In its explanation of the program for travel agents (PDF), TSA says that "Aircraft operators will collect gender based on the declaration of the individual making the booking." Thus, according to the way the program is supposed to work, they are just comparing the passenger's declaration to the watch list.

In practice, it's not likely to be that simple. As the Human Rights Campaign noted in its opposition to the proposed regulations (PDF), it's not clear whether enhanced screening of an individual will, in practice, result if airline staff happen to notice a discrepancy with the passenger's identity documents. Airlines may feel it's simply the right thing to do, because gender discrepancies are viewed as suspicious - and the regulations give them authority to decide that. Likewise if an individual declines to make a declaration about gender. Moreover, the regulations provide for hefty fines for those making a false statement about any required data, including gender. How will it be decided if someone's declaration regarding their gender is "false"? Even if no transgender folks are ever fined, they have reason to fear the process.

While TSA's makes a logical argument that gender data would be helpful to them in streamlining the process, they haven't and can't make the case that it's necessary. If this requirement helps prevent harassment and inconvenience for some travelers by eliminating erroneous matches, it will simultaneously cause the same and potentially even worse problems for transgender travellers.

The Obama administration wasn't in on the process of writing these rules, which were finalized last October. It's not clear if these are among the regulations the administration is reviewing and may reverse, but TSA appears set to go ahead with rollout of the program.

Australian commission releases amazing report on gender diversity

2009-03-17T17:15:00.000-04:00

As I documented in my article "Against the Surgical Requirement for Change of Legal Sex," Australia has in some respects been a global leader on transgender rights. A 2001 Australian Family Court decision is one of the leading cases on legal recognition of gender transition. In 2004, that court favored access to puberty-delaying hormone treatment for trans adolescents, and called into question the wisdom of requiring reassignment surgery as a prerequisite for legal recognition.

Yet in some ways Australian law is still strict when it comes to gender. Throughout the country, changing your sex on government documents is only possible if you are unmarried and have had reassignment surgery. Now the Australian Human Rights Commission has released a fantastic report entitled Sex Files: The legal recognition of sex in documents and government records. The Commission consulted with trans advocates and individuals through meetings, written submissions and a special blog. It arrived at the following recommendations:

1. Access to the system for having sex legally recognised to accord with sex
identity should be broadened. Specifically,

marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex

the definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex

the evidentiary requirements for the legal recognition of sex should be relaxed by reducing the quantity of medical evidence required and making greater allowance for people to self-identify their sex
the special needs of children and young people who wish to amend their documents and records should be considered

a person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records.

2. The process for amending documents and records to legally recognise sex
identity should be streamlined and user-friendly. Specifically,

information on the process and criteria for the legal recognition of sex should be easily accessible and user-friendly

documents of identity and processes required for the legal recognition of sex should not reveal personal information about a person’s past identity in relation to sex

laws and processes for the legal recognition of sex should use empowering terminology

where possible, sex or gender should be removed from government forms and documents
the federal government should consider the development of national guidelines concerning the collection of sex and gender information from individuals.

The report correctly notes that eliminating the surgical and marital-status restrictions would simply reflect the reality of people's daily lives. Notably, the Commission is agnostic on whether this would conflict with the current ban on same-sex marriage in Australia, but points out that it would only affect a small number of people who regardless are already legally married and living as same-sex couples as far as they and the general public are concerned.

Perhaps even more remarkable is the reccomendation that individuals be able to have their sex listed as unspecified. Australia is already the first nation to permit an X in lieu of an M or F on passports, but currently this is only for intersex individuals. Under the Commission's proposal, this would be a matter of individual choice, without the need for medical or other evidence.

I have no sense of whether the current Labor government in Australia is likely to implement any of these recommendations, but the report itself is a remarkable accomplishment.

H/t Questioning Transphobia

Racy texts don't kill people, sexual shaming does

2009-03-16T12:00:00.001-04:00

I've previously discussed the unsurprising trend of teens sharing racy pictures of themselves and each other via email and cell phones (and the rather more surprising trend of teens being prosecuted under the child porn laws for it). The topic is getting a lot of sensationalistic coverage - complete with the trendy moral-panic-tastic term "sexting" - right now because of the suicide of a young Ohio woman.

Elizabeth at Sex in the Public Square has this to say:

I'm furious about the way this young woman's story is being reported. Jesse Logan killed herself last July not because of the "dangers of sexting" but because of the dangers of sex stigma and "slut shaming." She had sent some naked photos of herself to her boyfriend by cell phone. When they broke up he showed those photos to other people at their high school. Some of those people then visciously shamed and bullied Jesse. But to read this MSNBC story you would think that it was her sending of the photos that was so dangerous.

Slut shaming works because girls are told to be sexy but not sexually active. I don't know whether Jesse had ever even had sex with the boyfriend to whom she sent the pictures. It doesn't matter. What matters is that words like "slut" and "whore" were hurled at her and that those words are understood to be condemnations. They should not be, yet they are, and the shame attached to them caused Logan such pain that she began skipping school, spiraled into a deep depression and, after a friend of hers committed suicide, she did the same, hanging herself in her closet. What a tragically symbolic end for someone whose privacy had been so violated.

There will no doubt be pressure on wireless providers to somehow crack down on racy content, which they either can't or shouldn't do. There will also be a temptation to ramp up the use of the child porn laws against teens, despite the life-wrecking effects thereof.

But trying to regulate or criminalize the circulation of words and images here misses the point. If the law offers any help here, it is tort law and not criminal law, directed at the shaming and bullying rather than teen sexual speech and experimentation. Schools, parents and even teens themselves should be held accountable for the vicious bullying that causes tragedies like this - and indeed (as noted in the MSNBC article), Jesse Logan's mother is apparently trying to hold her school accountable in court.

Update: Some other interesting takes on the subject.

Trans murder trial faces hurdle; media makes a sideshow of pronouns

2009-03-13T15:34:00.000-04:00

A Colorado man is set to go on trial next month for the murder of 18-year-old Angie Zapata - though that trial is now facing a potentially serious snag after the judge ordered the defendant's confession thrown out because of overreaching by police. The local Greeley Tribune has covered the story extensively; the quality of their coverage has been mixed. (Compare this to a very professional and respectful profile of the case by ABC News.) Today they an unfortunately sensational article devoted to the use of pronouns in the case.

All of this is quite beside the point of this case, a tragedy shockingly similar to the murder of Gwen Araujo in California in 2002. But the issue is not without some news value, if not, as the paper's approach suggest, simply because it's "odd." As National Center for Transgender Equality director Mara Keisling hints in the article, the contestation of trans identities themselves is invariably a strong undercurrent in these cases, and here as elsewhere the defense has to some extent tried to dehumanize the victim by invalidating her identity. Even as the prosecution and defense are contesting the guilt of the accused, they are also, with each reference to the victim, contesting who she was. While the article suggests that the court may address this linguistic issue before trial, I expect this will not be the subject of any ruling; the lawyers will just keep using their contrasting language.

Unusually, the article makes a point of its own journalistic conventions by pointing out that the AP stylebook directs reporters to use language consistent with individuals' gender identity and expression. Many reporters don't know that this guidance exists or choose not to follow it, and I have periodically taken it upon myself to point it out in letters to the editor.

Roundup

2009-03-11T14:15:00.001-04:00

This week in Washington:
- Obama reverses Bush's ban on federal funding for embryonic stem cell research
- A provision of the just-passed budget bill will help make contraception more affordable for many
- Today the White House launches a Women & Girls' Council, which hopefully will be more than symbolic

In Saudi Arabia, a 75-year-old widow has been sentenced to four months in prison, forty lashes, and deportation for having two unrelated men in her home. The two men -- one of whom is her deceased husband's nephew, and both of whom have also been sentenced -- were apparently bringing her some bread. Her lawyer plans to appeal. More at Religion Clause.

On a much less weighty note, a law professor at the University of Montana complains that the student newspaper's sex advice column "affects my reputation as a member of the faculty" -- no, really --and has suggested the state legislature should tighten restrictions on student publishing. According to the paper in question, the prof complained that legislators should set "criteria for giving someone a job as a columnist writing in an area of 'alleged expertise' or for reviewing objectionable material." Being a law prof, she's come up with proposed restrictions that just pass the First Amendment red-face test, but something tells me this isn't going anywhere. Are authors in student papers really expected to be experts? And what standards should the legislature set to qualify as a sex columnist?

Finally, Cook County, Ill. Sheriff Tom Dart is suing Craigslist, claiming its "erotic services" ads are a public nuisance. Sex worker rights advocates have, naturally, criticized the suit, which probably amounts to little more than a publicity stunt. Craigslist says it's "mystified" by the suit, pointing to its cooperation with law enforcement in Illinois and elsewhere to minimize use of the site to violate the law. One Internet law expert has opined that the lawsuit can't stand, because under federal law Craigslist can't be held liable for users who seek to violate the law unless it actively helps them do so. (Said lawyer also wonders whether there are actually many "erotic services" posts on Craigslist that are only advertising legal services, but a quick search of the many postings specifying "no sex" suggests that yes, there are; most of them are for pro-Dommes.)

Another sign of change in Argentina

2009-03-10T12:27:00.000-04:00

This one has been making the blog rounds and is not law-related, but I just couldn't resist. I recently noted that Argentina is lifting its ban on out gay and lesbian members in the military, as is the Philippines. Here's another sign that Argentina, like Latin America generally, is seeing leaps and bounds of progress in LGBT activism and acceptance. There's a long way to go for trans people in Argentina and neighboring countries, but it's a pretty big deal when a bank uses a message of trans acceptance to advertise itself:

I can't imagine any financial institution in the U.S. doing a similar ad. In fact, I can't really imagine any major corporation selling itself with this kind of message of inclusion. Not only that, this ad is a thousand times better than most depictions of trans people in the media anywhere. Instead of treating a trans person like a spectacle or a joke, and making the fact of her gender history a laugh line or a dramatic reveal, here we see it treating in a matter-of-fact, unsensational way. Indeed, the story isn't that this woman is trans, but that her neighbor is sorry for making it a big deal. Depicting a trans woman as an apparently successful business owner is just icing. Yes, as one blogger put it, Banco Provincial is "Pro-Transgendered People, Pro-Little Old Men."

If only getting a loan made people rethink their prejudices in real life!

OT: A paean to the New York City subway

2009-03-09T12:06:00.000-04:00

A federal appeals court ruling issued today contains an interesting tribute to New York City's transit system:

The question presented in this case—whether a manufacturer who likely misappropriated trade secrets may be preliminarily enjoined from (a) entering into contracts that will cause it to use those trade secrets and (b) disseminating further those trade secrets—concerns a rarely celebrated but instantly recognizable feature of everyday life in New York City: subway brakes. To the parties in this case, subway brakes are known as “Brake Friction Cylinder Tread Break Units” (“BFC TBU”). For the rest of us, BFC TBU are “that loud squeaking, sparking braking system that so reliably stops the New York City Transit subway system.” In re Faiveley Transp. Malmo AB, 522 F. Supp. 2d 639, 640 (S.D.N.Y. 2007). Twenty-four hours a day and 365 days a year, the City’s subway cars safely stop at 468 passenger stations—and, as any straphanger knows, many times in between—depositing riders of all classes and descriptions at homes, workplaces, ballparks, and every other destination imaginable. See generally MacWade v. Kelly, 460 F.3d 260, 264 (2d Cir. 2006) (“The New York City subway system . . . is an icon of the City’s culture and history, an engine of its colossal economy, a subterranean repository of its art and music, and, most often, the place where millions of diverse New Yorkers and visitors stand elbow to elbow as they traverse the metropolis.”).

The subway is an indelible feature of the City’s culture. Its legend and lore fascinate locals and visitors alike. See, e.g., Carrie Melago, It’s the Rail Thing: Subway Ride Record is Official, N.Y. Daily News, Aug. 8, 2007, at 24 (reporting that six alumni of Regis High School set a new world record for stopping at all 468 stations on a single fare: 24 hours, 54 minutes, and 3 seconds). A point of personal pride for many New Yorkers, the City’s subterranean transit has appeared in song, on stage and screen. See, e.g., Leonard Bernstein, et al., “New York, New York,” from On the Town (“New York, New York—a helluva town, / The Bronx is up but the Battery’s down, / And the people ride in a hole in the ground; / New York, New York—It’s a helluva town[!]”), as quoted in The Oxford Dictionary of Humorous Quotations 329 (Ned Sherrin, ed., 1995) (attributed to Betty Comden and Adolph Green, lyricists). The subway’s rhythm and sound have also rumbled into the canon of American literature. See, e.g., Tom Wolfe, The Bonfire of the Vanities 36 (Farrar Straus Giroux 1998) (1987) (“On the subway, the D train, heading for the Bronx, Kramer stood in the aisle holding on to a stainless-steel pole while the car bucked and lurched and screamed.”).

Moving forward, our next stop is the trade secret dispute concerning the distinctive brakes used by the New York City subway system.

The plaintiff in this case is the new owner of the company that initially developed MTA's noisy but effective braking technology. The company they originally licensed to produce and market that technology is now under a contract with MTA to use that know-how to overhaul the system. The plaintiff claims this company is misappropriating its trade secrets, and sought to stop them from disclosing or even using this technical knowledge - and ultimately to substitute itself in the MTA contract. The U.S. Second Circuit Court of Appeals held that while the contractor probably was misusing trade secrets, it was not appropriate to order them to cease work for MTA using the knowledge, because there was not proof the secrets themselves were likely to be disclosed in the course of carrying out the contract.

If you think maintenance on the MTA is a pain in the ass now, just imagine if this decision had gone the other way. H/t How Appealing.

Roundup

2009-03-04T13:55:00.000-05:00

Via Bilerico, Argentina is ending its ban on gay and lesbian folks serving openly in the military. If they can do it, we can do it.

A new study shows "red" states lead in online porn subscriptions. This strikes me as raising interesting questions about "local community standards" in obscenity cases. (Indeed, I recall that at least one defendant has recently tried to use data on risque Google searches to establish the relevant standard.)

Gay & Lesbian Advocates and Defenders (GLAD) has filed a challenge to the federal Defense of Marriage Act on behalf of married Massachusetts couples seeking marriage-related federal benefits. This seems to mark a shift in strategy from the LGBT legal movement, which heretofore has tried to keep suits regarding marriage and DOMA out of the federal courts for fear of a) setting bad precedent without first building a firmer foundation in state courts and in non-marriage cases, and b) reviving the proposed Federal Marriage Amendment. I'd guess that (b) is now seen as much less of a concern, and (a) is seen as a manageable concern if cases are brought and framed selectively. Here, no state would be forced to accept the plaintiffs' marriage; rather, they are seeking federal recognition of a state-recognized marriage for the purpose of specific tax, Social Security and other benefits. Balkinization has a preliminary assessment of the case.

Finally, Senate Republicans are apparently trying to use the current Omnibus Appropriations bill to eliminate federal Title X funds for Planned Parenthood clinics across the country. An amendment will be introduced today, so folks should call their Senators forthwith.

Censoring sexual orientation "equally"

2009-03-03T18:56:00.000-05:00

Consumerist reports that Microsoft will ban anyone who mentions their sexual orientation on the XBox Live site. Microsoft's official policy is to prohibit anything suggesting "content of a potentially sexual nature," and to them that includes "expression of any type of orientation, be that hetero or other." Thus, Microsoft has it that its policy is non-discriminatory: straight and queer people alike are forbidden from mentioning their sexual orientation. (H/t feministing.)

As recently reported by the Washington Blade, the Washington Post continues to take a similar approach to discussion of sexual orientation in its reporting. The Post believes that all subjects of their journalism are "entitled" to make their sexual orientation "a private matter," whether they are straight or queer; accordingly, the paper will not discuss orientation unless it is "relevant."

The problem with both of these policies is that not talking about sexual orientation does not treat everyone equally. In a society where most people identify as heterosexual, and more importantly, where heterosexuality is ubiquitously assumed, heterosexuals have no need to identify their orientation: the default assumption has done it for them.

Moreover, given the strong default assumption of heterosexuality, a policy that nominally limits all discussion of sexual orientation is almost certainly to be applied selectively. The Blade story notes that the Post has come in for particular criticism regarding its failure to mention surviving same-sex partners in obituaries. Yet the Post's obits routinely mention different-sex spouses in passing - precisely because the fact of being in a different-sex relationship is not thought be a reference to sexual orientation, while being in a same-sex one is.

NYPD targeting gay men, pro Dommes

2009-03-03T14:14:00.000-05:00

New York City police are being accused of targeting gay men for false and/or entrapment-based arrests for prostitution/solicitation in the city's sex shops. From The Advocate:

The Gay City News reports that at least 27 men were arrested for prostitution in eight porn shops in Manhattan in 2008. Since 2004 there have been 52 such arrests in eight difference businesses.
According to a statement by [Coalition to Stop the Arrests], the arrest is usually set up so that an attractive younger officer is sent out to approach middle-aged gay men. The officer allegedly entices the man to have sex. If the man agrees, the undercover officer says he wanted to pay the man for sexual favors, and then, before the man can accept or reject the transaction, he is surrounded by police to make an arrest.

Simultaneously, the city is being criticized for targeting the lawful work of professional dominatrices, twisting the prostitution laws to apply to non-sexually-explicit conduct. The only judicial decision on the subject, from 1994, held that NYC's prostitution law doesn't cover BDSM activities that don't involve actual genital contact. Yet in a recent meeting with reps from the National Coalition for Sexual Freedom, a prosecutor said that the city interprets the law expansively, based not on a limited set of acts but on "what is arousing to the participants." So, if spanking turns you on, paying someone to spank youis prostitution. This is questionable as a matter of the definition of "sexual conduct," not to mention policy and constitutional concerns. NCSF is currently planning a campaign to protest this policy.

I'm guessing from all this that NYC has finally run out of real crime to fight. Or maybe Bloomberg is hoping to follow in the footsteps of his predecessor and try to spin a reputation as The Man Who Ran Sex Out of NYC into a losing, but highly entertaining, presidential bid.

OT: U.S. to chill out on med marijuana, needles

2009-02-27T14:14:00.000-05:00

The SF Chronicle is reporting:

U.S. Attorney General Eric Holder is sending strong signals that President Obama - who as a candidate said states should be allowed to make their own rules on medical marijuana - will end raids on pot dispensaries in California.
Asked at a Washington news conference Wednesday about Drug Enforcement Administration raids in California since Obama took office last month, Holder said the administration has changed its policy.

"What the president said during the campaign, you'll be surprised to know, will be consistent with what we'll be doing here in law enforcement," he said. "What he said during the campaign is now American policy."

Bill Piper, national affairs director of the Drug Policy Alliance, a marijuana advocacy group, said the statement is encouraging.

"I think it definitely signals that Obama is moving in a new direction, that it means what he said on the campaign trail that marijuana should be treated as a health issue rather than a criminal justice issue," he said.

Piper said Obama has also indicated he will drop the federal government's long-standing opposition to health officials' needle-exchange programs for drug users.

Referring to states' medical marijuana laws, a White House spokesman said Obama "believes that federal resources should not be used to circumvent state laws."

Hopefully Obama's administration will conclude the same about using federal resources to, say, prosecute adult filmmakers.

Slain Teen's Family "Sues Everybody For Not Destroying His Gayness"

2009-02-27T11:23:00.000-05:00

Welcome Livejournal readers! You can follow Polymorphous Perversity through its LJ syndicated feed.

Headline courtesy of Joe.My.God, who has provided extensive coverage of the Lawrence King tragedy since the California student was murdered one year ago. Another high school student is currently facing trial for the murder, which has been charged as a hate crime and which shocked civil rights activists across the country.

In a suit filed last year, the King family claimed their son's school was at fault for failing to enforce its dress code. Their theory was that the teen's gender-nonconforming attire and makeup made him a target for violence. That's right: since they can't exactly blame the victim, their own son, they're doing the next best thing: blaming his gender expression, and the school authorities for failing to suppress it.

Here's my legal analysis: this is nonsense. Here's my more detailed legal analysis: 1) Schools have a duty to protect students from severe or violent anti-gay bullying. 2) Students have a First Amendment right to variant gender expression. 3) Schools have authority to limit student speech that may be "disruptive," but that authority is largely limited to speech that is disruptive in itself, and usually does not extend to speech that simply might inflame classmates' political loyalties or social prejudices. 4) More to the point, while the precise scope of schools' authority to limit controversial speech is debatable, a school's liability is another matter. The lawsuit essentially seeks to force schools to suppress expression of queer identities on pain of massive legal judgments. It frames student-on-student violence as an unavoidable result of queer expression, thereby blaming the victims of hate violence and implicitly absolving the school of any responsibility to protect students once they are targeted by bullies.

But this is what you'd expect from a family that threw their son out of the house for being queer: it's not homophobia that killed Lawrence King, it turns out, but queerness itself. And now the family has taken this broken logic even further by suing the youth shelter that took King in after they threw him out, for giving him women's clothing and makeup; and suing the Ventura County Rainbow Alliance, which hosted youth programs attended by the teen, for supposedly encouraging him to hit on his killer. They also sued a teacher and a counter social worker on similar grounds. So now their theory is that not only do schools have a responsibility to keep students safe by suppressing queer speech, but anyone who provides services to youth and fails to discourage queer expression is responsible for hate violence against them.

This would just be funny if it didn't reflect the way so many parents, and other people who work with youth, think: that queerness is an inherently dangerous behavior that kids stumble into and need to be protected from. In other words, guns don't kill people, being a faggot kills people.

(As a side note, it will be interesting to see whether social-conservative groups decide to highlight this case as an example of how liberals are perverting and endangering our kids, or will rightly recognize that the lawsuit itself, rather than the conduct of the defendants, is what will appall most people.)

For good measure, though, the King family did include a claim against King's murderer.

Protecting our children

2009-02-26T17:45:00.000-05:00

Via Feministe: despite promises from Democrats, the proposed Omnibus Appropriations Act retains most funding for ineffective abstinence-only education. Click here to tell Congress to stop funding this nonsense.

Meanwhile: Waking Vixen asks why, when minors involved in prostitution are apparently being treated more leniently than adults, minors who produce their own amateur pornography are treated more hashly than adults. It seems the same concerns would apply to both situations involving possible coercion, later effects of the fact of involvement on the minor's life, and the possibility of feeding a market that promotes abuse of minors generally are applicable in both contexts.

WV's post is prompted bythe FBI's recent arrests in various cities of a large number of adult sex workers and their clients, which is being touted by the FBI as part of a campaign against child prostitution.

Miscellaneous updates: LGBT equality abroad

2009-02-25T15:38:00.000-05:00

hunter of justice says there's "a bona fide trend underway" - not just of lgbt rights activism and advances in Latin America, but of North American attention to those struggles, which have been underway for years now.

TransGriot has recently posted about efforts and advances for transgender equality in Korea, China and the Middle East.

Bilerico bloggers note that the U.S. has made an about-face on a United Nations resolution condemning sexual orientation discrimination, and that gay-affirming speeches at the Oscars were censored in international broadcasts.

Evidence, the First Amendment, and 2257

2009-02-25T09:42:00.001-05:00

Aside from the observations in my previous post, one thing that stands out about the en banc opinion in Connection Distributing Co. v. Holder (PDF) is its repeated demands for evidence to substantiate the plaintiffs' First Amendment claims. The dissenters spend much of their ink explaining why the court's evidence-focused analysis is inappropriate for a First Amendment challenge such as this one. In my view, the en banc majority's approach is not only inconsistent with First Amendment principles; it also seems to discriminate against sexually non-conforming speakers - here, as Judge White puts it in dissent, "all adults who desire in any fashion to create, share, or disseminate non-obscene, sexually-explicit depictions of themselves, or other adults, without relinquishing their anonymity." I will attempt to summarize.

Evidence re: enforcement. As Judge Kennedy discussed as length in dissent, it is most improper for the court to base its ruling in large part on the fact that 2257 has never yet been enforced in the settings at issue in this case. To uphold a law because its most dubious applications have not been enforced turns First Amendment law on its head. As Kennedy writes, "A very purpose of the overbreadth doctrine is to invalidate those law whose statutory language gives such sweep that law enforcement can selectively enforce the law on the basis of the speech’s content." Moreover, it is a cornerstone of the law that unenforced laws, especially vague or overbroad ones, promote an unacceptable self-censorship.

Evidence re: the adult entertainment industry. The court relies on the Meese Commission report and some general statements in the record to conclude that most pornography involves adults who are sufficiently youthful that they could readily be mistaken for minors. Relying on this broad generalization, it concludes that to the extent 2257 is overbroad in its application to material where performers/models are clearly of age, that overbreadth cannot be "substantial" because it is so rare for adults over, say, 25 to get in front of the camera. The court continues "Connection has not pointed us to any" adult publication featuring exclusively mature or middle-age adults, "and has not introduced any evidence showing that this...situation even exists." Although I will not link to any here to protect your delicate sensibilities, one need hardly be a dedicated porn collector to be aware that such publications, and videos, and websites, do exist.

Moreover, even acceping the dated and politically rigged Meese findings, they concern solely professional, commercial pornography. The majority accepts that 2257 applies to noncommercial speech, and it hardly needs to be proved that following recent leaps in digital technology there is a lot of amateur and/or noncommercial pornographic speech going on, which cannot simply be presumed, absent evidence, to match trends of the porn industry in the 1980s. Which brings me to a third point.

Evidence re: existence and prevalence of variant sexual speech.The court complains that "the record is utterly barren about whether some, many, indeed any, American couples are affected by [the] application of the statute [to home production of explicit materials for private use]-and, if so, in what ways." This line may have made more sense before the invention of the digital camera, or indeed the Polaroid camera. Does the court really need a record to show that anyone engages in home production for their own use? Moreover, the court has before it, in addition to Connection, an anonymous swinger couple who wished to publish explicit personal ads with home-produced images in Connection's publications. Surely it's hardly a leap from "this form of middle-aged sexual expression," as the court terms it, and one in which similar couples take sexy pictures but don't seek to publish them in a swinger mag.

The point of all this, I think, is that the court wouldn't require evidence that a potentially broad category of speech even exists in other First Amendment contexts. As Kennedy points out: "The Supreme Court has never done this." I don't think this is purely result-oriented, however. I think it is a specific reaction to sexual variance: to some jurists, variant sexualities are a mysterious black box, the contents of which are generally assumed not to matter or even exist unless proven. This suspicion is reinforced by the following statement dismissing swingers' privacy concerns regarding 2257:

It may be that there are advertisers in Connection's magazines who have greater privacy concerns about revealing their identities to law-enforcement officers for the limited purpose of confirming their age than about revealing their identities to unknown inquirers for the purpose of facilitating a liaison. But the question is whether such individuals would have a cognizably reasonable basis for suppressing their communications in this setting, and that is something Connection's affidavits and evidence do not support.

The court finds it unimaginable, absent proof, that people who engage in recreational sex with new acquaintances could possibly be concerned about disclosing their identities and activities to non-swinger government officials. The court also demands proof of what Judge Moore, in dissent, finds obvious: "Revealing one’s sexual tendencies to the government is very different from revealing these tendencies to someone who has been chosen and pre-screened and is known to share these same tendencies." Whoever these strange people are, the court finds them incomprehensible, and demands proof that they exist and that there is any rhyme or reason to what they do. As Judge Moore recognizes, the result is a baseless imposition of the 2257 requirements on a sizeable American subculture to which there is virtually no reason to apply it.

2257 upheld: swingers have no privacy interests?!

2009-02-22T19:47:00.000-05:00

The full Sixth Circuit on Friday rejected a constitutional challenge to tough federal record-keeping requirements (PDF) for sexual imagery in print and online, on a partisan 11-6 vote.

A panel of the appeals court held the Section 2257 law unconstitutional in 2007. But in the ideologically polarized, conservative-dominated Sixth Circuit, a grant of en banc review almost invariably means a very conservative ruling – in this case, written by archconservative Jeffery Sutton. AVN has a quicky sketch of the case, which was brought by a small magazine that publishes explicit personal ads for swingers.

Some general observations:

The court considers 2257 to be a “content-neutral” law subject to “intermediate” scrutiny. This is because, although the law clearly is based on content, it is also aimed (ostensibly) not at content itself but at fighting child pornography. This part of the ruling is arguable but quite plausible; it gets worse from here.

Sutton is baldly derisive of the swingers who submit their pictures to the plaintiff publication and their interest in the privacy of their identities. “To the extent the advertisers are concerned that the law gives the government access to their names, addresses and other identifying information,” he writes, “they haveo more to complain about than every taxpayer in the country.” The difference being, of course, that IRS records – unless you're taking some very unusual deductions – generally don't attach your identity to your sexuality. Regardless, Sutton appears to believe that swingers don't actually have privacy interests, because:

Under § 2257, it is true, the government has access to these images and the identities of the individuals for the limited purpose of ensuring they are of age. But under Connection’s business model, so potentially does the rest of the world. The essence of the company’s service is to facilitate non-platonic connections between anonymous advertisers and anonymous subscribers, something it does by giving advertisers the opportunity to respond to inquiries they have solicited and by giving advertisers the opportunity to lift the veil of anonymity, to say nothing of other veils, to these unknown inquirers.

You've got to be kidding me. Because these people engage in casual sex, we assume that they have no sense of privacy whatsoever? That's what Judge Sutton seems to think; he goes on to say that maybe some of these people are more concerned about being outed to the feds than to other swingers, but there's just not enough evidence. This is a classic sexphobic move: sexually unconventional people, because they transgress certain normative sexual boundaries, are assumed to have no boundaries whatsoever.

In keeping with this sexphobic theme, the decision repeated relies on factual findings from the notorious and discredited 1986 Meese Commission on Pornography Report, for example to suggest that pornography almost invariably features very young adults and that there is a serious danger of minors ending up in what is marketed as adult pornography. Even if we take these findings at face value, they were made before the adult entertainment industry itself undertook strong and ongoing efforts to combat child pornography and keep minors out of porn.

Legally speaking, Sutton focuses on 2257 as an age-verification system, and largely ignores the burdensome how-when-where details that are at the heart of objections to the law. This may be because the plaintiffs focused on the argument that age verification shouldn't be necessary when material involved individuals who are clearly not young. Interestingly, though, even Judge Sutton admits that "the law would have difficulty withstanding an as-applied attack by a mature-adults-only magazine that included photographs only of readily identifiable mature adults." The decision also entertains the possibility that the law might be invalid as applied to private individuals producing material for their private enjoyment. In addition to these possibilities, the decision does seem to leave room for a variety of attacks on the devilish details of 2257.

On the other hand, the court holds that these aspects and applications of the law have to be challenged piecemeal -- that the law is not so clearly invalid in so many situations that it should be struck down altogether. And (contrary to the argument of at least one 2257 defender), the court agrees that 2257 does apply to the noncommercial material.

These points and others are covered in the four cogent dissenting opinions. I'll have more to say in another post about the court's questionable approach to questions of evidence, both regarding the impact of the law and the sexual expressions it affects, and how it is in tension with First Amendment principles and reflects the court's sexphobia.

South Carolina vs. the Lion('s Den)

2009-02-10T12:57:00.000-05:00

The courts are full of litigation over the validity of numerous state and local laws regulating the existence, locations, hours, and advertising of sexually-oriented businesses of all kinds. This litigation has produced its own body of law and legal cottage industry, and is ably chronicled by blogs such as The Legal Satyricon and Meeting the Sin Laws. I post about this particular case not because it breaks new legal ground but because it explans a phenomenon I have often wondered about on my cross-country road trips: the Lion's Den highway signs.

The Lion's Den is one of the biggest chain stores selling pornography and sex toys in the US. Toys in Babeland they're not, and their unpretentious stores – perhaps catering to the truck-driving profession – are often located in rural and small-town areas alongside major highways. If you live in the eastern US, you've probably seen these signs. Sometimes they look like the one pictured here: big bold black and yellow text right by the roadside. But in many locations you won't see signs like these. Instead, you'll see a ridiculously tall pole emanating from somewhere off the highway, with a little sign that reads only: “ADULT.” It takes a moment to realize that these signs are actually on the store premises, but are built tall enough to be seen from the highway. (You can imagine the fun I had searching, without success, for a photographic example. It included the gem: "Adult World: Don't Forget Mom on Mother's Day.")

Why? Because some places, like South Carolina, forbid roadside advertising for anything to do with sex. No matter that the billboards contain nothing but euphemistic text; if it's “adult,” it can't be advertised on the highway. The on-premises signs are the Lion's Den's loophole.

Such silly laws have been challenged before - for example, Missouri's was struck down in 2006, and Georgia's in 1998 - and South Carolina's is on its way out. It was passed in 2006 and would have required all existing signs to be eliminated this month, but a federal district court this month entered an injunction to stop the ban going into effect. Carolina Pride, Inc. d/b/a The Lions Den v. McMaster, 2009 WL 238206 (D.S.C. Jan. 30, 2009).

The court rejected a series of justifications by the state that rise, or perhaps sink, to the level of entertainment. Their first justification is old hat in billboard-related cases: the signs will dangerously distract drivers, "including easily distracted teenage drivers." The court says, in effect, please. We're not talking about the billboards for Dejavu Showgirls in my native Louisville, Ky., which pretty much show you what they're advertising. Just text here, folks - and that's about as likely to distract drivers as "any other road signs which may cause the driver to begin thinking of something other than the road ahead (which is, of course, the purpose of all billboards)." The court also said that the law wasn't justified based on the perceived risk that the signs would attract minors to the stores. The court notes that this would only be a problem if they managed to get into the store, which the store is not supposed to let them do.

The court also rejected a couple of particularly amusing arguments, starting with the danger that parents might, Heaven forfend, have to explain to their kids what these signs are for. The court said:

In the modern age, parents are often required to limit their children's access to inappropriate materials including radio and television programs, books, videos and even certain articles (or advertisements) in newspapers in which a child might see announcements.

But my favorite part of the opinion deals with the state's attempt to invoke the harmful "secondary effect," of adult businesses. Most regulations of adult businesses are premised on the secondary-effects doctrine, which essentially blames porn shops and strip clubs for increasing all manner of criminal activity in the surrounding area. It's hard to tie this to advertising, but the state gives it a go, saying that the Lion's Den signs attract "transient customers who have a higher likelihood of committing criminal offenses in the surrounding areas." The court's reply:

At oral argument, defense counsel repeatedly used the term “transients” to refer to those non-local persons traveling the public highways who might visit an adult business. In other contexts, South Carolina officials refer to non-residents who may spend money in the State as “tourists.” Tourism is, in fact, heavily encouraged by the State through, inter alia, the State's current standard license plate which bears the motto “Travel2SC.com .”

Since it's only a preliminary injunction, of course, the State of South Carolina will have the opportunity to spend more taxpayer dollars trying to scare up evidence, or whatever it wants to try to pass off as evidence, to change the court's mind.

Deputy AG nominees attacked for defense of porn

2009-02-09T11:43:00.001-05:00

I've previously blogged about the uncertain future of federal obscenity prosecutions, which increased sharply under the Bush Administration. Although based on general ideological leanings we would expect a decline in such activity in favor of fighting real crime, I also noted that both Attorney General Eric Holder and Solicitor General nominee Elena Kagan have in the past advocated for more vigorous enforcement of laws against pornography.

Now, conservative groups are attacking Deputy AG nominee David Ogden for his past work defending adult publishers and filmmakers, as well as defending reproductive rights. Both are causes Ogden has been heavily involved in over the years in a number of high-profile cases, and cultural conservatives are hopping mad that this ally of what they call "Big Porno" (no, really) will be second in command of the Justice Department. AVN has a good summary of Ogden's controversial civil-liberties resume. (As always with AVN, beware of NSFW ads.)

Mass. Supremes: Boy can challenge gender bias in statutory rape charges

2009-02-09T09:32:00.000-05:00

The highest court in Massachusetts held 3-2 [erroneously reported earlier as 5-2] that a teenage boy charged with statutory rape may force the government to turn over evidence that might help him claim gender bias. The case is essentially one about criminal procedure, and specifically what criminal defendants must show to be entitled to challenge their prosecution based on a claim of selective enforcement of any kind - but it also raises questions about who prosecutors decide to charge, and why, when underage youth have sex and all parties are apparently breaking the law.

The boy, 14, was charged with statutory rape involving three girls, all about age 12. He claims that he engaged in consensual oral and manual sex with each of the girls, and that the only apparent basis for choosing to prosecute him and not the girls was gender. The majority found that he was entitled to have the prosecutor turn over information that might prove that claim, specifically data about the gender of persons under 16 who were charged with statutory rape in the past. It was enough, at this stage, for the boy to point to the apparent discrepancy in his own case. The dissenters said that the age and grade differences here were plainly a legitimate basis for charging only the boy.

Edit: From the facts of the case this certainly doesn't look like the best test case to raise questions about gender bias. In addition to the age gap, there are facts in the court's opinion that suggest that at least one of the girls here may have felt pressured to engage in sex.

The case now goes back to the trial court for discovery, and the boy's lawyers will have to see if they can use the prosecutor's data to show a pattern of gender bias in statutory rape prosecutions.

H/t How Appealing. Press coverage of the case appears here and here.

The 9th Circuit internal benefits decisions

2009-02-06T14:01:00.001-05:00

Thought I'd say a little bit more about the 9th Circuit employee benefits decisions I mentioned yesterday. Again, these are decisions by individual 9th Circuit judges, sitting as hearing officers in an internal court employee dispute, so they have no precedential value. Basically, the court's benefits administrator denied coverage for these employees' spouses, and individual members of the court were assigned to resolve the disputes. In both cases, the judges granted benefits to same-sex spouses - Judge Reinhardt on constitutional grounds, and Chief Judge Kozinski on statutory grounds.

No mention of Prop 8. As Arthur Leonard notes, both cases involve California couples, and both judges silently assume the present validity of their marriages.

Curiously, neither opinion mentions Prop 8 and the controversy over whether it retroactively invalidates the marriages performed during the window of opportunity. Even more curiously, in light of Kozinski's desire to avoid the constitutional question, he doesn't take advantage of Prop 8 to either put off deciding the grievance until after the California Supreme Court rules on Prop 8's validity..., or even to say that although the marriage in his case may have been valid when the grievance was filed, it is no longer valid so the case is moot.

Reinhardt's decision. Considering whether the exclusion of same-sex spouses from benefits violated the court's Equal Employment Opportunity plan, Reinhardt quotes at length from the California Supreme Court's Marriage Cases decision: exclusion of same-sex spouses is facial discrimination. This, he says, brings us to DOMA. He says that in view of Witt, it is likely that some form of heightened scrutiny applies, but he doesn't go there because the law fails rational basis review. He concludes that the application of DOMA to federal benefits is blatant discrimination without any rational basis, on much the same grounds as the state-court marriage decisions.

Kozinski's decision. While Reinhardt thought the federal benefits statute clearly limited benefits to spouses recognized under DOMA, Kozinski took the view that the law allows agencies to provide benefits for other unspecified family members, including same-sex spouses. He favored this interpretation in part because it allowed him to avoid the constitutional question. Kozinski does discuss the constitutional implications of the case, but as conservative gay law prof Dale Carpenter put it, his comments are "intriguing without committing him to anything." Kozinski wrote:

...If I were to interpret the [federal benefits law] as excluding same-sex spouses, I would first have to decide whether such an exclusion furthers a legitimate governmental end. Because mere moral disapproval of homosexual conduct isn't such an end, the answer to this question is at least doubtful....

Whether DOMA's sweeping classification has a proper legislative end, or whether it reflects no more than an invidious design to stigmatize and disadvantage same-sex couples, is a hard question. The inquiry conducted by the Court in [a leading precedent involving a housing law designed to disadvantage Blacks] into the history and context of the California law was searching and careful, and to conduct a similar inquiry of DOMA would be a delicate and difficult task.

A separate line of authority would also require me to determine whether DOMA impermissibly punishes homosexuality. ...Though [the] facts [of Lawrence v. Texas] are narrow, its reasoning and the potential scope of its holding are broad....The effects of Lawrence and Witt on a discriminatory benefits law are far from clear.

So Kozinski recognizes that there are multiple plausible bases for challenging DOMA, and that justifications typically advanced for it are far from slam-dunks.

The decisions are terse, as befits their nature as resolutions of internal disputes. We could expect much more searching analysis from both these judges in the context of actual litigation. Nevertheless, here we clearly have two federal judges, a notorious Carter-appointed liberal and a prominent Reagan-appointed conservative, both of whom have serious concerns about DOMA.

Hopefully, we will continue to see an absence of federal lawsuits challenging DOMA - whatever the 9th Circuir might say, I don't think I want the current Supreme Court deciding these issues. Instead, I hope these decisions encourage federal agencies to employ an expansive interpretation of eligibility for federal benefits, until such time as DOMA is repealed.

Best wishes to Justice Ginsburg, & more

2009-02-05T15:31:00.001-05:00

Justice Ruth Bader Ginsburg had surgery today for early-stage pancreatic cancer. She hopes to be back on the bench when the Court's current recess ends in three weeks. Ginsburg is often the strongest voice of justice and equality on the Court, and we should all hope for her speedy recovery. SCOTUSblogger Tom Goldstein warns that we shouldn't be rushing to predict her retirement (or worse).

In what appears to be a national first, two lawyers who work for the U.S. Court of Appeals for the Ninth Circuit will get health insurance coverage for their same-sex spouses. This is the result of internal court orders by liberal lion Judge Stephen Reinhardt and conservative Chief Judge Alex Kozinski, both sitting as hearing officers on internal employment disputes. At a glance, it seems that Reinhardt concluded that the Defense of Marriage Act (DOMA) is unconstitutional as applied to employee benefits, while Kozinski avoided the constitutional question by interpreting the statute governing federal benefits to permit coverage for non-spouses. These decisions do not create judicial precedents, but Lambda Legal rightly told the press that "they will become part of our national conversation about fairness and equality for same-sex couples." Right-leaning prof Eugene Volokh summarizes the decisions, and is skeptical that they can be justified without overturned DOMA as a whole.

The Washington Post today discusses how Obama has been trying to work both sides of the fence on reproductive rights, so far drawing big praise and sharp criticism on both sides. His record so far: Rick Warren (boo); reversing the Global Gag Rule (yay); releasing a measured statement praising the anniversary of Roe v. Wade (small yay); pressing Dems to remove from the stimulus package a measure making it easier for states to cover contraception under Medicaid (boo); stating he hopes to reintroduce the Medicaid measure as part of a later bill (yay). As with his stances, and so far his inaction, LGBT equality issues, it will take some time to tell whether Obama is currently being wishy-washy or just laying the groundwork for bigger issues in a politically savvy way.

Oh, and the New York Times reported recently that "The Myth of Rampant Teen Promiscuity" is, well, a myth. So much for my next bestseller. Of course, the NYT has its own sexual issues.

Time for a new approach to human trafficking

2009-02-04T16:49:00.000-05:00

Melissa Ditmore and Andrea Ritchie of the Urban Justice Center's Sex Workers Project have a great new post up at RH Reality Check. The post is based on the Project's new report: "Kicking Down the Door: The Use of Raids to Fight To Fight Trafficking in Persons":

We found that while there have been some successes, raids are generally an ineffective anti-trafficking tool, and in many cases are harmful to people who have been trafficked. Trafficked women reported that they were repeatedly arrested, in some cases up to ten times, in police raids on brothels and other sex work venues, without ever being identified as trafficked. ...
The Obama administration has the opportunity to reassess this failed federal approach to human trafficking. The recent passage of federal anti-trafficking legislation championed by Vice President Joe Biden offers a fresh start - and a chance to avoid repeating the mistakes of the past.
A good first step would be to move away from high-profile, resource-intensive and largely ineffective raids and to address the economic and social circumstances that increase vulnerability to trafficking....Expansion and targeted enforcement of labor laws in [sectors where trafficking flourishes] would not only go a long way toward locating, identifying and assisting trafficked persons, it would also protect the rights of all workers.

For the long term, strategies led by individuals and communities with knowledge of and access to trafficked people are far more likely than raids to meet with success....
Trafficking victims by definition have sought opportunity in the United States only to find themselves in coercive and abusive situations. We owe it to them to find better ways to locate, identify and assist them, and to develop anti-trafficking initiatives that prioritize their needs, choices, and self-determination as human beings. A good way to start would be to extend a helping hand that is not also holding a gun.

As I've noted in this blog before, the Sex Workers Project is doing some truly outstanding advocacy.

Another step the Obama administration could take would be to re-examine the equation of prostitution with trafficking under various provisions of federal law, including in restrictions on international aid. Some of these policies make providing life-saving services to sex workers more difficult, and distract from the serious problem of human trafficking.

Miscellaneous updates: civil rights at home and abroad

2009-02-02T19:44:00.000-05:00

Maybe you've heard about the Maryland State Police spying scandal. Basically, in 2005-06 the state police were spying on a number of peace, anti-death penalty and other progressive grassroots groups in the state, on the pretense that they were a security threat. Turns out that among those groups was Equality Maryland - yes, a bunch of LGBT lobbyists in suits were deemed a security threat.

And speaking of witchhunty goings-on, remember U.S. Attorney Leslie Hagen, who was fired from the Bush Justice Department for being a lesbian? Well, the DOJ has finally filled her position by hiring -- Leslie Hagen. How's that for change?

Colombia's highest court has held that the South American nation must provide government benefits to same-sex couples on the same footing as heterosexual married couples. No translation of the opinion is as yet available, but hunter of justice excerpts a statement on the ruling from Colombia's leading LGBT rights group. Leonard Link - which always has excellent coverage of LGBT and HIV issues in immigration and asylum law - has a thoughtful discussion of the ramifications of this decision for asylum seekers. The issue is an interesting one because, like South Africa, Colombia has seen robust recognition of constitutional rights for sexual and gender minorities, and at the same time continues to see persistent, widespread homophobic violence. Meanwhile, Constitutional Law Prof blog notes that this is not the trailblazing decision from this court on matters of gender and sexuality; in the 1990s the court rendered a series of decisions placing limits on genital reconstruction surgeries for children born with ambiguous genitalia.
[Yes, Colombia was initially misspelled as "Columbia." You would, of course, expect this sort of thing from Columbia.]

Meanwhile, Bolivian voters have endorsed a new constitution. The new document is most notable for seeking to give more rights to indigenous people, and for allowing President Evo Morales to run for another term. But it's also notable that unlike the former constitution, the new one does not contain bans on abortion or same-sex marriage - absences which angered some Catholics. Indeed, the new constitution apparently bans discrimination on the basis of sexual orientation, which some think could lead to rulings in favor of marriage equality. This looks like another case of LGB civil rights benefiting from broader political changes led by a coalition that happens to favor equality, even though there is far from a broad national consensus on equality issues.

Does an anti-porn documentary violate federal law? (cont'd)

2009-01-31T13:54:00.001-05:00

Way back in November, I blogged about then-brewing blogtroversy over a new agitprop film, which argues that pornography is harmful to society. Particularly interesting to me was contention over whether the film, which contains copious excerpts from commercial porn films, violates the federal recordkeeping requirements for pornographers, known as Section 2257. I promised to take a close look at this legal question - but I didn't get around to it until now. Better late than never.

The basic duty. The core of the law, 18 USC 2257, is this:

Whoever produces any ...film [or other media] which contains one or more visual depictions ...of actual sexually explicit conduct...shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Seems pretty straightforward. And the definition of "produce" in the law is very broad indeed. It includes:

digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct...

This clearly covers "secondary producers" who repackage content originally created by others - including documentary filmmakers. I therefore think it's reasonably clear that 2257's recordkeeping duties extend to the makers of a film like The Price of Pleasure.

"Fair use" does not apply to 2257. I have encountered three arguments to the effect that 2257 does not extend to this film. The first is that the film constitutes a "fair use" of the explicit images that is permitted by law. This is something of a non sequitir, since the "fair use" defense applies only to the law of intellectual property - as reflected by the fact that the film begins with a "Fair Use Notice" that references the US Copyright Act, and not 2257. It is fine so far as it goes - the makers of The Price of Pleasure should be safe from an infringement suit by the pornographers whose work they excerpt - but is irrelevant to 2257. Nor is there reason to expect that courts would impose a "fair use" exception to 2257 based on the First Amendment, since the fair use doctrine was developed to balance the competing interests that arise in IP disputes; the court has never referred to it in discussing the regulation of child pornography, which is the basis for 2257.

Is there an "obscured genitals" exception? A second argument is that 2257 does not apply because the documentary digitally obscures the naughty bits of performers in the various porn films it excerpts, thus rendering it no longer "sexually explicit." This argument has a superficial appeal, but doesn't seem to comport with the relevant statutory definition, which is:

“sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;

18 USC 2256(2)(a). Notably, the law contains another, different definition of sexually explicit conduct that applies where minors are involved - and that definition specifically employs the word graphic, defined to mean that "a viewer can observe any part of the genitals or pubic area of any depicted person ...during any part of the time that the sexually explicit conduct is being depicted." This is a broad definition of graphic, but presumably would exclude consisent obscuring of the genitals. It is significant, therefore, that the term graphic is not employed in the definition that pertains to material not involving minors. I think it is relatively plain, therefore, that the term sexually explicit conduct (as applied to material involving only adults) includes depictions that are partially blurred. Sexual intercourse or masturbation is still sexual intercourse or masturbation.

But what if we concentrate not on sexually explicit conduct but on the term depicts? Is this conduct still being depicted if naughty bits are obscured? Neither the law nor any regulation defines depicts. Dictionary definitions of the term are somewhat circular: decpict means represent means portray means make a picture of means depict. It is at least arguable that depict is ambiguous as to whether it includes an obscured representation. But there are two reasons why I think it should :
(1) In common usage, I think we would say that a film does depict something even part of the thing being depicted is obscured, whether by shadow or by digital effects, where it is in fact a film of that thing and identifiable as such.
(2) If depict were defined more narrowly, it would make the use of the term graphic elsewhere in the statute largely, perhaps entirely, superfluous. One traditional rule of thumb is that a statute should not be interpreted in such a way that part of it is superfluous. If Congress used narrower language in one part of the law and not another, it clearly meant for them to be interpreted differently, and reading depict narrowly would seem to negate this.

Of couse, the fact that 2257 is a criminal statute, and the fact that it places restrictions on speech, are two factors suggesting that it should be generally be construed narrowly. And since I think 2257 is generally a flawed, overbroad statute, I would be happy for it to be interpreted as narrowly as possible. But I think it is fairly likely that 2257 does cover films with the naughty bits obscured - certainly likely enough it would be unwise not to try to comply.

Is there an educational exception? A final argument is that The Price of Pleasure is exempt because it is an educational film. This is based on the language of federal regulations, which state:

Sell, distribute, redistribute, and re-release refer to commercial distribution ...but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.

28 CFR Part 75(d).

At first glance, this might seem to create a broad exception for educational materials. But it doesn't, for a couple of reasons. Let's assume that the distributor of this film is in fact a "bona fide...educational organization" - it is in fact distributed by the Media Education Foundation, apparently an educational non-profit. And let's also assume that educational distribution here can include charging a fee, i.e., selling, while still falling into the exception - the "noncommercial or" would seem to suggest as much. That means the film is not covered by 2257(f)(4), which criminalizes the sale or distribution of covered material without a 2257 compliance notice (stating where age verification records are stored, etc.) And, let's assume that the regulation itself is reasonable and valid, even though a federal appeals court has stated that under the statute itself, "The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers." (This from a panel of the Sixth Circuit, which went on to hold 2257 unconstitutional in at least some sitautions. The decision has been vacated for rehearing by the full Sixth Circuit. For more on the case, see this article.)

So far, so good. But there is no textual basis for this regulatory exception to apply to 2257(f)(1) through (3), which make it a crime to produce covered material that later gets sold without including compliance notices and actually creating and maintaining accurate records. In other words, the exception seems to mean that the distributor, MEF, is in the clear - but it doesn't seem to be of any help to the filmmakers, who would still violate the law by failing to create and maintain records, and to include compliance notices.

Summing up. The above analysis is by no means exhaustive - this is a blog, not a law review - but I think it is enough to suggest that the producers of a film like this have serious reason to think they are required to comply with 2257. In other words, it's well within the CYA margin. If requiring documentary filmmakers to document the ages of performers in their source material seems impractical, even absurd - and to maintain an address where government officials can drop by anytime during business hours for the next several years to check those records - well, that's because 2257 is a badly written law. It takes the Mom-and-applie-pie premise of keeping minors out of pornography and takes it to absurd and, in some cases, likely unconstitutional lengths.

Illinois refusing to recognize gender transitions

2009-01-30T18:00:00.000-05:00

Not all of them - but a lot of them. Like most states (but not all - no thanks to you, Ohio, Idaho and Tennessee), Illinois has a law that entitles individuals to an amended birth certificate following gender confirmation surgery. I have argued elsewhere that this surgical requirement is unnecessary and unjust, because it imposes serious hardships on a large number of otherwise eligible individuals. However, requiring proof of surgery is presently the law in most places (with the United Kingdom and Spain being notable exceptions).

Well, the folks at the Illinois Department of Vital Statistics have found a way to deny birth certificates to even more people. Contrary to decades of prior practice, they've decided that you can only get an amended certificate if your surgery was performed in the United States. Two Illinois women, represented by the ACLU, are suing to change that policy.

See, due to the immense cost and other practical reasons, a very large proportion of Americans go abroad for gender confirmation surgery, with the largest number of them going to Thailand. By denying new certificates to folks in their situation, the Department can take the already limited number of transgender people who qualify under the state law and cut it about it half. The plaintiffs in the lawsuit, Victoria Kirk and Karissa Rothkopf, had their procedures performed and certified by a well-known Thai surgeon. Their legal arguments are threefold:

The Department is twisting the statute, which refers to physicians licensed in Illinois or "any other state." "State" is often used to include foreign nations, and this is how the law has been interpreted for decades. This makes perfect sense, since Illinois's law is the oldest in the nation, and when it was adopted in the 1950s, these procedures were not available in the United States.
The Department is drawing an arbitrary line between applicants treated inside and outside the U.S., thereby violating the Equal Protection Clause. The Department simply has no rational reason for discriminating in this way. Moreover, once an individual has surgery abroad, it's not as though they can do it again in the U.S. - they are stuck, for life, with the wrong identification because their physician was in the wrong country.
By essentially dictating where individuals may have their procedures performed, the Department is impermissibly interfering with individuals' right to private medical decision-making.

All these arguments strike me as relatively strong ones, particularly given the long-standing prior practice of the state, which sharply undermines any contention that the current policy is necessary. Notably, the suit does not assert a constitutional right to legal recognition of gender change per se. Such a claim is not necessary to challenge this discriminatory policy, and - although there are very strong arguments to support such a right - it will have to wait for another day and a better vehicle than this one.

Best of luck to Ms. Kirk and Ms. Rothkopf, and kudos to the Illinois ACLU.

Icelanders get cold comfort in a world first

2009-01-28T23:07:00.000-05:00

Well at least something good has come of the economic meltdown and consequent political shake-up in Iceland: the world's first (out) lesbian head of state. Johanna Sigurdardottir will be the nation's interim prime minister, following this week's collapse of the government there (though her term will likely be shortlived). For the sake of her country's troubled economy as much as for the milestone she sets, we should all wish her the best of luck.

Starting this week, viewing porn a crime in UK

2009-01-28T10:39:00.000-05:00

I blogged in May about the UK's newly adopted law criminalizing the possession of so-called "extreme pornography." On Monday the law went into effect. You can now be sentenced to up to three years imprisonment in the United Kingdom for viewing, on your home computer, an ill-defined category of images that includes depictions of consensual adult sadomasochism. Small consolation: law enforcement say they aren't going to go out of their way to enforce the law.

As I noted before, the law relies heavily on a decade-old British court ruling that permitted consensual sadomasochism to be charged as assault. That ruling was upheld by the European Court of Human Rights, but it was based on sensational and distorted facts and has been unevenly applied in subsequent cases. The new law raises once again the scope and validity of that ruling, as well as serious concerns about free expression. No word yet about a legal challenge to the law, but it can be expected to eventually reach the British courts, and ultimately the European Court.

Lutheran high school can expel lesbians

2009-01-27T10:34:00.000-05:00

The California Court of Appeals so held yesterday. Doe v. California Lutheran High School Ass'n, 2009 WL 161869.

Defendants successfully contended that they were not a "business" subject to California's antidiscrimination law, because their high school was private, nonprofit, selective, and focused on religious education. Though the boundaries of what kinds of private entities are exempt from antidiscrimination laws can be a difficult one, it is undeniably a line that needs to be drawn somewhere, and it is hard to find fault with the court's ruling on that ground. (Note that this is a quite different question from whether entities that clearly are businesses can claim a religious exemption - the California Supreme Court has clearly said they cannot.)

All that said, the California Appellate Report comments:

I know that if I taught at a private high school -- say, for example, the California Lutheran High School in Wildomar -- I'd definitely spend my valuable time looking up the myspace pages of all the female students in my class to see if any of them said that they were bisexual or in love with another female student.

Yes, and if I were the principal of said high school, and a teacher discovered that two female students had in fact so identified themselves, I'd definitely call them into my office and interrogate them about whether they had a consensual lesbian relationship. And if they admitted that they had, in fact, kissed each other and felt that they were in love, you can be darn sure that I'd expel them. 'Cause, sure, we've had male students who used drugs or alcohol and stuff like that who we've only given, say, temporary suspensions to. But a teenage woman questioning her sexuality and -- gasp! -- maybe being a lesbian?! The horror. We're definitely kicking you out.

And that about says it all.

Me on the SG nomination, the courts, and health care

2009-01-26T11:48:00.000-05:00

Though not directly related to the usual topics of this blog, I can't resist announcing two things I've coauthored, both appearing today:

A commentary for the National Law Journal: The Solicitor General's Office: Course Correction Needed
An Issue Brief for the American Constitution Society: The Supreme Court’s Two-Front War on the Safety Net: A Cautionary Tale for Health Care Reformers

Since both of these were written on the clock, it's probably worth reiterating here that this blog does not express the views of any organization.

Miscellaneous updates

2009-01-26T09:19:00.000-05:00

The Pittsburgh Post-Gazette reports on the upcoming trial in U.S. v. Extreme Associates, with the headline: "Obscenity case begs question: Whose standard? Extreme Associates trial may be catalyst for change." (H/t How Appealing.)

Womanist Musings discusses the invisibility of Black LGBT people and looks at some relevant data. Notably, the post points to one survey showing that among Black LGBT folks, relationship recognition ranks third as a movement priority, after tackling HIV/AIDS and hate violence. (H/t Feministing.)

hunter of justice decries the lack of any openly LGBT federal judges at the appellate level, and reports on a gay British judge's revelation that he was subjected to veritable witch hunt when he first sought appointment in 1994.

Greta Christina asks why, under the First Amendment, we treat sex differently from, well, everything else.

Sex in the Public Square notes that Sweden's National Board of Health & Welfare has eliminated the classification of gender variance, BDSM and sexual fetishes and psychological disorders. Sweden is also set to allow same-sex couples to marry come Spring. So I'll forgive the Swedes, for the moment, their flawed approach to reforming prostitution laws.

On the Media does teens and sex online

2009-01-24T15:10:00.000-05:00

WNYC's On the Media -- one of my favorite radio programs -- has two very interesting stories this week about teens, sex, the Internet, and public policy.

The first story reports on the findings of a government-sponsored task force on the risks teens face online, which defies the expectations of some. Convened at the behest of 49 state attorneys general, the Internet Safety Technical Task Force released its final report this month. From the executive summary:

[Research based on cases brought to the attention of law enforcement] found that cases typically involved post-pubescent youth who were aware that they were meeting an adult male for the purpose of engaging in sexual activity. ... Youth report sexual solicitation of minors by minors more frequently, but these incidents, too, are understudied, underreported to law enforcement, and not part of most conversations about online safety.

And from the body of the report:

Sexual solicitation and predation are serious concerns, but the image presented by
the media of an older male deceiving and preying on a young child does not paint an
accurate picture of the nature of the majority of sexual solicitations and Internet-initiated offline encounters; this inaccuracy leads to major risks in this area being ignored. Of particular concern are the sexual solicitations between minors and the frequency with which online-initiated sexual contact resembles statutory rape rather than other models of abuse.

On the subject of online pornography:

The Internet increases the availability of harmful, problematic and illegal content, but does not always increase minors’ exposure. Unwanted exposure to pornography does occur online, but those most likely to be exposed are those seeking it out, such as older male minors.

The main conclusions from the report: "the risks minors face online are complex and multifaceted and are in most cases not significantly different than those they face offline, and that as they get older, minors themselves contribute to some of the problems." The report specifically notes that bullying and harassment, "most often by peers, are the most frequent threats that minors face, both online and offline." It also says that on all fronts, the kids most at risk online are the one most at risk offline: "The psychosocial makeup of and family dynamics surrounding particular minors are better predictors of risk than the use of specific media or technologies. "

In other words, stop the panic. Crime can happen anywhere, and parents should be aware of what their kids are up to, but the Internet is not going to eat your children.

The second OTM story visits a subject I've blogged about before: the creation of "child" pornography by teens, and the dubious use of child pornography laws to prosecute said teens.

The story begins by noting the recent National Campaign to Prevent Teen Pregnancy/Cosmo Girl Sex & Tech Survey, which found that 22% of teen girls and 18% of teen boys have posted or transmitted nude or "semi-nude" pictures of themselves online. Twice as many have sent "sexually suggestive" messages by txt, IM or email. Most are sending this stuff to a boyfriend, girlfriend or someone they want to get with, but 15% are sending DIY smut to people they only know online. Though a notable minority of teen girls say they "felt pressured" to make and share such content, most teens regardless of gender said they were just having fun. All interesting results, but like the reporter from OTM, I find none of this particularly surprising.

OTM goes on to note that many of these online shenanigans constitute federal and state crimes, and that prosecutions of minors for child pornography involving themselves and their peers are "piling up." The latest case involves three high school girls from a small town near Pittsburgh who have been charged for sending nude pictures on their cell phones, and three boys charged with "possession of child pornography" for receiving them. OTM interviews an attorney from the National Center for Missing and Exploited Children, who agrees with the reporter that while teens' amateur exploits can have harmful effects, prosecuting them can cause far more harm - particularly in light of the draconian sentences that can accompany child porn convictions. Instead, says the NCMEC attorney: "[Y]ou deter this type of conduct with education, and not with criminal prosecution."

Blog for Choice: Repeal the Hyde Amendment

2009-01-22T18:16:00.000-05:00

For Blog for Choice Day, bloggers have been asked: What is your top pro-choice hope for President Obama and/or the new Congress? Mine is Medicaid coverage for abortion services.

Cost remains one of the biggest barriers to accessing abortion. Abortion is expensive - on top of the time one needs to take off from work, and the added time and expense caused by state restrictions such as waiting periods and the sparsity of providers in many parts of the country. Even when women can scrape the money together, doing so requires precious time. Such waits can make it harder to find a willing and competent provider, and can also increase the cost further.

Coverage of abortion services is generally excluded by Medicaid under what's known as the Hyde Amendment. Twenty-eight years ago, the Supreme Court upheld that general exclusion, saying in part:

The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. ...
Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.

Harris v. McRae (1980). There are several possible objections to this ruling. One is that the above reflects an impoverished conception of the right to bodily self-determination. Another, perhaps stronger under current juriprudence, is that singling out abortion services, when health care services for men are generally covered, is a form of invidious discrimination against women.

Constitutional doctrine aside, both points are highly relevant to President Obama's promise of guaranteeing health care for all. "Health care for all" has to mean more than access to an insurance plan. It has to mean access to comprehensive health care, without arbitrary and discriminatory exclusions such as the Hyde Amendment. Or, for that matter, exclusions of life-saving preventive care, or of contraceptives, or services related to gender transition. Opposing these exclusions is not only just, it is sound public health policy.

I know that repealing the Hyde Amendment is not a top priority for Obama or for Democrats in Congress, as it is more controversial than some other pro-choice measures. But so long as individuals lack health insurance coverage for abortion, the promise of "health care for all" will not be fully realized.

Sentencing for sadomasochism?

2009-01-22T14:26:00.000-05:00

Today we present another illustration of how the administration of justice is perverted by prejudice against nontraditional sexualities.

Like most of the criminal defendants discussed in this blog, Donald R. Miller is not terribly sympathetic, at least at first blush. He was convicted in 2006 of receiving child pornography. But what interests me is Miller's sentence, and specifically the district court's use of certain testimony to enhance his sentence. The district court seems to have been determined to increase Miller's punishment for possessing child pornography because of his possession of legal adult pornography with sadomasochistic content.

At trial, the government questioned Miller about his collection of pornography, and specifically whether it contained "sadomasochistic images." He replied, "Not that I'm aware of, no." The Government then sought to introduce five such pictures (all featuring adults), but the court excluded them as unduly prejudicial. Nonetheless, the district court imposed a sentencing enhancement for "perjury," because Miller lied about possessing these images.

Perjury, however, isn't just lying in court; it's lying about a "material matter." Here's the district court's rationale for why this lie was material:

There is a significant distinction to be drawn between a collection of Playboy images and a collection of pornography which includes images of women being raped and tortured. The images in a collection obviously reflect the collector's preferences and interests. A collection entirely comprised of Playboy centerfolds may be viewed as more acceptable or “mainstream.” A collection which includes sadomasochistic pornography may well reflect interests in more deviant sexual practices, or at least in other images depicting such conduct.

So, the district court viewed Miller's false testimony as perjury for the precise reason that it saw sadomasochistic images as (a) violence and an indication of violent tendencies, (b) "deviant" and an indication of "interests in more deviant sexual practices," apparently including pedophilia.

Last year the Third Circuit, 527 F.3d 54, affirmed Miller's conviction for receiving child pornography, but reversed his conviction for possession as, essentially, duplicative. It also reversed the sentencing enhancement. The appellate court said, first, that the question Miller answered was ambiguous. Even if Miller was aware the prosecution was referring to five specific images out of a collection of 1,200+, the question was somewhat ambiguous, because "the meaning of the term 'sadomasochistic' is both contested and context-dependent."

More importantly, though, the court said that the issue was simply not material:

Two appellate courts have confronted a similar question, in the context of determining the propriety of admitted evidence, and concluded that a defendant's interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count....As the District Court did not point to any empirical or theoretical grounds for its conclusion, and we cannot identify such grounds, we follow the reasoning of the [Second and Fifth Circuits] and reject the proposition that a defendant's taste for an unusual genre of adult pornography is material to his interest in child pornography. We are therefore of the view that the District Court erred in finding that Miller gave false testimony on a material matter.

The Third Circuit clearly reached the right result here. (Yes, this issue had been litigated before, or something like it. You may be curious about the material in the Second and Fifth Circuit cases, but really you don't want to know; suffice to say it was something different. You can, however, find a more detailed summary of the Third Circuit decision here and here.)

On remand, however, District Judge Malcolm Muir (for the curious, a Nixon appointee) nevertheless used this same testimony to help justify a new sentence of a lifetime of supervised release:

Imposing such a term under the facts of this case is bolstered by the Government's discovery of sadomasochistic pornography on the zip disk containing child pornography....Miller's failure to acknowledge the sado-masochistic pornography in his collection and his consistent denials of any wrongdoing whatsoever utterly fail to explain or even recognize the facts that images of sado-masochistic and child pornography where found on zip disks next to his computer in the basement of his home.

The general risk of recidivism, coupled with Miller's failure to acknowledge the true nature of his collection of pornography and his lack of credibility, weigh in favor of the term and conditions of supervised release imposed in this case.

2008 WL 4949850 (M.D.Pa. Nov. 17, 2008). This seems to me in violation of the spirit if not the letter of the Third Circuit's ruling: possession, or denial of possession, of some form of adult pornography is simply not relevant to crimes related to child pornography. Yet the district court has once again used the possession of adult sadomasochistic material to justify the severity of Miller's sentence.

Miller is once again appealing his sentence, with the help of Penn Law Prof. Ronald Krauss. (It's case No. 08-4278 at the Third Circuit, for the curious.) I'm hoping for another smackdown.

"Supreme Court lets Internet porn law die"

2009-01-21T12:51:00.000-05:00

That's the headline the Los Angeles Times ran today, just as I was writing this post.

I've previously posted about ACLU v. Mukasey, in which the Third Circuit held that the Child Online Protection Act of 1998 (COPA) violates the First Amendment by prohibiting constitutionally protected "indecent" speech.

As the LAT notes, the Court had previously heard this case as Ashcroft v. ACLU (2004). Then, the Court upheld a preliminary injunction by a 5-4 vote, permitting the case to go forward and the lower courts to consider whether Internet filtering software provided an appropriate alternative to the strict provisions of COPA. Now that that Court has decided not to hear the case again on its ultimate merits, the Third Circuit's ruling of last year stands, and the law, which never took effect, appears to be dead.

Yes, COPA law was passed in 1998, and in ten years it never took effect because it was bouncing around the court system. One doesn't like to think of the money the Bush Administration spent defending it, even after the Supreme Court said it was likely to lose. Now the Court -- apparently satisfied by the extensive factfinding below that the law is a needless exercise in censorship -- has taken the unusual step of declining to review a lower court's decision that invalidates a federal law. What a great way to start the next four years: with a flat repudiation of yet another Bush Administration boondoggle.

UPDATE: Jack Balking has a post on "The End of the COPA Saga" at Balkinization. He notes that one issue suggested by, but not adjudicated in, the case is, "Who should bear the burden of filtering and blocking unwanted content in an digital environment and where should the filtering decisions be located?" Essentially because one size does not fit all, he concludes that "the Internet should place filtering decisions and responsibilities on the end user, not the publisher of the content."

The obligatory Inauguration post

2009-01-21T09:44:00.000-05:00

Yes, I was there on the Mall - if the foot of the Washington Monument counts as the Mall. It was amazing.

There was plenty of booing when former(!) President Bush entered, and some more when Rick Warren was introduced. Other folks turned their backs in protest of Warren's noxious views on LGBT equality. But at such a moment, sharing a long, loving kiss with your significant other is the best protest of all.

Also, Bishop Gene Robinson appeared on NPR's Talk of the Nation on Monday to discuss his role in the inaugural concert, the frustrating "technical error" that kept his invocation from being broadcast, and other matters besides. It's an interesting interview.

Arthur Leonard says LGBT activists should not feel turned off by that flub or by the President(!)'s failure to mention LGBT folks in his inaugural address. I'm inclined to agree with him that " there is too much feverish interpretation going on here." The proof, of course, will be in the pudding.

By pudding I mean executive rule changes and legislative initiatives. Hopefully also among that pudding will be a quick move to repeal the "global gag rule" that bars international family planning groups from even discussing abortion.

"Lying" about sexual orientation in a rape trial

2009-01-18T11:51:00.000-05:00

The Tennessee Court of Criminal Appeals held this month that a defendant on trial for rape had no right to introduce testimony relating to the alleged victim's sexual orientation. State v. Boutchiche 2009 WL 102949 (Jan. 12, 2009). The victim here testified at the defendant's first trial that, when in the course of attempting to sell magazines to the defendant he made sexual advances, she told him she was a lesbian. At his retrial, defendant sought to introduce testimony that she had had sex with a man two weeks before the crime. The court said that this evidence was not relevant for a number of reasons - including, notably, that having sex with a man is not inconsistent with being a lesbian.

Sometimes I give Southern state court judges too little credit. The defendant was clearly trying to play with semantics and exploit ignorance and prejudice. The judges didn't buy it, and to boot, we get a clear judicial recognition that sexual orientation is not simply a categorical fact litigants can attempt to prove or disprove to their advantage, but rather an aspect of personal identity defined by the individual.

Nowadays courts typically exclude evidence of an alleged victim's sexual behavior in rape trials, but there are exceptions. One generally acknowledged exception is when such evidence might explain physical evidence such as bruises or semen. Another recognized by some courts is when apparent false statements about sexual behavior by an alleged victim may undermine his or her credibility. Here, the defendant argued that (a) the victim lied about about a lesbian, and that was relevant to credibility, and (b) the fact that, seemingly contrary to her earlier statement, she did have sex with men would help to explain the presence of semen in her body.

When queried by the court about this, the victim said that she "considered herself a lesbian regardless of having had sexual intercourse with a man, adding that she knew 'lots of lesbians that have slept with men.'" When asked by the court if she was in fact bisexual rather than lesbian, she said:

Well, I suppose if that's what it means, then yes, I guess I'm bisexual but-I mean, I really don't know what to say to that. I mean, I didn't lie about it. So, I mean, if that's what I said [that she was a lesbian], then that's what I said, and that's what I meant.

The trial judge excluded the evidence, saying (among other things):

I don't think that that testimony indicates that she was lying about her sexual orientation. She's just saying, “I told him I was a lesbian,” and she was a lesbian, and she did it so that he wouldn't get the idea she was there for some purpose other than to sell him magazines. So I don't think that that's ... a misrepresentation of her sexual orientation. I mean, she was a lesbian, even if she had-on prior occasions had sexual relationships with a man.

The appeals court held that the exclusion was proper. It reasoned as follows: (1) Since an expert testified that semen can only stick around for a few days inside the vagina, a two-week-old liaison had no relevance to the physical evidence in the case. Clearly, defendant couldn't use this two-week-old incident to suggest the mere possibility that she might have had sex with some man more recently. (2) During the retrial the victim did not mention her sexual orientation at all, and the defendant couldn't seek to undermine testimony that hadn't been presented. (3) The victim simply did not lie about her sexual orientation at the first trial; one can identify as a lesbian even if one has sex with men.

Suspicion, pronouns, and transgender litigants

2009-01-16T11:09:00.000-05:00

Ignorance, indifference and hostility with regard to gender identity issues is often on display in judicial opinions. Nevertheless, even in decisions that substantively disrespect, disregard and repudiate the gender identities of trans people, judges nowadays use respectful pronouns more often than not. Many judges seem to subscribe to the ethic that it is not important to respect trans and queer people, only to treat them politely. This is abominable, but one can at least understand it.

And then sometimes things just don't make sense. Witness the Michigan Court of Appeals ruling in People v. Rowe, 2009 WL 81282 (Jan. 13, 2008). This is a criminal appeal by a transgender woman who was in the business of "erotic massage," and was in an altercation with a client who, she alleged, demanded sex from her and groped her. The client ended up with with a vase and, he claimed, short about eighty bucks. The masseusse was convicted of armed robbery (with a vase), and the appeals court upheld her conviction despite the trial court's refusal to give a jury instruction on self-defense.

The appeals court's legal analysis seems not unreasonable, but one wonders what was actually going on here. Given that we have an altercation between a male client and a transgender sex worker, one can imagine the suspicion with which the defendant was viewed by the police, the trial judge, and the jury. (The moreso, perhaps, when the client claimed that he made the rendezvous without having any idea that the woman was trans. This seems unlikely; trans sex workers typically are very explicit about this, because to do otherwise would be bad for business and risk their safety.) But it's very difficult to know what really went on from the court's opinion.

At any event, the court's pronoun usage veers back and fourth throughout the opinion. It begins: "Defendant appeals as of right his jury trial conviction of armed robbery." In the next paragraph, the court says: "During the fight, allegedly the complainant dragged the defendant on the ground by her long hair." In the next paragraph, we're back to his: "Defendant's sole argument on appeal is that the trial court's refusal to give a self-defense jury instruction was ...a deprivation of his Constitutional right to a fair trial." A little later, we're back to her, but the court also uses "women" in scare-quotes to describe the defendant and another trans woman who was drawn into the altercation. The only method to this is that the court uses her when describing the facts and his when describing defendant's legal arguments (suggesting, perhaps, that the defendant's social identity is different from her legal identity). This is all the more infuriating in an opinion signed "Per Curiam," i.e. by the whole three-judge panel rather than by one of its members. Did their clerks just draft different sections and cut and paste them together?

Some gender and sexuality firsts

2009-01-13T19:02:00.000-05:00

Last week Jared Polis was sworn is as the third out member of Congress, and the first to come out before being elected to his first term (unlike Reps. Tammy Baldwin and Barney Frank, who came out as incumbents). He will sit on the House Education and Labor committee.

Since the House also swore in its first female speaker for her second term, it's nice to see that they're finally made their own written rules gender-neutral. On a more substantive note, they quickly got down to business and passed the Lily Ledbetter Fair Pay Act, which now goes to the Senate.

Across the pond, South Africa's president has appointed Justice Edwin Cameron to that country's Constitutional Court, making him the first openly gay jurist on any nation's highest court. (The U.S. might see its own first out Supreme Court Justice if Obama were to appoint Stanford law professor and perennial shortlister Kathleen Sullivan.)

[This post was supposed to happen before now, but Blogger and I did not see eye to eye about it.]

Hey, that was a FEMINIST fist jab!

2009-01-13T15:16:00.000-05:00

This is a little too cute for words:

Sex offenders: civil commitment and sentences

2009-01-12T17:29:00.000-05:00

The U.S. Fourth Circuit Court of Appeals held last week that a federal law permitting indefinite commitment of federal prisoners deemed "sexually dangerous" after completion of their sentences is unconstitutional. The appeals court based its ruling not on the individual right to personal liberty and due process but on limits on Congress's enumerated powers (PDF). The court said that civil commitment is traditionally the province of the states, and that Congress's limited powers do not extend to general violent crime prevention. This case may well go to the Supreme Court and set a new precedent regarding the scope of federal government authority. If the law is ultimately upheld on this ground, however, it will still be subject to challenge on other grounds. The trial court found that it violated the Due Process Clause because it is much broader than state commitment laws.

Meanwhile, the Sixth Circuit upheld a 17 1/2-year sentence for possessing child pornography, leading one judge to dissent (PDF):

Our "social revulsion" against these "misfits" downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts. Some trial and appellate judges are sending these mentally ill defendants ...to federal prison for very long sentences. But the 17-1/2 year sentence for [the defendant in this case] may be the longest yet. He is a 65-year-old, psychologically disabled, former minister with Type 1 diabetes with many complications. How could this sentence be "not greater than necessary" to punish this crime?

The judge referred to an article last October in the Wall Street Journal, which reported: "Societal Revulsion at Child-Pornography Consumers Has Led to Stiff Prison Sentences -- and Caused Some Judges to Rebel."

H/t How Appealing.

Elena Kagan, Obama's SG, on pornography

2009-01-07T12:11:00.000-05:00

Earlier this week President-Elect Obama announced he would nominate Harvard Law School Dean Elena Kagan to be Solicitor General. There is much to like about the choice. Kagan is an accomplished scholar and much-lauded dean who has often been discussed as a potential Supreme Court nominee. She is also a liberal, a feminist and a former clerk for Justice Thurgood Marshall, and would be the first female appointed to the position often referred to as "the tenth Justice" and "America's lawyer." (For non-lawyers, the SG supervises government involvement in appellate litigation and represents the government in the Supreme Court.)

(Disclaimer: Let me make very, very clear that the criticisms expressed in this post do not in any way reflect the view of any organization with which I am or have been affiliated.)

I think Kagan will make a fine SG, and deserves confirmation. Given the focus of this blog, however, I want to highlight published views of Kagan's with which I disagree, and which could impact her work as Solicitor General. Those views are contained in a now somewhat dated article (Kagan hasn't written much since becoming dean of HLS): Regulation of Hate Speech and Pornography After R.A.V, 60 University of Chicago Law Review 873 (1993). In it, Kagan advocates policies that could have could seriously limit and discourage sexual speech.

Kagan begins her article thusly:

This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.

Thus, Kagan equates pornography with hate speech, characterizing it as fundamentally harmful and undesirable speech.

She then suggests, in light of the Supreme Court's then-recent ruling in R.A.V. v City of St. Paul (striking down a ban on racially motivated cross-burning because it was "viewpoint-based"), what approaches to regulating pornography and hate speech are and are not likely to be successful, i.e. held constitutional. Her points about pornography are more or less as follows:

1. Regulations based on whether material endorses, approves, or actually causes harm to women will be struck down.
2. Communities should act to prosecute attempts to force people into pornography and "the sexual assaults and other violent acts so frequently committed against women in the making of pornography."
3. Using pimping/pandering/prostitution laws against pornographers, however, may be unconstitutional.
4. Regulating material on the basis that it depicts "sexual violence" has promise. However, a focus on "sexual violence" is subject to dispute as being viewpoint discrimination in disguise, since "violence" may be interpreted to mean simply that the material is "demeaning" to women.
5. If we can ban distribution of material depicting child abuse, perhaps we can also ban distribution of adult pornography the production of which involves unlawful conduct.
6. Feminists should embrace the doctrine of obscenity, despite its vagueness and its link to "traditional" notions of sexual morality, as a means of prosecuting pornographers.
7. Feminists should press courts to recognize a new First Amendment exception for pornography that would permit viewpoint-based regulations.

Kagan's legal analysis in this article is smart, nuanced, and overall has to be admired. But some of her proposals (4, 6, 7) are troubling, as they are clearly targeted at imposing broad bans on the general category of sexually explicit speech (though Kagan suggests the narrower, and probably unworkable, category of "materials that operate primarily ...as masturbatory devices"). Indeed, at several points (2, 5) Kagan makes clear that targeting actual crimes against women and the depiction of such crimes does not, in her view, go far enough. At the same time, the article takes for granted, as much anti-pornography literature does, that the adult entertainment industry is rife with coercion and violence (which, if it were true, would mean that local, state and federal law enforcement are essentially ignoring large-scale, organized violent crime). It's also notable that she rejects other approaches (1, 3) only with reluctance.

These are not views I would like to see espoused by America's lawyer. In particular her enthusiasm for the outmoded, unworkable and puritanical obscenity doctrine is troubling. But, even assuming Kagan's views have not changed since 1993, I doubt she will have opportunities to have much influence on these issues in her term as SG. At any event, I think Kagan will make an excellent SG despite my disagreement with her views on these issues.

EDIT: As I've previously noted here, AG nominee Eric Holder has also been a past advocate for obscenity enforcement. Hard to say, though, what these two nominations for top DOJ slots portend for the new administration's legal and law enforcement priorities in relation to obscenity.

Miscellaneous updates

2009-01-07T08:47:00.000-05:00

Today's LA Times reports that porn king Larry Flynt is suing his nephews, apparently on a basis of alleged trademark violation, for using the Flynt name on what he argues are inferior adult videos that are tarnishing his good name. After all everyone knows the Flynt name stands for refinement and good taste. Says one of the defendants: ""The fact of the matter is my name is Flynt. If I can't use my name to do business, then what kind of society, what kind of world is that?" He may well have a point. I know little to nothing about IP law, but I suspect the case to turn on just how the name is used, and whether buyers would be confused about which Flynt products are which.

The NY Times reports on the government's bid for Supreme Court review in U.S. v. Stevens, the (so far successful) challenge to a federal ban on depictions on animal cruelty. The article notes that the law was designed to target fetishistic "crush videos" but has been used by the Justice Department to go after dogfight videos. It also notes that the Supreme Court is likely to take the case, since the lower court struck down a federal statute. The case is particularly interesting because it poses the question whether First Amendment exceptions for obscenity and child pornography can be expanded to reach other "harmful" and "low-value" speech.

And marriage equality group Freedom to Marry has issued an analysis of the Prop 8 vote that includes these findings:

Party, ideology, religious attendance, age were the four major factors that drove voters' approval.
Higher Black and Latino support was largely explained by higher religious attendance; when controlling for this factor the racial differences largely disappeared.
Compared to the 2000 vote, support for marriage equality grew significantly across every demographic group (age, race, religion) except Republicans.

Finally, the en banc Ninth Circuit has allowed gay San Diego lesbians and agnostics to move forward with a claim that the city's lease of park land to the Boy Scots violates the California Constitution's ban on religious preferences. The court ruled that the plaintiff's had standing to sue based on their use of, and exclusion from certain functions on, the city-owned property, and sent the case to the state's high court.

Anti-gay discrimination in NJ, Arkansas

2008-12-31T11:51:00.000-05:00

Hunter of Justice reports:

The New Jersey Civil Rights Division has issued a Final Report finding that the Ocean Grove Camp Meeting Association discriminated against Harriet Bernstein and Luisa Paster by refusing to rent them a boardwalk pavilion for a civil union ceremony. OGCMA describes itself as "a ministry organization, rooted in Methodist heritage." ...
The agency found that the church was operating the pavilion as a public accommodation, not as a religious facility, evidenced by the fact that it rented it to any and all couples who wanted it for a wedding, regardless of religious affiliation, and had represented to the state that the pavilion was "open to the public" in order to obtain an exemption from property tax. (The group has now stopped renting the pavilion.) I am calling this an early stage in the case, despite the fact that it is the final agency action, because t...[T]he defendant's lawyer, the Alliance Defense Fund, is announcing that it will seek reversal of the decision in court.
Meanwhile, the ACLU has filed a challenge to the statute adopted by Arkansas voters on election day that bars adoption and foster care placement with any unmarried couples. The complaint alleges equal protection and due process violations on both federal and state constitutional grounds; the case was filed in state court....
Doubtless there will be more to come on both these cases in future months.

The NJ case underscores that just being a religious group is not enough to secure exemptions from the law, if you are actually operating as a public accommodation rather than a private faith-based association. The Arkansas case will be an interesting one to watch.

That blog also reports that the Alliance Defense Fund is threatening to sue to block a new legal ethics rule in Arizona that would require lawyers to pledge not to discriminate against clients on the basis of sexual orientation.

More sex offender rulings from California, NY

2008-12-31T08:20:00.000-05:00

Recently I reported that the Georgia Supreme Court overturned a life sentence for failure to register as a sex offender. Now comes a similar ruling from the U.S. Ninth Circuit Court of Appeals (PDF), which holds that a sentence of 28 years to life, pursuant to California's "Three Strikes" law, is an unconstitutionally excessive punishment for the offensive of failure to update sex offender registration. As in Georgia, and in a previous California state court ruling, the court reasoned that a life sentence is grossly disproportionate because of the "passive," "technical" and of course nonviolent nature of the crime of failure to update registration. In this case, the defendant already was registered and had not moved, so his failure to update his registration didn't even lead to incorrect or missing information in the database.

As the Sentencing Law and Policy Blog notes, the fact that this ruling, unlike previous ones, comes from a federal appeals court is a big deal. Indeed, it may be the first time a federal appeals court has overturned a non-capital state sentence in recent memory, in part because the federal Anti-Terrorism and Effective Death Penalty Act mandates an extremely deferential review of state court judgements. Even more remarkably, the decision is authored by controversial Bush appointee Jay Bybee (yes, the nominal author, along with John Yoo, of the infamous detainee interrogation memos).

Meanwhile in New York, the state appellate court held that a lawyer's conviction of a sex offense doesn't merit disbarment, at least where that offense consisted of having explicit online chats with an adult posing as a minor and attempting to meet said minor, rather than any actual sexual act. The court reasoned that a public reprimand would be too lenient, but thatgiven the "inchoate" nature of the offense disbarment would be too severe. The court ordered the lawyer's suspension from the practice, over a dissent calling for disbarment and accusing the majority of "minimizing the acute danger of sexual predators."

Hook-up site not liable for connecting man with minor

2008-12-30T17:04:00.000-05:00

The Sixth Circuit Court of Appeals has rejected a suit by a man who blamed hook-up site SexSearch.com for connecting him with a minor (PDF), thereby leading to his arrest for unlawful sexual conduct with a minor.

The man who brough the suit had sex with a young woman after meeting her on the site, where she had a profile seeking a "1 on 1 sexual encounter" with "a man who can last for a long time." The young woman, who was 14, reported the encounter to the police, who arrested the man. He claimed that SexSearch's failure to prevent a minor from using its site constituted a breach of contract, a fraudulent misrepresentation, an intentional infliction of emotional distress, an unfair trade practice, and/or a tortious failure to warn under Ohio law.

The appeals court rejected each of these claims in turn. First, while the site's terms of service stated that users must be over 18, the site nowhere promised to prevent minors from registering and using the site. Indeed, another part of the terms of services stated that they don't verify ages. More importantly, the plaintiff had no business relying on any representations about the ages of users, since any who had registered for the site could tell that the site owners took no steps to verify age. Moreover, the court found that the danger that minors will pose as adults online is an "open and obvious" one that doesn't require a warning.

The court also held that the site had a right to contractually limit its liability to the value of the contract, saying:

A SexSearch gold membership costs $29.95 per month. Given the nature of the service, which encourages members to meet in person for sexual encounters, SexSearch’s potential liability is nearly limitless. For example, arrest, diseases of various sorts, and injuries caused by irate family members or others may be the result of such hedonistic sex. When selling such services, then, it is commercially reasonable for SexSearch to limit its liability to the price of the contract.

While I agree with the result, I am bothered by the court's tone regarding "the result of such hedonistic sex." Matchmaking and sex can have all sorts of consequences - fair enough. That reasoning should apply to any sort of dating or social-networking site that wants to limit its liability, and yet the court seems to go out of its way to imply not only that the buyer should beware but the buyer deserves whatever he gets.

The appeals court declined to consider the impact of a federal law, relied on by the trial court, that limits the liability of website owners from liability for content created by users. The scope of that site-owner immunity provision is as yet unsettled, and the court refused to go there.

Adult Video News, an industry outlet, features predictably positive coverage of the decision, notwithstanding its sex-negative tone. Once again, h/t How Appealing, which offers some background on the case.

Honey, I bugged our bedroom

2008-12-27T20:00:00.000-05:00

I asked my wife the other night whether, hypothetically, she would feel violated if I, her loving but perhaps unduly suspicious spouse, hid a videocamera in our bedroom and recorded her comings and goings without her consent. Of course! she said. What the hell is wrong with you?

Now, I said, clearly I wasn't going to do this, as I would have just given myself away. But, hypothetically, would she feel entitled to sue me for doing this? Would she expect to be allowed to do so? Would it matter whether we were a legally married couple? She said she thought she should be entitled to sue, but doubted the courts would permit it. Understandable.

I was pleased to be able to tell her that, at least in Iowa, she would have every right to sue me, legally married or now. So says the Iowa Supreme Court in last week's ruling in In re Marriage of Tigges (PDF). Here, the privacy claim was brought by a wife in the course of the couple's divorce. She claimed that her husband secretly taped her before and after their separation, and that although the recordings didn't show anything untoward, she nevertheless felt outraged and violated. The court ruled that she was entitled to damages, saying:

Whether or not Jeffrey and Cathy were residing together in the dwelling at the time, we conclude Cathy had a reasonable expectation that her activities in the bedroom of the home were private when she was alone in that room. Cathy’s expectation of privacy at such times is not rendered unreasonable by the fact Jeffrey was her spouse at the time in question, or by the fact that Jeffrey may have been living in the dwelling at that time.... Any right of access to the bedroom held by Jeffrey did not include the right to videotape Cathy’s activities without her knowledge and consent.

There are three key elements to the court's reasoning: first, neither the marital relationship nor a common living arrangement mean surrendering any right to privacy; second, just because you let someone come in and see you sometimes doesn't give them permission to see you anytime and without your knowledge or permission (this is obvious really - like the rule that marriage is no defense to rape); and third, that consent to see is not the same as consent to videotape and possibly share.

The court further ruled that the videotaped spouse had a right to damages even though nothing untoward was recorded and no one else saw the tapes, saying: "The wrongfulness of the conduct springs not from the specific nature of the recorded activities, but instead from the fact that Cathy’s activities were recorded without her knowledge and consent at a time and place and under circumstances in which she had a reasonable expectation of privacy."

The court noted similare rulings in North Carolina and Texas. In North Carolina, the court suggested that the expectation of privacy “might, in some cases, be less for married persons than for single persons,” but that “such is not the case . . . where the spouses were estranged and living separately.” That court didn't actually rule on the rights of married, cohabiting persons, however, and the Texas court agreed that whether the sposues are still cohabiting is irrelevant.

It seems as though I am posting a lot about the Iowa Supreme Court lately. First the indecent exposure case, then the marriage equality case, and now this. Thanks for keeping things interesting, Iowa.

H/t How Appealing.

Increased sentence for targeting trans prisoner

2008-12-26T13:52:00.000-05:00

In White v. U.S., the D.C. Court of Appeals affirmed a sentencing enhancement for a prison guard who physically and sexually assaulted a transgender prisoner. The sentencing judge reasoned that the prisoner's trangender status constituted a "reduced physical capacity" under the D.C. sentencing guidelines, thereby meriting the tougher sentence. The appeals court said it would not decide whether trangender status is actually a form of "reduced physical capacity," because the D.C. guidelines are purely advisory, and it doesn't really matter whether judges interpret them correctly in a given case. The court nevertheless upheld the enhancement:

As the trial judge explained, White's sentence was intended to reflect his victim's particular vulnerability as a transgender inmate in an all-male prison unit and, we are satisfied, appropriately reflects what the government's evidence showed was the non-consensual nature of the encounter.

While I'm generally predisposed to favor more lenient sentencing, this strikes me as appropriate. "Reduced physical capacity" is a real stretch, since trans people aren't physically impaired in any way by virtue of being trans. But trans people are certainly especially vulnerable to abuse in prisons, especially given the dominant practice in the U.S. of housing inmates on the basis of their birth sex. And when a prison guard exploits that vulnerability, a sentencing enhancement may serve to deter such exploitation in the future.

More on "obscene" email convictions

2008-12-22T09:44:00.000-05:00

I find the convictions based on cartoons and private, textual emails in U.S. v Whorley. quite disturbing, as do some other bloggers (even ones with whom I would disagree on a great many other things). But I don't blame the Fourth Circuit Court of Appeals. I blame the Supreme Court.
The result is appalling, but it is not that surprising, given three clear principles the Supreme Court has announced: First, words by themselves can support an obscenity conviction. At the appellate panel points out, the Supreme Court upheld a conviction based on words in a book on the same day it decided the landmark Miller obscenity case in 1973. Second, materials that cannot be defined as "child pornography" under the Court's precedents can nevertheless be defined as "obscenity." And third, the right to privacy that entitles individuals to possess obscene materials does not extend to sharing those materials with others over the Internet, which the Court treats as an "instrument of interstate commerce" regardless of the noncommercial context of its use.

Combine that with the inherent mushiness of the "obscenity" concept itself, and the dissenting opinion begins to look like more of a stretch than the majority. So it's not surprising that the dissent also calls that precedent into question, saying:

The Supreme Court’s attempts to define obscenity for over half a century, including its enunciation of differing standards for obscenity and child pornography, reveal one truth: a material’s obscenity, or lack thereof, ultimately depends on the subjective view of at least five individuals. Predicting how any person subjectively views material is impossible, an infallible truth that prompted Justice Stewart to pronounce a simple, yet honest test for identifying obscenity: "I know it when I see it . . . ."

Although I find it unlikely that the Supreme Court will reconsider any of these constitutional principles in the foreseeable future, Congress certainly can and should narrow the obscenity statute to a) exempt text, b) exempt drawings, c) exempt private, noncommcerial communications between individuals, or d) all of the above. Of course, that isn't a great deal more likely.

Fourth Circuit upholds obscenity conviction for private emails

2008-12-19T09:41:00.000-05:00

You read that right. In the case of U.S. v. Whorley (PDF), the circuit panel held 2-1 that the obscenity statute applied to Mr. Whorley's private emails to another adult describing fantasies of sexual acts with children, and that this application of the law was constitutional. It did not matter, the courts said, the possessing obscene matter is constitutionally protected; that right does not extend to sharing it through private emails. The Internet is an instrument of commerce, and communications using it are not genuinely private.

It also did not matter, the court said, that the Supreme Court has held the treatment of prose and cartoons as "child pornography" unconstitutional; the same material could still be criminalized as obscenity.

Mr. Whorley is not a sympathetic guy. He has been twice convicted of receiving actual child pornography. But he has also been convicted for the textual descriptions of "obscene" matters in his private emails, as well as receiving "obscene" anime cartoons of minors engaged in sexual behavior. (He's also not a clever guy: he got caught doing it at his job at the Virginia Employment Commission.)

One of the two judges who made this ruling said he "share[d] some disquiet" regarding the email convictions, but that they were proper under governing law. The panel's third judge wrote a long dissent objecting to the email and cartoon convictions. The dissenting judge reasoned that (1) the text conviction violate the First Amendment, and (2) the cartoons were simply not covered by the relevant statute. The portion regarding the emails is worth excerpting at length:

The emails did not include any visual depictions or attachments containing child pornography of any type, and the Government does not allege that Whorley used the e-mails to convince or lure a child into any sexual activity. ....The economic and social justifications for regulating e-mail fantasies — even those involving activities that would be criminal if the fantasies were acted out — are minimal. Indeed, the harm, if any, involved in Whorley’s conduct is not readily discernible because the e-mails were written and exchanged for the sole "enjoyment" of Whorley and his counterpart. Unlike the facts in Ferber, this exchange of information did not have any economic consequences on the child pornography trade and real children were not harmed (or even discussed) during the "production" of these e-mails.

The majority resolves this issue by citing the well-known proposition that words can be obscene. ...However, simply because words can be obscene is not sufficient, on its own, to criminalize pure speech. Incest and sexual relationships between children and adults are distasteful subjects to most individuals, yet writers routinely publish such material....The expert provided the district court with numerous examples of recognized writings involving child sex with adults and/or incest including: Sigmund Freud’s writings on incest and fantasies, Alice Walker’s The Color Purple, and William Faulkner’s Absalom, Absalom!...

One need not delve into the rare archives of the Library of Congress to find works describing an adult’s sexual fantasies about children. Some of these writings, Lolita for example, are seated at the head table of great literary works of all time. ... The subject of adults fantasizing about having sex with minors, or alternatively, adults actually consummating relationships with children, is not limited to popular literature and academic discourse. A central theme of the Academy Award winner American Beauty is a forty-two year old man’s sexual fantasies about his teenage daughter’s high school classmate....

From my perspective, the iconic books and movies above render unsustainable the claim that writings describing sexual acts between children and adults, generated by fantasy, have no demonstrated socially redeeming artistic value. If the writers of the aforementioned books and movie scripts e-mailed the sections of their work that described the sexual relationship between the minor and the adult to a willing recipient, presumably both the writer and the recipient could have been subject to prosecution for sending or receiving obscene material under § 1462, an untoward result....

Incursions on our citizenry’s right to be free from governmental regulation of speech are viewed with skepticism and scrutiny....Whorley’s e-mails are pure speech at the very heart of the First Amendment....Frankly, I am hard pressed to find a permissible governmental interest that is served in suppressing Whorley’s emails as such an action would not aid in "protect[ing] the victims of child pornography" or the "destr[uction] [of] a market for the exploitative use of children."The most obvious interest the government might have in suppressing such speech — that such fantasies may "whet[ ] the appetites of pedophiles and encourage[ ] them to engage in illegal conduct," has been soundly rejected by the Supreme Court.

Today, under the guise of suppressing obscenity — whatever meaning that term may encompass — we have provided the government with the power to roll back our previously inviolable right to use our imaginations to create fantasies. It is precisely this unencumbered ability to fantasize that has allowed this nation to reap the benefits of great literary insight and scientific invention. The Constitution’s inviolable promise to us is its guarantee to defend thought, imagination and fantasy from unlawful governmental interference regardless of whether such thoughts, imaginings, or fantasies are popular with the masses. It is in these moments that our grip on the rule of law and our fidelity to constitutional values is tested.

The dissenting judge also had some things to say about the Supreme Court's obscenity doctrine in general, which deserve their own post.

In my lifetime, prosecutions for obscenity based purely on text are rare. The only other case I know of regarded much media comment and resulted in a guilty plea.

H/t to How Appealing and the Volokh Conspiracy.

International Day to End Violence Against Sex Workers

2008-12-18T14:41:00.001-05:00

Yesterday was the International Day to End Violence Against Sex Workers, an annual event involving grassroots vigils, marches and other events in North America, Europe, Australia and Hong Kong. As part of the December 17 activities, I joined the first National March for Sex Workers Rights. It was a modest affair, but one that brought new visibility to the (inextricably intertwined) causes of ending violence against sex workers and decriminalizing prostitution. You can see my coat and my right hand in a photo in the Washington Post's coverage, holding a banner that reads "OUTLAW POVERTY NOT PROSTITUTION."

In addition to marching through the streets and in front of the Department of Justice, the marchers delivered a letter to President-Elect Obama, calling for actions to stem violence against sex workers, and especially for involving sex workers themselves in policymaking.

Much more media coverage and video from the DC march is at Bound, Not Gagged - the blog of the Desiree Alliance.

More on December 17 and sex worker rights from around the blogosphere:

Stopping the Terror: A Day To End Violence Against Prostitutes

Audacia Ray's Speech from the NYC Vigil

Remembering violence against sex workers

International Day to End Violence Against Sex Workers in the United Kingdom

In this spirit, I urge readers to contribute to the Sex Workers Project of the Urban Justice Center, which provides legal and social services for sex workers in New York City, and advocates for sex worker rights.

Australian court convicts for virtual child porn

2008-12-13T23:26:00.000-05:00

An appellate judge in New South Wales, Australia has apparently ruled that it was proper to charge a man with possessing child pornography on the basis of cartoon drawings of characters from The Simpsons engaged in sexual acts. You can read excerpts from the decision at the Media Law Prof Blog. It is densely written opinion, apparently based entirely on statutory interpretation.

Australia's constitution does not contain an express freedom of speech, and the courts there have apparently recognize a much narrower right to political speech than is enforce in the United States. Here in the United States, the Supreme Court has previously held unconstitutional the application of child pornography laws to "virtual" depictions of minors.

The NSW judge relied in part on a rationale the U.S. high court expressly rejected: that cartoon depictions of children help perpetuate a market for actual child pornograhy. He also suggested that this holding was necessary to prevent the harmful use of drawings, etc. to depict actual, individual minors engaged in sex.

The judge held that whether a drawing or other representation of a minor falls within the law depends on the facts of the case, and in particular the degree to which the depiction is clearly meant to represent a human child or teenager:

Merely to give human characteristics to, say, a rabbit, a duck or a flower, to use some other familiar images, would not suffice if it were fair to say that the subject of the depiction remained a rabbit, a duck or a flower. A stick figure could not, I think, depict a person.... No bright line of inclusion or exclusion can be sensibly described. ...Accordingly, if it were reasonably possible that the depiction is not that of a person, the offence is not proved. It follows that a fictional cartoon character, even one which departs from recognizable human forms in some significant respects [as the Simpsons characters do], may nevertheless be the depiction of a person within the meaning of the Act.

Bestselling fantasy author Neil Gaiman says the ruling is "nonsensical in every way that it could possibly be nonsensical," and has some choice words to say about the harmful implications of such a view of the law - including that Australians could now conceivably be locked up for owning his longtime friend Alan Moore & Melinda Gebbie's acclaimed book Lost Girls. Gaiman suggests this is a good occasion to contribute to the Comic Book Legal Defense Fund.

DADT challenge proceeds; dissenters: "Stay in the closet!"

2008-12-12T15:49:00.000-05:00

Last Thursday the Ninth Circuit denied the Government's request to have a challenge to the military's "Don't Ask, Don't Tell" policy heard by the full court. A panel of the court ruled in June that a challenge to DADT could go forward, remanding to the trial court to determine whether the policy met a form of heightened judicial scrutiny. If I'm counting right, the vote was 22-6.

Arthur Leonard and Dale Carpenter both discuss the decision and its possible ramifications - and in particular the possibility that the Obama administration, which will take office before the appeal deadline, may decide not to seeking review by the Supreme Court. They also mention the possibility that the outgoing administration might rush to seek cert., putting the new guys in a pretty awkward position.

I'd like to focus on a particularly jaw-dropping aspect of one of the dissenting opinions (PDF), written by Diarmuid O'Scannlain and joined by three other Republican appointees. At the heart of the case is whether Lawrence v. Texas requires any form of heightened judicial scrutiny for restrictions on sexual privacy. The panel held that it does. In dissent, O'Scannlain pointed to limiting language from Lawrence, which said:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

Yeah, so what? So, O'Scannlain distinguishes this case on two amazing grounds. First, Lawrence does not apply to any non-criminal case. The implication appears to be that any imposition on sexual privacy is constitutional so long as no criminal penalty is attached. Presumably this means that sodomites could be barred from teaching, living in public housing, receiving Medicaid, or entering the country. This is simply wrong because, among other reasons, the severity of the criminal sanction was not part of the analysis in Lawrence. Indeed, if Lawrence is, as O'Scannlain suggests, a case decided under "rational basis review," the nature of the sanction is irrelevant, because the court considers only the connection between the law and the purported policy goal.

Even more astounding, however, is what O'Scannlain says next:

The [panel] opinion makes much of the fact that the homosexual acts for which, in part, [plaintiff] Major Witt was dismissed occurred in the privacy of the couple's shared home. But nothing in the “Don't Ask, Don't Tell” policy forbids anyone from doing anything in the home on pain of criminal or even of civil penalties. Indeed, the whole point of the policy is to keep such private behavior private. If no one asks and no one tells, no one in the military cares. “Don't Ask, Don't Tell” is about how the military manages its personnel; the policy only matters if an employee's homosexual conduct or acknowledgment of homosexuality becomes public. What happened in this case, and what must happen for “Don't Ask, Don't Tell” to apply, is that homosexual conduct, originally private or not, became public. And Lawrence simply does not apply to non-criminal public conduct.

That's right: acknowledging that you are gay is constitutionally unprotected "public conduct." Major Witt was within her constitutional rights when she made love with her partner at home, but stepped outside the bounds of protected privacy interests the moment she came out of the closet. No matter that Lawrence's reference to "public conduct" was clearly a reference to public sexual conduct, e.g., getting it on in the bushes in the local park. Being openly gay is no different, since as we're always being told, being out forces your sexuality down other people's throats. So, Lawrence says you have a right to be gay, so long as you stay in the closet!

Clearly, O'Scannlain's views are not the law. But to have a federal appellate judge write something so anachronistic in 2008, and have three of his colleagues join it, is in itself an affront to public decency.

In Minnesota, toilet toe-tapping trashed

2008-12-12T15:43:00.000-05:00

Leonard Link discusses a ruling by the Minnesota Court of Appeals, rejected Sen. Larry Craig's bid to overturn his conviction for disorderly conduct in the form of lurid toe-tapping. As an initial matter, the court held that Craig could not take back his guilty plea. Moreover, the court rejected free speech arguments by Craig and the ACLU. The court held that the disorderly conduct law was not overbroad on its face, and that "even if appellant’s foot-tapping and the movement of his foot towards the undercover officer’s stall are considered ‘speech,’ they would be intrusive speech directed at a captive audience, and the government may prohibit them." Craig intends to appeal to the state's high court.

More on N.H. pornograhy/prostitution case

2008-12-11T09:48:00.000-05:00

For more on the ruling I discussed yesterday, see coverage at AVN. For more on the facts of the case, see coverage at the Concord Monitor. Something I left out before: our bailiff and would-be-pornography was also convicted on a second prostitution charge involving another couple, and in that case he offered to pay them only to watch, not to videotape. He challenged that conviction on the basis that the prostitution law was overbroad on its face because it could apply to protected speech, but the N.H. court held that the law was facially valid, and its application to protected speech could be challenged in a case that actually implicated that concern.

This week's decision overturning the second conviction was that as-applied challenge. So our defendant still stands convicted in the first case, because he didn't plan to film the action. Notably, the county prosecutor may be considering charging him again in the other case, and attempting to prove that his purpose was in fact personal sexual gratification, not making a film -- in which case it would still be constitutional.

I think the distinction drawn here between paying for others to have sex for the purpose of film and paying for others to have sex for the purpose of getting your personal jollies is somewhat problematic, because the two are far from mutually exclusive. It gets more complicated when you add in the scenario of the director-as-performer. The moral of the story, perhaps, is this: don't try to use "making pornography" as a mere cover for paid personal sexual gratification; you may still fall afoul of the law.

Polymorphous Perversity

Hiatus

Hiatus

BDSM case goes to the Supreme Court

PA Supremes say prison may ban porn to prevent "objectification"

Remembering Dr. Tiller

Reduced posting

Not a crime to show dirty pictures of onself to a teen old enough to consent to sex

Craigslist bows to states' pressure, axes "Erotic Services"

Sex 2.0 and "I Am a Sex Worker" PSA

Gender, "deception" and the law, pt. 3

Gender, "deception" and the law, pt. 2 of 3

Gender, "deception" and the law, pt. 1

Surfing cable is not "exhibiting harmful matter to a minor"

The strip-search case: why the Supreme Court needs more women

Law imitates art? The misplaced fixation on surgical status

Legislative roundup

Bathrooms in the courts

The bathroom canard lives on

Why Iowa Matters

Maryland Senate scares UM into canceling film screening

Mass. lawmakers want to criminalize elder porn

Pa. federal judge blocks child porn charges for teens

Va. court: upskirt photos are illegal peeping

Reproductive rights news from Kansas

NH Legalizing Same-Condiment Marriage

Exempting minors from child pornography laws?

Spurious threat of prosecution used to shame teens

OT: The unbearable luridness of abstinence ed

OTC restriction for emergency contraception overturned

TSA wants to know your gender

Australian commission releases amazing report on gender diversity

Racy texts don't kill people, sexual shaming does

Trans murder trial faces hurdle; media makes a sideshow of pronouns

Roundup

Another sign of change in Argentina

OT: A paean to the New York City subway

Roundup

Censoring sexual orientation "equally"

NYPD targeting gay men, pro Dommes

OT: U.S. to chill out on med marijuana, needles

Slain Teen's Family "Sues Everybody For Not Destroying His Gayness"

Protecting our children

Miscellaneous updates: LGBT equality abroad

Evidence, the First Amendment, and 2257

2257 upheld: swingers have no privacy interests?!

South Carolina vs. the Lion('s Den)

Deputy AG nominees attacked for defense of porn

Mass. Supremes: Boy can challenge gender bias in statutory rape charges

The 9th Circuit internal benefits decisions

Best wishes to Justice Ginsburg, & more

Time for a new approach to human trafficking

Miscellaneous updates: civil rights at home and abroad

Does an anti-porn documentary violate federal law? (cont'd)

Illinois refusing to recognize gender transitions

Icelanders get cold comfort in a world first

Starting this week, viewing porn a crime in UK

Lutheran high school can expel lesbians

Me on the SG nomination, the courts, and health care

Miscellaneous updates

On the Media does teens and sex online

Blog for Choice: Repeal the Hyde Amendment

Sentencing for sadomasochism?

"Supreme Court lets Internet porn law die"

The obligatory Inauguration post

"Lying" about sexual orientation in a rape trial

Suspicion, pronouns, and transgender litigants

Some gender and sexuality firsts

Hey, that was a FEMINIST fist jab!

Sex offenders: civil commitment and sentences

Elena Kagan, Obama's SG, on pornography

Miscellaneous updates

Anti-gay discrimination in NJ, Arkansas

More sex offender rulings from California, NY

Hook-up site not liable for connecting man with minor

Honey, I bugged our bedroom

Increased sentence for targeting trans prisoner

More on "obscene" email convictions

Fourth Circuit upholds obscenity conviction for private emails

More links from Int'l Day to End Violence Against Sex Workers