Archive | June 2014

Protect the Zone: Why SCOTUS Got it Wrong on Buffer Zones

United States Supreme Court (Image via Wikimedia Commons)

(Image via Wikimedia Commons)

This morning the Supreme Court struck down Massachusetts’ 35 foot abortion clinic buffer zone law in McCullen v. Coakley. In a unanimous decision, the Court ruled the buffer zone law placed an undue burden on the protesters’ ability to “engage in personal, caring, consensual conversations with women about various alternatives.”

In 2000, Massachusetts passed the Reproductive Health Care Facilities Act which initially established an 18 foot buffer zone around clinic entrances and driveways. Individuals entering inside the 18 foot zone could not get within 6 feet of a patient without consent for the purposes of counseling or distributing literature. These 6 foot zones were deemed unenforceable and the law was amended in 2007 to establish a fixed 35 foot buffer zone. Under the new law, no individuals may enter the buffer zone except for patients entering or exiting the facility, employees of the facility, law enforcement, paramedics, and utilities personnel, and pedestrians using the sidewalk to get to a destination that is not the clinic.

Writing for the majority that included Justices Sotomayor, Kagan, Ginsburg, and Breyer, Chief Justice John Roberts differentiates between protesters and petitioners. He writes protesters “express their moral or religious opposition to abortion through signs and chants, or, in some cases, more aggressive methods such as face-to-face confrontation.” Whereas petitioners “attempt to engage women approaching the clinics in what they call ‘sidewalk counseling,’ which involves offering information about alternatives to abortion and help pursuing those options.” McCullen claims she and other petitioners have dissuaded hundreds of women from obtaining abortions with their calm, caring demeanor and honest conversations. Petitioners say the buffer zones have rendered them unable to perform their counseling.

Chief Justice Roberts writes that the public  sidewalk is one of few places remaining where a speaker can be confident he is not simply preaching to the choir; listeners often encounter speech they would otherwise tune out on other means of communication. The Massachusetts Act is not content-based aimed at restricting abortion-related speech, as petitioners argued, because the law is violated not by what is said, but where they say it. Massachusetts’ bases for the law of protecting public safety and ensuring unobstructed access to clinics are legitimate; “large crowds outside abortion clinics can still compromise public safety, impede access, and obstruct sidewalks.” Therefore, the law is content neutral.

In regards to the buffer zone exemptions, exempting clinic employees to walk in the buffer zone, particularly the clinic escorts who accompany patients into the building, is not an attempt to give more weight to the pro-choice side of the argument on the part of the state of Massachusetts. The exemption is limited to “the scope of their employment,” which merely allows them to do their jobs. Petitioners claimed clinic escorts made disparaging remarks about their efforts and often prevented the petitioners from providing literature to patients. Because testimony did not clarify if this was done inside or outside of the buffer zone, and because clinic escorts are told not to express their views on abortion, the clinic staff exemption does not constitute viewpoint discrimination.

Writing the majority opinion, Chief Justice Roberts ruled the buffer zones established by the law place an undue burden on petitioners and significantly limit their ability to provide “sidewalk counseling.” “The Act operates to deprive petitioners of their two primary methods of communicating with patients.” Petitioners are not protesters and merely seek to provide alternatives to abortion. Chief Justice Roberts followed by providing policy recommendations that are less restrictive. Ruling that the law burdens more speech than necessary, Massachusetts can enact laws imposing criminal sanctions on those who obstruct, intimidate, or interfere with someone obtaining or providing reproductive services. Preventing obstruction of clinic driveways is already addressed through local traffic ordinances. Regarding unrestricted access to clinic entrances, police can disperse large crowds that block entrances.

When reading this decision, it should be noted that the Supreme Court justices enjoy hearing arguments and making rulings within the confines of a strictly enforced 100 foot buffer zone. This case highlights how drastically a sympathetic plaintiff can change the entire debate. The Court is completely off the mark in distinguishing protesters and petitioners. Freedom of speech does not guarantee a freedom to be listened to. Clinic protesters have been known to completely block the sidewalk with large posters depicting supposed late term abortions, throw plastic fetuses at patients entering the clinic while standing outside the buffer zone, and threaten women with violence. The decision mentioning the need for police to disperse protesters proves the need for these buffer zones. Violence at abortion clinics is widespread. In Massachusetts, this buffer zone law stemmed from an anti-abortion fanatic shooting 7 people at a clinic. Since 1977, abortion clinic violence has included 8 murders, 17 attempted murders, 42 bombings, and 181 cases of arson.

In the wake of this terrible Supreme Court ruling that once again tells women that no one really cares about our rights, I am even more excited to begin working as a volunteer clinic escort at Planned Parenthood next month. Women do not need to be protected from their own decision to obtain an abortion; they need to be protected from the anti-choice zealots who would rather threaten a woman’s safety than allow access to an abortion clinic.

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Reconciling my Feminism with my Love for Hope Solo

Hope Solo celebrating winning her 2nd gold medal in London 2012 (Image via Getty)

Hope Solo celebrating winning her 2nd gold medal in London 2012 (Image via Getty)

Saturday morning I woke up with an alert on my phone informing me US Women’s Soccer star Hope Solo had been arrested and jailed for multiple counts of domestic violence. She was arrested and charged with 4th degree domestic assault for allegedly punching her sister and 17 year old nephew in the early hours of Saturday morning. Police described her as intoxicated and argumentative throughout the ordeal. Her sister and nephew were left with visible injuries. You will be hard pressed to find a bigger Hope Solo fan than me. A large poster of her, along with multiple signed photos, hang above my bed. I have part of her famous post-2007 World Cup quote in dealing with adversity tattooed on my left ribs, with plans to finish it complete with her autograph. And I named my first cat Hope after her when I adopted her nearly 2 years ago. So I’m sure you can understand why I’m feeling so conflicted over her domestic violence arrest. In short, I feel like a bad feminist.

Male against female domestic violence is so prevalent that we often forget that women can also be the aggressors. This is by no means a defense of men’s rights groups because I abhor everything they stand for. However, it is important to understand that women can exhibit violent behavior too. Nearly all scholarly studies conducted on domestic violence have found escalated rates of mutual aggression by both partners, including studies conducted by feminist researchers. Women are more likely to be the injured party in domestic violence because the male aggressors are typically stronger and tend to choke and punch, whereas women tend to scratch or slap.

In Hope Solo’s case, she was determined to be the aggressor by police  and was subsequently arrested. In Washington, a mandatory arrest law is in place when police are called to a domestic dispute. The state also requires the accused to appear before a judge for a hearing to determine bail, which is why Solo was held in jail  until this afternoon. Solo was granted release on her own recognizance, but ordered not to have contact with her sister or 17 year old nephew, the alleged victims in the case. She was also ordered not to drink alcohol until her next pretrial hearing scheduled for August 11th. Her attorney argued Solo is the victim in this case, citing court documents which state she was hit over the head with a broom handle and had a BB gun pulled on her, and believe they have a strong case to defend.

It is entirely possible Hope Solo is not guilty in this situation, and I hope she is acquitted of these charges and can go back to playing soccer in preparation for next year’s Women’s World Cup in Canada. The story being told by her nephew clearly has holes in it. As more information comes out, I’m a little impressed that Solo stood up for herself against a verbally abusive male who pulled a gun on her. But one thing has become very clear, I am a diehard fan of a very flawed woman. In this age of social media, we tend to learn things about our favorite athletes and celebrities that we would not necessarily want to know. Athletes don’t grow up dreaming of having their posters on kids’ walls or being perfect role models; they dream of winning titles, accolades, and making money. It’s important to remember that Hope Solo doesn’t owe it to anyone to be a good role model. And that is why, in spite of her off the field flaws, I will continue to cheer for her every time she steps on the field and hope she is in net to win her first World Cup next year.

Rape Within the Ranks

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USMC Female Engagement Team in Afghanistan 2010 (Image credit: Defense.gov News Photo 101029-M-5881H-124 – U.S. Marine Corps Lance Cpl. Sienna De Santis and U.S. Navy Petty Officer 3rd Class Heidi Dean both with Female Engagement Team India Company)

“You have two choices: Suicide or AWOL.” That is how former Army Criminal Investigative Division prosecutor Myla Haider described the current system for victims of military sexual assault. Sergeant Haider, along with every other female military investigator, was not allowed to investigate rape allegations because females were deemed “too sympathetic” to objectively pursue the case. The result has been catastrophic; military rape victims are treated as liars, interrogated for filing false reports of assault, slutshamed for their supposed behavior that invited the assault, and then face professional retaliation in the form of a reduction in rank and/or charges of adultery and fraternization if their attacker was married.

According to the United Nations Development Fund for Women, one in three women will be victims of rape, sexual assault, or gender-based violence in their lifetime. Within the United States military, this rate is much higher. In 2012, alone, an estimated 26,000 service members sustained unwanted sexual contact, a 34% increase from 2010. The same survey on military sexual assault in 2012 revealed less than three out of every one hundred cases were prosecuted. The numbers are more staggering when looking at cases of sexual assault and rape. Over 20% of female veterans have been sexually assaulted while serving in the United States military. In 2009, 3,230 male and female servicemembers reported being sexually assaulted, according to the Department of Defense. The DOD acknowledges this number is probably on the low end, since an estimated 80% of sexual assault survivors do not report.

To put these numbers in perspective, the military sexual assault rate is at least twice the civilian rate. Only 8% of reported sexual assaults reached the court-martial stage in 2007. To compare, 40% of offenders arrested for sex crimes in the civilian courts are prosecuted. 33% of servicewomen did not report their rape because the person to report to was a friend of their rapist; 25% of servicewomen did not report because the person to report to was their rapist. As a result, women who have been raped in the military have a higher rate of Post-Traumatic Stress Disorder (PTSD) than men who have seen combat. 40% of homeless female veterans were raped during their military service.

Rape, especially as a tool of war, is not a new phenomenon, nor is it a new development arising out of the prolonged wars in Iraq and Afghanistan. A 2003 study revealed 30% of female veterans who served during the period spanning the Vietnam War to the first Gulf War were raped. A 2004 study examining PTSD rates among veterans who served in the military during Vietnam to the present showed 71% of female veterans had been sexually assaulted or raped during their service. Lastly, a 1995 study revealed 90% of female veterans who served in the Gulf, and wars prior, had been the target of sexual harassment.

On Tuesday in her live town hall event with CNN, former Secretary of State Hillary Clinton voiced her support for Senator Kirsten Gillibrand’s proposed Military Justice Improvement Act to combat the United States MIlitary’s rape crisis. The presumptive 2016 presidential candidate supports her Senate successor’s efforts to remove the prosecution of rape and sexual assault from the chain of command. Senator Gillibrand’s proposal has failed to gain the necessary 60 votes in the Senate to overcome a filibuster. Instead, Congress has passed the less significant reforms proposed by Senator Claire McCaskill of Missouri.

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Senator Kirsten Gillibrand (D-NY) (Image Credit: Kirsten Gillibrand meets rescue wing via US National Guard)

Senator Kirsten Gillibrand of New York has led the charge in reforming the way the United States military prosecutes cases of rape and sexual assault. The senator’s proposed plan, the Military Justice Improvement Act (MJIA) is the more radical of the two policy proposals. If adopted, the MJIA would remove the prosecution of rape and sexual assault, along with all other crimes punishable by more than one year, from the chain of command and give the power to an unbiased Judge Advocate General (JAG). Specifically, JAG officers must hold the rank of O-6 or higher, be qualified as trial counsel under the UCMJ, have extensive experience in court-martial trials, and not be assigned to the chain of command of the victim or accused at the time of the accusation. This JAG officer would have the power to determine if charges are brought and if a court-martial is convened. The power to review these decisions would be extended to the offices of the military chiefs of each of the service branches.

Although the bill failed to overcome a filibuster, Senator Gillibrand has received widespread support for the proposed reforms. After extensive research on the military’s sexual assault epidemic, Lindsay Rosenthal and Lawrence Korb of the Center for American Progress concluded the problem will not be fixed until it is removed from the chain of command. Moving the prosecution of sexual crimes to independent military lawyers removes the influence and bias of the chain of command and the potential for retaliation on the victim. Rosenthal and Korb determined “since senior officials in the chain of command not only lack legal training but also have inherent conflicts of interests, the chain of command is the very source of the problem.”

Along with Center for American Progress, the legislation has public support from veterans’ groups, women’s rights organizations, UCMJ experts, and the Department of Defense’s Defense Advisory Committee on Women in the Services. Supporters include the Iraq and Afghanistan Veterans of America (IAVA), Service Women’s Action Network (SWAN), Joyful Heart Foundation, and the National Organization for Women. Rape survivors Lieutenant Ariana Klay and Seaman Kori Cioca have publicly spoken out in support of the Military Justice Improvement Act. In a letter to Congress, more than a dozen military justice law professors supported removing prosecution from the chain of command, appointing the jury for a court-martial by an unbiased officer, and removing the power to review charges and sentencing from commanders.

Senator Claire McCaskill (D-MO) Image Credit: "Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey greets Senator Claire McCaskill at the Senate Hart Office Building in Washington, D.C. April 17, 2013" by Ktr101is licensed under CC by 2.0)

Senator Claire McCaskill (D-MO)
Image Credit: “Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey greets Senator Claire McCaskill at the Senate Hart Office Building in Washington, D.C. April 17, 2013” by Ktr101is licensed under CC by 2.0)

Senator Claire McCaskill of Missouri, a former prosecutor of sex crimes, proposed less sweeping reforms to the way the military prosecutes sexual assault. Ultimately, it was Senator McCaskill’s plan that passed in Congress. Attached as an amendment to the 2013 Defense Authorization bill, McCaskill’s plan prohibits commanding officers from vacating court-martial convictions. Other changes call for a review of cases where the commanding officer contests the recommendation for court-martial by a JAG officer by the civilian secretary of the service branch, make reprisals against victims who report crimes a punishable offense under the Uniform Code of Military Justice, and require commanders who oversee the judicial proceedings to justify sentence alterations and consult with the victim prior to issuing a sentence. Additionally, the accused will now be moved out of the unit of the accuser and those found guilty of sex crimes will face a minimum punishment of dishonorable discharge from the service. Lastly, the legislation lifts the previous five-year statute of limitations on sexual assault. Both the House and Senate Armed Services Committees endorsed these policy changes in the debate process. In early 2014, Senator McCaskill followed up the initial reforms by passing an additional measure to combat the rape crisis through the Senate. While still awaiting a vote in the House, the additional provisions ban the “good soldier” defense that would allow the accused to cite prior military service, commendations, and character testimony in refuting the charges. In cases where a military rape occurred on civilian property, the victim would get to determine if the perpetrator is prosecuted in civilian or military court. Finally, officer promotion decisions would now include that officer’s prior handling of sexual assault cases.

Senator Kirsten Gillibrand has vowed to continue fighting for the passage of the Military Justice Improvement Act. If past efforts on behalf of veterans and minority groups within the military are any indication, military sexual assault victims have a strong ally in Senator Gillibrand.

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