Professor April Cherry spoke at C|M|LAW’s Journal of Law and Health Conference on March 7, 2014. Her talk was entitled: “Self-Harm, Fetal-Harm and the Ideology of the Good Mother.” It explored the connection between the “compelling state interest in the fetus” rhetoric, feticide statutes, and the image of maternal orthodoxy that leads us to criminalize behavior of pregnant women that results in fetal harm, regardless of the mental illness or mental health status of the pregnant woman.
Author Archives: CSU|LAW
Falk Speaks about the Epidemics of Rape on College Campuses and in the Military
Professor Patricia J. Falk
On March 29, 2014, C|M|LAW Professor Patricia J. Falk presented Is VAWA Enough?: The Epidemics of Rape on College Campuses and in the Military at a conference presented by Dusquesne Law School in Pittsburgh– The Violence Against Women Act and Its Impact on the U.S. Supreme Court and International Law.
Professor Falk explained that on January 22, 2014, President Barack Obama created a special task force to combat the epidemic of rape on college campuses. She noted that the statistics are alarming: one in five college women is either sexually assaulted or the victim of an attempted sexual assault during her college years, and only 10-12% of those who are sexually assaulted reported the attacks. Less than a month earlier, in December of 2013, President Obama had issued a warning to the military – that it had to decrease the number of sexual assaults experienced by service members within one year. The President stated that if improvement were not forthcoming, he would have to step in and take more aggressive measures himself. The statistics are also alarming. In Fiscal Year 2010, 19,000 service members were victims of sexual assault, and only about 14 percent of the victims reported the crime. A recent VA study indicated that nearly one in four women sent to Iraq or Afghanistan reported being sexually assaulted.
Professor Falk indicated that within the past few months, the Obama administration had identified two specific sites in our society that are in urgent need of reform in terms of sexual assault. In this talk, she explored whether these very different spaces have some things in common that make the crime of rape more likely to occur. She asked whether, if we can understand the characteristics that make these spaces fertile ground for sexual assault (i.e., more rape-prone), we might be able to turn the tide on these epidemics and make progress toward their eradication. In particular, she examined victims’ accounts, the juxtaposition of non-legal actors in decision making regarding the prosecution of rape, conflicts of interest in those to whom sexual assault is reported, motivated offenders and a surfeit of potential victims, the role of alcohol and drugs, and the current legal rules or systems.
Sterio Writes about Crimean Secession on IntLawGrrls.com
C|M|LAW’s Charles R. Emrick, Jr.- Calfee Halter & Griswold Professor of Law Milena Sterio has posted On Crimean Secession, Fairness, and Self-Determination on IntLawGrrls.com, a blog on international law, policy, and practice. She argues that “the Crimean issue is complex, and that instead of simply proclaiming that Ukraine is right and Russia is wrong, we need to step back and analyze the region’s history, as well as to take into account its population’s true desires.”
To read her thoughts on Crimean secession, click here:
Witmer-Rich Comments on Fox 8 News on County Prosecutors’ Reenactment of 2012 Shooting
Professor Jonathan Witmer-Rich
On March 7, 2014, C|M|LAW Professor Jonathan Witmer-Rich commented on Fox 8 News regarding the re-enactment, organized y Cuyahoga County prosecutors, of a fatal 2012 police shooting.
Witmer-Rich said re-enactments can be helpful. He noted that “[i]t might be the case it will be helpful for the grand jury to see things as they happened in real time.” He also said that re-enactments do shed light on how events might have transpired and even escalated.
“How would a reasonable officer react in these circumstances?” said Witmer-Rich, “Seeing it happen in real time might really give the grand jury a better sense of how to draw conclusions of how a reasonable officer would’ve behaved.”
Watch here:
Falk Cited by the Supreme Court of Canada
Professor Patricia J. Falk
C|M|LAW Professor Patricia J. Falk’s 1998 article Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39 (1998) was cited on March 8, 2014, in a much anticipated decision by The Supreme Court of Canada. The decision involved a sexual assault case in which the man intentionally perforated a condom and was convicted of sexual assault. The Supreme Court of Canada upheld the conviction.
Writing about “the distinction made in U.S. criminal and tort law between deceptions going to the fact (“fraud in the factum”) which vitiate consent for the purposes of rape and battery and other deceptions that act as inducements (“fraud in the inducement”) which do not”, on pages 33-34 of the opinion, the court says:
“A further example is the distinction made in U.S. criminal and tort law
between deceptions going to the fact (“fraud in the factum”) which vitiate consent for
the purposes of rape and battery and other deceptions that act as inducements (“fraud
in the inducement”) which do not. As expressed by one leading text, the rule is that
“if the deception relates not to the thing done but merely to some collateral matter”
the consent is valid: R. M. Perkins and R. N. Boyce, Criminal Law (3rd ed. 1982), at
p. 1079. No matter how beguiling it appears at first, the distinction has proved
unworkable. It is not helpful in differentiating between legally effective and
ineffective consent and where it attempts to draw the line has no basis in principle:
see, e.g., P. J. Falk, “Rape by Fraud and Rape by Coercion” (1998), 64 Brook. L. Rev.
39, at p. 159-61.”
Here is a link to the decision – http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13511/index.do The reference to Professor Falk’s article is not visible on the html page, but you may view it by clicking on the small PDF icon in the right hand corner of the gray box at the top of the page. The list of references appears on page 10.
Kalir Files Amicus Brief with United States Supreme Court
C|M|LAW Clinical Professor Doron Kalir, together with Civil Litigation Clinic students Amy Polomsky and Kate Southworth, filed an Amicus Brief with the United States Supreme Court on behalf of the National Association of Social Workers. The brief argues that social workers are entitled to qualified immunity whenever they make a reasonable decision to remove an abused child, even in the absence of a prior judicial hearing. Recently, in a 2:1 decision, the Sixth Circuit held that social workers are not entitled to qualified immunity under those circumstances. The social workers are currently seeking a grant of certiorari from the Court, and 13 States have filed an amicus in their support. Now, the National Organization of Social Workers (NASW) has joined them. The circuit split on the issue, and the fact that the Court has ruled on a related issue 25 years ago – but left this question unanswered – increase the likelihood that the Court will grant cert. in this matter.
Robertson Speaks on Leasing at Crain’s Shale Summit 2014
On February 20, 2014, C|M|LAW Professor and Associate Dean for Academic Enrichment Heidi Gorovitz Robertson served on a panel entitled “The Most from a Lease” at Crain’s Shale Summit 2014. Robertson and the two other panelists highlighted potential legal and logistical issues for current and prospective lessees of mineral rights in Ohio. In particular, the panelists spoke about the role of landmen and brokers in the leasing process, the impact of unitization on lessees’ rights, rights of access to the surface and subsurface, pipeline leases, and more. The event was attended by nearly 300 lawyers, journalists, industry professionals, landowners, environmentalists, and others.
Video coverage of the event is available here:
http://www.crainscleveland.com/article/20140224/MULTI/302289999
The event program is available here:
Plecnik Publishes in Tax Notes on the EITC Ban and the Definition of “Reckless”
C|M|LAW Professor John Plecnik has published Reckless Means Reckless: Understanding the EITC Ban in Tax Notes at Vol. 142, No. 8, Feb. 24, 2014, p. 847. It was published electronically in Tax Notes Today.
In this article, Plecnik argues that Congress intended to incorporate in the earned income tax credit ban the well-established definition of reckless or intentional disregard from section 6662, which imposes the accuracy-related penalties. Plecnik has previously argued that the legislative history demonstrates Congress intended the same definition of reckless or intentional disregard for sections 32(k) and 6662. That argument was inspired by Plecnik’s work as pro bono counsel for the Legal Aid Society of Cleveland on two EITC ban cases in the Tax Court. Both cases were settled last fall on terms favorable to his clients with no ban or other penalties. Plecnik thanks Professor Leslie M. Book of Villanova University School of Law as well as Camille R. Gill and Susan E. Morgenstern, his co-counsels from Legal Aid.
Robertson Writes in Crain’s about the Pennsylvania Supreme Court’s Decision on Local Regulation of Shale Oil and Gas Development
On January 31, 2014, C|M|LAW Professor and Associate Dean for Academic Enrichment Heidi Gorovitz Robertson published a blog post, Pennsylvania’s Environmental Rights Might Snag Drillers, in Crain’s Cleveland Business’ Shale Report. Robertson has written previously in Crain’s about the struggles Ohio and other states face when local governments attempt to control local activities of the shale oil and gas industries. In particular, Ohio legislation seems effectively to preempt local regulation. An intermediate court in Ohio has upheld the state’s ability to prohibit such local regulation, but the Supreme Court of Ohio has yet to hear a case on this issue.
In neighboring Pennsylvania, however, the Supreme Court has struck down, on state constitutional grounds, the legislature’s attempt to preempt most local regulation of shale oil and gas drilling. To do this, the Pennsylvania court relied on an environmental rights provision in that state’s constitution. The court thus returned to Pennsylvania’s local governments the authority to regulate hydraulic fracturing as an industrial use under their land use and zoning ordinances. Pennsylvania’s preemption of local regulation of hydraulic fracturing appeared dead.
According to two state agencies, however, the Court’s decision was not supported by the facts, and on Jan. 2, 2014, they asked the Court to reconsider its December 2013 decision. We don’t know yet whether the Pennsylvania Supreme Court will agree to reconsider.
In the meantime, Ohio’s can ponder the possibilities. The Ohio and Pennsylvania Constitutions both have Home Rule provisions and some Ohioans have hoped that Ohio courts would use that provision to strike down Ohio’s legislative preemption of local oil and gas ordinances. So far, Ohio courts have not done this. Although Pennsylvania has a similar Home Rule provision, that state’s court did not rely on it to strike down the preemption of local regulation. Instead, it used the environmental rights provision. Ohio’s Constitution does not include an environmental rights provision.
To read the complete post, click here:
http://www.crainscleveland.com/article/20140131/SHALEBLOGS/301319996
Ray Writes on South African Court’s Emphasis on Procedure in Policy Decisions
C|M|LAW’s Joseph C. Hostetler – Baker & Hostetler Professor of Law Brian E. Ray recently published a blog post entitled South African Informal Traders Forum and Others v The City of Johannesburg and Others: A Promising Start by the South African Constitutional Court, on Oxford Human Rights Hub. In that decision, the South African Constitutional Court enjoined the City of Johannesburg from evicting informal traders in the inner city. Regarding this decision, Ray writes “Departing sharply from its normal procedures, the South African Constitutional Court recently issued what we in the States would call an “interim injunction” in a case pending before the South Gauteng High Court called South African Informal Traders Forum and Others v The City of Johannesburg and Others (“SAITF”). The order prohibits municipal authorities in Johannesburg from “interfering” with the activities of multiple street traders in the city center who are lawfully licensed to trade by the City.
Ray notes that the temporary injunction in the SAITF case is an example of this Court playing a stronger procedural role in policy decisions. Recent cases show that, “when operating in a role that it can safely characterize as procedural—especially when faced with a policy that either completely ignores or actively infringes upon social rights—the Court has been much more willing to exercise its authority to at least temporarily stop implementation of a challenged policy, and sometimes even to change it.”
To read this post, click here:
CSU Law Faculty 