United States

United States Map

 

Population of women:  155.9 million

Life expectancy of women (at birth):  80.93

School life expectancy for women:  17 (2008 est.)

Adult illiteracy for women:  1% (2003 est.)

Unemployment of women:  8.1%

Adult economic activity rate:  58%

Sources: 

CIA World Factbook: https://www.cia.gov/library/publications/the-world-factbook/geos/us.html (figures current to 2011)

Census Bureau: http://quickfacts.census.gov/qfd/states/00000.html

Women by the Numbers:  http://www.infoplease.com/spot/womencensus1.html

Department of Labor:  http://www.dol.gov/wb/stats/main.htm (2009)

Global Gender Gap Report:  https://members.weforum.org/pdf/gendergap/report2010.pdf

UN Indicators on income and economic activity:  http://unstats.un.org/unsd/demographic/products/socind/inc-eco.htm

 

                                                                                                

                                                                                          

                                                                                                created September 2011

UNITED STATES FEDERAL SYSTEM                

In the United States (“U.S.”), there are two distinct systems of law that address violence against women (“VAW”): federal law that applies to the entire U.S. and state law that applies to each state. In order to understand why both systems exist and how they work together, it is necessary to give a brief explanatory note about the U.S. federal system of government.

The United States is a coalition of 50 states organized under a national, or federal, government. Each state has its own government and laws, but the U.S. Constitution states that the laws of the federal government are the “Supreme Law of the Land.” However, the extent to which the federal government can control activities within each state is limited to the authority granted to it by the U.S. Constitution. Unless the U.S. Constitution grants power to the federal government to control or regulate certain activities, it can neither regulate nor direct the states on how to regulate such activities. Thus, outside of the sphere of federal authority, the individual state governments can operate fairly independently and without constraint, so long as they are not violating other parts of the Constitution.[1]

Several areas of governance traditionally have been considered to be reserved to the states. Most notably, states are considered to have authority and control to exercise “police powers” with respect to their residents or the visitors to their jurisdiction. Such authority enables each state government to act in the interest of the health, safety, morals, and general welfare of its residents or visitors. Thus, the power to enact laws prohibiting acts of violence against women traditionally would be the prerogative of the individual state governments because such authority falls within the police powers reserved to each state.

However, as federalism and Constitutional law have evolved over time, the federal government’s reach into traditionally state-governed affairs has expanded considerably. Today, there are several Constitutional grounds upon which the federal government may base legislation and policy initiatives addressing violence against women and related issues.

o                    Commerce Clause:  Under the “Commerce Clause” of the U.S. Constitution, the federal government has the power to enact laws relating to or affecting commercial activity among the states. This power has grown to allow the federal government to legislate just about anything that can have a “rational relationship” to interstate commerce, even if that relationship consists only of a cumulative effect. Where the activity sought to be regulated is not itself economic in nature, the government must show that it has a “substantial effect” on interstate commerce. Today, the interstate commerce rationale provides a legitimate basis for federal legislation dealing with VAW-related issues, such as trafficking in women, where the conduct implicated is conducted across state lines.

o                    Fourteenth Amendment:  Another basis for federal legislation dealing with gender issues is found in the Fourteenth Amendment’s Equal Protection Clause. The Equal Protection Clause prohibits unequal treatment of groups of people based on distinctions of race, gender, national origin, etc. The Fourteenth Amendment allows the federal government to intervene where some action taken by a state (i.e., some involvement by a government entity) may cause discrimination, such as a state law that results in unequal treatment of women. An act of discrimination by a state based on gender can only be justified if it furthers an important government interest in a way that is substantially related to that interest. The Fourteenth Amendment provides a legal basis for laws targeting gender-based discrimination.

o                    Spending Clause:  While the federal government does not have the authority to mandate behavior by the states, it may seek to influence state law through federal grant programs and other incentives. The so-called “Spending Clause” of the U.S. Constitution grants Congress the power to tax and spend money for the general welfare of the people. Under the rubric of the Spending Clause, the federal government may adopt spending programs that would encourage states to take measures to eliminate gender-based discrimination or address sexual harassment. As the following sections will demonstrate, the U.S. approach to combating VAW-related issues often takes two forms – (1) laws directly prohibiting certain acts and (2) federally funded initiatives and grant programs to assist states in combating VAW.[2]

Sources:

Federalism in the U.S. Constitution

http://www.usconstitution.net/consttop_fedr.html

Cornell Law - Commerce Clause

http://topics.law.cornell.edu/wex/Commerce_Clause

Cornell Law - Intermediate Scrutiny

http://topics.law.cornell.edu/wex/intermediate_scrutiny

Cornell Law – Equal Protection

http://topics.law.cornell.edu/wex/equal_protection

Spending Clause

http://caselaw.lp.findlaw.com/data/constitution/article01/26.html (spending clause)

 

FEDERAL LAWS AND POLICIES

 

  • GENDER EQUALITY

Today, the U.S. is ranked 19 out of 134 countries in terms of gender equality in the World Economic Forum’s Global Gender Gap Report. Part of the progress of the U.S. in this area is attributable to legislative activity at the federal level to ban gender-based discrimination, which has led the way for states to adopt their own similar measures. The federal government’s authority to enact anti-discrimination laws stems from the authority granted by the U.S. Constitution’s Commerce Clause, the Fourteenth Amendment, or a combination thereof (see Introduction to the Federal System, above). 

As described below, federal laws prohibit gender discrimination in a number of settings, including employment, housing, and education.

o        Title VII (Equal Employment Opportunities of the Civil Rights Acts of 1964):  Title VII prohibits discrimination in the workplace on a variety of bases, including gender. It also created the Equal Employment Opportunities Commission (“EEOC”) to enforce these provisions. Title VII was originally enacted to combat racism in the workplace, with the proscription against gender discrimination added at the last minute. However, Title VII has since become the basis for many gender-based discrimination suits, as well as the model for analogous state legislation.

o        The Equal Credit Opportunity Act (“ECOA”):  The ECOA prohibits creditors from discriminating against credit applicants on a variety of bases, including gender and marital status. When considering whether to extend credit, a creditor may neither discourage an applicant from applying for credit based on gender nor consider gender as a factor in extending credit. Furthermore, a creditor is explicitly prohibited from considering other gender-correlated factors to the disadvantage of female applicants, such as discounting a woman’s income based on an assumption that women of child-bearing age will stop working.

o        Fair Housing Act (“FHA”):  The FHA prohibits discrimination in the sale, rental and financing of housing on a variety of bases, including gender and marital status. For example, a landlord or bank cannot have different income prerequisites for renting or extending financing for housing to women. The FHA also prohibits sexual harassment in the housing context, such as when a landlord creates a hostile environment for tenants based on gender. These laws govern all housing, with three exceptions:  (1) housing in which the landlord also lives and rents out only one room; (2) housing where the renters share a living space with the landlord; and (3) single-sex dormitories at educational institutions.

o        Equal Pay Act of 1963 (“EPA”):  The EPA requires employers to pay all employees equally for equal work, regardless of whether the employees are male or female. “Equal work” does not require that the jobs be entirely identical, but they must be “substantially” equal. The EPA covers all forms of “pay” including salaries, overtime pay, bonuses, stock options, insurance, vacation pay, and other benefits.

o        Family and Medical Leave Act (“FMLA”):  The FMLA gives employees the right to take time off from work in order to care for a newborn or recently adopted child, or to look after an ill family member.

o        Pregnancy Discrimination Act (“PDA”):  The PDA prohibits employment discrimination against female workers who are (or intend to become) pregnant. Thus, employers may not decide against hiring female workers just because they are, or may become, pregnant. The same goes for decisions to promote or terminate workers.

o        Title IX (from the Education Amendments of 1972):  Title IX prohibits gender-based discrimination in education programs that receive federal funds, so as to increase educational and athletic opportunities for females in schools and colleges nationwide. Title IX also prohibits retaliation against any person who testifies or files a complaint against any institution for failing to comply with Title IX. These provisions are enforced by Offices for Civil Rights that have been established throughout the U.S.

Sources: 

Gender Discrimination

http://public.findlaw.com/civil-rights/gender-discrimination/gender-discrimination-basics.html

The Daily Collegian, « United States ranks 19th in gender equality »

http://www.collegian.psu.edu/archive/2010/10/19/gender_gap.aspx#.

Gender Discrimination : Applicable Laws

http://public.findlaw.com/civil-rights/gender-discrimination/gender-discrimination-laws.html

« The Global Gender Gap Report »

https://members.weforum.org/pdf/gendergap/report2010.pdf

U.S. Equal Employment Opportunity Commission: Sex-Based Changes

http://www.eeoc.gov/eeoc/statistics/enforcement/sex.cfm

Federal Trade Commission: Equal Credit Opportunity Act

http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre15.shtm

Fair Employment and Housing Act

http://housing.org/pdf_docs/Gender%20Discrimination.pdf

U.S. Equal Employment Opportunity Commission: Equal Pay/Compensation Discrimination

http://www.eeoc.gov/laws/types/equalcompensation.cfm

“Gender Discrimination and the Family Medical Leave Act”

http://bus.collins.utulsa.edu/buslaw/Articles/Gender%20Discrimination%20and%20the.pdf

U.S. Department of Education: Title IX

http://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html

 

  • DOMESTIC VIOLENCE

Domestic violence against women is an area of concern in the U.S. According to a study conducted in 2000, one in four women in the U.S. has experienced domestic violence in her lifetime. Women account for an overwhelming majority (85%) of domestic violence victims in the U.S. In recognition of the prevalence and severity of domestic violence, the federal government enacted comprehensive legislation in an attempt to combat the problem, most notably the Violence Against Women Act of 1994 (“VAWA”).

VAWA gave the federal government the ability to investigate and prosecute certain acts of domestic violence. However, as discussed in the Introduction to the Federal System, the reach of federal legislation with respect to domestic violence is limited to those instances in which the law is within the scope of federal authority. Thus, many laws are limited to activities that cross state lines.

Despite this, VAWA’s impact has been expansive, partly because its reach is not limited to the criminal law arena. In addition, VAWA established federal grant programs and initiatives that encourage state and local governments to take measures to combat domestic violence. (See National Plan of Action, below.) Today, the capacity of VAWA may be credited for improving services for victims of domestic violence, as well as education and training about violence against women for victim advocates, health professionals, law enforcement, prosecutors, and judges.

o        VAWA made it a federal crime to commit certain acts of domestic violence. Investigations of violations of VAWA are primarily conducted by the Federal Bureau of Investigations (“FBI”): 

·         Interstate Travel to Commit Domestic Violence, 18 U.S.C. § 2261:  This law makes it a federal crime to travel across state lines with the intent to injure, harass, or intimidate one’s intimate partner when a violent crime causing bodily injury occurs as a result of or during the course of the travel. This law also makes it a federal crime to use force, coercion, duress, or fraud to compel an intimate partner to cross state lines when bodily harm occurs during the course of this travel. To institute a criminal proceeding under this law, it must be shown that the perpetrator acted intentionally when committing acts violating this law. Penalties under this law vary depending on whether a victim was injured, as well as the degree of injury.

·         Interstate Stalking, 18 U.S.C. § 2261A:  This law makes it a federal crime to travel across state lines with the intent to injure or harass another person (not necessarily an intimate partner), if in the course of or as a result of such travel, the perpetrator places such person in reasonable fear of death or serious bodily injury to herself or to a member of her immediate family. This law extends to areas under the special or maritime jurisdiction of the U.S., as well as Indian reservations and military bases. Penalties under this law vary depending on whether a victim was injured, as well as the degree of injury.

·         Full Faith and Credit to Orders of Protection, 18 U.S.C. § 2265:  This law requires all jurisdictions (states and Indian territories) to give effect to and enforce valid protection orders issued from other jurisdictions. A protection order is a judicial means to protect victims of domestic violence. A protection order prohibits the abuser (the subject of the order) from being within a certain distance of the victim or engaging in other abusive or threatening behavior with respect to the victim. This law enables victims to call upon local authorities to enforce a protection order when they move to a different state.

·         Interstate Travel to Violate an Order of Protection, 18 U.S.C. § 2262:  This law has two parts. First, the law makes it is a federal crime to travel across state lines with intent to violate a valid protection order that forbids credible threats of violence, repeated harassment or bodily injury. Notably, there is no requirement in this first part of the law that the victim be an intimate partner or that there be bodily injury resulting from or occurring during the course of the travel. Second, the law makes it a federal crime to force an intimate partner to travel across state lines (whether by force, coercion, duress, or fraud) when bodily injury results, in violation of a valid protection order. For the second part of this law to apply, the victim does have to be an intimate partner of the offender and there does have to be a showing of intentional injury to the victim. However, the offender does not have to intend to force the travel as long as force, coercion, duress, or fraud can be shown. Protection orders under this law are issued by state courts. In order for this law to apply, there first must be a review of the order to see if it complies with federal requirements (e.g., an assessment that the person subject to the protective order poses a credible threat of violence, repeated harassment or bodily injury).

o        VAWA also provides for various rights and remedies to victims of domestic violence:

·         Restitution to Victims of Domestic Violence, 18 U.S.C. § 2264:  After an offender has been convicted of a VAWA crime, the court must order restitution to reimburse the victim for the full amount of losses. Recoverable losses span many categories, including costs for medical or psychological care, physical therapy, transportation, temporary housing, child care, lost income, attorney's fees, and costs incurred in obtaining a civil protection order, as well as any other losses suffered as a result of the offense.

·         Right of Victim to Speak at Bail Hearing, 18 U.S.C.§ 2263:  A victim of a VAWA crime has the right to be heard at a bail hearing for the defendant who injured her regarding the danger posed by the defendant. Depending on this and other circumstances, the defendant may be denied bail and remain in custody until trial.

·         Self-Petitioning for Battered Immigrant Women and Children, 8 U.S.C. § 1154:  In recognition that the victims of domestic violence may be dependent upon an abuser for their right to remain in the U.S., VAWA also provides the battered and abused spouses and children of U.S. citizens and permanent residents with a way to self-petition for independent legal residency in the U.S.

·         U-Visa Status for Battered Non-citizens:  The “U-visa” was created to: (i) provide relief to non-citizen victims of qualifying crimes, including acts of domestic violence and sexual assault; and (ii) assist in prosecution of these crimes. Victims who have suffered “substantial physical or mental abuse” as a result of being a victim of a qualifying federal, state or local criminal law may apply for a U-visa. A victim must have information about the crime and demonstrate that she “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the crime, and obtain Certification from a Certifying Agency. U-visa applicants or recipients are never eligible for public benefits. Once the U-visa is approved, a recipient is allowed to live and work legally in the U.S. for up to four years, with the possibility to apply for legal permanent residency after three years. U-visa recipients may petition for their spouse, children and qualifying family members to come to the U.S.  

o        The federal government has criminalized certain acts as part of Gun Control Laws in order to help prevent domestic violence. Investigations under these laws are led by the Bureau of Alcohol, Tobacco & Firearms (“ATF”).

·         Possession of Firearm While Subject to Order of Protection, 18 U.S.C. § 922(g)(9):  This law makes it a federal crime for someone to possess a firearm while subject to a protection order that restrains such person from harassing, stalking or threatening an intimate partner or the intimate partner’s child. Just as with the law against interstate travel in violation of a protective order, for there to be a violation of this law there must be some review of the relevant state’s protection order for compliance with federal requirements. This law does not apply to law enforcement officers or military personnel while they are on duty.

·         Transfer of Firearm to Person Subject to Order of Protection, 18 U.S.C. § 922(d)(8):  This law makes it a federal crime for someone to transfer (e.g., sell or give) a firearm to a person subject to a protection order that restrains such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. For there to be a violation of this law it must be shown that a violator of this law had knowledge of the protective order. This law does not apply to law enforcement officers or military personnel while they are on duty.

·         Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence, 18 U.S.C. § 922(g)(9) and Transfer of Firearm to Person Convicted of a Misdemeanor Crime of Domestic Violence, 18 U.S.C. § 922(d)(9):  These two laws are analogous to the laws applicable to persons subject to a protection order, described above, but apply to persons who have been convicted of a misdemeanor crime of domestic violence. The prohibition under these laws applies even if the conviction for a misdemeanor occurred before these laws came into effect. However, in order for the underlying misdemeanor to qualify as a basis for protection, the misdemeanor must have involved the use or attempted use of physical force or the threatened use of a deadly weapon. For example, a conviction for a misdemeanor violation of a protection order will not qualify, even if the violation was committed by a violent act, if the statute violated does not require the use or attempted use of physical force or the threatened use of a deadly weapon. These laws do not apply to law enforcement officers or military personnel while they are on duty.

·         Amendment of the Brady Statement, 18 U.S.C. § 922(s) (1996):  This amendment to the Gun Control Laws requires that any recipient of a firearm make a written statement that he or she has not been convicted in any court of a misdemeanor crime of domestic violence. While the amendment does not currently require a similar statement that the firearm recipient is not subject to a protection order, the recipient is required to fill out an ATF form requiring certification that he or she is not subject to a valid protection order.

o        Another federal law, 42 U.S.C. § 10606(b), describes generally the rights of victims of domestic violence to help ensure fair treatment and protection: 

·         The right to be treated with fairness and respect for the victim's dignity and privacy;

·         The right to be reasonably protected from the accused offender;

·         The right to be notified of court proceedings;

·         The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial;

·         The right to confer with an attorney for the government in the prosecution of the offender;

·         The right to restitution for losses suffered as a result of the VAWA crime; and

·         The right to be informed about the conviction, sentencing, imprisonment, and release of the offender.

Sources:

Legal Momentum – “History of the Violence Against Women Act”

http://www.legalmomentum.org/our-work/vaw/history-of-vawa.html

Minnesota Center Against Violence and Abuse

http://www.mincava.umn.edu/documents/ffc/chapter5/chapter5.html

Domestic Violence Resource Center

http://www.dvrc-or.org/domestic/violence/resources/C61/

The Hotline – « Violence Against Women Act »

http://www.thehotline.org/get-educated/violence-against-women-act-vawa/

 

  • SEXUAL ASSAULT

A 2009 Presidential Proclamation made it clear that sexual assault remains an area of concern in the U.S., with studies showing that 18% of women have been raped in their lifetime. There are federal laws that are specially targeted to sexual assault. Penalties under these federal laws generally range from fines to lifetime imprisonment, with the only exception being sexual assault resulting in death, for which there are higher penalties, as discussed below.

The reach of federal sexual assault laws is constrained by U.S. Constitutional limits because sexual assault is not an economic activity and generally does not have an interstate component. Thus, each law described in this section will only apply “in the special maritime and territorial jurisdiction of the United States or in a Federal prison.” It is important to recognize that the bulk of laws dealing with sexual assault in the U.S. are state laws.[3]  Nonetheless, just as in its approach to domestic violence, the federal government has complemented the criminal laws with funding initiatives and grants to encourage and assist the state and local governments in dealing with sexual assault.[4]

Federal sexual assault laws include the following:

o        Aggravated Sexual Abuse, 18 U.S.C. § 2241:  This law makes it a federal crime to knowingly cause another person to engage in a sexual act by using physical force, or using threats that place a person in fear of death, serious bodily injury, or kidnapping. It is also a crime to cause another person to engage in a sexual act “by other means,” such as administering an intoxicating substance that impairs the other person’s ability to understand or control his or her own conduct. In addition, attempts to commit such acts are also criminalized.

o        Sexual Abuse, 18 U.S.C. § 2242:  This law makes it a federal crime to knowingly force another person to engage in a sexual act by means that are less direct than those described in 18 U.S.C. § 2241. This law does not require the use of actual physical force and includes the use of threats that places someone in fear of things other than death, serious bodily injury or kidnapping. In addition, this law makes it a crime to engage in a sexual act with anyone who is incapable of understanding the nature of the act or is physically incapable of communicating his or her refusal or unwillingness.

o        Abusive Sexual Contact, 18 U.S.C. § 2244:  This law is broader than 18 U.S.C. §§ 2241-42, and may be termed a “catchall” provision to criminalize sexually abusive conduct that does not result in a completed sexual act. Under this law, it is a crime to knowingly cause or engage in “sexual contact” with another person if, had the act been completed, it would be a crime under any other related provision, such as 18 U.S.C. §§2241-42. “Sexual contact” is defined broadly, meaning any “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” Furthermore, any knowing sexual contact with another without that person’s permission is also punishable.

o        Sexual Abuse Resulting in Death, 18 U.S.C. § 2245:  This law provides for an enhanced penalty where someone causes the death of another person while committing a sexual assault offense. Rather than being punishable by a fine or prison term or a combination thereof, a conviction under this law is punishable by a prison term for any number of years to life in prison, or by capital punishment.

o        Female Genital Mutilation, 18 U.S.C. § 116:  This law makes it a crime to knowingly circumcise, excise, or infibulate any part of a female’s genitalia, where said female is not yet 18 years old. Such acts are punishable regardless of the effect or beliefs of either the person being subjected to the operation or any other person or whether the act is part of a religious ritual or custom. The only exceptions to this law are operations performed by medical professionals for the health of the person operated upon or other medical need.

o        The Campus Security Act of 1990, 20 USC § 1092(f)):  This law was enacted to target and prevent sexual assault on college and university campuses. The law requires educational institutions that receive federal funds to make available any information they have regarding the possible presence of registered sex offenders, as well as any sexual assault crimes on or around the campus.

o        The Justice for All Act of 2004:  This act incorporates several different measures intended to enhance protection of victims and increases the availability of federal resources to state and local governments for combating sexual violence. The act modifies and adds to the rights available to victims, most notably the right to be heard at any public proceeding involving the attacker, including hearings on the release, plea, or sentencing. Under this act, prosecutors are required to advise victims that they can seek the advice of an attorney with respect to the rights established by the act. In addition, under the act, victims are also allowed to file motions to reopen a plea or sentence under certain circumstances.

Sources:

 

The White House – “National Sexual Assault Awareness Month”

http://www.whitehouse.gov/the_press_office/Presidential-Proclamation-Marking-National-Sexual-Assault-Awarness-Month-2009/

RAINN - Statistics

http://www.rainn.org/get-information/statistics/frequency-of-sexual-assault

West Virginia Foundation for Rape Information & Services – Federal Sex Offense Laws

http://www.fris.org/Laws/FedallLaws.html

RAINN – Key Federal Laws

http://www.rainn.org/public-policy/key-federal-laws

Center for Sex Offender Management - Resources

http://www.csom.org/otherResources/index.htm

Security On Campus, Inc. – “Complying with the Jeanne Clery Act”

http://www.securityoncampus.org/index.php?option=com_content&view=article&id=271&Itemid=81

The Office of Justice Programs – “The Justice For All Act”

http://www.ojp.usdoj.gov/ovc/publications/factshts/justforall/content.html

 

  • SEXUAL HARASSMENT

Sexual harassment is considered a form of gender-based discrimination. Federal provisions addressing sexual harassment may, as a result, be found accompanying laws that address gender discrimination (see Gender Equality). The laws described below prohibit sexual harassment and provide a remedy to victims. Federal case law has recognized two forms of sexual harassment claims:  (1) the quid pro quo (this for that) claim, where someone in a position of authority explicitly or implicitly demands sexual favors in return for providing some benefit (such as a promotion or better grades); and (2) the hostile environment claim, where someone engages in unwelcome sexual behavior that creates an intimidating, hostile, or offensive environment, or unreasonably interferes with a victim’s performance (whether work or school related). The range of prohibited conduct includes verbal, nonverbal, and physical conduct.

o        Harassment in the Workplace, Title VII:  This law, in addition to addressing gender-based discrimination generally, specifically prohibits sexual harassment in the workplace. The EEOC is the agency responsible for investigating complaints and enforcing Title VII. Title VII also makes certain employers responsible for preventing and stopping sexual harassment. While there are no particular actions that employers are required to take under Title VII, the EEOC normally releases guidelines that suggest appropriate measures for employers to take.

o        The Congressional Accountability Act, 2 U.S.C. §§ 1301-1438:  This act requires Congress itself to comply with workplace standards that are imposed on other employers. The act also creates an office responsible for investigating compliance.

o        Harassment in Schools, Title IX:  Title IX addresses gender discrimination in schools that receive federal funding (see Gender Equality), and also imposes requirements specifically designed to address sexual harassment. Schools are required to put in place anti-discrimination policies addressing sexual harassment, and/or disciplinary codes that prohibit sexual harassment. Each school must have at least one trained Title IX coordinator responsible for ensuring the school’s compliance with Title IX. Compliance is reviewed by the U.S. Department of Education’s Office for Civil Rights (“OCR”).

 

Sources:

California State University – “Development of Sexual Harassment Law”

http://www.calstate.edu/hr/SHLaw.pdf

NOLO – Preventing Sexual Harassment in the Workplace

http://www.nolo.com/legal-encyclopedia/article-29851.html

Legal Momentum – Legal Resource Kit: Sexual Harassment in the Schools

http://www.legalmomentum.org/assets/pdfs/sexualharassmentinschools2008.pdf

 

 

  • TRAFFICKING IN WOMEN

The U.S. is a source, transit and destination country for victims of human trafficking. According to a 2010 report, major reasons for human trafficking into the U.S. involve forced labor, debt bondage and forced prostitution. Today, in addition to individual state laws, the U.S. has in place a variety of measures addressing trafficking, encompassing both statutes and policy initiatives. The United States Congress passed the Trafficking Victims Protection Act of 2000 (TVPA) to prohibit trafficking, punish traffickers, and protect victims. Federal statutes governing sex trafficking include 18 U.S.C. §§ 1591, 2421, 2422, and 2423. Section 1591 prohibits traffickers from affecting interstate commerce by recruiting or enticing victims to engage in commercial sex acts. Section 2421 prohibits traffickers from transporting persons over state or international lines to engage in commercial sex acts. Section 2422 prohibits traffickers from using the mail or other means to entice or coerce victims to travel for the purpose of engaging in commercial sex acts. Lastly, Section 2423 prohibits traffickers from transporting minors across state or federal borders for the purpose of engaging in commercial sex acts and prohibits persons from traveling to engage in illicit sex acts. A person who violates these laws is subject to criminal penalties ranging ten years to life in prison.

 

o        The Victims of Trafficking and Violence Protection Act of 2000 (“TVPA”):  The TVPA was the first comprehensive federal law addressing human trafficking, encompassing criminal statutes prohibiting the practice, public awareness programs designed to help prevent human trafficking, and measures (such as specialized immigration requirements) to help protect victims of human trafficking. (See e.g. Immigration Relief below.) The TVPA provides for enhanced penalties for all severe forms of human trafficking, which includes sex trafficking for sex for commercial purposes (“sex trafficking”) and for forced labor (“labor trafficking”). Under the auspices of the TVPA, the U.S. Department of Justice’s Human Trafficking Prosecution Unit prosecuted 114 individuals and obtained 47 convictions in 2009. Penalties include life imprisonment and the possibility of severe economic sanctions.

o        There have been several significant revisions/additions to the TVPA:

·         Trafficking Victims Prevention Reauthorization Act of 2003 (“TVPRA”):  This law added several features to the original TVPA provisions, including (i) allowing trafficking to serve as a predicate for organized crime law charges and (ii) allowing victims to sue traffickers in U.S. courts. This law requires U.S. government contracts to contain clauses allowing the government to terminate the contract if a contractor commits trafficking offenses while the contract is in force. The law further requires that travelers to the U.S. be informed of the laws against sex tourism.

·         TVPRA of 2005:  This law provides U.S. courts with authority to decide cases where federal government employees and contractors are alleged to have committed human trafficking offenses outside the U.S. The law directs the FBI to investigate severe forms of trafficking, both domestic and non-domestic. The U.S. Attorney General is required to study and report to Congress on the status of human trafficking in the U.S., as well as the progress of law enforcement measures to combat human trafficking. The law also establishes a grant program to aid state and local governments in investigating and prosecuting sex trafficking.

·         William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008:  This act enhances federal measures to combat trafficking by creating a nationwide system for monitoring trafficking activity. It includes provisions designed to aid prosecution for trafficking crimes, such as reducing the standard of proof of a defendant’s mental state to "reckless disregard" for sex trafficking crimes. Notably, the act requires the Department of Justice (“DOJ”) to create a set of model laws making all acts of pimping and pandering per se crimes, even without proof of force, fraud, or coercion, and regardless of a victim’s age. In addition, the act includes various new requirements for data collection and reporting of trafficking crimes.

o        Immigration Relief for Non-citizen Victims:

·         T-Visas:  “T-Visas” were created by the TVPA (2000). In essence, T-Visas are a special class of visa that allow victims of severe forms of human trafficking to live, receive services, and work in the U.S. for four years or possibly longer. The condition is that the victim of human trafficking must help law enforcement investigate the crime of human trafficking (This condition does not apply to a victim who is under 18 years old). In addition, T-Visa status may be extended to an applicant’s immediate family members (e.g. children, or parents of victims under 18 years old). T-Visas create a means for victims to seek permanent residency in the U.S.

o                                U-Visas:  The purpose and effect of U-Visas are similar to those of T-visas, but are available for victims of a variety of qualifying criminal activity, including, but not limited to, trafficking, rape, sexual assault, prostitution, and domestic violence. Like the T-visa, victims are required to assist in the investigation and prosecution of the crime. A U-Visa may be issued to a victim of substantial physical or mental abuse resulting from criminal activity taking place in the U.S. or which violates U.S. laws. Victims must have information about the crime and demonstrate that she “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the crime, and obtain Certification from a Certifying Agency. Unlike recipients of the T-Visa, U-visa applicants or recipients are not eligible for public benefits. Once the U-visa is approved, a recipient is allowed to live and work legally in the U.S. for up to four years, with the possibility to apply for legal permanent residency after three years. U-visa recipients may petition for their spouse, children and qualifying family members to come to the U.S.  

o        The Mann Act:  This law was not originally enacted to address human trafficking, but today it is frequently used to prosecute sex traffickers. This law makes it a federal crime to knowingly transport any person in interstate or foreign commerce for prostitution, or for any sexual activity that is punishable under a criminal law. It is also a crime to persuade, induce, entice, or coerce a person to travel across state lines to engage in prostitution or for other immoral purposes, or to attempt to do so.

Sources: 

U.S. Department of State – U.S. Laws on Trafficking in Persons

http://www.state.gov/g/tip/laws/

Polaris Project – State and Federal Laws

http://www.polarisproject.org/resources/state-and-federal-laws

Northeastern University – Federal Human Trafficking Legislation

http://www.humantrafficking.neu.edu/responses/federal_human/

U.S. Department of State – « Trafficking in Persons Report 2010 »

http://www.state.gov/g/tip/rls/tiprpt/2010/142761.htm

Humantrafficking.org – United States Best Practices

http://www.humantrafficking.org/countries/united_states_of_america/best_practices

Womenslaw.org – T-Visa Laws and Trafficking

http://www.womenslaw.org/laws_state_type.php?id=13636&state_code=US

Womenslaw.org – U Visa Laws for Crime Victims

http://www.womenslaw.org/laws_state_type.php?id=10271&state_code=US

 

  • NATIONAL PLAN OF ACTION

The U.S. government has put into place a variety of spending programs and initiatives to supplement federal laws targeting various forms of VAW. The following is a selection of some prominent programs:

  • The Office on Violence Against Women (“OVW”):  The OVW was created in 1985. It is a part of the DOJ and provides national leadership in developing the nation's capacity to reduce violence against women. The OVW is responsible for implementing VAWA through (i) financial and technical assistance and (ii) developing programs, policies and practices directed to ending violence against women. Among the OVW’s special initiatives are: 

·         Judicial Oversight Demonstration Initiative;

·         President's Family Justice Center Initiative;

·         Safety for Indian Women from Sexual Assault Offenders Demonstration Initiative; and

·         National Protocol for Sexual Assault Forensic Exams

o        Victims of Crime Act of 1984 (“VOCA”):  This law established the Crime Victims Fund to fund services such as forensic sexual assault examinations and compensation claims for both adult and child victims. VOCA funds have helped develop programs to improve forensic examination for sexual assault crimes such as the Sexual Assault Nurse Examiner (SANE) program and multi-disciplinary Sexual Assault Response Teams (SART).

o        VAWA Programs: 

·         Sexual Assault Services Program:  This program is the first federally-funded program dedicated exclusively to sexual assault services.

·         VAWA requires all states that accept federal grants for combating violence against women to ensure that sexual assault victims receive forensic examinations free of charge, even if the victim chooses not to report the crime to the police.

o        Human Trafficking Task Forces Program (2004):  The DOJ’s Office of Justice Programs (“OJP”) provides and will administer awards under a new grant program that enables states and local law enforcement to work with victim and social services organizations and federal agencies to identify human trafficking victims and prosecute perpetrators of trafficking crimes.

o        Justice for All Act:  This act authorizes the federal government to fund efforts by state and local governments to (i) enforce the rights of victims of violence and (ii) provide legal and support services to victims. The act also authorizes training and technical assistance in drafting victims’ rights laws.

Sources: 

United States Department of Justice – Office on Violence Against Women

http://www.ovw.usdoj.gov/overview.htm

The White House – “National Sexual Assault Awareness Month”

http://www.whitehouse.gov/the_press_office/Presidential-Proclamation-Marking-National-Sexual-Assault-Awarness-Month-2009/

Humantrafficking.org – Government Action Plans

http://www.humantrafficking.org/countries/united_states_of_america/action_plans

The Office of Justice Programs – “The Justice For All Act”

http://www.ojp.usdoj.gov/ovc/publications/factshts/justforall/content.html

 

  •  SIGNIFICANT SUPREME COURT OPINIONS

o        Craig v. Boren (1976):  The Supreme Court first applied a heightened, “intermediate scrutiny” standard to determine whether a state law of action violated the Fourteenth Amendment’s Equal Protection Clause by improperly discriminating based on gender. The Court struck down an Oklahoma law that limited sale of “near-beer” (a low-alcohol beverage) to young males as opposed to females. Although the state of Oklahoma relied on statistical differences between male and female rates of drunk driving arrests, the Court held that the slight difference (only .02%) did not justify the discriminatory law.

  • Meritor Savings Bank v. Vinson (1986):  The Supreme Court recognized that a claim of "hostile environment" sexual harassment is a form of sex discrimination that is actionable under Title VII of the Civil Rights Act of 1964. The Court reasoned that the language of Title VII did not require discrimination to be “economic” or “tangible” in nature. Thus, the creation of a “hostile environment” that did not have any economic impact on a victim’s job is also discrimination. The key inquiry is whether the victim had indicated, through words or conduct, that the perpetrator’s sexual advances were “unwelcome,” not whether the victim participated “voluntarily.”

o        Mississippi University for Women v. Hogan (1982):  The Supreme Court ruled that a state university could not limit admission to its nursing school to only women. The Court held that the state’s avowed justification of compensating for past discrimination against women failed to meet the “intermediate scrutiny” standard, finding that its policy reinforced the stereotype that nursing is a woman’s job.

  • United States v. Virginia (1996):  The Supreme Court addressed the question of whether the Fourteenth Amendment’s provision of “equal protection” to men and women made it unconstitutional for the Virginia Military Institute (“VMI”) to admit only men. The state of Virginia argued that its admissions policy promoted educational benefits that would be eliminated by admitting women, but the Court rejected this reasoning as representing traditional stereotypes about women’s capabilities. Virginia also attempted to establish an all-female version of VMI, but the Court found that this school paled in comparison to VMI, and could not cure the constitutional violation.
  • United States v. Morrison (2000):  The Supreme Court addressed whether the Commerce Clause or the Fourteenth Amendment gave the federal government authority to legislate against gender-based crimes of violence in a provision of the VAWA. The Court held that the Commerce Clause did not provide this authority, because the gender-based acts of violence addressed in the VAWA provision are not economic in nature, and not necessarily interstate in nature. In addition, the Court held that the Fourteenth Amendment could not justify this provision, because it was not targeted at state action, and the federal government had no authority over private acts.

Sources:

Craig v. Boren

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=429&invol=190

Meritor Savings Bank v. Vinson

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=477&invol=57

Mississippi University for Women v. Hogan

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0458_0718_ZS.html

United States v. Virginia

http://www.law.cornell.edu/supct/html/94-1941.ZS.html

United States v. Morrison

http://www.law.cornell.edu/supct/html/99-5.ZS.html

 

LEGISLATIVE TRENDS AND NEW DEVELOPMENTS

o        Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). CEDAW was adopted by the United Nations General Assembly in 1979. CEDAW requires signatory countries to take “all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.” (Art. III). The U.S. signed the treaty in 1980, but is one of only seven countries that have not yet acceded to or ratified CEDAW (others include Iran, Somalia, Sudan, and three small Pacific Island nations (Nauru, Palau, and Tonga).

§         Arguments in favor of ratifying CEDAW: 

·         Ratification is consistent with, and will further bolster, the U.S.’s image as a leader in human rights;

·         The recommendations issued by the CEDAW would serve as helpful guidance in implementing laws to protect women’s rights;

·         CEDAW would provide support to NGOs seeking to lobby governments to support measures to promote women’s rights;

·         CEDAW promotes public discourse about women’s rights; and

·         CEDAW would allow the U.S. to share best practices and policies with countries that could benefit from such guidance.

§         Current status of CEDAW ratifications:

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en

 

  • The International Violence Against Women Act (“IVAWA”). IVAWA is a bill that was introduced in the U.S. Congress that, if adopted, would make eliminating violence against women a part of U.S. foreign policy. Specifically, the bill would provide for funding of women’s rights organizations and programs in other countries. The bill was most recently reintroduced in Congress in February of 2010, but has not been passed to date.

Sources:

UNIFEM – About CEDAW

http://www.unifem.org/cedaw30/about_cedaw/

Partnership for a Secure America – “An Opportunity on Global Women’s Rights?”

http://blog.psaonline.org/2011/02/14/an-opportunity-on-global-womens-rights/

National Organization for Women – “Lies and Facts: CEDAW Women’s Rights Treaty”

http://www.now.org/issues/global/cedaw/liesandfacts.html

United Nations Women – Support I-VAWA

http://www.unwomen-usnc.org/ivawa

Women Thrive Worldwide – The International Violence Against Women Act of 2010

http://www.womenthrive.org/index.php?option=com_content&task=view&id=366&Itemid=121

News Medical – “The Atlantic Reports on Potential Challenges to Passage of the International Violence Against Women Act”

http://www.news-medical.net/news/20101011/The-Atlantic-reports-on-potential-challenges-to-passage-of-the-International-Violence-Against-Women-Act.aspx

 

WEB RESOURCES

o        State Department’s Office of Global Women’s Issues:  http://www.state.gov/s/gwi/index.htm

o        Department of Justice Office on Violence Against Women (OVW):  http://www.ovw.usdoj.gov/index.html

o        National Network to End Violence Against Immigrant Women:  www.immigrantwomennetwork.org

o        United Nations:  http://www.un.org/womenwatch/daw/vaw/index.htm

o        Legal Momentum (legal defense and education fund dedicated to advancing the rights of all women and girls):  http://www.legalmomentum.org/

o        National Sexual Violence Resource Center:  http://www.nsvrc.org/

STATE LAWS and POLICY

[NOTE: Links to individual state pages should be linked here.]

 

 



[1]               For the purposes of the following discussion, federal laws apply to U.S. territories and Indian territories as well.

[2]               Federal initiatives and grant programs are discussed in the section National Plan of Action.

[3]               See links to state pages below.

[4]               Federal funding and grants are discussed further in National Plan of Action.