You probably have heard this before:
“She asked for it.” “She didn’t say no.” “She really meant ‘yes’ when she said ‘no.’” “She looks older than her chronological age.” “She [a minor] was as much in control of the situation as the defendant [her teacher when he raped her].” “Well, you know, this wasn’t this forcible, beat-up type rape.” “Even though she was drunk, she consented and knew what she was doing.” “Well boys will be boys; what else would you expect?” “She just ‘cried’ rape.” “It didn’t happen. She’s lying ‘cause she wants revenge.” “She could have prevented it if she… had only tried hard enough… had fought back more… etc.” These are all rape myth statements that have been heard in the courtroom as well as out in the public arena.
The flowing article was written by me for Pennsylvania NOW on their website.
This article gives an overview of problems in the judicial system when judges and others rely on this form of gender bias in their courtroom. Pennsylvania NOW posted the original of this article on August 31 and Central Oregon Coast NOW reblogged it. Thanks everyone for spreading the word about this problem and showing others what can be done to push back on this form of misogyny in the judiciary.
Court Decisions
NOW Public Censure Statement re: G. Todd Baugh
Today at 1:00 p.m. MDT, the Montana Supreme Court held G. Todd Baugh’s public censure hearing in Helena Montana. Here’s a video of the entire hearing, courtesy of the Billings Gazette.
We were one of the complainants who filed a Judicial Conduct complaint against Baugh last fall. We were in court today to tell Baugh, the Supreme Court, and the country why we filed the complaint and what we thought of Baugh’s actions as a sitting judge who was supposed to fairly mete out justice for all.
Unfortunately Montana NOW and Pennsylvania NOW were not allowed to speak about our concerns before the Court. We had expected to deliver these comments publicly. Since we were unable to speak them, we sent our statement directly to Baugh. We have also let the press know that this statement is available on this blog.
The following is our official statement:
Stop Violence Against Women NOW
Mr. Baugh:
We are Marian Bradley and Joanne Tosti-Vasey, representing, respectively Montana NOW and Pennsylvania NOW, state chapters of the National Organization for Women. We are one of the eight sets of complainants that filed an ethics violation complaint against you, Mr. Baugh. We believe you mishandled this rape case and as a result you impugned the judiciary. Your statements blaming the victim and your failure to follow state law in sentencing Stacey Rambold were outrageous and unconscionable.
We filed this complaint on behalf of men, women, and children in Montana as well as men, women, and children across the country. We believe that it is long past time for Montana’s authorities to protect the right-thinking citizens of and visitors to Montana from sexual predators rather than freeing those predators so that they can rape again.
We represent the more than 250,000 people around the world who called for your resignation or removal and the 350 sexual assault survivors who signed a letter calling for your removal. When we filed our complaint to the Judicial Standards Commission on September 24, we included copies of the petitioners’ names, the sexual assault survivor letter and copies of two news articles condemning your actions.
On Monday, August 26, 2013, you sentenced confessed child rapist Stacey Rambold to only 31 days in jail for that offense. You justified that slap-on-the-wrist sentence by commenting, incredibly, that the 14-year-old child victim – two years under the legal age of consent – was “as much in control” of the rape as her 49-year-old teacher because, according to you, she was “older than her chronological age.” You then attempted to justify this sentence by telling the press that this rape “was not a violent, forcible, beat-the-victim rape, like you see in the movies.”
Mr. Baugh, your victim-blaming, rape-trivializing, rapist-protecting comments and actions come less than a year after the United States Department of Justice was called in to address civil rights violations and rape victim-blaming by the University of Montana, Missoula County and Missoula City authorities over many years.
Our complaint raised three ethical issues that we believed you violated. The issues we raised were:
That you did NOT act at all times in a manner that promoted public confidence in the independence, integrity, and impartiality of the judiciary, and that you did not avoid impropriety and the appearance of impropriety (Rule 1.2);
That you did NOT uphold and apply the law, nor did you perform all duties of your judicial office fairly and impartially (Rule 2.2); and
That you in the performance of your judicial duties, by your words as well as your conduct, showed manifest bias or prejudice against the victim based upon her race, sex, gender, age, and socioeconomic status (Rule 2.3).
The Judicial Standards Commission found that you violated the ethical issue of impropriety. The Montana Supreme Court in overturning your 31-day sentence of Rambold on April 30 essentially found that you violated the second ethical issue by failing to uphold and apply the law. And when the Montana Supreme Court overturned this sentence, they ordered this case to be reassigned to a new judge because your statement at trial evidenced bias against the victim. That essentially means you also violated our third complaint of showing bias against the victim – a young, Hispanic, lower-income girl.
You used three different rape myths to justify your actions. By doing so, you used a form of gender bias that destroyed the integrity of the judicial process and contravened Montana law. Rape myths are forms of gender bias that have no place in a justice system that strives to provide an impartial forum for all participants. As the Honorable Justice Sandra Day O’Connor said in 1994, “When people perceive gender bias in a legal system, whether they suffer from it or not, they lose respect for that system, as well as for the law.”
What did you do? You blamed the victim for the rape. You invoked the belief that this wasn’t “real” rape because it did not involve physical violence. And you invoked the myth of girl provocateur, also known as the Lolita Effect, to deny the power and control a teacher has over his student.
You relied on these rape myths to impose your sentence against Rambold. You trivialized the act of rape by stating that the crime was not a “forcible, beat-up rape.” By doing so you downplayed the fact that a teacher took advantage of and sexually assaulted a girl under his power and control. You blamed the victim by claiming she had control over the rape.
This young girl, Cherice Moralez, experienced such psychological and emotional damage that she ultimately died by suicide even before the case came to trial. Your statements about the victim being as much in control of the situation as Rambold and then giving a slap-on-the-wrist sentence to Rambold is insupportable as a matter of fact and law, given her age and vulnerability.
Children and adolescents are vulnerable to coercion and social pressure by adults and figures of power. Your use of these rape myths diminished and made invisible a young vulnerable girl. Your statements result in a chilling effect on other victims of sexual assault. It also places a chilling effect on the public and others within the judicial system. If we are unable to trust and rely on the justice system to properly weigh the relevant factors in addressing sexual assaults, we all lose confidence in the integrity of the judicial process.
We would have preferred that the Montana Judicial Standards Commission and the Montana Supreme Court had immediately removed you from the bench so that you could no longer impugn the integrity of the court and return the court in Yellowstone County to a full sense of fairness for women, children, and other victims of domestic and sexual violence. Instead they chose to give you a similar 31-day “sentence” that you gave to Stacey Rambold. In his case, it was 31 days in jail with one day suspended; in your case it’s 31 days without pay. We accept that decision. However we are concerned that as long as you remain seated on the bench that the public in Montana, around the country and throughout the world will continue to question the fairness and integrity of the judicial system in Montana.
We therefore suggest that not only do you fully accept today’s censure and the suspension, but that you also apologize for your actions to Cherice’s mother and all victims of sexual and domestic violence and that you immediately either step down or recuse yourself from all future cases handed to you. Enough is enough. Your actions in our opinion require these responses from you.
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It’s a Black and White Issue
Show your support for overturning the Hobby Lobby Ruling
Women have rights. It is a black and white issue. Show your support for overturning the Hobby Lobby decision by the US Supreme Court
Rally near your nearest Hobby Lobby protesting this decision. Here’s a link to the Hobby Lobby’s “Store Locator.” Your local NOW chapter may also be participating in a local action.
Wear Black and White on July 5.
Women Have Rights. It’s a black and white issue.
And turn your profile picture or banner on all of your social media sites black and white through August 26; this is the anniversary of women’s right to vote being placed into the US Constitution.
Thanks for your support of this action continuing to oppose the War on Women.
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Repeal the RFRA and Ratify the ERA
Corporations should not have more religious rights than woman. With the US Supreme Court’s (SCOTUS) Hobby Lobby decision, women’s personally “sincerely held” beliefs now mean nothing.
The Hobby Lobby decision is not based on the US Constitution. Instead it’s based on a bill known as the Religious Freedom Restoration Act or RFRA combined with the recent Supreme Court’s Citizens United decision that granted personhood status to companies. Since there is no constitutional equality for women and therefore no strict scrutiny review for women’s religious and civil rights, this decision eliminating women personal religious beliefs and access to reproductive health coverage occurred.
The RFRA, when combined with this SCOTUS decision, makes women non-persons.
Therefore in order to place women back on equal footing with men (and the “personhood” of corporations as this activist Court has mandated), we need to do two things:
- Ratify the ERA — the Equal Rights Amendment — and put women into the US Constitution so that women WILL be equally treated as people and not as objects to be pushed around by the will of corporations and by gender bigots.
- Repeal the RFRA – The Freedom From Religion Foundation placed an ad in the New York Times entitled Dogma Should NOT trump Civil Liberties that in part states:
In Citizens United, the Supreme Court ruled that corporations are people. Now, the Supreme Court asserts that corporations have “religious rights” that surpass those of women.In the words of Justice John Paul Stevens, “Corporations have no consciences, no beliefs, no feelings,no thoughts, no desires” — but real women do. Allowing employers to decide what kind of birth control an employee can use is not,as the Supreme Court ruled, an “exercise of religion.” It is an exercise of tyranny.
I agree. Repeal the RFRA and put women into the US Constitution.
The repeal of the RFRA would require an act of Congress. That means we need to elect new members to Congress who respect and will stand up for women. So we all need to register to vote and then vote.
We only need three more states to ratify the ERA to make it the 28th amendment to the US Constitution. Illinois is halfway there; their Senate ratified it and we’re now awaiting the vote in the state House. Just two more states and then we can proudly say:
Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
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Marriage Equality throughout the United States
Thank you Nel for a great summary of the current status on marriage equality in the US. Twenty states recognizing same-sex marriages. And the remaining thirty states with pending lawsuits. As you quote the misnamed National Organization for Marriage (NOM), all 50 states are likely to recognize same-sex marriages by the beginning of 2016.
Oregon, my own state, is keeping its status as one of the 19 states legalizing marriage equality, according to a decision delivered today by U.S. Supreme Court Justice Anthony Kennedy. After a U.S. district judge ruled in favor of removing the state constitutional ban, the National Organization for Marriage (NOM) appealed to both the 9th Circuit Court of Appeals and the U.S. Supreme Court. Today, the Kennedy refused to give NOM any standing in the case. Since Judge Michael McShane issued his ruling on May 19, hundreds of same-sex couples have married in Oregon.
NOM’s case opposing McShane’s ruling is on behalf of three Oregonians: a county clerk, a wedding provider, and a person who voted to ban marriage equality in 2004. All the individuals, who refused to give their names, would not publicly explain how they would be harmed by legal same-sex marriage in the state. State officials are fighting NOM’s appeal in…
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Censure and Suspension of Judge Baugh
Stop Violence Against Women NOW
The Montana Supreme Court has just handed down their decision on the ethics complaints filed against Judge G. Todd Baugh in his mishandling of the rape case against Stacey Rambold. This is the case where Judge Baugh sentenced ex-teacher Stacey Rambold to thirty days in jail for raping one of his 14-year-old students.
In explaining this slap-on-the-wrist sentence, Baugh used several rape myths that showed gender and racial bias against Cherise Morales—the 14 year old, Hispanic girl whom Rambold raped. During the sentencing hearing, Baugh stated that the girl was “as much in control of the situation” as her rapist and that she was “older than her chronological age.” There were a total of eight verified complaints submitted to the Montana Judicial Standards Commission as a result of Judge Baugh’s actions; one of these complaints was filed by Montana NOW and Pennsylvania NOW (see our complaint here and blog summarizing our complaint here).
On April 30, the Montana Supreme Court vacated Rambold’s minimal sentence, largely based on the amicus brief we filed with the court. They remanded the Rambold case back to Yellowstone County District Court. Yesterday they denied Rambold’s request to reconsider. The new sentence will be imposed by the District Court by the end of this month.
Meanwhile, the Court has now followed up on their intent to censure Judge Baugh. Their intent to censure was originally announced in the April 30 decision in the Rambold case. In that opinion, the Court said of Baugh’s behavior:
In the present case, Judge Baugh’s statements reflected an improper basis for his decision and cast serious doubt on the appearance of justice. The idea that C.M. could have “control” of the situation is directly at odds with the law, which holds that a youth is incapable of consent and, therefore, lacks any control over the situation whatsoever. That statement also disregards the serious power disparity that exists between an adult teacher and his minor pupil. In addition, there is no basis in the law for the court’s distinction between the victim’s “chronological age” and the court’s perception of her maturity. Judge Baugh’s comments have given rise to several complaints before the Judicial Standards Commission, which has recommended disciplinary action by this Court. Those complaints will be addressed in a separate proceeding.
In their 4-1 decision today censuring Baugh, the Court indicated that Judge Baugh violated the “Promoting Confidence in the Judiciary” canon.
Here’s a copy of the full decision. Judicial Standards Commission v Judge G Todd Baugh decision 6-4-2014
And here’s an excerpt from that decision:
Violation of Rule 1.2: Promoting public confidence in the independence, integrity, and impartiality of the judiciary and avoiding impropriety or the appearance of impropriety
Baugh’s comments in open court in this case disregarded longstanding Montana law that a person under the age of 16 is legally incapable of consenting to sexual intercourse. His assertion that the victim was “older than her chronological age” is inconsistent with Montana law categorizing child victims of sexual offenses based on their chronological age alone, rather than on subjective perceptions of physical maturity and situational control. In addition, Judge Baugh’s later attempt to retract his sentence and rationale was inconsistent with Montana law. Finally, Judge Baugh made additional inappropriate public statements attempting to justify his actions. Through his unlawful sentence, inappropriate rationale, and subsequent public comments, Judge Baugh has eroded public confidence in the judiciary and created an appearance of impropriety, therefore violating the Montana Code of Judicial Conduct….
There is no place in the Montana judiciary for perpetuating the stereotype that women and girls are responsible for sexual crimes committed against them [emphasis added].
Censure and Suspension
The Court has given Judge Baugh until June 19 to respond to their proposed suspension since he only agreed to public censure on violating this rule. If he does not withdraw his consent to discipline by that date, he will be required to appear before the Montana Supreme Court at 9:30 am on Monday July 1, 2014 for the delivery of public censure by the Court. Then on December 1, 2014, he will be given a 31-day suspension without pay from the bench, thus losing the last month’s pay of his salary before he retires. If he does withdraw his consent for censure, the case will be returned to the Montana Judicial Standards Commission for a formal proceeding.
I suspect that Judge Baugh will accept the censure and suspension. Rumor has it that Judge Baugh is considering stepping down from the bench on July 1 due to the general belief that he cannot fairly rule from the bench because of the public censure. If true, the only effect of the 31-day suspension will be a loss of one month’s salary based on his earlier announcement that he would retire from the bench on December 31.
And as a final food for thought… this 31-day suspension / “sentence” seems to me to be very similar to the 31-day sentence imposed by Judge Baugh on Stacey Rambold for raping a 14-year old. Did the Court have this in mind when they decided on the length of the suspension? Is this Tit for Tat for his use of rape myths? Who knows?
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Pennsylvania Voter ID Law Ruled Unconstitutional
PA Voter ID Ruled Unconstitutional by Commonwealth Court.
This morning, Pennsylvania’s Commonwealth Court Judge Bernard McGinley struck down Pennsylvania’s Voter ID Law as unconstitutional. Judge McGinley’s condemnation of this law is clearly noted in his opinion. He said, in part,
“[The Voter ID Law is] invalid and unconstitutional on its face as the provision and issuance of compliant identification does not comport with liberal access and unreasonably burdens the right to vote….
Voting laws are designed to assure a free and fair election; the Voter ID Law does not further this goal.”
And most powerfully in my opinion:
“The right to vote, fundamental in Pennsylvania, is irreplaceable, necessitating its protection before any deprivation occurs. Deprivation of the franchise is neither compensable nor reparable by after-the-fact legal remedies, necessitating injunctive and declaratory relief.”
You can read a copy of the full opinion on the Public Interest Law Center of Philadelphia’s website. I am so pleased to see this decision. I have followed this bill since it’s outset. In 2011, as President of Pennsylvania NOW I wrote about some of the problems with the law before it was enacted; this blog includes a copy of the letter I sent to members of the House State Government Committee detailing problems with the law.
Then after it was enacted in 2012, I was asked to testify in Commonwealth Court about the problems I observed in people attempting to obtain a Voter ID. I told the Court what I had observed at the PennDOT licensing center in Pleasant Gap regarding problems in obtaining a photo id. These problems included lack of timely public transportation to and from the facility, lack of knowledge of the staff about the voter id law, inaccurate paperwork, long lines, and how women changing their names on their drivers’ licenses could be disenfranchised.
I also mentioned that I had used a photo id that did not meet the state’s Voter ID Law guidelines. Yet, it was accepted without question by the poll workers when I went to vote in the primary during the so-called “soft roll-out period.”
You can read more about that testimony and how accessing a photo id can specifically block access to the ballot for married women in a blog I wrote on this issue last year.
My thanks go to the legal team put together by the Public Interest Law Center of Philadelphia, Advancement Project, the ACLU of Pennsylvania, and the Washington, DC law firm of Arnold & Porter. They successfully argued over the last 18 months that this law was and is unconstitutional under Article I. Section 5 of Pennsylvania’s Constitution.
But the battle may not be over. Attorney General Kathleen Kane (D) argued in favor of the law before the Commonwealth Court. News reports indicate that she hasn’t yet decided whether or not to appeal Judge McGinley’s decision to the Supreme Court.
Your voice needs to be heard. And it can be. Right after the decision was announced, my colleague, Michael Morrill, Executive Director of Keystone Progress, created a MoveOn petition to AG Kane asking her to let the decision stand and not appeal the case to the Pennsylvania Supreme Court. I signed and commented that:
I am one of the people who testified in Commonwealth Court in 2012 about the problems I observed in people attempting to obtain a Voter ID and about my testing the knowledge of poll workers in correctly interpreting the law (they accepted an invalid photo id that did not meet the requirements of the law during the testing period before the law was enjoined; I used it again at another election and once again, they told me it was valid).
Don’t play games with our elections. As Judge McGinley stated, “the law is “invalid and unconstitutional on its face as the provision and issuance of compliant identification does not comport with liberal access and unreasonably burdens the right to vote.” Let his ruling stand.
You too can add your voice. Please do so. Thanks.
Update 5 pm January 17, 2014
Attorney General Kathleen Kane released a press statement at 4 pm today in response to the Commonwealth Court’s ruling this morning. Here’s what it says,
“I respect Judge McGinley’s very thoughtful decision in this matter. The Office of Attorney General will continue to defend the rights of all Pennsylvanians and we will work with all related Commonwealth agencies to carry out this decision and ensure that all voters have access to free and fair elections.”
Q&A regarding Attorney General Kane’s position:
1. How does this decision affect Attorney General Kane’s previous concerns?
Attorney General Kane’s previous concern and legal analysis mirrored the concern and ultimate decision of the courts in that implementation may not be sufficient to ensure free and fair elections.
2. What happens now in terms of an appeal?
The Office of Attorney General is awaiting direction from its client.”
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Third Circuit Upholds Girls’ Free Speech Rights in School
In September 2011, just before I stepped down as Pennsylvania NOW President, PA NOW along with the Feminist Majority, Legal Momentum, and several other feminist organizations signed onto an amicus brief written by the Women’s Law Project in support of two middle school girls from the Easton Area (PA) School District who participated in a youth breast cancer awareness program by wearing “I ♥ boobies” breast cancer awareness bracelets to school.
Sample “I ♥ Boobies” bracelets that were banned by the Easton Area School District; photo courtesy of Keep a Breast Foundation
Kayla Martinez and Brianna Hawk, then seventh and eighth graders, were suspended for wearing Keep A Breast bracelets on Breast Cancer Awareness Day. Subsequently the school district instituted a district wide ban on the bracelets because they were supposedly “lewd” statements about women’s bodies. These young women, citing 1st Amendment rights, refused to take them off and then filed suit through their parents after the district-wide ban was instituted.
On August 5, 2013, the 14-member 3rd Circuit Court of Appeals, in a 9-5 en banc decision, upheld the District Court injunction against this ban on educational free speech. They looked at the question of whether or not speech about women’s bodies and their health “could [be] interpret[ed] as lewd, vulgar, profane, or offensive [when that] speech could also plausibly be interpreted as commenting on a political or social issue.” The court decided that breast cancer is a social issue exception and thus protected speech. This means that talk about breasts and breast cancer is protected speech in schools throughout Pennsylvania, Delaware, and New Jersey, the three states that fall under the jurisdiction of the 3rd Circuit Court of Appeals.
According to the Keep A Breast Foundation, the makers of this bracelet, the 3rd Circuit Courts decision
“[M]arks the first time a federal court of appeals has ruled that the First Amendment protects student speech that is plausibly understood as commenting on political or social issues.”
The Court’s bottom-line statement in its en banc decision, I believe, says it all:
“The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health.”
Thanks to Mary Catherine Roper of the ACLU of Pennsylvania for taking this case to the 3rd Circuit and to Terry Fromson and staff of the Women’s Law Project for working on this issue in support of young women’s free speech rights when talking and taking a stand on their bodies and their health!
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Pittsburgh: Do NOT Backtrack on Domestic Violence Protections
According to the Pittsburgh Post-Gazette, a debate erupted in the Pittsburgh City Council meeting on Wednesday, May 1, 2013 when Councilman Ricky Burgess presented a proposal to throw out the ordinance that established a zero tolerance policy in the city code for police-perpetrated domestic violence. This was a last-minute amendment to a package of bills that was designed to improve police handling of calls received about domestic violence within the city.
After a two-hour long, heated debate, Council seems to have separated the two issues – domestic violence within the community and the police perpetrated domestic violence policy. They will continue the discussion in their meeting on Wednesday, May 8.
What is going on? Why would Pittsburgh even think of backtracking on the 2007 ordinance that was created to ensure that individuals with a history of domestic violence were not hired, be promoted, nor be allowed to continue employment after committing domestic violence while employed or being considered for employment within the police department? As explained in Chapter116, Department of Public Safety, Section III of this ordinance, the purpose of the police-perpetrated domestic policy is, in part, to
“delineate a position of zero tolerance by the Bureau. It is imperative to the integrity of the profession of policing and the sense of trust communities have in their local law enforcement agencies that leaders, through the adoption of clear policies, make a definitive statement that domestic violence will not be tolerated.”
So if you want the community to trust your police and believe in their integrity, why would you throw out this ordinance? And why would you attempt to do this when the intent of the proposal was to improve how police deal with cases of violence in the community?
I believe that there are three issues embedded within this debate. First, Pittsburgh (and many other communities throughout the country) needs to ensure that cases of domestic violence, stalking, and sexual assault are appropriately handled whenever a call comes into 911 emergency services. Second, there should be no backtracking on the zero-tolerance ordinance. And third, these two issues are separate issues that should not and cannot constitutionally be commingled. Here’s my take on these three issues.
Police Handling of Domestic Violence Calls
Why this is an issue in Pittsburgh
On December 31, 2012, according to many reports (including this one), Pittsburgh’s 911 services received a cell phone call from Ka’Sandra Wade asking for police to come to her home. The call was truncated. The officers went, some 10 minutes later after they were done with another call and then called in to determine what was next. A man would not let them into the door, but through a window told the officers that everything was all right. The officers claim that since the phone call was not from a land line, they did not know whether Ka’Sandra was home, even though she requested officers to come to her home. They claim that they did not know it was a call about violence. They lurked about for several more minutes, looking around the house, but then left.
The Officers never spoke directly to Ms. Wade, taking the word of the man at the door that refused to let them in to talk to Ka’Sandra. She was found dead the next day. When her boyfriend was confronted in his suburban residence, he said on a note that the officers could have saved Ka’Sandra, and he killed himself.
The Model Domestic Violence Community Policing Policy
According to the model policy by the International Association of Chiefs of Police on responding to potential domestic violence calls, 911 communications centers and police officers should
-
Assign a priority response to all domestic violence calls, whether or not the assailant is known to be on the premises;
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Keep the caller on the telephone if the caller is a victim or witness to a domestic violence incident in progress in order to relay ongoing information provided by the caller to the responding officers and remain aware of victim’s safety;
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Not cancel the original call for service even if a subsequent request to cancel the original call is received; and
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Make contact with all residents of the house, all potential witnesses, victims, and perpetrators [emphasis added]….In evaluating the information, officers should take into account the credibility of the persons supplying the information and whether there is a reasonable basis for believing the information.
Pittsburgh has not, to my knowledge, instituted this model policy. As reported in the press, none of these basic protocol actions were taken in this case. Rather than immediately dispatching police to the scene, the police delayed their response for ten minutes. They also took the word of only one resident – the man who refused to let them in – rather than talking to the original caller. 911 knew it was a woman that called, not a man. And yet they used his statement to cancel the request for service. Which may have resulted in Ka’Sandra’s death after they left. Note, she may have been dead already; however it is presumed that she was murdered after the police left based on the suicide note left stating that the officers could have saved her life.
Actions Taken Since January
People in the community quickly called for action to improve first responders’ behavior. At the Action United vigil held for Ka’Sandra after her death, one of the speakers said that Action United would convene a group to craft policy to change how first responders act in cases of domestic violence. That was on a Saturday. The following Monday, Pittsburgh City Councilman Ricky Burgess announced that he would convene a “group of professionals” to make recommendations to Council on how to handle these types of cases. The result of this announcement was a series of closed-door, by-invitation-only meetings that resulted in two specific strategies to address the issue:
- Instituting the Maryland Lethality Assessment as a tool for police to use when responding to calls that could include issues of domestic violence and
- Creating a Domestic Violence Advisory Board (aka “task force’) as described in the Violence Against Women Act. This board would include representatives from organizations and institutions serving the needs of domestic violence victims to “provide policy guidance and make recommendations to the Public Safety Department [includes the bureaus of Police, Fire, EMS, Emergency Management, Building Inspection and Animal Care & Control] about best practices for law enforcement response to Domestic Violence.”
Although this Domestic Violence Advisory Board sounds like it might help, some advocates are not clear that creating a new board is necessory or appropriate. There currently is a Citizen Police Review Board that reviews and makes recommendations on how to improve police services within Pittsburgh. There is also a Domestic Violence Committee that deals with all employees. So if this new board is created, would it be duplicating the oversight currently held by these other boards or not? Or is the problem not that there is no oversight, but that the police have ignored recommendations by these oversight boards that are already in place?
Although many people and most of the community’s advocates for ending domestic violence were left out of these discussions, these two strategies crafted into two ordinances (see here and here) and one resolution might help address some of what happened on December 31, 2013.
These bills were part of Wednesday’s Council meeting and will be discussed again next week. A broader discussion and eventual passage of these ordinances could help ensure that cases of domestic violence, stalking, and sexual assault are appropriately handled whenever a call comes into 911 emergency services.
Don’t Backtrack
At this Council meeting on May 1, Councilman Ricky Burgess caused a real ruckus when he proposed and presented a last minute proposal to throw out the ordinance that established a zero tolerance policy in the city code for police-perpetrated domestic violence.
As the meeting was beginning, Councilman Burgess distributed a proposed amendment to one piece of legislation containing two paragraphs that referenced a part of what the Working Group had discussed last Friday. The rest of the pages were an Amendment by Substitution of the portion of the City Code that would gut the Police/Officer-Involved Domestic Violence legislation passed in 2007.
My girlfriend, Audrey Glickman, posted a couple of comments on the Pittsburgh Post-Gazette article regarding the debate and ruckus that occurred in this city council meeting. Audrey was the person in 2007 who volunteered and coordinated the group of advocates that worked with former Councilman Doug Shields to craft the zero tolerance policy. Here’s what she said about the sudden and unexpected back-tracking proposed by Councilman Burgess (I’m combining two of her comments so that you can see the history of the zero-tolerance policy):
This set of bills (and especially the amendment dunked in at the last minute with no knowledge or prior discussion among other Council persons) does not really address the details surrounding the tragedy attending Ka’Sandra Wade, may she rest in peace. The response of the police – their not suspecting DV immediately, nor apparently even thinking of it, is what needs to be addressed. The commission of DV by Pittsburgh’s Police Officers and the law that since 2007 has covered it well, and could save potential victims and prevent future lawsuits against the City, should not be up for discussion at all, much less as an amendment by substitution tossed on the Council table like so much trash.
There should be zero tolerance for all City employees committing domestic violence. But the City Solicitor’s inability (as stated at the Council table) to defend having “zero tolerance” in the Police legislation – in a state in which, according to the representative from the Solicitor’s Office sitting at the Council table today, cities are allowed by law to hold police to a higher standard – is not a reason to eliminate zero tolerance from the Police/DV legislation [emphasis added].
The pieces of legislation that were supposed to be on the table would (1) enact a Lethality Assessment as in Maryland, to help discern issues and teach Police; (2) fund that effort; and (3) create a council to oversee DV. None of that has anything to do with the legislation passed in 2007.
The 2007 legislation serves to prevent the heads of our Police force from getting away with committing DV by virtue of their position; serves to protect our City from a lawsuit such as the one Tacoma, Washington, faced, and had to pay $16 million to the family of the late wife of their police chief; and serves to define the specific policy – in detail – that the Bureau of Police must keep on the books.
The law (already in the City Code, passed in 2007) concerning police *committing* domestic violence was based on a model policy by the IACP [International Association of Chiefs of Police], was hammered out by a huge working group who did not always agree with each other, and when passed it was praised from coast to coast.
The original [2007] legislation was crafted through discussion among dozens of individuals. We had input from national experts and local service providers of all stripes. Everyone researched for months, years even. Emasculating this law would serve no one well.
Creating a political and divisive issue out of a law that was duly passed in 2007 and lauded from coast to coast is pointless and untenable. Domestic violence is not a political football. Some of the Councilpersons who spoke at the table referred to it as a women’s issue, but in truth DV is committed against women and men, the young and the old, the suspecting and the unsuspecting.
Council should leave the legislation already on the books alone, and find some way to teach the Police to consider potential DV when they respond to a call.
Audrey is right on the mark. The zero-tolerance policy is based on model legislation created by Chiefs of Police across the country. It is good legislation. Don’t backtrack now.
Commingling Two Separate Issues
My final concern about what happened is that this last minute amendment to insert police-perpetrated domestic violence into issues concerning how officers respond to domestic violence calls is a commingling of two separate issues. Audrey put it this way in her Post-Gazette comment:
[Council ended the discussion of the bills with a] lousy one-week hold when large discussions and public hearings and real research are warranted to hash out whether there is any value at all to that poison-pill portion, which again had nothing to do with the original bills.
Nothing. It has nothing to do with the subject of the original bills. The original bills concerned officers *responding to* domestic violence calls. The poison pill concerned police officers *committing* domestic violence.
There is a world of difference. The former is a more prevalent issue and is the one at hand; the latter is a more delicate issue, and has already been successfully addressed [in 2007].
In addition, the introduction of police-perpetrated violence into a bill on police response through substitution, particularly at the last minute, may be unconstitutional according to the PA Constitution. I am basing this on a Supreme Court opinion from 2008 when they overturned the expansion of Pennsylvania’s Ethnic Intimidation (Hate Crimes) Act. Here’s what went down in that case.
In 2002, the Pennsylvania General Assembly updated its statutes to define ethnic intimidation as committing a crime “with malicious intention toward the actual or perceived race, color, religion, national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity of another individual or group of individuals (Pennsylvania Human Relations Commission, 2003; bolded items were added in the 2002 legislation).” However, the Commonwealth Court of Pennsylvania in 2007 overturned the expansion in a case called Marcavage v. Rendell. They opined that the final version of the bill, which initially dealt with the crime of crop destruction, changed its original purpose during the amendment process at the last minute.
The Commonwealth Court stated and the Pennsylvania Supreme Court affirmed in 2008 that this law was enacted in violation of Article III, Sections 1, 2, 3, and 4 of the Pennsylvania Constitution. As a result, hate-crime protections for gender, gender identity, sexual orientation, and disability were eliminated from the state’s hate crimes law.
This hate crimes law started off as a crimes bill dealing with a crime of crop destruction. A crime, but in a different area. In Pittsburgh, the initial intent and focus of the bills in Pittsburgh was responding to domestic violence. The substitute proposed by Councilman Burgess focuses on a different area of violence – police or officer-initiated domestic violence. Two different issues. A world of difference. And I suspect, if it passes next week, could successfully be argued in court to have been unconstitutionally redacted under the first three sections of Article III of the Pennsylvania Constitution (Article III, Section 4 deals with bills within the General Assembly and is not germane to local legislation).
Actions Needed
The Working Group convened in January, although not completely open and transparent, did came up with two strategies focusing on how police should respond to cases of domestic violence.
Due the confusion that ensued during the public session on May 1, it is unclear whether the proposed amendment was amended in Council to be reduced only to the two paragraphs referring to the work of the Working Group or if the amendment by substitution is still on the table. Removing the substitute amendment had been the intention of Councilman O’Connor during the debate; but it is believed he withdrew the amendment in the confusion that ensued.
One week may be enough time to discuss finalizing the legislation that was originally discussed by the Working Group. It is nowhere near enough time to discuss deleting a good piece of legislation—the police-perpetrated domestic violence ordinance—from the City Code, nor should such a discussion be endeavored. That law has nothing at all to do with what happened to Ka’Sandra Wade. Weakening that law we would do nothing but tarnish Ka’Sandra’s memory.
On Wednesday, May 8, 2013, these bills will be taken up again in Committee. There will be public comment at the opening of the legislative and standing committee meetings on Wednesday. These committee meetings officially start at 10:00 AM (but they do sometimes begin late). You should show up in droves. People can have up to three minutes each to comment. Come, stand up and be heard. Tell Council
- Don’t backtrack on the 2007 police-perpetrated/officer-initiated domestic violence ordinance. It has nothing to do with the subject of the original bills and could be an unconstitutional overturn of the ordinance as described above;
- Institute the Maryland Lethality Assessment tool; and
- Discuss how and if the creation of the Domestic Violence Advisory Board would improve police response to domestic violence. Duplication of duties and effort by multiple oversight boards could muddy rather than clear the waters. Only if it becomes clear that this new board would help should this proposal be enacted.
It is incumbent on all concerned to be vigilant. Don’t backtrack. But do do the right thing and make sure that police handle cases of domestic violence properly so that there are no more cases like that of Ka’Sandra Wade ever happen again.
Joanne Tosti-Vasey “Refusing to be Silent” and calling for an end to all forms of violence, including domestic violence
Additional Info After Posting This Blog
After I posted this blog, I had a phone and email conversation with Doug Shields.
He is the former President of Pittsburgh City Council who sponsored of the 2007 ordinance on police-perpetrated domestic violence. He asked if I would continue spreading the word about what’s going down in Pittsburgh regarding domestic violence protections. Here is a copy of his email call for action:
“As you know, we all fought hard and long to enact an Ordinance that began to address issues related to police officers and domestic violence. This came about due to the Mayor’s promotion of three officers who had significant issues related to domestic violence.
Over the past few months, a task force, formed to shape legislation that addresses the lack of clear protocols in responding to a domestic violence call, worked to provide an appropriate response. As a result, the Council was about to enact the so-called “Maryland Protocol” this week.
Numerous people who had worked hard to get this legislation to the Council table were shocked to find upon introduction, the sponsor, Councilman Burgess, had without notice, took the opportunity to delete the entire section of the Ordinance that was enacted in December of 2011.
When the bill passed finally in 2007, I had tears in my eyes. It was the only time that ever occurred.
Now this. Blog by Joanne Tosti-Vasey (See: https://civilrightsadvocacy.net/2013/05/03/pittsburgh-no-dv-backtracking/)
I write to ask you for help to have a strong presence at next Tuesday’s and Wednesday’s Council meeting to utilize the public comment portion of the meeting to condemn this action by Councilman Burgess and to show strong support for the law we need and fought so hard to get.
Unfortunately, your voice is needed again to defend that which we all worked on for so long.
The members who defended the bill were: Bill Peduto, Patrick Dowd, Corey O’Connor, Natalia Rudiak and Bruce Kraus.
Those who joined with Mr. Burgess were, President Darlene Harris, Daniel Lavelle, and Theresa Kail-Smith.
Well worth watching this Council meeting, which repeats on air Sunday at 10:00 and 7:00 (Comcast City Channel 13), and which will soon be posted on line at the City’s Legislative Information Center.
Those who cannot be there on Tuesday or Wednesday at 10 AM are encouraged to email or call the Council to convey their support for the Ordinance.
Here is the link: http://pittsburghpa.gov/council/
Here are the contacts for those who were ready to repeal the Ordinance.
- Burgess – (412) 255-2137, Reverend.Burgess@pittsburghpa.gov
- Harris – (412) 255-2135, Darlene.Harris@pittsburghpa.gov
- Kail Smith (412) 255-8963, Theresa.Kail-Smith@pittsburghpa.gov
- Lavelle (412) 255-2134, rdlavelle@pittsburghpa.gov
Thank you for your anticipated cooperation in this matter. Please also share this missive with others who would be interested in this issue.
Douglas Shields
Former President of Pittsburgh City Council
Prime sponsor of the Police & Domestic Violence Ordinance”
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Corporations’ Excessive Tax Breaks
This is a great report on how corporations avoid paying their fair share of taxes!
If we can also overturn Citizen’s United and gerrymandering, then I believe part of the issues raised here could be dealt with. If corporations are no longer treated as “people,” they would no longer be able outspend real live people in electing and talking to our representatives. We’ll still have to deal with their paid lobbyists, but at least we can reduce their influence to some extent on who is elected in our own back yards.
While you faithfully paid your taxes by yesterday, 26 major American corporations that made $205 billion in pretax profits paid nothing in federal corporate income tax between 2008 and 2011. In 2011 corporations paid a 12.1 percent effective tax rate, the lowest in four decades. Corporations want to have the same rights as “persons,” but real persons can’t have the tax advantages of corporations.
Corporations get tax breaks when they…
Break the law: BP’s toxic mess in the Gulf of Mexico or Wells Fargo’s abusive lending practices that cost tens of thousands American families their homes were fully deductible.
Fall on hard times: When corporations lose money, they can use these losses not only to fully offset taxes for that year but also carry those losses into the future for up to seven years.
Face no income threshold: After Superstorm Sandy devastated millions of American families, they picked up the…
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Civil Rights Advocacy 