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.
Rape
College Students Create Nail Polish That Changes Colors When Exposed To Date Rape Drugs
This sounds interesting. Just one bit of additional information that doesn’t appear in this blog. According to the information on their donation page:
1. They are calling this product “Undercover Colors.”
2. This is a for-profit donation site. In other words, you can’t get a tax deduction for donating. But you do get the satisfaction of helping out should this product come to fruition.
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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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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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Montana! Again! More Victim Blaming
Stop Violence Against Women NOW
In several earlier blogs, I’ve written about the minimal sentence given to convicted rapist Stacey Rambold. This sentence was overturned by the Montana Supreme Court at the end of April. The case was remanded back to Yellowstone County District Court to a new judge for resentencing for a minimum of two years. At the end of last week, Rambold’s attorney, Jay Lansing, appealed the decision calling for a rehearing in the case. And what was his argument? “It was her fault.” In other words, more victim-blaming.
Attorney Jay Lansing is appealing the MT Supreme Court’s decision to re-sentence Stacey Rambold for raping Cherise Morales, a 14 year old student he taught at the high school. She later died from suicide.
Lansing said in the appeal filed with the Court on May 14:
In the Opinion in this case … the Court held that Judge Baugh’s statements reflected an improper basis for his sentencing decision. Specifically, the Court stated that consideration of any control that C.M. could have had 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; and that there was no basis in the law for the District Court’s distinction between C.M.’s chronological age and the District Court’s perception of her maturity.
Mr. Rambold interprets this ruling by the Court to mean that a sentencing court may not consider the victim’s role in the offense, the victim’s level of participation in the offense, or the victim’s actual consent in determining a reasonable sentence for a defendant.
Mr. Rambold contends that such a decision is in direct conflict with [previous decisions] where the Court stated the established rule that a sentencing court may consider any relevant information relating to the nature and circumstances of the crime, the defendant’s character, background, history, and mental and physical condition, and any other information that the court considers to have probative force.
Lansing then goes on to say that his argument “is not ‘victim blaming.’”
I completely disagree with this. Lansing, just like Judge Baugh, minimizes the rape of C.M. He says that Cherise knew her teacher and accepted his advances, and that this isn’t as “bad” as stranger rape. He suggests that the court should consider a victim’s “role, level of participation, or consent” [emphasis added]- in a crime against the victim. This truly flies in the face of the law and absolutely is victim blaming. To compound this upside down view of the law, he then goes on to present two hypothetical situations — one between a 19 year old and his 14 year old “girlfriend” and a second one dealing with stranger rape.
Lansing then concludes that Rambold and Cherise share the blame for the rape. He seems to say that the circumstances surrounding this rape of a minor to her teacher’s advances isn’t all that bad and therefore no change in the original sentence should be made.
He states:
One point that must be clearly stated and emphasized is that there is a distinction between consideration of C.M.’s role and participation as a defense to the charge and consideration of C.M.’s role and participation in determining a reasonable and appropriate sentence. … C.M.’s role, level of participation, and consent are relevant information relating to the nature and circumstances of the offense and are to be considered in fashioning a reasonable sentence.
In justifying his victim blaming, Lansing uses this truly twisted argument that is nothing but victim blaming. Yes, a court may consider relevant evidence for purposes of determining guilt or sentencing. But then to say that the blame is shared and therefore the rape is, in some sense justifiable, is outrageous and appalling.
Judge Baugh’s original victim-blaming comments were bad enough. Just like Baugh, Lansing uses similar rape myths in his argument to the Court. He first blames the victim (while denying this in the same breath). Then he goes on with his hypothetical relationship and stranger rape examples to imply that this rape was non-violent—thus using the myth of the Nonviolent Rapist and Implied Consent to justify the minimal sentence given to Rambold last summer. Rambold’s lawyer’s attempt to use these myths to somehow justify both the rape and the minimal sentence originally handed down are, IMHO, stupendously horrendous.
In this case, both Judge Baugh and Attorney Lansing use outdated, victim-blaming myths about women and sexual assault in order to justify both their actions and the actions of the defendant. They both represent parts of the legal justice system. If they are representative of the Montana judicial system, our judicial system is failing our communities.
Gender bias in the courts is unacceptable. Whether that is in Montana, where this case is occurring; in Pennsylvania where I live and where the Gerry Sandusky child sexual assaults happened; or anywhere else in the country.
In Montana NOW’s and Pennsylvania NOW’s original complaint to the Montana Judicial Standards Commission, we asked that the Court implement a mandatory educational program for the judiciary. We stated in that complaint that we want the Montana Supreme Court to:
Implement a mandatory judicial education program for the judiciary on the fair adjudication of sexual assault cases to help the Montana justice system develop techniques to minimize victim re-traumatization while safeguarding the rights of the defendant. – See more at: http://www.legalmomentum.org/national-judicial-education-program#sthash.hxAEGz8p.dpuf.
I believe that this proposed mandatory educational program should be extended to all of the participants within the legal justice system – judges, lawyers, law enforcement and anyone else within the system that could impact the treatment of victims and survivors of sexual assault. Then and only then will we start addressing this problem of victim blaming. Let’s stop it now.
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Seeking Justice for Cherise
In August 2013, Yellowstone County (Billings), Montana Judge G. Todd Baugh sentenced ex-teacher Stacey Rambold to thirty days in jail for raping one of his 14-year-old students . Baugh had followed a recommendation from Rambold’s lawyer by giving Rambold a sentence of 15 years in prison with all but 31 days suspended and a one day credit for time served. Even worse, the judge showed gender and racial bias against Cherise Morales—the 14 year old, Hispanic girl who 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.”
Upon hearing about this incident, Joanne Tosti-Vasey, former PA NOW president and current member of the PA NOW Executive Committee contacted Montana NOW President Marian Bradley. After consulting with each other, Montana NOW and Pennsylvania NOW decided to coordinate a state and national action to push back against this egregious behavior and use of rape myths.
We focused on both the unethical behavior of Judge Baugh and on working to overturn the illegal sentence handed down on Rambold.
The Ethics Complaint Against Judge Baugh
First, we focused on a petition to sanction Judge Baugh. The first step was to help get a groundswell of people calling for the Montana Judicial Standards Commission to review and sanction Judge Baugh for his behavior. Working with We are Ultraviolet and Fitzgibbon Media we gathered over 130,000 signatures calling for the state to sanction Judge Baugh. Meanwhile we contacted Legal Momentum (a national women’s advocacy organization that houses the National Judicial Education Program on Gender Bias in the Courts) and Pennsylvania’s Women’s Law Project to assist us in crafting our complaint.
Marian Bradley, President of Montana NOW delivering the NOW complaint to the MT Judicial Standards Commission on September 24, 2013.
Using these petition signatures, we publicly delivered our complaint on September 24, 2013 against Baugh urging the Montana Judicial Standards Commission and the Montana Supreme Court to
- Remove Judge Baugh from the bench for his misconduct related to his handling of and speech about the rape case involving the sentencing of Stacey Rambold; and
- Implement a mandatory judicial education program for the judiciary on the fair adjudication of sexual assault cases to help the Montana justice system develop techniques to minimize victim re-traumatization while safeguarding the rights of the defendant.
As a result of this complaint and several others, Judge Baugh acknowledged on December 7, 2013 that he violated one of the three ethics rules we alleged he had violated. He said that he had failed to “promote public confidence in the independence, integrity,and impartiality of the judiciary,” and did not “avoid impropriety and the appearance of impropriety.” But he refused to acknowledge that he used racial and gender bias in handing down the sentence and as a result, did not uphold the law. So we submitted a response detailing the rape myths he used in creating the sentence and in not following the law with the minimum, mandatory two-year sentence.
Then Baugh, in an effort to avoid the sanctions he could see coming, announced in January that he would not be seeking reelection in 2014. A couple of weeks after this announcement, the Montana Judicial Standards Commission announced that they were sending a recommendation to the Montana Supreme Court to use their oversight powers to sanction Judge Baugh.
The Amicus Brief
Meanwhile, on December 6, 2013, the Montana Attorney General’s office filed an appeal before the Montana Supreme Court. They are asking the court to remand the case back to the Yellowstone County District Court for sentencing that would follow the state law’s mandatory minimum sentencing guidelines. They are asking for, at minimum, a four-year sentence.
NOW once again weighed in. Knowing that it is possible for advocacy groups to file “friend of the court” amicus curiae briefs, we contacted two members of our network of women’s legal advocacy organizations—The Women’s Law Project and Legal Momentum—to see if there was any interest in pursuing this amicus. They put us in contact with Legal Voice and the Sexual Violence Law Center. Both of these organizations are based in Seattle, Washington and serve women in Montana. As a result, all six organizations agreed to file an amicus.Attorney Vanessa Soriano Power and other members of the law firm Stoel Rives LLP took the lead in writing our brief and petitioning the Court to add our brief to their review of this case.
Montana’s Supreme Court rarely accepts amicus briefs, but did in this case. The amicus brief we filed focuses on rape myths and their inappropriate impact in adjudicating and sentencing in sexual-assault cases. We are asking the court to take the effect of these types of myths into account when making their decision in this case and, upon remand, to assign the case of Stacey Rambold to a new judge for appropriate and legal re-sentencing.
What’s Happening Now?
Both cases were sent to the Montana Supreme Court for review. We heard on April 25 (the 10th anniversary of the March for Women’s Lives in Washington DC that brought out over one million people) that the decisions on what type of sanctioning Judge Baugh will receive and whether or not Stacey Rambold will be re-sentenced is pending.
This morning, the Montana Supreme Court handed down their decision in the Montana v. Rambold case (copy of the opinion can be seen here). The Court listened to the arguments presented by both the Attorney General’s office and by NOW. They overturned (“vacated”) the 30-day sentence and remanded the case back to the Yellowstone County Courts for re-sentencing in line with the minimum mandatory sentencing guidelines. In addition, they have ordered the county to assign the case to another judge for Rambold’s re-sentencing.
The last two paragraphs of the opinion indicate that the Court heavily relied on our amicus in ordering the remand:
¶21 On remand for resentencing, we further instruct the court to reassign the case to a different judge to impose sentence. We have considered several factors to decide whether a new judge should be assigned to resentence a defendant in a particular case, among them; whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously-expressed views determined to be erroneous, whether reassignment is advisable to preserve the appearance of justice, and whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Coleman v. Risley, 203 Mont. 237, 249, 663 P.2d 1154 (1983) 10 (citations omitted). In State v. Smith, 261 Mont. 419, 445-46, 863 P.2d 1000, 1016-17 (1993), we remanded for resentencing to a new judge when the judge’s statement at trial evidenced bias against the defendant. Even where bias did not require reassignment to a new judge, we have reassigned where media coverage and public outrage “have snowballed to create an appearance of impropriety.” Washington v. Montana Mining Properties, 243 Mont. 509, 516, 795 P.2d 460, 464 (1990).
¶22 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. Under these circumstances, we conclude that reassignment to a new judge is necessary to preserve the appearance of fairness and justice in this matter.
Meanwhile the sanctions against Judge Baugh are still pending. This was confirmed in this morning’s opinion announced by the Montana Supreme Court: 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.
We feel strongly that our work on this case shows our commitment to looking out for the women, children and families of our states and our nation. This behavior by our teachers and our judiciary should not and will not be tolerated. Our vigilance will continue.
— blog written by Joanne Tosti-Vasey and Marian Bradley
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Women’s Groups File Amicus Brief in Montana v. Rambold
Stop Violence Against Women NOW
In August 2013, Judge G. Todd Baugh issued a 30-day jail term for one guilty plea by Stacey Rambold for one count of sexual intercourse without consent against a 14-year old minor. NOW, UltraViolet, and people around the world expressed outrage at this judge’s use of rape myths to minimize the assault and create a sentence that was way below the mandatory minimum for such an offense. Following the initial outrage, Montana NOW and Pennsylvania NOW filed a joint complaint with the Montana Judicial Standards Commission about Judge Baugh’s violation of the state’s judicial Rules of Conduct. Then last weekend, Montana NOW and Pennsylvania NOW responded to Judge Baugh’s refusal to acknowledge bias and prejudice in his sentencing of Rambold.
Meanwhile the Montana Attorney General’s Office (AG) filed an appeal with the Montana Supreme Court on December 6 to remand the case back to the Yellowstone County District Court for sentencing that would follow the state law’s mandatory minimum sentencing guidelines. They are asking for minimally at least a four-year sentence.
After finding out about the AG’s intent to appeal the original jail term, Montana NOW and Pennsylvania NOW looked into the possibility of filing an amicus brief to the court to support the appeal. We contacted two members of our network of women’s legal advocacy organizations—The Women’s Law Project and Legal Momentum—to see if there was any interest in pursuing this amicus. They were interested and helped put us in contact with Legal Voice and the Sexual Violence Law Center. Both of these organizations are based in Seattle, Washington and serve women in Montana. As a result, all five organizations agreed to take on this amicus; Attorney Vanessa Soriano Power and other members of the law firm Stoel Rives LLP took the lead in writing our brief. Thank you all for assisting and working with us on this brief. We couldn’t have done it without your legal expertise and caring about this miscarriage of justice.
The amicus brief we filed focuses on rape myths and their inappropriate impact in adjudicating and sentencing in sexual-assault cases. We are asking the court to take the effect of these types of myths into account when making their decision in this case and, upon remand, to assign the case to a new judge for sentencing.
We state in this brief that rape myths are a form of gender bias that destroys the integrity of the judicial process and contravenes Montana law. The three myths we focus on are:
- Blaming the Victim
- The Myth of the Nonviolent Rapist and Implied Consent
- The Lolita Effect and Power Dynamics in Sexual Assaults
After presenting the background on these myths, we then link them to what we believe happened in this case based on the statements made by Judge Baugh and his minimal sentencing of Rambold. We show that the District Court’s erroneous reliance on these rape myths pose a threat to sexual assault survivors’ confidence in the judicial system. We then request that the Supreme Court use their supervisory authority to not only remand the case back to the District Court, but also to assign a new judge for the new sentencing.
Here’s the full brief for your perusal. It was sent via overnight mail on December 12, 2013 to all parties involved in this case for delivery by noon MST today, Friday, December 13, 2013.
Montana Amici Curiae Brief final 12-12-13.pdf
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Montana and Pennsylvania NOW Respond to Judge G. Todd Baugh
On September 24, 2013, Montana NOW and Pennsylvania NOW submitted a complaint about Judge G. Todd Baugh to the Montana Judicial Standards Commission. In my capacity as a member of the Executive Committee of Pennsylvania NOW, I worked with Marian Bradley, President of Montana NOW, to craft the original Complaint. You can read a summary of and public delivery of this complaint to the Commission here.
Marian Bradley, President of Montana NOW speaking at the delivery of the NOW complaint to the MT Judicial Commission.
Judge Baugh responded to our complaint on November 13, 2013. The Commission sent us a copy of his response on November 19, 2013. They gave us twenty days to review and advise the Commission on the factual accuracy of Judge Baugh’s response. Our response was faxed to the Commission on Saturday morning, December 7, 2013.
In our initial Complaint, Montana NOW and Pennsylvania NOW alleged that Judge G. Todd Baugh violated the following three Ethics Rules:
- Rule 1.2 says, “promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
- Rule 2.2 says, “shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”
- Rule 2.3 says, “shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, …socioeconomic status, …”
In his response to our Complaint (and in the press), Judge Baugh acknowledges that he violated Rule 1.2 but denies any violation of Rule 2.2 or 2.3. We believe he is in error and continues to violate these two rules in addition to Rule 1.2. Judge Baugh claims in his response to our Complaint that he did not violate either Rule 2.2 or 2.3 because he “read” the materials presented to him. He then goes on to say, “Some phrases [of what I read] stuck in my mind, but it was inappropriate to repeat them.”
We reviewed his complaint and saw additional comments of continued disregard for the performance of his duties and bias in sexual assault cases. For example as just mentioned, Judge Baugh says that he now won’t repeat whatever it was that “stuck in his mind” but was “inappropriate” to repeat. This along with many other statements during and after the sentencing trial, in the press, and in his response all point to error in his refusal to acknowledge his violation of all three ethics rules.
Our response directly supports our initial Complaint of the violation of Rules 1.2, 2.2, and 2.3 based upon Judge Baugh’s response. We added additional comments about this particular case. In addition, we included supporting information as to what other judges throughout the country have said in relation to adjudicating and sentencing in sexual assault cases in general. We believe that this supporting commentary from fellow judges backs up our concerns about the mishandling of this case.
The following is a copy of the Response that we filed on Saturday
// FINAL PDF- Response to Baugh Complaint Response December 7_ 2013 –
We believe that Judge Baugh violated all three rules (1.2, 2.2, and 2.3). He agrees with us that he violated Rule 1.2 in that he failed to promote public confidence and failed to avoid impropriety in his statement and minimal sentencing of Rambold.
We disagree completely in his refusal to acknowledge the violation of Rules 2.2 and 2.3. He did NOT uphold and apply the law relating to the sexual assault of a minor. He did not perform his duties fairly and impartially. His words, his conduct throughout this case and in the media, and his response to our Complaint continue to show bias or prejudice based upon race, sex, gender, and socioeconomic status.
Judge Baugh’s statements and behavior need more than a letter of censure which he claims he was told by a member of the panel in October that he would get. Judge Baugh listened to the recommendations of the Defendant and not to the law. Again, with his Response to our Complaint, Judge Baugh continues to show that he has no regard for the law in the area of sexual assaults of minors and thus believes that censure is the correct remedy for violating “only” one rule – Rule 1.2. He takes no responsibility whatsoever for violating Rules 2.2 and 2.3.
Hopefully the Judicial Standards Commission will do the morally and legally right thing, find that he violated all three rules, and remove Judge G. Todd Bench from the bench. And if the case is remanded back to the local court by the Supreme Court for resentencing, we hope that this case will be given to another judge.
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Urge Senate to Pass Military Justice Improvement Act
I received an email today from the National NOW Action Center regarding Senator Kirsten Gillibrand’s (D-NY) Military Justice Improvement Act. I pulled the text of the email and then rearranged and edited it to provide you with information about the bill and what you can do. The bill is expected to soon come up for a vote in the US Senate, possibly as soon as this coming week.
Background
The Military Justice Improvement Act (S. 967), if passed into law, would establish an independent, objective and unbiased military justice system to better respond to the epidemic of sexual assault in the U.S. military.
Military leaders have been claiming since 1992 that there will be “zero tolerance” of sexual assault, yet there were 26,000 incidents of sexual assault and unwanted sexual touching that were reported in FY 2012. It is clear that the current system of military “justice” does not work and must be changed.
Our major allies, Great Britain, Canada, Australia and Israel along with many other nations, years ago moved disposition of sexual assault crimes out of the chain of command to be handled independently by trained prosecutors. The U.S. should do the same.
Take Action
Your email message and your call – yes, please call your senators – could make the critical difference. It is likely to be a close vote and senators need to hear from the grassroots that we demand justice for survivors. It is a broken system that will remain broken unless Congress requires a fundamental reform of the process.
This link will take you to NOW’s action alert page where you can enter your zip code. The website will then list your two Senators, their address, phone number and fax number. It also gives you a formulated email. So there are five ways you can contact your Senator. I’m listing them from 1 to 5 with 1 being what I believe would have the most impact in a timely fashion:
- Call your Senators.
- Craft your own letter and fax it to both Senators
- Use the formulated email, personalize it on the website and submit it; It will be forwarded to both of your Senator’s in-boxes. Your email will have more clout if you personalize it with your own words.
- Just fill out the email address info and submit without making any changes to the email letter.
- Craft your own letter and mail it through the US Postal Service. Although this has a lot of clout, it is very slow due to the high level of mail security used for Congress. So it may or may not get there in time for your Senators and their staff to read before the vote.
Following each Senator’s name is their DC phone number in case you want to call without going to the NOW website. When you do call, be sure to give the person answering the phone your name, address, and that you want your Senator to vote yes on S. 967, the Military Justice Improvement Act. Then tell them why you support this bill.
Who’s on Board, Leaning, or Unknown
According to NOW the following are the Senators who have already signed on and/or are the most likely to vote for the bill. If your Senator(s) are not listed here, they may be are harder sell for a “yes” vote, but it’s still worth a try. The Senators listed below still need to hear from you so that they stay on the right side (“YES”) of the vote on S. 769. Some are sponsors, some are leaning yes, and the rest on this list are unknown (sitting on the fence), but could be persuaded if they hear from constituents.
Before most of the names, you will see either a + (plus sign), an * (asterisk), or a # (pound sign). These are keys to how they voted on S.967 in committee and on their votes on the 2013 Violence Against Women Act (VAWA). A plus sign means they are members of the Senate Armed Services Committee and they voted for S.967 when it was in committee. An asterisk means that they both sponsored and voted for the 2013 version of VAWA. A pound sign means they didn’t sponsor, but did vote for the 2013 version of VAWA.
And here’s the target list.
Primary Targets
Note: All phone numbers are in Area Code 202. The letters and numbers immediately after the state identification but before the phone numbers refers to their office address (building and room number) in DC:
- SD =Dirksen Senate Office Building Washington DC 20510;
- SH = Hart Senate Office Building Washington DC 20510; and
- SR = Russell Senate Office Building Washington DC 20510.
Most likely Yes on Sponsorship/Support: (33)
- #ALEXANDER, Lamar (R-TN) SD-455 224-4944
- BARRASSO, John (R-WY) SD-307 224-6441
- BAUCUS, Max (D-MT) SH-511 224-2651
- BOOZMAN, John (R-AR) SH-320 224-4843
- BROWN, Sherrod (D-OH) SH-713 224-2315
- #BURR, Richard (R-NC) SR-217 224-3154
- CHIESA, Jeff (R-NJ) SR-C1 224-3224
- #COATS, Daniel (R-IN) SR-493 224-5623
- COBURN, Tom (R-OK) SR-172 224-5754
- CORNYN, John (R-TX) SH-517 224-2934
- *CRAPO, Mike (R-ID) SD-239 224-6142
- DURBIN, Richard J. (D-IL) SH-711 224-2152
- ENZI, Michael B. (R-WY) SR-379A 224-3424
- HATCH, Orrin G. (R-UT) SH-104 224-5251
- *HELLER, Dean (R-NV) SH-324 224-6244
- #ISAKSON, Johnny (R-GA) SR-131 224-3643
- JOHNSON, Ron (R-WI) SH-328 224-5323
- LANDRIEU, Mary L. (D-LA) SH-703 224-5824
- LEE, Mike (R-UT) SH-316 224-5444
- McCONNELL, Mitch (R-KY) SR-317 224-2541
- *MORAN, Jerry (R-KS) SR-361A 224-6521
- MURRAY, Patty (D-WA) SR-154 224-2621
- MURPHY, Christopher (D-CT) SH-303 224-4041
- #PORTMAN, Rob (R-OH) SR-448 4-3353
- REID, Harry (D-NV) SH-522 224-3542
- RISCH, James E. (R-ID) SR-48 3 224-2752
- ROBERTS, Pat (R-KS) SH-109 224-4774 –s
- RUBIO, Marco (R-FL) SR-284 224-3041
- #SHELBY, Richard C. (R-AL) SR-304 224-5744
- TESTER, Jon (D-MT) SH-706 224-2644
- #TOOMEY, Patrick J. (R-PA) SR-248 224-4254
- WARNER, Mark R. (D-VA) SR-475 224-2023
- WHITEHOUSE, Sheldon (D-RI) SH-530 224-2921
Voted for Gillibrand in Armed Services Committee (3)
- +DONNELLY, Joe (D-IN) SH-720 224-4814
- +HAGAN, Kay R. (D-NC) SD-521 224-6342
- +UDALL, Mark (D-CO) SH-730 224-5941
Secondary Targets: Armed Services committee members who voted NO on S.967 in committee but could/should change their mind and support (3)
- KAINE, Tim (D-VA) SR-388 224-4024
- KING, Jr., Angus S. (I-ME) SD-359 224-5344
- MANCHIN III, Joe (D-WV) SH-306 224-3954
Additional Targets for Support
Democrats not on the bill who voted for VAWA (note: All Dems voted for 2013 VAWA) (6)
- KLOBUCHAR, Amy (D-MN) SH-302 224-3244
- LEVIN, Carl (D-MI) SR-269 224-6221
- McCASKILL, Claire (D-MO) SH-506 224-6154
- NELSON, Bill (D-FL) SH-716 224-5274
- REED, Jack (D-RI) SH-728 224-4642
- STABENOW, Debbie (D-MI) SH-133 224-4822
Republicans who sponsored and/or voter for VAWA 2013 (9):
- *AYOTTE, Kelly (R-NH) SR-144 224-3324
- #CHAMBLISS, Saxby (R-GA) SR-416 224-3521
- #COCHRAN, Thad (R-MS) SD-113 224-5054
- #CORKER, Bob (R-TN) SD-425 224-3344
- #FISCHER, Deb (R-NE) SR-383 224-6551
- #FLAKE, Jeff (R-AZ) SR-368 22 4-4521
- #HOEVEN, John (R-ND) SR-338 224-2551
- #McCAIN, John (R-AZ) SR-241 224-2235
- #WICKER, Roger F. (R-MS) SD-555 224-6253
Unknown (6)
- BLUNT, Roy (R-MO) SR-260 224-5721
- GRAHAM, Lindsey (R-SC) SR-290 224-5972
- INHOFE, James M. (R-OK) SR-205 224-4721
- SCOTT, Tim (R-SC) SR-167 224-6121
- SESSIONS, Jeff (R-AL) SR-326 224-4124
- THUNE, John (R-SD) SD-511 224-2321
Good luck with your calls, faxes, letters, and emails. If you hear something concrete from your Senators as to how they might vote, please come back and let us know in the comment section of this blog. Thanks!
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Pennsylvania’s Proposed Women’s Health Agenda
Kate Michelman discussing strategy with women’s health care advocates and members of the General Assembly Health Care Agenda Caucus.
Yesterday (Monday, September 30, 2013), I attended a two-hour meeting with Pennsylvania’s House and Senate members of the joint Women’s Health Agenda Caucus led by Representative Dan Frankel of Pittsburgh. Some of the advocacy groups attending the meeting included the Women’s Law Project (WLP), Women Vote PA, and members of the Pennsylvanians for Choice coalition including Pennsylvania NOW whom I represented.
For a very long time Pennsylvania has focused on restricting women’s access to abortion services – currently accounting for over 1270 pages of legislation and regulations in the state. This wrong-headed approach to health assumes that women’s sole need is to protect them from safe, legal access to decent abortion care services. In other words, the state has wrong-headedly been crafting laws and regulations to deny access to abortion, sending more and more women to the back alleys similar to the Gosnell clinic and ignoring the broader issues of women’s health equity.
Women’s concerns about their health are broadly based in bias based on gender. Terry L. Fromson, Amal Bass, Carol E. Tracy, Susan Frietsche of the Women’s Law Project created a report entitled Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women in 2012. The WLP is Pennsylvania’s feminist legal organization that engages in litigation, advocacy, and education to ensure women’s equality and treatment in Pennsylvania. This report set the context for yesterday’s meeting. The WLP framed the health care agenda as follows in this report and in the meeting this morning:
The legal and social status of American women has changed dramatically in the last fifty years. Half a century ago, it was legal to segregate jobs by sex, to refuse to hire or promote on the basis of a person’s sex, to fire women who became pregnant, and to limit the number of women admitted to professional schools such as law and medicine. Sexual and domestic violence were hidden from public view and public policy. Abortion was illegal and the birth control pill was not yet on the market. Today, women have taken their place in the working world and educational opportunities for women have expanded exponentially. Sexual and domestic violence are recognized as crimes and some resources are available to its victims. Abortion is legal and birth control is available.
Despite these advances, deeply embedded cultural biases and stereotypes about women’s place in society continue to impede women’s equal participation in society. In our homes and communities women are subjected to violence, poverty, and the burden of care taking responsibilities. In the workplace, women are paid less than men for the same work, remain concentrated in stereotypically female low-paying occupations, are subjected to sexual harassment and discrimination on the basis of pregnancy and care giving, and are denied advancement to managerial and higher paying positions. In school, young women are denied their fair share of sports opportunities and are sexually harassed and violated. Women are denied essential reproductive health care and subjected to discrimination in access to insurance coverage. Women pay more than men for the same coverage, and pregnancy is a preexisting condition that often denies pregnant women access to insurance coverage and therefore maternity care. Access to abortion has been limited by burdensome legislative requirements, and providers and patients have been terrorized by an increasingly violent opposition. Attacks on access to contraceptive services have grown.
While many laws have been adopted to eliminate sex discrimination at work and at school, gaps persist that must be filled and enforcement needs to be strengthened. This is particularly true in Pennsylvania. While some Pennsylvania cities have outlawed employment discrimination on the basis of care-giving responsibilities and provide other accommodations for women who work, the Pennsylvania legislature has failed to adopt a statewide prohibition on discrimination on the basis of caregiver status or to provide family leave for caregivers. In Pennsylvania, the law permits insurers to price the cost of health insurance higher for women than for men, resulting in women paying more for individual health insurance policies and small employers paying more for health insurance for a predominantly female workforce. Pennsylvania’s sexual assault laws have for the most part eliminated discriminatory provisions, but the myths and stereotypes that continue to infect the criminal justice system hinder the investigation and prosecution of these crimes. The health care perspective on domestic violence and sexual assault is far too limited. Sexual assault is treated as a health care matter primarily in the immediate aftermath of a rape, even though the physical and emotional health consequences can be long lasting. Although a number of health care providers recognize that domestic violence is also a health issue, screening for domestic violence in health care settings is not universal. Poverty, which disproportionately impacts women, exacerbates the impact of sex bias in all of these realms….
Pennsylvania, with 6.5 million women, has consistently been found deficient in national studies on women’s health care measures. In their 2010 health report card, the National Women’s Law Center and Oregon Health & Science University placed Pennsylvania 32 among the 50 states and graded it unsatisfactory with respect to the status of women’s health….
To alleviate women’s health problems, it is necessary to eliminate adverse experiences — discrimination and bias — early in life and throughout life — and to improve access to health care, with an emphasis on care essential to women (pp. x-xii).
Representative Frankel heard this call to refocus the legislature from attacking women’s reproductive health to focusing — just like New York state’s “10 Point Plan for Women’s Equality” — on redirecting legislation in the General Assembly towards a women’s health equity agenda. So yesterday, almost 20 legislators from both houses attended a meeting with advocates seeking to improve women’s lives and health through a broad review and revision of Pennsylvania law. The agenda covers reproductive health, women’s economic security, and women’s safety.
The ideas for change come from real-life stories of women in the state. Calls to service agencies. Cries for help on hot lines. Requests for advocacy. And of course lots of research to back up the anecdotal stories. The 24 suggested changes to Pennsylvania law that were presented are in areas where either no legislation has been introduced or where legislation to improve the bias are lagging or need to be revisited. We, as advocates, understand that there are other areas of concern, but believe these health care agenda items are a good start.
Some of these ideas are conceptual at this point. Some have some preliminary model wording for new legislation, and some are already in the works. Here’s the agenda:
Protect and Expand Women’s Reproductive Health Rights
- Pregnancy Accommodations: Require employers to provide accommodations to pregnant employees with temporary pregnancy-related conditions to allow workers to remain employed throughout their pregnancies while imposing minimal burdens on employers.
- Support for Breastfeeding Mothers in the Workplace: Require all employers to provide compensated break time and a private, sanitary (not a bathroom) for all employees who need to express milk.
- Buffer Zones: Enact a statewide reproductive health care clinic buffer zone statute to protect safe access to essential health care.
- Inmate Shackling: Strengthen pregnant inmate shackling law (Act 45 of 2010) to cover the entire pregnancy and a reasonable post-partum period for mother-child bonding and to eliminate the tasering of any woman known to be pregnant.
- Medical Professional Conscientious Right to Refuse to Deliver Medically Inaccurate Information: Protect physician-patient relationships from political intrusion.
Improve Women’s Economic Security
- TANF (Temporary Assistance to Needy Families) Grant Amount: Increase TANF cash assistance grant levels.
- TANF Asset Limit: Increase the TANF eligibility asset limit to encourage saving and financial independence.
- Earned Income Disregard: Increase the earned income disregard and apply it to applicants as well as recipients. FYI, the earned income disregard allows very-low income workers to continue receiving TANF, food stamps, and Medicaid if they make 50% or less of the poverty level. This proposed legislation would raise this “disregard” level to 75% and would apply to applicants as well as recipients.
- Childcare Works Waiting List: Eliminate the childcare works waiting list.
- TANF Pre-Application Job Search: Eliminate or modify the TANF pre-application job search requirements.
- Minimum Wage: Increase Pennsylvania’s minimum wage from $7.25 to $9.00/hour.
- Gender Wage Gap: Strengthen Pennsylvania law to eliminate the 24% gender wage gap by prohibiting retaliation against employees for discussing wages (“pay secrecy”) and closing the “factor other than sex” defense to apply only to bona fide business-related factors.
- Family Responsibilities Employment Discrimination: Prohibit family responsibilities discrimination in employment by amending the Pennsylvania Human Relations Act to prohibit family status discrimination in employment pursuant to an expanded definition of familial status to encompass the true scope of familial responsibilities shouldered by employees.
- Paid Family and Sick Leave: Require all employers to provide employees with paid family and sick leave
- Spousal Pension Benefits: Require spousal consent when a retiring state employee chooses how his or her pension benefits should be paid consistent with federal law protecting each spouse from his or her spouse’s selection of a pension benefit in all privately-sponsored pension plans and laws adopted by other states.
- Domestic Worker Protection: Amend Pennsylvania anti-discrimination laws to provide domestic workers protection from employment discrimination
- Sexual Harassment: Extend the prohibition on sexual harassment in employment to all employers, even small employers.
Protect Women’s Personal Safety
- Paid Leave for Domestic Violence, Sexual Violence, and Stalking Victims: Require employers to provide paid leave to obtain assistance for and pursue legal protection against domestic and sexual violence and stalking.
- Housing Discrimination: Prohibit private and public housing discrimination against domestic violence victims.
- Civil Orders of Protection for Sexual Violence and Stalking Victims: Authorize courts to issue civil orders of protection for sex crime and stalking victims.
- Absolute Privilege for Student Victims: Protect victims/witnesses of sexual assault who testify in school grievance proceedings from being sued by their harassers.
- Human Trafficking: Strengthen Pennsylvania’s criminal statute on human trafficking.
- Veterans’ Real Estate Tax Exemption: Amend Pennsylvania law to provide veterans real estate tax exemption for veterans suffering from PTSD (Post-Traumatic Stress Disorder) due to sexual victimization during service and appoint women representatives to the House and Senate Committees on Veteran Affairs and to the Pennsylvania State Veterans Commission.
- Voting Reform: Reform voting rules to provide online registration, same day in person registration, early voting, including early in person voting on weekends.
These ideas will be discussed in continuing meetings between members of the General Assembly’s Health Care Agenda Caucus and advocates for women’s equality. I’ll post more on these issues as this legislative program becomes better defined.
Civil Rights Advocacy 