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Author Archives: Colin Miller
The Wonder State: Eastern District of Arkansas Finds Serious Flaw With Arkansas’ Rape Shield Rule
This Court views the case as illustrating a serious flaw in Arkansas’s criminal justice system, whereby Arkansas applies its rape shield statute in a broad and sweeping fashion without properly focusing on the constitutional rights of the accused. Jackson v. … Continue reading
Posted in Coerced Sex, Courts and the Judiciary
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Northern District of California Permits Defendants to Interrogate Title IX Plaintiff About Whether She Consented to Teacher’s Sexual Behavior When She Was 15
A plaintiff claims that she was 15 years-old when she was subjected to sexual molestation by her then 38 year-old teacher at a charter school. Accordingly, she brings a Section 1983 action (1) against the school and its director/principal for failure to train and … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Demonstrably Durable: Indiana Case Reveals Indiana Courts Still Recognize Demonstrably False Accusation Exception To Rape Shield Rule
"Under common law, evidence of prior false allegations of sexual misconduct is admissible if the allegation was demonstrably false and similar to that with which the defendant was charged, or if the complaining witness has admitted that the prior accusation … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Invasion of Privacy: Court of Appeals of Texas Finds Trial Court Properly Excluded Evidence of Alleged Victim’s Prior Nonconsensual Sexual Acts Under Rape Shield Rule
Texas Rule of Evidence 412(a) provides that In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Legally Blind Grading: Do Class Participation Docks and Boosts Unfairly Disadvantage Female and Minority Students?
I’ve been doing a series of guest posts (here, here, here, and here) over on PrawfsBlawg concerning what I refer to as “legally blind grading” in law school, i.e., the grading process under which law professors are deprived of information … Continue reading
Posted in Law Teaching
2 Comments
The Rape Sieve Rule?: According to Dissent, Opinion Abrogates Every Rape Shield Statute in the Sixth Circuit
Some 35 years ago, the Michigan state legislature determined that a criminal defendant accused of rape may not introduce evidence about the victim’s past sexual behavior, because the victim’s past willingness is not relevant to the question of present consent. … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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Residual Value: Nevada Case Reveals Potential Usefulness of Residual Hearsay Exception to Gender and Race Discrimination Plaintiffs
Federal Rule of Evidence 807 provides an exception to the rule against hearsay for A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the … Continue reading
Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace
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You’re Speaking My Language: United States Court of Appeals for the Armed Forces Finds “mmmm-mmmm-mmmm” Constitutes “Indecent Language” in Court-Martial Appeal
You are a military judge. According to a female Marine, one day she was working in an ammunition magazine with a United States Marine Corps Corporal when she began to “freak out” upon discovering that she had a bug on … Continue reading
The Sexual Innocence Inference Theory: Fact or Fiction? A Spotlight on the Special Concurrence In the Court of Appeals of Idaho’s Recent Opinion in State v. Molen
You are a juror in the prosecution of a step-grandfather for lewd conduct with a minor, the minor being his eight or nine year old step-granddaughter, with whom he allegedly had genital-to-genital contact. The step-granddaughter has just testified to sexual … Continue reading
Posted in Coerced Sex, Courts and the Judiciary
3 Comments
Article of Interest: Diversity and Discrimination: A Look at Complex Bias by Minna Kotkin
Back in September, I posted an entry about the Seventh Circuit’s failure to recognize a “sex plus” or “gender plus” theory of discrimination in its recent opinion in Coffman v. Indianapolis Fire Dept., 2009 WL 2525762 (7th Cir. 2009), a … Continue reading
Posted in Academia, Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace, Feminist Legal Scholarship
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Article of Interest — A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions by Professors Hart and Secunda
Over the past half-century it has become commonplace for courts and commentators to distinguish two uses of social science in law. Social science is said either to prove ‘legislative facts’ that concern general questions of law and policy, or to … Continue reading
The Wrong Stuff: Middle District of Florida Seemingly Revives Narrow, Pre-Burlington Reading of Title VII’s Antiretaliation Provision in Action Against NASA
You are an employee at NASA at the Kennedy Space Center (KSC). In 2004, you file an informal complaint with the EEOC for discrimination and harassment, alleging that your superior sent e-mails to you and others in your department containing … Continue reading
But It Was Only A Fantasy: North Carolina Opinion Reveals Troubling Exception to the State’s Rape Shield Rule
Rape shield rules prevent the defendant from presenting evidence regarding the alleged victim’s other sexual behavior and sexual predisposition to prove that she consented to the sexual act at issue. Typically, these rules contain three exceptions. First, a defendant can … Continue reading
Posted in Coerced Sex, Courts and the Judiciary
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You’ve Got Mail: Eastern District of Pennsylvania Finds Plaintiff’s E-Mails Admissible In Sexual Harassment Case Despite Rape Shield Rule
A woman sues her employer, claiming, inter alia, sexual harassment based on an arguably hostile work environment. Specifically, she claims that her superior stared at her breasts on two separate occasions and made the following comment to her, with regard … Continue reading
The Wal-Mart Effect: Supreme Judicial Court of Massachusetts Reinstates Punitive Damages Award in Gender Discrimination Action Against Wal-Mart
A plaintiff brings an action against her former employer for discrimination. That action seeks punitive as well as compensatory damages. The plaintiff does not have evidence that the employer acted with knowledge that its conduct violated the terms of the … Continue reading
The Devil is in the Dictum: Second Circuit Makes Troubling Statements in Dictum in Rape Shield Ruling
A female employee allegedly flashes her breasts to co-workers at the workplace. That female employee later brings a sexual harassment action against her superior, claiming that he touched her thighs and breasts, offered her job security in return for sex, … Continue reading
Rape Shield Redux: Supreme Court of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn’t
Back in July, I posted an entry about an opinion by the Supreme Court of Alabama permitting discovery regarding a civil plaintiff’s sexual history because Alabama’s rape shield rule only applies to criminal cases. In that post, I argued that, … Continue reading
Posted in Acts of Violence, Coerced Sex, Courts and the Judiciary
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No “Sex Plus” in the Seventh Circuit: Court Fails to Recognize “Sex Plus” Theory of Discrimination in Title VII Action Against Fire Department
A female firefighter has direct or circumstantial evidence that she was intentionally discriminated against based upon he gender. Undoubtedly, if she brings a Title VII action against the fire department, her action will survive a motion for summary judgment. But … Continue reading
Posted in Courts and the Judiciary, Employment Discrimination, Feminism and the Workplace
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What Not to Wear, Religious Edition, Take 2: Supreme Court of Michigan Finalizes Attire Rule of Evidence, With Lawsuit to Follow
Back in June, I posted an entry about the Supreme Court of Michigan’s adoption of an amendment to Michigan Rule of Evidence 611 which provides as follows: (b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over … Continue reading
Posted in Courts and the Judiciary, Feminism and Religion
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There’s Something About Marriage: New York Trial Court Uses Differences Between a Marriage and a Civil Union to Refuse to Dissolve the Latter
“Civil union” means that two eligible persons have established a relationship pursuant to this chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses. -Vermont Stat. Ann., Title 15, Section 1201(2) (a) Parties to … Continue reading
Two Wrongs Don’t Make it Right: Court of Appeals of Mississippi Drags Feet on Recognizing Combined Race-Gender Groups as Groups Deserving Discrete Protection Under Batson
In Batson v. Kentucky, 476 U.S.79 (1986), the Supreme Court declared that racial discrimination through the use of peremptory challenges is prohibited. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Court found that gender discrimination through … Continue reading
Posted in Acts of Violence, Courts and the Judiciary, Justice?, Race and Racism
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The Road to Hell is Paved With (Allegedly) Good Intentions: Supreme Court of Alabama Opinion Raises Important Rape Shield Questions
We are not unmindful of the very personal nature of the information sought from Carlisle regarding her past conduct. Nor do we intend to suggest that a plaintiff with a promiscuous past could not feel the same shame and humiliation … Continue reading
California’s Rejection of the Reasonable Battered Woman Standard: Is it Based Upon an Objectionable and Offensive Straw Man?
In its recent opinion in Jefferson v. Kernan, the United States District Court for the Eastern District of California referenced the opinion of the California Supreme Court in People v. Humphrey, 921 P.2d 1 (Cal. 1996). In Humphrey, a wife … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
1 Comment
Rihanna and the (Un?)Constitutionality of the Mutual Stay Away Order
Can anyone out there explain the constitutionality of the Chris Brown plea deal? Brown pleaded guilty to one count of felony assault based upon his attack of Rihanna, and he got five years of probation and community labor. The judge … Continue reading
Posted in Acts of Violence, Courts and the Judiciary
11 Comments
What Not To Wear, Religious Edition: Supreme Court of Michigan Adopts Rule Allowing Judges to Exercise “Reasonable Control Over the Appearance of Parties and Witnesses” Based Upon Niqab Case
Yesterday, by a 5-2 vote, the Supreme Court of Michigan adopted an amendment to Michigan Rule of Evidence 611. This amendment created Michigan Rule of Evidence 611(b), which provides as follows: (b) Appearance of Parties and Witnesses. The court shall … Continue reading
Beyond The Scope (But Not): Court Finds That Supervisor’s Sexist Statements Qualify As Employee Admissions
Federal Rule of Evidence 801(d)(2)(D) states Admission by party-opponent. [A] statement is not hearsay if…[t]he statement is offered against a party and is…a statement by the party’s agent or servant concerning a matter within the scope of the agency or … Continue reading
Posted in Courts and the Judiciary, Feminism and the Workplace
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Essay of Interest: Michael DiChiara’s A Case of First Impression: The Third Circuit Recognizes That Having An Abortion Is Protected By Title VII
Over the last few months, I have been working on a Submission Guide for Online Law Review Supplements. While doing my research for the Guide, I came across an interesting volume of the Rutgers Law Record, the online supplement to … Continue reading
Ladies and Gentlemen of the Jury: The Role of the “Child Care Exception” in the Development of the Right of Women to Serve as Jurors
In its recent opinion in State v. Schmeiderer, 2009 WL 961787 (Tenn.Crim.App. 2009), the Court of Criminal Appeals of Tennessee rejected a convicted murder’s appeal, in which he had claimed, inter alia, that “the trial court systematically excluded women from … Continue reading
Differently Abled?: Court Identifies Circuit Split Over Who is Similarly Situated to a Pregnancy Discrimination Act Plaintiff
The recent opinion of the United States District Court for the Northern District of Illinois in Woodard v. Rest Haven Christian Services, 2009 703270 (N.D. Ill. 2009), acknowledged but did not resolve an interesting circuit split on the following issue: … Continue reading
Posted in Courts and the Judiciary, Feminism and the Workplace
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Avoiding a Biased Exam: Always Expect Students to Know the Law But Never Expect Them to Know the Facts
(Cross-posted at PrawfsBlawg) I remember being a law student and taking the class Women and the Law with the terrific Susan Grover when a topic came up that would (thankfully) inform the way that I draft my law school exams … Continue reading
Posted in Academia, Law Teaching
3 Comments
Judicial Flubber?: First Circuit Seemingly Repudiates Supreme Court Sex-Stereotyping Precedent In Sex Discrimination Appeal
When the Supreme Court replaced the relatively simple Frye test with the relatively complicated Daubert test for determining the admissibility of expert opinion testimony, many critics (correctly) groused that science-starved judges would not be able to rise to the task … Continue reading
Not Very Discriminating?: Court of Appeals Of Michigan Erroneously Affirms Summary Judgment Order In Employment Discrimination/Retaliation Appeal
The recent opinion of the Court of Appeals of Michigan in Syrowatka v. County of Washtenaw, 2009 WL 529213 (Mich.App. 2009), affirmed a trial court order granting the defendant’s motion for summary judgment dismissing the plaintiff’s claims for employment discrimination … Continue reading
We, The Jury: Why Aren’t There Jury Impeachment Appeals Alleging Juror Sexism?
Federal Rule of Evidence 606(b) precludes jurors from impeaching their verdicts after trial through testimony concerning anything internal to the jury deliberation process. Accordingly, jurors can’t invalidate their verdicts by testifying after trial that jurors (a) misunderstood jury instructions (even … Continue reading
Anyone for tennis, wouldn’t that be nice?: The contract law implications of the UAE’s decision to deny a visa to an Israeli tennis player
Whether you are a fan of tennis (like me) or not, you might have been following the recent mess in the United Arab Emirates. Basically, at the last second, Israeli tennis player Shahar Peer was denied a visa to … Continue reading
Posted in Feminism and Law, Feminism and Politics, Feminism and Religion, Feminism and the Workplace
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I Don’t Give a Damn Bout My Bad Reputation: Julia Simon-Kerr’s “Unchaste and Incredible” and the Development of the Character Evidence Rules
In the American court system, when judges allow attorneys to attack the character of witnesses, they generally allow them to do so only through reputation and opinion testimony. Federal Rule of Evidence 405(a) provides that: In all cases in which … Continue reading
Posted in Coerced Sex, Feminism and Law, Feminist Legal History, Feminist Legal Scholarship
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Pregnant Pause: Eastern District of Michigan Misapplies Adoptive Admission Rule in FMLA/Title VII Action
The recent opinion of the United States District Court for the Eastern District of Michigan in Huck v. Greenspan, 2009 WL 224682 (E.D. Mich. 2009), contains what I feel is a disastrous misapplication of the adoptive admission rule, with similarly … Continue reading
Posted in Feminism and the Workplace
2 Comments
What Kind of Rule?: Rape Shield Ruling by the Court of Appeals of Minnesota Raises Question, What Kind of Rule is the Rape Shield Rule?
The recent opinion of the Court of Appeals of Minnesota in State v. Bauer, 2009 WL 112842 (Minn.App. 2009), raises an essential question: What kind of rule is the Rape Shield Rule? And I think that Minnesota courts … Continue reading
Posted in Acts of Violence, Coerced Sex
2 Comments
Cinema Incubo: Tenth Circuit Finds In Dicta That Rape Shield Rule Applies At The Summary Judgment Stage In Former Projectionist’s Appeal
I remember going to Carmike Cinemas while attending college in Charlottesville and law school in Williamsburg. And the memories are not fond. Dimmed movie projector light bulbs. Sticky floors. Terrible sound. Cramped seating. Now, according … Continue reading
Posted in Acts of Violence, Coerced Sex, Feminism and the Workplace
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Gable’s Insecurity: 60th Anniversary Of Adam’s Rib Brings To Mind That Gone With The Wind Was Born Out Of Clark Gable’s Fear Of “Women’s Director” Throwing The Movie To Vivien Leigh
Over at Volokh Conspiracy, Eugene Volokh notes that it is the 60th anniversary of the farcical Adam’s Rib, in which Katharine Hepburn and Spencer Tracy played married lawyers on opposite sides of an attempted murder trial. According to IMDB, the … Continue reading
Posted in Feminism and Culture
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A Suspect But Not A Suspect Class: Court Denies Equal Protection Challenge To California’s Domestic Violence Character Evidence Rule
I would like to thank Ann Bartow for extending me the invitation to post here. I am in my second year at The John Marshall Law School, where I teach Evidence, Civil Procedure, and Criminal Procedure. I do … Continue reading
Posted in Acts of Violence
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