Last Friday night, the Syracuse men’s basketball team was routed by Oklahoma, losing 84-71 – in no small measure because of the shooting collapse of Syracuse’s star guard Eric Devendorf, who finished the game with only 8 points.

Why should readers of a Gender and Sexuality Law blog care about the Syracuse men’s basketball team?  Well, the Syracuse team got as far as they did because Devendorf escaped any meaningful punishment from the University after he punched Kimberly Smith, an SU junior, in the face last November.  In fact, almost the entire men’s basketball team was involved in this attack – they surrounded her car, kicked and dented the car, yelled at her, and when she got out Devendorf punched her.  She asked the Syracuse Police to initiate criminal proceedings against him but they preferred to refer the case over to  SU’s  Office of Judicial Affairs – a student-run group that weighs minor cases on campus.  At the hearing on the incident, 6′ 4″ Devendorf claimed that he had been defending himself when he hit Smith.

The Office of Judical Affairs recommended that in light of the fact that Devendorf was already on probation for hitting another student the previous spring, Devendorf be suspended for the remainder of the year - meaning that he couldn’t play, go to classes or set foot on campus for the remainder of the academic year.  This might have been the end of his NCAA and professional basketball career.  Devendorf appealed the ruling, and the punishment was reduced to 40 hours of community service, and he would be allowed to return to school in the spring ‘09 semester.   He did all this, missed 2 games and all was forgiven.  Syracuse was ranked third in the Southern regional conference when the bracket was announced and they did well until they ran into the Sooners last Friday night.  While the Orangemen were winning TV commentators highlighted Devendorf’s athletic ability and coolness under pressure – he was a team leader and a charismatic player.

Devendorf’s lenient treatment from the Syracuse Police and the University’s disciplinary board is, of course, not unusual for a top collegiate athlete who gets into trouble.  Examples abound of charges of sexual misconduct or violence being swept under the rug when taking them seriously might jeopardize a college or university’s athletic program.

I was involved in an incident here at Columbia several years back when a female student accused several members of the Columbia Men’s Basketball team of sexual assault.  After a hearing before our internal disciplinary board the student/athletes were also given community service as a penalty.  And what service were they instructed to perform?  Educating the other members of the basketball team on the problem of sexual assault.  Can’t you just picture the guffaws and innuendo-laden jokes that surrounded these guys’ “presentation” to their teammates on Columbia’s policy against sexual assault and harassment?

“They probably think I’m an a-hole, man,” said Devendorf after he hit Kimberly Smith.  “I know they do. I know everybody thinks I’m an a-hole.”  Yep.  Everyone except the Syracuse Basketball coach Jim Boeheim, the Syracuse Athletic Department and the University Appeals Board.

Until our colleges and universities start taking their student disciplinary codes seriously – including parts of the codes dealing with violence and sexual assault – our campuses will continue to be unsafe spaces for female students, whose safety must take a back seat to the university administration’s drive to win basketball, football, and lacrosse titles.

- Katherine Franke

After surgery for pancreatic cancer, Justice Ruth Bader Ginsburg returned to the Supreme Court to hear oral arguments yesterday, and then attended President Barack Obama’s address to a joint session of Congress last night.

Justice Ginsburg, a graduate of Columbia Law School and a member of our faculty before she was elevated to the Supreme Court, wasted no time once she returned to the Court after a prompt recovery from surgery.  She offered spirited questioning in oral arguments held yesterday, and the Court released an important decision yesterday as well, which she authored, in U.S. v. Hayes – finding that a 1996 amendment to the Federal Gun Control Act prohibits any person who has been convicted of a misdemeanor crime of domestic violence from possessing (not just owning, but possessing) a firearm.  The case involved a rather technical reading of the wording of the statute, but was nevertheless an important victory for those concerned about issues of domestic violence.  (The narrow question was: “Does that term cover a misdemeanor battery whenever the battered victim was in fact the offender’s spouse (or other relation specified in §921(a)(33)(A))?”  An interesting, yet unposed, question in the case is whether the federal Defense of Marriage Act would bar the application of the domestic violence provision in the statute to married or “spouse-like” same-sex couples?)

Does it matter that Justice Ginsburg remains on the Court?  You bet – for reasons too numerous to list, but her opinion in this case stands in pointed contrast to Chief Justice Roberts’ dissent (joined by Justice Scalia) in Hayes in which he insisted on a ludicrous reading of the language of the Gun Control Statute.

- Katherine Franke

The Huffington Post has got a story about the Gonzales case before the Inter-American Commission on Human Rights about which we have already blogged.  The case is being handled by students in the Human Rights and Sexuality & Gender Law Clinics, under the supervision of the Human Rights Clinic’s Deputy Director Carrie Bettinger-Lopez:

The unfortunate saga has played out one too many times. A young woman, fearing for her life at the hands of a spouse or live-in companion, seeks protection from law enforcement officials by obtaining an order of protection. However, the restraining order is not enforced and those intended for protection meet with a tragic end. What then is the appropriate course of action? What duty does the government have to protect individuals, and to what extent, against private acts of violence? This is the dilemma facing Jessica Gonzales.   Read the full article on Huffington Post.

Law students are invited to submit articles addressing domestic violence and the law from a national or international perspective.

The winner’s paper will be published in the American University Journal of Gender, Social Policy & the Law

All winners’ names and papers will also appear on the ABA Commission on Domestic Violence website.

The deadline is May 31, 2009, 5:00 p.m. EST via email at runger@staff.abanet.org. No exceptions. Winners will be notified in August 2009.

Submissions must further the legal needs of victims of domestic violence or domestic violence victims and their children, or advance efforts to address the incidence, causes and effects of intimate partner violence.

Submissions may be no longer than 7500 words (typically 20-25 pages), including footnotes and other text but excluding author identifying information, and must be double-spaced with one-inch margins. Any paper exceeding the 7500 word limit WILL NOT BE CONSIDERED. Students are free to submit papers of shorter length as we are most concerned with quality and originality.

Authors must be enrolled in an ABA-accredited law school at the date of their submission or must have graduated in December 2008 or later.

Submissions may not have been previously accepted for publication and, if they have been submitted elsewhere for publication, the first place winner must certify that the first publication of the article will be in the Journal of Gender, Social Policy & the Law.

Wednesday, a Brooklyn judge sentenced Nixzaliz Santiago to 43 years in prison for failing to protect her daughter, Nixzmary, from her step father’s violence. “You, Ms. Santiago, ignored these desperate calls,” said the judge at sentencing. “You may not have delivered the fatal blow, but the jury found it was in your power to prevent the effects of it. Were it not for your failure to act, Nixzmary Brown would have probably not died from that blow on that day.“

What happened to little Nixzmary is horrendous, abominable, unthinkable.

Yet, let’s think about the sentencing of her mother. She will serve up to 43 years in prison for a failure to intervene on her daughter’s behalf. Casar Rodriguez, Nixzmary’s step father and the one who tortured and killed Nixzmary, was convicted of manslaughter in a separate trial last month and received a sentenced of up to 29 years, twelve years less time than Nixzaliz Santiago got.

How can it be that Nixzmary’s mother received a substantially higher sentence than did the man who directly inflicted the abuse on his seven year old step daughter?

Many have defended the disparity of the sentencing. As one blogger has noted:

In the tragic case of Nixzmary Brown, the little girl’s death was the result of both of her parents’ actions. Despite looking at them equally in the eyes of the law as far as their guilt, Judge DiMango overwhelming felt that the child’s mother could have stopped the horrific event and ultimate death from happening. We can all agree to disagree on who is more culpable and argue that one parent’s actions were worse than the other’s, but there are a few things that cannot be disputed. Crimes against children are not tolerated at any level in New York and little Nixzmary Brown’s death was appalling, heartbreaking, and a blemish for us all.

But is this last observation something upon which we can all agree? I don’t think so. Nixzmary’s death generated tremendous public attention, not only for what happened, but for what didn’t happen. The NYC Adminstration for Children’s Services (ACS) had been notified on several occasions of the likely abuse of Nixzmary, and they did nothing, although they are legally obligated to investigate suspected child abuse and intervene, if necessary, to protect the child. So child abuse is tolerated in New York City, and, perhaps more remarkably, by the U.S. Supreme Court. In two important cases, deShaney v. Winnebago County and Gonzalez v. Castle Rock, the Supreme Court has held that the U.S. Constitution imposes no obligation on pubic agencies that are set up to protect children to actually provide that protection – even if they have ample evidence of abuse and even if the courts have issued a domestic violence restraining order against the people who are abusing them. (Columbia’s Human Rights and Sexuality and Gender Law Clinics just argued the Castle Rock case before the Inter-American Commission on Human Rights – see post below.)

So in a situation like that of poor Nixzmary Brown, the City of New York’s child welfare officials have no legal responsibility for Nixzmary’s death – even though that is what they exist to prevent – while her mother bears the brunt of the criminal responsibility for this tragedy, even though she was also being abused by the man who killed Nixzmary (including causing her to miscarry a pregnancy), and was unable to call the police to come to her and her daughter’s aid because Rodriquez had disconnected the phone, thereby isolating Nixzmary and her mother in the grip of this violent man.

I’ll repeat: What happened to little Nixzmary is horrendous, abominable, unthinkable. But seeing the problem as one that is best addressed exclusively with criminal law prosecutions is a tragedy as well. Particularly when the outcome of those prosecutions reinforces gendered stereotypes about men’s violence and women’s responsibility to protect their families from that violence. This is an old story – women civilizing men – and it has no place in our criminal justice system, or in further justifying the legal conclusion that no consciences were shocked when ACS failed to step in and help Nixzmary Brown.

From Alma Beltran y Puga of the Human Rights Clinic:

October is Domestic Violence Awareness Month in the United States, and we have a tragic story to tell. On June 22, 1999, Jessica Lenahan’s estranged husband, Simon Gonzales, abducted her three young daughters in violation of a court-issued domestic violence restraining order. As soon as she discovered that her children were missing, Jessica immediately called the Castle Rock Police Department, but her calls for help were ignored for the next ten hours. Shortly before dawn, Simon arrived at the police station and open fired. The police shot and killed Simon, and the dead bodies of the three Gonzales children were discovered in his truck. Jessica attempted to file a lawsuit against the police in federal court, but her case was dismissed. The U.S. Supreme Court upheld this decision, holding in 2005 that Jessica had no entitlement to police enforcement of the restraining order under due process of law.

However, nobody seems to care. As we approach the end of an election where the spotlight has shined so brightly on women, it is important to take some time to think about how the scourge of domestic violence takes over women’s lives. Every week, one in three women in the U.S. is battered by her intimate partner. As a result, families are destroyed. Life is forever changed after domestic violence enters the picture. In Colorado alone, 19 children have been killed by domestic violence, while their mothers have been left voiceless. Jessica Lenahan (formerly Gonzales) was one of these women. Finally, after nine years, she is able to have her story heard. The Inter-American Commission on Human Rights (IACH) will be holding a hearing on the merits of her case this week, at their headquarters in Washington, D.C.. The IACHR is one of the two international tribunals in the Americas that protect human rights. At the Commission, seven international human rights experts hear and review the claims of people who have suffered a violation of their fundamental freedoms and who have been unable to find justice and adequate remedies in their domestic courts.

Jessica claims that the State failed to take appropriate measures to protect her and her children-as established in the human rights treaties signed by the United States. The IACHR will examine at the hearing whether the United States failed to act with “due diligence” to prevent, investigate, and eradicate violence against women. Jessica and her lawyers assert that the failure of the police to enforce the restraining order and that of the courts to provide her with effective remedies is a violation of the international human rights duties of the United States and Colorado.

It is clear that Jessica Lenahan’s case is just a piece of the pattern of discrimination and violence that women face globally, as well as in the United States. Therefore, the discussion of the issue should not stay at home. The analysis of gender-based violence cases in international forums has been an effective way to promote international human right standards to end violence against women, especially for those who face it at home. It also provides survivors of violence with a public space to tell their stories and seek reparation. This hearing represents such an opportunity. Jessica will testify herself – and will represent many voiceless women who are unable to tell their stories.

Click here for footage from the hearing.