New York’s police and prosecutors should not be permitted to introduce condoms as evidence of prostitution and prostitution-related offenses, according to the students who work in Columbia’s Sexuality and Gender Law Clinic.  The Clinic held a tabling day yesterday at Columbia Law School in support of a New York State bill that would enact this prohibition into law.  Over 50 Columbia Law students signed postcards to legislators to support the bill, sending a strong message to legislators that sound public health policy militates against the use of condoms as evidence of prostitution.

Under current law, police and prosecutors can and do use condoms to prove prostitution and related offenses, such as patronizing a prostitute, promoting prostitution, and maintaining a premises for prostitution.  The bill is critical to protecting public health in New York and deterring police officers from using condoms as pretextual justification for arbitrary search and seizure.  Criminalization of condom possession directly conflicts with New York’s longstanding public policy of encouraging condom use, a policy it has effected in part by distributing free condoms since 1971.  The proposed bill, which is in committee in the Senate and on the floor of the Assembly, would prohibit the use of those and other condoms in seven enumerated prostitution-related crimes.  Law enforcement officials would still be able to use condoms as evidence in rape and sexual assault cases, as they would in any other type of case not named in the bill.

The Clinic became aware of law enforcement’s use of condoms as evidence of prostitution during the course of its collaboration with community-based advocacy organizations in New York City, including the Sex Workers Project (SWP) at the Urban Justice Center.  The SWP is spearheading the effort to pass the bill.  The Urban Justice Center and the Center for Constitutional Rights have written legislative memos supporting the bill; the SWP has also organized an online petition to gather signatures to legislators.

Sarah Morris, SJ Lee, and Rena Stern, Sexuality & Gender Law Clinic students, are  in charge of the project.

Nicole Medham is a third year law student at Columbia Law School and has these thoughts about a recent 20/20 episode that caught her attention when the authors of Freakonomics were interviewed about the what and why of various implications of feminism:

Last Friday’s edition of ABC’s 20/20 featured the authors of the bestseller Freakonomics, Steven D. Levitt and Stephen J. Dubner, who were promoting the sequel to their best seller SuperFreakonomics.  During the hour long broadcast, some time was spent on the authors’ controversial views of the women’s liberation movement.  Essentially, Levitt and Dubner argue that the principal beneficiaries of the liberation movement were not female teachers or financiers, but high end prostitutes.   To that end, both men say that those who seek to “save” women from prostitution should ask and determine why women are responding to the market and becoming [high end] prostitutes in the first place.  Additionally, the authors argue that the invention of hormonal birth control gave women more control over their future occupations; therefore, instead of having to choose an occupation like a teacher which would allow for flexibility to enter and leave the work force, they could choose to become doctors, lawyers, bankers, etc.  Because of this, Levitt and Dubner claim that the talent level of school teachers has fallen, thus leading to the seeming overall failure of the country’s public school system.

Let’s take on the prostitution issue first.  Of course to some anti-prostitution advocates, there is no need to question why women choose prostitution, as it is invariably a result of the sexist and patriarchal society we live in.  Yet, I can’t help but think that Dubner and Levitt are right in that this is question that must be asked in order to make any needed changes.  In order to solve anything, one must get to the root of why the “problem” is occurring in the first place.  The women who have supposedly benefitted aren’t the stereotypical prostitute one thinks of that sets up shop on a dingy poorly lit street corner.  These are often [well] educated, well versed women who had fairly stable upbringings.  In fact, the woman profiled on 20/20 actually had a husband, children, and stable job, all of which she left to become a [high end] prostitute, due to her claims of boredom.  So  why would someone like that and the other well educated and well traveled women not want to put their brains to use in an arguably more productive way toward society and choose to sell their bodies instead?

Maybe these women are just more frank and upfront about how some relationships involving sex works.  Arguably, what these women are doing is no different than women (or men for that matter) who date people solely for money and other material benefits.  Even in popular culture, there are some marriages that have taken place where money seems to be the only answer why a particular couple was together.   And, marrying for financial gain is a historical facet of the institution of marriage.  In those cases, however, the monetary transactions take place in a socially acceptable form of a relationship.   In any event, the fact that the woman profiled on the show made $5000 a week for 10 hours of work speaks volumes, though it may speak different things for different listeners.   But, just maybe it says that she’s smarter than many other women out there.

Dubner and Levitt’s next hypothesis argues that hormonal birth control led to truly talented women leaving the teaching profession thus leading to a decline in gifted teachers in this nation’s public school system.  First and foremost, correlation does not imply causation.  To be sure, the seven and a half minute segment didn’t really delve into the authors’ method s of reasoning and argumentation.  Thus, I’d be interested to see how they made that leap.  For the sake of argument, let’s say that they are right—that control over reproduction gave women more occupational choices and power.   How does it go from that to implicitly putting the blame on women for the failing public school system?  That’s a pretty big leap, I’d say.  Why not look at the affects of the pay these teachers receive, the environment in which some of them would have to teach had they not chosen other fields, or the affect of various federal government regulations that have left many educators frustrated?  Moreover, why not take into account the fact that men can be just as effective as teachers and that they aren’t courted as heavily into that profession. Like I said, without knowing their methodology, it’s kind of hard to argue against them.  But, from what was shown on 20/20, their reasoning is tenuous at best.

Reform of divorce laws in light of the ways in which many women end up much worse off than their ex-husbands after divorce remains a huge problem for those of us concerned about Gender Justice.

But consider the current divorce case in the news of Marie Douglas-David, the 37 year-old woman who in 2002 married George David, a 67 year-old Connecticut executive who has a reported net worth of $329 million.  Prior to the marriage Douglas-Davis was an asset manager at Lazard Asset Management (and, um, a Swedish countess) who quit her job when she married David so that she could travel and entertain with him.

When the relationship hit the rocks after two years (evidently they both had affairs – he with a woman he met at a flower shop and she with a Swedish fencing champion) they entered into a post-nuptial agreement to the effect that upon dissolution of the marriage Marie would receive a $43 million settlement.  According to the Huffington Post, “Douglas-David wants the agreement invalidated. She’s asking to be awarded about $100 million in cash and stock, plus $130,000 a month in alimony.”  She maintains that her essential weekly expenses include $250 for a personal trainer, $700 for limousine services, $4,500 for clothes, $1,000 for hair and skin treatments, $1,500 for restaurants and entertainment, $2,209 for her personal assistant, $1,570 for horse care, $600 for flowers and $8,000 for travel.  In case you missed it, these are expenses per week.  (To be fair, he claims ten times as much in weekly expense: Clothes $2,500, Yacht maintenance $95,943, Eating out $1,773, Travel $7,491, Charities $18,042, Entertainment $7,125, Wife’s residences $67,12.  Who can’t relate to the crushing burden of the weekly “yacht maintenance” bill?  Source for these numbers. )

This case makes me crazy.

When Marie Douglas married George David she seems to have morphed from a competent, even shrewd, investment banker into a vulnerable, defenseless wife who was a victim of her husband’s power and prestige. Her lawyer has argued in court that she thought she was in “a loving, sound marriage” until she found e-mails disclosing an affair between her husband and a younger woman.  Shocking, shocking!  (Oh wait, George had a previous wife with whom he had had three children, and he met Marie when she, a woman less than half his age, invested in George’s business on behalf of Lazard.  Maybe the whole “younger woman-thing” is not so shocking.)

Marie, a woman with a serious, lucrative and successful career, junked it all when she met George, more than twice her age, and became a kept housewife.  In the divorce lawsuit Marie maintains that she shouldn’t be held to the terms of the $43 million post-nup.  Her lawyer argued in his opening statement to the judge that George coerced her to sign it by preying upon her fears of being divorced and childless.  “He put a [figurative] gun to the back of her head.”

Oh please.

These sorts of cases gain lots of media attention and they undermine the problem of equity in divorce cases between regular people whom Weitzman studies in her book, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America.  As a practical matter in most divorces, the less privileged party – usually the wife – walks away impoverished, or substantially less well off, than the more privileged party – usually the husband. This data hasn’t changed substantially since 1985, when she did her research.

When a woman such as Marie Douglas-David quits her job as an investment banker to become a wife – not only in the legal sense, but in the social sense (the servant to David’s professional and social life) – she’s not an absolute victim.  She’s making a choice, and I must add, a bad choice.  She did so at her peril.  There is, as my law & economics colleagues would call it, a moral hazard problem here: to relieve Marie Douglass-David of any responsibility for her own support, because she was, after all, George David’s wife, is to solidify women as the dependents of men.  They are the breadwinners, we are the arm candy and trophy wives.  They belong in the wage labor market, we belong at home with the kids. We are the mommies, they are the masters of the universe.

This isn’t the sort of case where the couple marries young, they make a deal that they’ll invest in his career first, hers second, and then he doesn’t live up the deal and she’s left with a bunch of sunk costs – to borrow again ideas from economists.  Or where they decide that it makes most sense for her to stay home and take care of the kids since, after all, he’s able to earn more given that he’s a man and they only need one wage to live on (a middle class scenario, that leaves out many, many families/couples that can’t afford to live on one wage).

No.  This was a woman, a countess even, who had a very lucrative career when she met her husband, indeed met her future husband, a client, at the office.

The lesson from the Douglas-David divorce: why would any woman want to be a wife?  You become a withered simalcrum of your former independent agentic self: unable to support yourself, vulnerable given your dependency on your husband’s wealth and support, and somehow exploitable by the prospect of being “divorced and childless.”

How can we avoid the even worse message this case delivers: What really is the difference between cashing out two years of marriage to a mogul as legalized prostitution?  How can we make a principled distinction between what she’s demanding and front pay?

Remind me why any woman would want to be a wife?

- Katherine Franke

After much gossip, hand-ringing, internecine scuffles and turf kick-up, the White House has announced that Luis de Baca will be appointed to head up the State Department’s Trafficking In Persons (TIP) Office.  The TIP Office coordinates policy out of the State Department on the Traffic in Persons and, perhaps most importantly, must issue an annual Report in which it assesses the efforts that foreign governments are making to combat severe forms of trafficking, and in which countries are ranked in tiers based upon the TIP Office’s assessment of their commitment to and success in combating human trafficking.   The Bush Administration had used the TIP Office and the annual TIP Report to advance a highly contested policy of forcing foreign governments and NGOs  to adopt laws criminalizing sex work on the flawed hypothesis that prostitution “causes” sex trafficking.  See previous post discussing this problem.

de Baca’s appointment is very good news.  Mr. de Baca, a lawyer who has worked as legislative counsel for the House Judiciary Committee and in the Justice Department as chief counsel of Civil Rights Division’s Human Trafficking Prosecution Unit is a smart, experienced and effective choice for the job.   He has worked for years on this issue and is very-well respected in criminal justice and advocates’ circles alike for his approach to this difficult problem.  He was one of the lead DOJ attorneys who successfully prosecuted Kil Soo Lee, the former owner of an American Samoa garment factory, who was sentenced to 40 years in prison for his role in illegally confining and using as forced labor over 200 Vietnamese and Chinese garment workers.

de Baca, as evidenced by this presentation available on the web, takes a complex and nuanced view of the injustice of trafficking.  He is not liable to over-determine the work of the TIP office with trafficking that is sexual in nature, recognizing that the trafficking of persons into sex work is a part, albeit an important part, but a part of the vast range of work-sectors into which people are illegally trafficked – including agricultural, domestic (meaning work in homes as nannies, maids and servants), factory, restaurant and other work that is exploitive but not necessarily sexual in nature.  So too, de Baca has acknowledged a need for law enforcement officials to work closely with NGOs to create support and exit for trafficked persons that does not over-rely on raids as the principal means by which people who have been trafficked can be “rescued” by law enforcement officials, or worse, get swept up in raids that result in their datainment and deportation along with other undocumented people.  We’ve blogged about this previously.

Perhaps most importantly, de Baca appreciates the importance of a harm reduction approach to the problem of trafficking that prioritizes the needs, risks, complexities of the trafficked person rather than that of law enforcement or anti-sex evangelists.

- Katherine Franke

The arguments before the California Supreme Court raised many hard questions, but one that particularly intrigued me was one to which the Justices frequently returned: What did Proposition 8 really do, after all?  Did it overturn the Marriage Cases – the California Supreme Court case that found it unconstitutional for the State of California to limit the institution of marriage to one man and one woman, and in so doing held that sexual orientation was a suspect classification?  All the parties agree that it didn’t – at least not entirely.   But what did Prop 8 do, and how did it impact the rights of same sex couples that were secured in the Marriage Cases?

The formal question presented in the Prop 8 case was whether Proposition 8 amended or revised the California Constitution, but the question that interested the Court most was whether, and if so how, Proposition 8 diluted or diminished the rights of same sex couples in so far as California provided formal legal equality to same sex couples when it created Civil Unions, and Prop 8 did not alter the suspect class status granted to lgbt people in the Marriage Cases.

Chief Justice Ronald George started off the questioning on this very issue.  He asked Shannon Minter why he maintained that all or most of the holdings of the Marriage Cases were superseded by Prop 8.  The Chief Justice returned to this question almost 3 hours later when Minter was arguing in rebuttal to Kenneth Starr’s argument.  The Chief Justice put to Minter:  “I find it remarkable that you are conceding far greater impact and effect of Proposition 8 in removing rights extended to same-sex couples than did Mr. Starr [who gave] it a far more limited interpretation … eliminating the designation, eliminating the nomenclature but not disturbing the Court’s recognition of very important rights [for same sex couples].”   Justice Joyce Kennard pressed the same issue to Minter:  “What Prop 8 did was take away the label of marriage and its applicability to same sex couples.  But left in tact the Court’s holding in the Marriage Cases … and the majority constitutionalized the [civil union] aspect of the case.  Is it still your view that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

These are the hard questions for the challengers of the constitutionality of Proposition 8:  If same sex couples have all of the same formal rights and benefits of marriage when they become civilly union’ed – did Proposition 8 merely deny them the “nomenclature,” the “designation,” the “name,” the form of marriage?  If so, what kind of constitutional harm is that?  And let’s be clear, the answer to the question is as much a political/ethical one as it is a formal/legal one.  By that I mean, we’re in the domain of symbolism and cultural meaning here in demarking the salience and weight of the injury that is Prop 8.

So is marriage more than a word?  Did the justices of the California Supreme Court simply not “get it” when they asked why Prop 8 didn’t just deny same sex couples a word, a label, the nomenclature of marriage?  The plaintiffs in the Prop 8 case insisted that the fight is not simply over a word.  It is a fight for dignity and respect.  They claim and indeed insist that denying the label marriage to the unions of same sex couples is an insult, a degradation, and a dignity harm.  Yet to do so is to take for granted that marriage is something sacred, something to be honored and something that dignifies those who earn its blessings.  It is to argue from within a normative universe whose values you take for granted and embrace.  And it is to base your legal arguments on the legitimacy of those values – the recognition of the harm alleged in the Prop 8 case depends on it.

Two alternatives to this position are possible.  One more legal, the other more political.  The first is, as Nan Hunter pointed out in her blog, that the Marriage Cases could require that the Court deny the nomenclature of marriage altogether since it is no longer available as a Constitutional matter to same sex couples after the passage of Prop 8.  As Hunter notes, the Court held in the Marriage Cases:

“Whether or not the name ‘marriage,’ in the abstract, is considered a core element” of the right to marry, “one of the core elements … is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature” of the family relationships of heterosexual partners. By reserving the traditional, well-understood term “marriage” only for straight couples, the court said, it violated the equal protection rights of same-sex couples.

Now that California’s voters apparently have taken the word “marriage” off the table as an option for both kinds of relationship categories, the court has the opening to do something bolder and certainly more interesting than ruling that same-sex couples must be allowed to marry. The court could rule that California has to come up with some other label and treat both heterosexual and same-sex couples the same.  In other words, the official label for the legal status must be the same for everyone, whatever that label is.

On this reading, Justices George and Kennard’s focus on the “mere nomenclature” of marriage as a label or a name was presaging a decision in which the mere label would be denied all couples, not just same sex couples.  If, as their questions implied, it’s not such a big deal to be civil union’ed instead of married since the rights are the same, that should hold true for straight and gay couples.   The gay community would be blamed (along with the California Supreme Court) for having destroyed the institution of marriage, when in fact it was the proponents of Prop 8 who accomplished this mean feat.  That sort of outcome would be legally sound, but politically explosive, surely.

The more likely outcome of the case is that a majority of the Court (a larger majority than in the Marriage Cases) will hold that Prop 8 merely amended, not revised, the California Constitution, because the equality rights of the plaintiffs were not substantially diluted by the language of the proposition, rather they were merely denied the label, a word.  This outcome would present us with a political challenge that some, though I’m afraid not most, of the lgbt community might seize – taking a step outside the universe that reveres marriage.   In this scenario, the disestablishment of marriage would not be the consolation prize, but rather the affirmative goal of our political and legal projects.  I’ve blogged before about the virtues of disestablishmentarianism when it comes to marriage.  On this view, “marriage equality” is a thin conception of justice, indeed.

Here’s my worry: we lose the Prop 8 case and then the lgbt community raises and spends $50 million to pass a proposition repealing Prop 8 next November.  As Richard Kim groaned at a forum at which we both spoke in December, “$50 million for a word!”  In these times, that’s an awful lot of money spent to gain the jurisdiction of a word that leaves out many, many people in our community who are in need of health insurance and other forms of security.  Lisa Duggan put it well at the same forum: “When you get laid off, marriage won’t help you.”

As always, events on the ground are outpacing any of the strategists’ ability to control them: Last week two college students  out in California were given the green light by the California Secretary of State to begin the process of placing on the November 2009 ballot a proposition that would repeal Prop 8 but also repeal the marriage laws, leaving domestic partnerships (whether between same or different sex couples) as the only unions recognized by the state.  Marriage would become a ceremony recognized only by religious and other non-governmental entities.

I’d rather the California legislature did this, not the people of California though the ballot initiative process – but the new proposition – let’s call it Prop 9 – will surely garner opposition from marriage fundamentalists both within and outside the lgbt community.

Too bad, it’s actually a great idea.

- Katherine Franke

Grace Tabib is a third year student at Columbia Law School and offers these thoughts on the regulation of pornography – K. Franke

As in other areas of gender study, Catharine MacKinnon’s extreme view once again forecloses the possibility of women controlling their own sexual impulses. When MacKinnon argues that all pornography is abusive to women, she is taking an absolutist position akin to an unwavering pro-life position. The Model Anti-Pornography Law, of which MacKinnon was a principal drafter, bars women from consenting to participation in a pornographic performance. She essentially likens pornography to slavery and maintains that women do not have the ability to willingly participate in its production. Furthermore, in defending the Model Anti-Pornography Law from First Amendment objections, she asserts “if a woman is subjected why should it matter that the work has other value?” Catherine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv, Civ. Rts.-Civ. Lib. L. Rev. 1, 21 (1985). Her refusal to allow women’s consent coupled with her underlying contention that the viewing of pornography is an act of male superiority reflects a closed-mindedness that refuses to acknowledge the individuality of women to engage in sexually liberating activities not because of men’s desires, but because of their own. Sallie Tisdale captures the alternative view that women can and should be free to make free sexual thought when she writes: “What a misogynistic worldview this is, this claim that wome who make such choices cannot be making free choices at all … Feminists against pornography have done a sad and awful thing: They have made women into objects.”

Pornography is not one-sided, but it becomes so if women are not free to have their tastes and preferences reflected by it. Candida Royalle’s initiative in founding Femme Productions and catering to a women’s market allows women to explore their sexuality within their own comfort zones. In this way, viewers of Femme films can use pornography to liberate their sexual selves. Royalle argues that the key to her films is sensuality. She understands that women approach sex in a different way from men and moves the focus away from penetration and into a holistic experience. Many groups of women – whites, blacks, lesbians, transgendered – can embrace pornography to explore sexual experience without a simplified ejaculatory conclusion.

Lynn Chancer in her article Feminist Offensives: Defending Pornography and The Splitting of Sex from Sexism, reflects a more realistic view towards pornography and its potential to liberate women. She seeks to legitimate pornography while exploring other realms of society in which women are repressed. For me, pornography should not be a focal point for women’s empowerment. Other areas of media can be much more harmful to the portrayal of women and the conceptualization of women’s role in society.

Although I am embarrassed to admit it, I saw the film “He’s Just Not That Into You” last weekend with a friend. The movie portrays women as men-obsessed, naïve, weak, and pitiful. Leaving the movie, I could not understand how any of the actresses could have agreed to participate in such a project. Maybe an ordinance against He’s Just Not That Into You – like movies would be more effective towards combating female submission.

Grace Tabib

On Friday, the Gender and Sexuality Law Program held its inaugural symposium, this year honoring  the work of Professor Martha Nussbaum.  Nine scholars submitted papers providing insights on  Professor Nussbaum’s scholarship, points of departure for her theories, and novel applications of her  theories to many different contexts.  Dean Schizer introduced Professor Nussbaum before her keynote  speech at the end of the day, and Professor Nussbaum gave a summary of her scholarship and ideas, and thoughtfully responded to each paper.

The diversity and creativity of scholarship and thought that came out of the symposium was really remarkable.  We covered everything from Nussbaum’s capabilities approach as applied to women’s movements (Amrita Basu), the possibility of a collective capabilities approach to women’s empowerment in Africa (Aili Tripp), and the relationship of the state to the capabilities approach (Tracy Higgins), to the application of Nussbaum’s work to the same-sex marriage debate, the LGBT community, and its relationship with science (Nancy Levit), and whether the state should be in the business of regulating marriage in the first place (Janet Jakobsen).  Nussbaum’s capabilities approach was applied to global economic systems (Saskia Sassen) and stretched from its universality to its flexibility in encouraging people of opposite viewpoints to sympathize with one another (Carlos Ball).  We learned of a historian’s perspective on Nussbaum’s reliance on the history of relationships to support her arguments about same-sex marriage (Alice Kessler-Harris), and tough questions were asked of how far the law should go in the forcing of certain types of relationships, and what emotions, aside from disgust and shame – and anger for that matter – might be appropriate for opponents of same-sex marriage (Mary Anne Case).  I fully admit, that’s not nearly the half of it; you can read all the papers in the Columbia Journal of Gender and Law’s forthcoming publication of them.

On a personal note: law school does not all too often provide the opportunity to stop learning about the law per se and actually examine its parameters and characteristics.  That the emotions of shame and disgust might problematically inform how the law is shaped, or the notion that all human beings are entitled to a range of fundamental capabilities, are concepts that add a huge depth to legal study.  This conference was a great moment to pause and consider, and I hope everyone at the end of the day felt similarly enriched.

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

From Columbia Law School Professor Patricia Williams, via The Nation

For some years now, the biotechnology of fertility enhancement has been exalted as God’s gift to the biblically barren. A relentless narrative of entitlement intertwined with prayerfulness has framed infertility as a tragedy, an oppression, an agony, a disease. Some have proclaimed a “right” to a “natural,” biologically related child, a child “like me.” Unusually large Middle American families–some with up to eighteen children–are offered movie deals and television programs.

Against the backdrop of a cold, impersonal and lonely world, these well-feathered and overly populated nests look villagey and warm. It’s an undeniably seductive vision, even if other options like adoption and fostering are almost never mentioned. Also less discussed are the side effects of this mad race for biological generation at all costs: the likelihood of multiple births, low birth weight and birth defects; the ethics of using poorer women as fetal hatcheries; the health risks to young women who have their “Ivy League” eggs extracted for handsome sums of cash.

There are loads of good reasons to think about regulating these medical procedures; we should have come up with something other than a “free market” for them years ago. But now, with the birth of Nadya Suleman’s octuplets in Bellflower, California, we are confronting a perfect storm of eugenic outcry. With a plunging economy, all the well-rehearsed elements of the “undeserving” welfare queen are lined up: Suleman is single, disabled, unemployed, on food stamps and has six other children under the age of 8, one of whom is reportedly autistic. She lives in a matchbox-size house with her resentful parents, who think she’s insane. Toss in that funny, foreign-sounding name–which turns out to be, gasp, Iraqi!–and the backlash is in full swing.

No doubt Suleman has emotional problems. But rather than caring about her mental health, much of the media are content to pillory her as a drain on the public dole–selfish, frivolous, calculating and cruel. No Brangelina-style accolades of “God Bless ‘Em” in People magazine. Just impassioned calls to cut off her remaining sources of income and to criminally prosecute the doctor who fertilized her. The Atlanta Journal-Constitution even ran an op-ed calling for the government to appoint a legal advocate for every child born to an unmarried woman, since the “lack of a father’s guidance” must be “a major cause of [children's] suffering.” Furthermore, in the case of Suleman’s children, “the legal advocate would file suit against the fertility clinic or a physician who knowingly contributed to their abuse–life in a multiple-child household headed by a single woman.”

Nadya Suleman’s saga, in other words, has highlighted a deep cognitive dissonance about whether children are “assets” or eternal expenditure, divine joy or devilish curse in a time of dwindling planetary resources. When I first heard of Suleman, my immediate thought was of Andrea and Rusty Yates–married, fundamentalist Christian believers in that ubiquitous story line about going forth and multiplying no matter what. After caring for and home-schooling five very young children with no assistance but prayer, and with accumulating signs of postpartum psychosis, Andrea Yates woke up one morning and drowned all her children with quiet efficiency.

And so the specter of psychotic breakdown haunts me when I think of the Suleman abode: one autistic child, plus 2-year-old twins, plus four other kids ages 3 to 7, plus eight newborns ranging from one to three pounds, plus a grandfather who has gone back to Iraq to earn more money for the family, plus a grandmother furious at the medical professionals who “assisted” her daughter, plus a surreally chipper Nadya, who despite the miserable odds remains enrolled as a graduate student in, of all things, pediatric counseling. This situation is undeniably sheer madness, but the public discussion seems fixated on the question of whether she can “afford” so many kids, as though if she was rich, this would be sane.

This past fall The New York Times Magazine ran a cover story by Alex Kuczynski, fashion writer and self-confessed “cosmetic surgery addict.” Her wish to have a child was framed by fierce determinism, the “natural outgrowth” of marriage to her husband–without whom she “would skip the child.” Kuczynski is married to a man whose “sperm had a track record”–six other children by two prior wives. She, the third bride and twenty years her husband’s junior, described herself as engaged in nothing less than a “battle for my fertility”; having a biological child was “necessary,” a “mad desire,” a “compulsion” and “proof” of the marital bond, without which she faced “wrecked hopes” and an “abyss of grief.” Indeed, to die “without having created a life is to die two deaths: the death of yourself and the death of the immense opportunity that is a child.” When she thinks she’s pregnant, she feels a “shiver of victorious accomplishment…. my own fecundity triumphant.” When she tells people she’s not, she feels “barren, decrepit, desexualized,” “branded with a scarlet ‘I’ for ‘Infertile,’” “the dried-up crone with a uterus full of twigs.”

Just because Kuczynski is married and wealthy does not make her less obsessive or more profound than Suleman. Kuczynski sounds like a sad, silly child mooning over “fertile but fit” stars like Halle Berry, Nicole Kidman, Salma Hayek and “John Edwards’s sometime mistress,” who all had babies in their 40s. Likewise, Suleman takes heart looking at Angelina Jolie. Suleman and Kuczynski represent disturbing emotional extremes. But that should not excuse the rest of us from examining the oppressive competitive natality that seems to have gripped us–the fantasies of “baby bumps” and breeding, always breeding, yet more of “our kind.” Our culture’s antifeminist backlash and its unrealistic aspirations have bewitched Kuczynski and Suleman, these two young women who are so addled and so suggestible, so endowed and yet so impoverished. All these years after the age of “liberation,” perhaps it is time to revisit the myths we still concoct about childless women’s worth.

I blogged recently about the concerns I had when I read the statements Hilary Clinton made in her Senate confirmation testimony related to the issue of sex trafficking.  I heard little sign in her testimony of a desire to change policy from the crusade undertaken by the Bush Administration that overdetermined the problem of human trafficking in sexual terms (thereby ignoring the enormous problem of other forms of forced labor), driven largely by an evangelistic judgment about sex work more generally.

But the State Department through the policy set by its Secretary is not where we can find the front line of the federal government’s efforts to combat human trafficking.  That job falls to the Department of “Homeland” Security (I hate that term), particularly to ICE (Immigration & Customs Enforcement) which conducts raids of brothels and other workplaces where it suspects undocumented and/or trafficked persons may be working.   Indeed, ICE raids have been the U.S. government’s principal means of identifying victims of trafficking according to a recent GAO report.

So, was Janet Napolitano asked about her views on human trafficking in general, or sex trafficking in particular, when she came before the Senate Committee on Homeland Security and Governmental Affairs for confirmation?  Nope.

Did she volunteer anything about this issue, as did Clinton in her confirmation hearings?  Nope.

Surely Secretary Napolitano has views on this issue, but we don’t know them yet.  When you go to the “Homeland” Security website the 2008-2013 Strategic Plan, developed by the old Secretary Chertoff but still on the website, does not even mention trafficking.  Yet if you go to ICE’s “What We’ve Done Lately On Human Trafficking and Smuggling” Webpage they highlight all manner of good things they’ve been up to, but few of them are trafficking-related.  Lots of smuggling work (and trafficking is legally and socially a different thing from smuggling), and a bunch of arrests of “illegal aliens.” The two most recent trafficking cases involve raids of brothels in Seattle and  South Florida, both last November.

It’s too early to know what kind of policy will be set by Secretary Napolitano with respect to domestic enforcement of the Trafficking Victims Protection Act.  But she and her policy team are without question important players in setting a new agenda when it comes to the problem of relying too heavily on raids to deal with the protection of trafficked persons and the prosecution of traffickers.  (More about this below.)  For the moment however, we have some reason to be concerned.

Timothy Keefer remains as Napolitano’s Chief Counsel for Civil Rights and Civil Liberties at ICE.  Keefer, a graduate of William and Mary Law School worked for Covington and Burling after clerking a couple years.  In late 2000, after three months at the firm, he was sent to Florida to work on George W. Bush’s legal team seeking to secure him a win in the contested presidential election.  He was rewarded for that service by the new administration with an appointment as special assistant to the U.S. Department of Labor’s Acting Solicitor Eugene Scalia (Antonin’s son).  He could be a good guy, but …  So far, none of Napolitano’s senior appointments have much of a track record in dealing with gender issues.

(Keefer’s ongoing employment at ICE may signal a much larger problem for the Obama Administration – the presence of Bush loyalists deep into every crevice of the federal government, as both political and career employees.  It’s not obvious that the new administration has the will or the capacity to clear out the thousands of neo-cons who were given government jobs for ideological reasons.  The scandal of politically motivated appointments at the Justice Department is just the tip of the iceberg.)

As for ICE’s overreliace on raids to protect the victims of trafficking, the Sex Workers Project in New York has just issued a report, Kicking Down the Door: The Use of Raids to Fight Trafficking in Persons, in which it documents how in the name of “rescue” these raids often result in the arrest, detention and deportation of trafficked persons because they are undertaken by ICE, together with local law enforcement officers, who are poorly trained or ill-equipped in identifying victims of trafficking, and who are, after all, focused on arresting criminals, people who pose potential terror threats, are dealing drugs and/or are sans papiers, that is, found without necessary paperwork demonstrating legal presence in the U.S.

I urge all who are concerned about this issue to read the Sex Workers Project report and to monitor the new team and policy being developed at Janet Napolitano’s “Homeland” Security and ICE.

- Katherine Franke