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.

The New York Court of Appeals is currently weighing issues of critical importance to families around the state of New York in the matter of Debra H. v. Janice R. The petitioner in the case, Debra H., seeks to prevent the possibility that she may never again see the child she parented since birth.  Respondent, her former partner and biological mother of the child, claims that Debra H. has no legal rights as a parent.  This week, Columbia Law School’s Sexuality and Gender Law Clinic  filed an amicus brief with the New York Court of Appeals on behalf of forty-five family law scholars from every law school in New York State.  The brief was written by Professors Suzanne Goldberg and Ariela Dubler together with Clinic students Harriet Antczak, Mark Musico and Seung-Jae Lee, and urges the Court to bring the State into line with the clear trend in family law by recognizing important functional parent-child relationships.

Given the reality of today’s families, in which children are increasingly parented by adults other than their biological parents, Debra H. is not the only mother with a vital interest in this case.  Rather, at stake are the rights of all “functional parents” like Debra H. and the best interests of their children.

Currently, New York treats functional parents as “legal strangers” to their children, due to the 1991 Court of Appeals case, Alison D. v. Virginia M. There, a lesbian couple planned to have a child together, but when the couple separated, the biological mother attempted to cut off all contact between her former partner and the child.  Ruling on the former partner’s suit for visitation, the Court held that she had no legal rights as a parent.  Because she had no biological or adoptive relationship to the child, the Court found she did not meet its narrow reading of “parent” within the state visitation law.

Mounting evidence shows the harm caused when courts separate children from their functional parents, as in the Alison D. case and many other post-Alison D. cases in which courts have continued to treat functional parents as though they are unrelated to the children they have been parenting.

Taking account of this evidence and the changing realities of the American family, scholars and courts around the country have rejected the rigid conception of the family embraced in 1991 by New York’s high court.  They recognize that only a functional approach can adequately protect the many families in which children are raised by adults who have functional, but not legal or biological, ties to them.

Drawing on the wide consensus among scholars and many courts, the Clinic’s amicus brief calls on the Court to grant functional parents the same rights and responsibilities as legal parents at the point of family dissolution.  As the brief argues, “[t]his functional approach best serves the interests of New York’s children, consistent with New York’s family law jurisprudence and this Court’s equitable authority.”

Specifically, the brief shows two key criteria New York courts should consider in assessing claims to parental status made by functional parents.  First is that the legal parent must consent to the functional parent’s assumption of parental responsibility for the child.  Second, the functional parent actually has to have intended to and assumed parental responsibility.  In addition, courts can consider the parent-child bond between the functional parent and the child.  The brief highlights agreement among courts and scholars that these criteria for defining functional parenthood not only fairly assess claims by functional parents, but also protect the interests of legal parents and serve the best interests of children.

Importantly, the forty-five law school faculty members – hailing from all fifteen of New York’s law schools – demonstrate the best judgment of the legal academics who teach, write about, and practice family law, including many who have particular expertise in child advocacy and scholarship related to the best interests of children.  Their support is a powerful statement to the Court that the time has come to replace the harmful formalistic rule of Alison D. with a functional approach to defining the legal family.

The Supreme Court of Puerto Rico is currently considering whether Puerto Rico’s laws permit the adoption of a child by a non-biological parent who is the same-sex partner of the child’s legally recognized parent.  Such adoptions are typically referred to as “second-parent” adoptions because they occur in situations where the child already has a legally recognized relationship with one (usually biological) parent and the adoption provides the same recognition to an additional parent.  Most U.S. states already allow second-parent adoptions by a same-sex partner, but so far, Puerto Rico does not.

This case, In the matter of AAR, involves two women in a committed relationship who have co-parented a child from birth.  While not contesting that the non-biological mother has functioned in every important respect as the child’s parent, the lower courts have applied a narrow reading of Puerto Rico’s adoption statute and denied her petition, saying second-parent adoption is available only to opposite sex partners.

Significantly, the courts have not inquired as to the best interests of the child in question.  This is unfortunate both because this is standard for adoption decisions in Puerto Rico (and most jurisdictions) and because second-parent adoption is critically important to the children of same-sex couples.   As in most cases, granting the adoption in this case would merely formalize a parental relationship that already exists in fact.  This legal recognition is psychologically significant to children with same-sex parents as an indication of their families’ equal dignity and legitimacy.  Adoption is also of great practical value because of the many rights and privileges that attach to the parent-child relationship.  These practical considerations include custody, inheritance, financial support, medical decision-making, and many other legal protections.  In light of these considerations, second-parent adoption is clearly in the best interests of children being raised by same-sex parents.

On Thursday, November 12, 2009, the Sexuality and Gender Clinic offered its expertise to the Puerto Rican Supreme Court by filing an amicus brief in order to ensure that the most current developments in international and comparative law related to sexual orientation, gender, and family law were made available to the Court.  The Clinic took the position that international and comparative human rights law together support an interpretation of Puerto Rico’s adoption law that would enable children in families with two same-sex parents to be adopted by their non-legal parent.  In doing so the amicus brief drew the Court’s attention to the international human rights norms that enshrine the rights of the child, the rights of the family and the right of the individual to be free from discrimination on the basis of sexual orientation.  It also pointed to the trend in the both the United States and around the world towards interpreting adoption statutes in a way that permits second-parent adoption without regard to sexual orientation.

The Clinic concluded that, by according due consideration to the human rights law and norms that have long informed the Commonwealth’s jurisprudence, the Court can and should interpret the Puerto Rican adoption law at issue to permit the child in this matter to be adopted by a parent she has known her entire life.

Caitlin Boyce LLM, Catherine Poynter 3L, Brian Ward 3L – authors of the AAR Amicus Brief for the Sexuality and Gender Law Clinic

The Gender and Sexuality Law Blog covered a case our Sexuality & Gender Law Clinic was handling back in May having to do with a man who applied for and was denied parole by the Massachusetts  Parole Board because he was gay.  See post here.

This week, the Parole Board granted Bruce Wilburn’s parole application.   See details below.

Massachusetts Parole Board Grants Parole to Openly Gay Inmate After New Hearing Following the Settlement of a Sexual Orientation Discrimination Suit

Major Victory for Columbia Law School’s Sexuality and Gender Law Clinic

The Massachusetts Parole Board granted parole to Bruce Wilborn, an openly gay inmate who had previously sued the board for harassing him and treating his parole application skeptically because he is gay. Mr. Wilborn settled his lawsuit last April in exchange for a new parole hearing, which took place in May. (The decision, which was signed by the board’s executive director on Aug.18, was released to Mr. Wilborn’s counsel yesterday.)

In October of 2008, Federal District Court Judge Patti Saris rejected the parole board’s effort to dismiss Mr. Wilborn’s sexual orientation discrimination claims. That decision, in turn, adopted a federal magistrate’s ruling, which held that “federal anti-discrimination guarantees apply to parole decisions.”  Columbia Law School’s Sexuality and Gender Law Clinic and the law firm McDermott Will & Emery LLP serve as counsel for Mr. Wilborn.

Mr. Wilborn is expected to return to his family in the fall.

“The board’s grant of parole reinforces that an inmate’s sexual orientation should not be the basis for denying parole,” said Suzanne B. Goldberg, director of the Law School’s Sexuality and Gender Law Clinic and a Clinical Professor of Law. “Earlier decisions in the case have shown that parole boards may not single out gay applicants and deny them fair and equal treatment. We are pleased that the law has now been followed in this case.”

“Mr. Wilborn fought for his right to receive a fair hearing,” added Mollie Kornreich, one of the students who represented Mr. Wilborn. “This is a gratifying outcome after that struggle.”

“I am thrilled that Mr. Wilborn has gotten the outcome he deserves. He has been a model inmate and an ideal candidate for parole,” said fellow student, Abram Seaman. “By granting Mr. Wilborn parole, the board is simultaneously giving a new start to a deserving man and establishing that treating a gay applicant’s sexual orientation as a negative factor for parole is both improper and irrelevant.”

Mr. Wilborn is represented by Neal Minahan and Lisa Linsky of McDermott Will & Emery LLP. Clinic students Mollie Kornreich ‘09, Keren Zwick ‘09, Abram Seaman ‘10, Adam Pulver ‘08, Amos Blackman ‘08, Simrin Parmar ’08, and Katherine Harris ‘09 have all worked on the case. Ms. Kornreich and Ms. Zwick argued against the dismissal of Mr. Wilborn’s case before Judge Saris, and Mr. Pulver argued against dismissal before Magistrate Judge Judith Dein.

To contact the students: Abram Seaman at abram.seaman@law.columbia.edu.

	Columbia Law students Mollie Kornreich, Abram Seaman, and Keren Zwick have taken up Bruce Wilborn’s case out of their belief he was denied parole in the killing of a gay man because he too is gay.

At first blush, Bruce Wilborn is not the ideal client for a lawyer. The 46-year-old gay man has been incarcerated in Massachusetts since 1985, after being given a life sentence with the possibility of parole.

Wilborn and his partner in 1983, Robert Gonzalez, conspired to kill Stanley Weinstock, a 54-year-old gay man, to collect the proceeds from his will that named Wilborn as the beneficiary.

This was not an impulsive murder. Wilborn and Gonzalez, who were 20 and 24 in 1985, made a pact to kill Weinstock on October 11, 1983. They put a great deal of thought into a plan that they hoped would hide their involvement, and they executed that plan 11 days later.

“It was a predetermined act of both of these people that [Weinstock] should die for their love and for money,” said Matthew J. Ryan, Jr., the district attorney who handled the 1985 trial, in a published report from that year. “Either or both of them expected to benefit from Stanley Weinstock when he died, either by way of a will or by an insurance policy.”

What drew the attention of a leading gay rights lawyer and a group of law students at Columbia University was how Wilborn was treated when he applied for parole in 2006. Three parole board members made comments and asked questions that suggested that Wilborn was denied parole because he was gay, he charged in a later lawsuit.

“The judge did suggest that the kind of behavior the parole board engaged in would constitute discrimination had it gone to trial,” said Keren Zwick, one of six law students who worked on the case with a private attorney and Suzanne B. Goldberg, director of the university’s Sexuality and Gender Law Clinic.

At a second look, Wilborn might be the perfect client. He had one disciplinary infraction during his prison time, and that was in 1991. He published two books while incarcerated and is working on a third. His family in Illinois will aid him if he is released.

And then he was wronged by the parole board, his student lawyers assert.

“At the baseline level, there was no rational basis for their negative consideration of his sexual orientation,” said Mollie Kornreich, one of the students.

The students did what good lawyers do when they represent clients who have committed heinous and violent crimes — they fought back.

“Even if you believe your client is guilty, you represent him zealously,” said Abram Seaman, who is gay and one of the students.

When Wilborn was denied parole in 2006, he appealed. That appeal was denied in 2007. He sued in federal court that year, initially representing himself, and then was aided by the Columbia students.

While sexual orientation is not a protected class in federal anti-discrimination laws, that does not mean that government entities are free to discriminate on that basis at will. Wilborn’s advocates asserted that his equal protection and due process rights under the US Constitution were violated when the board denied him parole because he was gay.

“It’s not unprotected, it just gets less protection,” Kornreich said.

Wilborn and the Columbia students won. In 2008, the state settled without admitting to any wrongdoing and agreed to give Wilborn another parole hearing on May 28. Normally, an inmate such as Wilborn gets a hearing every five years, so this latest hearing will come more than two years early.

The students are helping Wilborn prepare for the hearing and they fully believe that he deserves to be paroled.

“The function of a parole system is to recognize that people can rehabilitate themselves,” Seaman said. Zwick added, “Our personal feeling is that he isn’t likely to re-offend.”

While the settlement is not a legal precedent for other courts, it can be cited by attorneys or inmates who find themselves in a similar situation. “It’s not binding, of course, but it is persuasive,” Zwick said.

Judges can sometimes be reluctant to be the first to rule favorably for a gay or lesbian person, Wilborn’s advocates argue. His case, in their view, solves that problem and it is one more step forward for the queer community.

“Cases like this are exciting because they establish incrementally this is not okay, this is not okay,” Kornreich said.

Columbia Law School’s Sexuality and Gender Law Clinic can boast another victory – this time on behalf of a gay parolee in Massachusetts.  The Massachusetts Parole Board agreed last week to give Bruce Wilborn, an openly gay inmate, a new parole hearing to settle the sexual orientation discrimination charges he brought against the board more than a year ago. The settlement comes after Federal District Court Judge Patti Saris rejected the Parole Board’s attempt to dismiss Wilborn’s claims that the parole board singled him out and treated him worse than other parole applicants because he is gay. Columbia Law School’s Sexuality and Gender Law Clinic and the law firm McDermott Will & Emery LLP serve as counsel for Wilborn.