Scholars and advocates have long decried antiquated notions of consent in the criminal law of rap... more Scholars and advocates have long decried antiquated notions of consent in the criminal law of rape and sexual assault. Significant progress has been made to redefine consent in criminal codes and in our collective consciousness as freely given, informed, enthusiastic, explicit, revocable, and to be considered from the perspective of the consenting party. But despite this progress, the criminal justice apparatus continues to fixate on details irrelevant to the consent calculus such as the victim’s dress. This obsession with the victim’s clothing reflects a troubling willingness to imply consent or, alternatively, blame the victim for provocatively “asking for it.” Significant scholarship has demonstrated the corrosive impact of this fixation, resulting in a “credibility discount” of women making sexual violence allegations, the acquittal of defendants engaged in clearly criminal sexual conduct, and a concomitant reluctance of female victims of sexual violence to even engage with the ...
This Article examines for the first time in scholarly literature whether and to what extent the C... more This Article examines for the first time in scholarly literature whether and to what extent the Constitution applies extraterritorially to immigrants abroad. In particular, it explores whether non-detained immigrants and refugees outside the territorial boundaries of the United States can claim constitutional protection to challenge immigration policies and orders. The Supreme Court's recent willingness to reconsider the limits of the political branches' "plenary power" over immigration law and policy, coupled with the Court's recent extension of the Constitution to certain classes of extraterritorial noncitizens, suggests that a future role may exist for extraterritorial jurisprudence to inform constitutional immigration law. Using the Trump Administration's inchoate doctrine of "extreme vetting" as a case study, this Article explores how and in what circumstances the Court might make available avenues for constitutional challenge to immigrants residing abroad. It concludes by proposing a unified theory for extraterritorial constitutional immigration jurisprudence.
This Article confronts the growing tension between increasingly permissive concealed carry firear... more This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer's observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that "public gun possession" equals "criminal activity." Courts and scholars have begun addressing discrete aspects of this dilemma, and this Article makes three contributions to the existing literature. First, it corrects the oft-repeated misconception that the U.S. Supreme Court's recent Second Amendment jurisprudence has altered the Fourth Amendment's reasonable suspicion standard. Second, it articulates the need for a "gun possession plus" reasonable suspicion standard to initiate a Terry stop for a suspected firearms violation. Third, it defends the right of officers to conduct automatic frisks of suspects after a lawfully-initiated stop when firearms are present, in recognition of the inherent and unique dangerousness of these weapons. The Article concludes with a recognition of the risks presented by a proposed "automatic frisk" regime, particularly for over-policed communities of color. In doing so, it suggests law enforcement would be well served to consider community policing alternatives to stop and frisk that respect the rights of firearms carriers in marginalized communities while protecting officers on the beat.
10 (2018) (summarizing history of the "sanctuary" as a place of "support and integrat[ion]" for u... more 10 (2018) (summarizing history of the "sanctuary" as a place of "support and integrat[ion]" for undocumented immigrants and a place of "resistance to federal immigration enforcement");
From a very young age we are taught to fear strangers. Parent[s], teachers and loved ones warn ch... more From a very young age we are taught to fear strangers. Parent[s], teachers and loved ones warn children of stranger danger[,] instructing them not to speak or go anywhere with someone they don't know. "As we grow up this message is reinforced, particularly for women. We are told to be aware of our surroundings when walking alone late at night for fear of the stranger lurking in the bushes ready to attack. This story of the stranger hiding in the bushes or a dark alley is also often used when warning women about sexual assault. We are told we shouldn't go out late at night alone, especially in parks, and that we should carry pepper spray in our purses to be ready to fend off violent attackers. So we grow up thinking we can pinpoint potential perpetrators-the creepy guy in the park, the man in the hoodie walking closely behind you.... "Messages like this are not only incredibly insensitive to victims, but dangerous for everyone. When we believe that these types of myths are reality, victims start to question what happened to them and are reluctant to report, people don't understand what consent really look likes, attackers might not know they are raping women, rapists go free, rapists rape again, rape cases aren't investigated, the list goes on and on." 1
Scholars and advocates have long decried antiquated notions of consent in the criminal law of rap... more Scholars and advocates have long decried antiquated notions of consent in the criminal law of rape and sexual assault. Significant progress has been made to redefine consent in criminal codes and in our collective consciousness as freely given, informed, enthusiastic, explicit, revocable, and to be considered from the perspective of the consenting party. But despite this progress, the criminal justice apparatus continues to fixate on details irrelevant to the consent calculus such as the victim’s dress. This obsession with the victim’s clothing reflects a troubling willingness to imply consent or, alternatively, blame the victim for provocatively “asking for it.” Significant scholarship has demonstrated the corrosive impact of this fixation, resulting in a “credibility discount” of women making sexual violence allegations, the acquittal of defendants engaged in clearly criminal sexual conduct, and a concomitant reluctance of female victims of sexual violence to even engage with the ...
This Article examines for the first time in scholarly literature whether and to what extent the C... more This Article examines for the first time in scholarly literature whether and to what extent the Constitution applies extraterritorially to immigrants abroad. In particular, it explores whether non-detained immigrants and refugees outside the territorial boundaries of the United States can claim constitutional protection to challenge immigration policies and orders. The Supreme Court's recent willingness to reconsider the limits of the political branches' "plenary power" over immigration law and policy, coupled with the Court's recent extension of the Constitution to certain classes of extraterritorial noncitizens, suggests that a future role may exist for extraterritorial jurisprudence to inform constitutional immigration law. Using the Trump Administration's inchoate doctrine of "extreme vetting" as a case study, this Article explores how and in what circumstances the Court might make available avenues for constitutional challenge to immigrants residing abroad. It concludes by proposing a unified theory for extraterritorial constitutional immigration jurisprudence.
This Article confronts the growing tension between increasingly permissive concealed carry firear... more This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer's observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that "public gun possession" equals "criminal activity." Courts and scholars have begun addressing discrete aspects of this dilemma, and this Article makes three contributions to the existing literature. First, it corrects the oft-repeated misconception that the U.S. Supreme Court's recent Second Amendment jurisprudence has altered the Fourth Amendment's reasonable suspicion standard. Second, it articulates the need for a "gun possession plus" reasonable suspicion standard to initiate a Terry stop for a suspected firearms violation. Third, it defends the right of officers to conduct automatic frisks of suspects after a lawfully-initiated stop when firearms are present, in recognition of the inherent and unique dangerousness of these weapons. The Article concludes with a recognition of the risks presented by a proposed "automatic frisk" regime, particularly for over-policed communities of color. In doing so, it suggests law enforcement would be well served to consider community policing alternatives to stop and frisk that respect the rights of firearms carriers in marginalized communities while protecting officers on the beat.
10 (2018) (summarizing history of the "sanctuary" as a place of "support and integrat[ion]" for u... more 10 (2018) (summarizing history of the "sanctuary" as a place of "support and integrat[ion]" for undocumented immigrants and a place of "resistance to federal immigration enforcement");
From a very young age we are taught to fear strangers. Parent[s], teachers and loved ones warn ch... more From a very young age we are taught to fear strangers. Parent[s], teachers and loved ones warn children of stranger danger[,] instructing them not to speak or go anywhere with someone they don't know. "As we grow up this message is reinforced, particularly for women. We are told to be aware of our surroundings when walking alone late at night for fear of the stranger lurking in the bushes ready to attack. This story of the stranger hiding in the bushes or a dark alley is also often used when warning women about sexual assault. We are told we shouldn't go out late at night alone, especially in parks, and that we should carry pepper spray in our purses to be ready to fend off violent attackers. So we grow up thinking we can pinpoint potential perpetrators-the creepy guy in the park, the man in the hoodie walking closely behind you.... "Messages like this are not only incredibly insensitive to victims, but dangerous for everyone. When we believe that these types of myths are reality, victims start to question what happened to them and are reluctant to report, people don't understand what consent really look likes, attackers might not know they are raping women, rapists go free, rapists rape again, rape cases aren't investigated, the list goes on and on." 1
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