Lynn Hecht Schafran

Impressive Progress Alongside Persistent Problems

In April the New York Committee on Women in the Courts celebrated twenty years of working to implement the recommendations of the New York Task Force on Women in the Courts. New York’s Chief Judge Judith Kaye encapsulated these two decades with a perfect aphorism, “Impressive Progress Alongside Persistent Problems” – an aphorism that captures the work not only of the New York Committee, but of every effort to achieve equality for women in the courts and the legal profession. This dichotomy was apparent in July when a New York doctor blew up his family’s elegant townhouse rather than share sales proceeds with his ex-wife. News media trumpeted this as a story of divorce rage, but failed to note the other outrage in the case that exemplifies those persistent problems: the trial court’s minimal monetary award to the ex-wife in the original divorce. Cordula and Nicholas Barthes were together for nearly thirty years. She was out of the paid workforce until their younger child was eleven when she returned to part-time and then full-time work in the cultural section of a foreign consulate. He was a successful physician. The Special Referee who determined the economic issues and the judge who affirmed that determination ruled that the townhouse was separate property in which Cordula had no interest — despite the fact that she paid for part of its purchase — and awarded her minimal, short-term maintenance (alimony) and no attorneys fees. Fortunately there was an appellate decision that reflects impressive progress in educating the courts about how to value spouses’ monetary and non-monetary contributions to a marriage, and the need to maintain long-term spouses at a reasonably equivalent post-divorce standard of living. The appeals court reversed the equitable distribution, maintenance and counsel-fee awards and wrote, inter alia, “the record fails to disclose how a maintenance award of $2,000 per month for three years will enable plaintiff, who currently lives in a small apartment in Washington Heights with her two adult daughters, to retain her predivorce standard of living.” Barthes v. Barthes, 2005 N.Y. App. Div. LEXIS 566. The current media circus over the rape allegations against members of the Duke University lacrosse team recalls the media circus that attended the rape case against basketball star Kobe Bryant. Women’s rights advocates have made impressive progress in reforming rape laws, particularly introducing the rape shield law which bars evidence about the alleged victim’s sexual history, apart from specific exceptions. This law has been highly beneficial in encouraging victims to report to the police and curbing jurors’ penchant for relying on extra legal factors – i.e., their assessment of the woman’s character based on her sex life – rather than the facts and law. But then there is a debacle like the Kobe Bryant case. The defense claimed that the alleged victim had sex with two men just before her encounter with Bryant and one man afterward, and that these men were the source of her injuries. Source of injury is one of the exceptions in the rape shield law. The alleged victim acknowledged having sex with her former boyfriend several days before the rape but denied that she had other recent partners. The defense sent out investigators to identify every man the alleged victim ever kissed. At the hearing to determine how much sexual history would be admitted at trial the defense made no meaningful offer of proof as to who the other two men might be, and the judge allowed a parade of men to talk about their relationship with the woman. Given the judge’s actions with respect to the rape shield law, it is no wonder that in the wake of the Bryant case, rape crisis centers across the country reported a significant drop in victims’ willingness to report. As the Duke and Bryant cases show, rape cases often involve intense media coverage. This coverage plays a major role in shaping public opinion about the particular case, the particular victim and rape cases in general. Although there is much current talk about young women reclaiming the word “slut,” have no illusions that the public will buy it . During the run up to the Kobe Bryant trial the media eagerly headlined every victim-smearing allegation leaked by the defense. But there was never comparable press about Bryant’s sexual proclivities, even when the case ended and his startling first interview with the police became public. At the preliminary hearing prosecutors claimed that Bryant threw the alleged victim over a chair, put his hands around her neck and raped her. In the transcript Bryant claims the woman bent over herself, but freely admits the strangulation. He acknowledges that he put his hands around her neck and that his hands are strong (page 16, lines 465-481). Then he says “about the strangling thing you have to go talk to this girl [inaudible] Michelle…, we do the same thing (page 48, lines 1470, 1474).” Michelle, he tells the detectives, is a girlfriend with whom he frequently has sex (page 48, lines 1476-1478). I do not know the etiquette of asking your sexual partner if she minds being choked during intercourse, but I would think you should have known her for more than fifteen minutes and be sure of her name. We know from the transcript that Bryant had only the briefest acquaintance with this woman and that as to giving police her name, he could only say, “Something like that.” Nonetheless, when the case ended there were no headlines blaring “Kobe Likes Strangling Women During Sex.” With respect to women in the legal profession, the progress has indeed been impressive, but problems such as the still-small number of women partners in law firms persist. We see the dichotomy in the situation for women judges. Under President Jimmy Carter the number of women on the federal district and appellate courts jumped from 4 to 43, paving the way for President Reagan to appoint the first woman to the Supreme Court and the number of women state judges to begin a significant rise. Today there are a stunning fifteen women chief justices of states and other jurisdictions. But as Virginia Judge Leslie Alden points out, women judges are highly visible at the top and concentrated at the bottom. Most are in courts of limited jurisdiction, and there are still counties and state supreme courts that have no women judges at all. Most disturbing is that under President George W. Bush the female population of Supreme Court Justices has been reduced by half. In October I will celebrate twenty-five years as Director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts (NJEP), a project of Legal Momentum and the National Association of Women Judges. In the early days I said my goal was to go out of business because there would be no need for such a project. What I have found instead is that while these years have produced dramatic and positive change, the need to identify and counteract gender bias within our courts, our profession and our society will persist. As young lawyers, let the impressive progress inspire you and the persistent problems strengthen your commitment to protect and advance these hard-fought and often fragile rights for women. Lynn Hecht Schafran Director National Judicial Education Program (NJEP)

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