Volume 13/S23 Wellesley College Law Journal

LETTERFROMTHEPRESIDENTS

May3,2023

DearWellesleyCommunity,

Itiswithgreatjoythatwesharewithyouourpartinggift–thethirteentheditionofthe WellesleyPre-LawSocietyLawJournal, Sources of Power Weoweourtwoincrediblejournal editors,RadhikaSeshadri’23andNerineUyanik’24,muchgratitudefortheireffortputtingthis lovelyjournaltogetherforusalltoread.Wealsooweourgratitudetoouramazinge-board.The fall2022semestermarkedoneofthelargeste-boardturnoverswe’vehadduringourtimeat Wellesleywiththerecentgraduationofmanyofourlong-timemembers,butourexcitedand passionatenewcomersreinvigoratedourorganizationandourendeavors.Finally,wewantto thanktheauthorsfeaturedinthisvolume.Thankyouforsharingyourwords,yourideas,and yourpassionswithus,andfortrustinguswithamplifyingyourvoiceswithintheWellesley community.

Asseniorswhosefirstyearwasmarkedbyourunexpecteddeparturefromcampusinthe springof2020,ithasbeenadelightgettingtocomebacktocampusforourfinalacademicyear infullswingasanorganization.Wehavesoenjoyedgettingtoknowallofourmembersand gettingtofacilitateconnectionsbetweenPre-Lawstudents.FromourclassicTeawithaLawyer eventtoournewlyestablishedlawschooltourseries,wefeelveryfortunatetohavehadthe chancetoengagewiththiscommunitymorefullyandin-person.Theessayscontainedherearea testamenttothatexcitementandfervorofthisfallsemester.Justliketheirauthors,thesepieces aremultifaceted,thoughtful,passionate,andcurious.Theyexamineeverythingfromchild testimoniestointernationalarbitrationtopolicyrecommendationsonborderconflicts.

Weareproudtoofferthisbi-annualpublishingopportunitytoWellesleyCollege students.Anypaperunder20pagesiseligibleforsubmission,solongasitdiscussestopics relatedtolawand/orpolicy.We’dlovetoseeyoursubmissions!Deadlinesaretypicallyatthe endofthefallsemesterandthemiddleofthespringsemester Asalways,weareheretosupport youinyourPre-Lawjourneyandarehappytoansweranyquestions(ortodirectyoutosomeone whohasabetteranswer).WearesoproudofourcommunityhereatWellesley,andwehopeto connectwithyousoon!

Best, VictoriaPercoco’23

ShaylaZamora’23

Wellesley Pre-Law Society Co-Presidents 2022-2023

LETTERFROMTHEEDITORS

May3,2023

WelcometoVolume13oftheWellesleyCollegeLawJournal!

Publishedtwiceayear,theWellesleyCollegeLawJournalisthepremierlocationforstudentsto publishtheirthoughtsonlawandpolicy TheJournalisastudentpublicationhousedwithinthe WellesleyCollegePre-LawSociety,featuringarticlesselectedandeditedbytheLawJournal Editors.

WearethrilledtopresenttheSpring2023EditionoftheWellesleyCollegeLawJournal.From votingpowertointersectingsystemsofpower,thepapersinthisvolumeaddresstheemergence andexistenceofpowerindifferentsocial,political,andeconomiccontexts.Wehopethat

Sources of Power encouragesyoutoexpandyourunderstandingofthevariousformsofpowerin society.

Happyreading!

Sincerely,

RadhikaSeshadri’23andNerineUyanik’24

Wellesley College Law Journal Co-Editors 2022-2023

THEMULTIDIMENSIONALDEPRIVATIONINDEX:HOWWECANCREATEA MEASUREOFPOVERTYTHATTRANSFORMSCONCEPTUALIZATIONSOF POVERTYANDECONOMICINEQUALITY

ByRebeccaBiagas

Introduction

It is critical that U.S. poverty measures account for the inequality that exists within virtually all structures and systems of power The intersection of raceandgendercontributetoa vast range of unique experiences of class. As feminist scholar Leslie Paik writes in the introduction of Trapped in a Maze, “[Families of color] typically have to deal with more than one institution at the same time for the multiple problems created by poverty and systemic racism” (Paik 2021, 6-7). A system of measuring poverty that does not take the impacts ofrace and gender into account is,bynature,inaccurate.Toaddresspoverty,weneedtofirstunderstand how it works,whoitimpacts,anditsroots.Alloftheseareinseparablefromconversationsabout marginalization.

Background

The current system for measuring poverty operates within a framework that disregards the systemic oppression of women and people of color, which perpetuates stereotypes and oversimplifies the concept of poverty as a whole. The U.S. government currently uses the Official Poverty Measure (OPM) and the Supplemental Poverty Measure (SPM) to determine poverty rates. Researcher Brian Glassman examines the OPM and SPM and introduces his own supplemental measure, the Multidimensional Deprivation Index (MDI), in “Multidimensional Deprivation in the United States.” The OPM and SPM measures are conducted through the Current Population Survey (CPS) Annual Social and Economic Supplement (ACS), which is conducted onasamplesizeofapproximately3.5millionpeople(Glassman2019,1).Theofficial method for determining poverty rates is based on an equation that compares annual income to numerical poverty threshold values, which are influenced by variables of family size,ageofthe householder, and number of children (3). The MDI uses “dimensions” as an alternative to the equation; dimensions assess poverty within different areas in a person’s life according to conditions which indicate potentially vulnerable to deprivation in categories such as housing quality, economic security, or access to education (4). The MDI is an approach to evaluating poverty that was created to supplement the OPM rather than replace it, but the MDI has the potentialtoactastheprimarymethodofevaluatingpoverty(1).

Argument

With substantial but plausible adjustments, the MDI could replace the OPM, as it provides a wealth and inequality-centered approach that measures deprivation more accurately. The MDI is the tool that has the greatest potential to measure poverty because of its nuanced examination of the contributing factors to poverty The MDI has been shown tobeaccuratedue to its high correlation rate with theOPM,buttheMDIconsistentlyaccountsforgreaternumbers of “deprived” people (Glassman 2019, 8). Considering that 40-45% of American workers have minimum or low-wage jobs (Shook 2020, 251), alongside the lack of access to private support networks for most Americans, finding higher rates of poverty—particularly among minority

groups—indicates greater validity. The MDI, and its use of dimensions, reflects the realistic sourcesofdeprivationinpeople’slives.

Section 1: Aims, functions, and execution of the Multidimensional Deprivation Index

When comparing the MDI to the OPM, several seemingly marginal but actually critical differences become visible. First, the language used in the MDI is more humanizing. In the OPM, the phrases used to describe income and poverty, such as “poor people,” are abstract descriptors which place a role onto someone without recognizing contributingfactorsoreffects. In contrast, the MDI uses the phrase “deprived person” (Glassman 2019, 2). This use ofaword that can function as an adjective or a verb naturally prompts questions on what the sources of deprivationare—afundamentalquestionforassessingpoverty.

ThestatisticaldifferencesbetweentheMDIandOPMfurtherindicatethereasonsthatthe MDI has greater potential than the OPM. Slight variations exist between the results for poverty in demographics for every category in the OPM and MDI, but the largest disparities are in the categories of Black (3.3%), Asian (2.8%), Hispanic (4.8%), foreign born, (6.2%), and 65+ (6.5%) (Glassman 2019, 10). The MDI reflects a higher rate of deprivation in eachoftheseand found slightly higher rates of deprivation nationally (Glassman, 2019, 8). These differences indicatethattheMDI’sdimensionsaremoresuccessfulatreflectingpeople’sexperiencesbeyond surface level statistics. Even the SPM, which incorporates more factors than the OPM, is still based on limited data, such as whether the household receives welfare, which is already a racially biased measurement. The results further indicate that the specific qualifications used in the MDI are more sensitive to disparities in immigrant identity, race, and age. While the differences between the assessment of poverty by the SPM,OPM,andMDIareslim,expanding the deprivation index to include the elderly, immigrants, and racial minorities, recognizes the reality of chronic poverty andeconomicvulnerabilitythatpeopleinthosegroupsaremorelikely toface.

Having said that, the MDI and OPM both contribute in their own ways to current social biases surrounding economic inequality. The American meritocracy myth is perpetuated by assessment measures that look exclusively at income and participation in the workforce. As Deanna Jacobsen Koepke discusses in Race, Class, Poverty and Capitalism, ideas about a “culture of poverty” already inform what opportunities poor people will be offered. Suchmyths promote the rhetoric that people livinginpovertydonottakeadvantageofopportunities,instead choosingtoremainjoblesstoreceivewelfare(Koepke2007,192,195).

Furthermore, the MDI presently operates within a neoliberal, capitalist framework, and ultimately does not do enough to undo, and may unwittingly contribute to, the myths that poor people are “lazy, that the elite are dominant, and that [the poor] must be naturally inferior” (Koepke 2007, 197). Though it does not actively heighten economic inequality, the MDI falls shortoflookingatawiderrangeofitscausesandprovidingmorecontextonsystemicinequality

Section 2: Reforming the Multidimensional Deprivation Index

To improve the MDI, it must be changed using a feminist framework, and tangible adjustments to dimensions oftheMDImustbemade.ThoughtheMDIisastrongfoundationfor a more representative measure of economic inequality, no true modification canhappenwithout a radical shift in how we evaluate inequality. At present, poverty is regarded as the source of other issues, rather than a symptom of systemic inequalities. Koepke argues that transitioning away from a capitalist meritocracy is critical for making any meaningful reform. Gita Sen and

Sudhir Anand second this point in Concepts of Human Development and Poverty, where they explore multidimensional concepts of poverty Sen and Anand write, “For policy makers, the poverty of choices and opportunities is often more relevant than the poverty of income”(Sen& Anand 1997, 5).Here,theirargumentsupplementstheideathat,toadequatelyaddresspoverty,it is more important to look at areas of systemic deprivation as the source ofeconomicinequality, recognizing that it is a lack of access to opportunities and necessary resources—not just low incomes—thatcreatechronicpoverty

First andforemost,anymodificationtotheMDImustclearlydistinguishbetweenincome and wealth. Lavinia Mitton is one of the feministscholarswhoaimstounderlinetheimportance of distinguishing the two. In the chapter “Feminization of Poverty” in the book Gender: Key Concepts; Mitton emphasizes that, particularly when considering poverty inagenderedcontext, income andwealthareinformedbymanycompletelydifferentfactors(Mitton2012,67).Income is distinct from wealth in that income is only reflective of an individual’s earnings at that moment in time, while wealth looks at the economic factors that contribute to “a cumulative advantage,” such as home ownership or investments (Andersen & Hill Collins, 2016, 73). Even aggregate income measurements for ethnic groups are stilllimited;theydonotaccountforother aspectsofwealth,whichcanhaveamuchmoresubstantialimpactoneconomicinequality(72).

The MDI lends itself well tomodificationsimplementedforbetterrecordingthedepthof poverty because of its ability to expand to include more specific and valuable dimensions. The MDI already indicatesimportantinformationaboutpoverty;the2017reportfoundthatstandards of living and housing quality are the most significant contributing factors to multidimensional deprivation (Glassman 2019, 2).1 These categoriesrequirethemostnuance,giventhedecadesof residential segregation that have “systemically undermined the social and economic well-being of blacks intheUnitedStates”(Massey1993,2).Thecurrentmethodologiesformeasuringthese twodimensionsarequitevague;thereissubstantialroomforimprovement.

The MDI can be modified to create more consistent measures of each dimension and to introduce “risk factors” for poverty outside of the few that are currently included under the economic security umbrella. Poverty cannot be measured byanarbitraryfederal“line”thatdoes not vary geographically, and it should not be treatedasifitcan.Povertymeasuresshouldreflect systems which situate individuals into economically vulnerable positions. As Koepke puts it, “one’s background affects one’s education, interpersonal skills, social contacts, values, and psychological traits” (Koepke 2007, 197). Introducing measures such as educationalhistory,job training, access to childcare, and family networks into the measurements of dimensions of the MDI or using these ideas to create new dimensions of the MDI, could lead to a better understandingofhowpovertycanbetransientandhavevaryinglevelsofseverity.

While measures such as these by no means definitively indicate whether someone is living in poverty, they provide relevant context for understanding why “minority families are at risk of falling into this maze” and why the obstacles they face, particularly a lack of resources, make it more difficult forthemtogetoutofpoverty(Paik2021,7).Usingmeasuresthatworkto accurately uncover the systemic roots of economic inequality highlightthefactthat“womenare

1Itisalsoworthnotingthatthisnumberdoesnotaccountforincarceratedandinstitutionalizedindividuals (Glassman,2019,1) ThecriminalizationofmentalillnessandthemassincarcerationofBlackandBrown peopleintheUS meansthatexcludingthesegroupsfromofficialcountslikelylessensthenumberof BlackandBrownpeoplewhoarerecordedaslivinginpoverty,inspiteofthefactthatpeoplewithmental illnessandincarceratedpeoplearesomeofthemosteconomicallyimpoverished membersofsociety

disproportionately poor… and often disempowered and burdened” by several external factors (Sen 1997, 3). The sooner we recognize the true issues that “place women at particular risk of vulnerability and privation”(Mitton2012,68),thesoonerreformstowelfaresystems,education, workplacepolicies,andmorecanbeexecutedsuccessfully.

Section 3: Shortcomings of the Multidimensional Deprivation Index and potential revisions

It is possible to change ways of measuring povertytoaddressthesystemsthatcontribute to economic inequality, but themeasurementscanneverbeperfectforanumberoftechnicaland politicalreasons.

Measuring poverty can only go so far as long as the U.S. continues to operate in a capitalist system that upholds structures of racism, colonialism, and gender-based oppression. The laws and policies oftheU.S.introduceunpredictableandunavoidablebarriersforcreatinga perfect measure of poverty; homeless populations can be harder to reach, undocumentedpeople have been conditioned by the threat of immigration officers to avoid official recordings containing personal information, and women and people of color are continually encouraged to underreport their own circumstances due to “internalized oppression [which causes] self-hatred and insecurity” (Koepke 2007, 197). These are only a few of the obstacles that arise with representativedatacollection,particularlywhenitfocusesonmarginalizedpeople.

Developing better methods of measuring economic status is also difficult because of the outward systemic oppositionthatispromotedbybusinesses,governmentinstitutions,politicians, public figures, bureaucrats, and everyday citizens.Povertyisoftenviewedasdeserved,andpoor people who might be eligible for social services constantly need to prove their “‘deservedness’ through rigorous eligibility and work requirements” while institutions and individuals “remain suspicious about the ‘legitimacy’ of their claims” (Paik 2021, 12). These resistant forces exist primarily because American institutions consistently teach thatthe“poorhealth,pooreducation, crime, lack of responsibility, immorality, mental illness, drug and/or alcohol abuse, and gang membership” are self-inflicted by people in poverty, rather than consequences of having to live in poverty (Koepke2007,195-6).Untiltheinstitutions,theforcesbehindthem,andtheirbigoted roots are explored and widely acknowledged, measures of poverty will always be impacted by suchinjustices.

Refutations

The Supplemental Poverty Measure

Of the currently accepted and reasonably accurate measures, the SPM is arguably the most similar measure of poverty to the MDI. Unlike the OPM, the SPM considers policies and nuances that are often significant contributors to a family’s level of poverty. Where the OPM only looks at the cost of a minimum food diet, the SPM considers how purchasingclothingand paying for utilities would contribute to a family’s cost of living (Institute for Research on Poverty.). The SPM is a needed contribution to the OPM, as evidenced by the fact that it measures higher rates of officialpovertyformostgroupsandaccountsforimportantinformation suchasmedicalexpenditures(InstituteforResearchonPoverty.).TheflawwiththeSPMisinits name;itisinherentlysupplemental.

The MDI is currently intended to be used alongside the OPM, but it was created with a different approach, and it uses a number of parameters that the OPM does not, as compared to the SPM which can only add on to the existing OPM components. Radical reform is needed in

thewaythatwemeasurepoverty,andtheSPM’sintrinsicconnectiontoanoutdatedand,inmany ways, inaccurate measure means that even with modifications and an expandedsetofmeasures, theSPMcannotundergothenecessaryamountofchangetobeaneffectivetool.

The Human Poverty Index (HPI)

One prominent feature of the MDI, and particularly one that assesses U.S. poverty well, is that it cannot be appliedoutsideofthespecificcontextofAmericaneconomicinequality.This is both a benefit andadrawback,butoneofthemostcompellingargumentsforothermethodsof measuringpovertyliesinthepossibilityofdevelopingatransnationalpovertyindex.

Using a version of theHPItoassesspovertyprovidesasystemofmeasuringpovertythat canbeappliedinaglobalcontext,whichisincreasinglymeaningfulinatransnationalworld.Sen andAnanddescribetheHPIusingsimilarlanguageasproponentsoftheMDIuse;theywritethat the HPI “combines basic dimensions of poverty and reveals interesting contrasts with income poverty” using “indicators of the most basic dimensions of deprivation” (Sen 1997, 5). The factors that Sen mentions are more easily universalized; they are broader, which can leave a wider margin for error, including items such as “a short life, lack of basic educationandlackof access to public and private resources,” (Sen 1997, 5), but they can be used in an international context. This can be valuable even when only measuring U.S. poverty; migration and familial connections tie people living in the U.S. to other countries, and the poverty in those locations impacts people living or staying in the U.S. regardless of their own poverty status. Particularly because women globally are more likely to experience poverty and are more likely to have “household and community responsibilities,” the connections between poverty levels across borderscontainimportantinformationforassessingfemalepoverty(Sen1997,3).

The Ortega Parameters

Another alternative to the MDI is the Ortega parameters, which evaluate characteristics of income distribution. Using theOrtegaparametersislikelytobeamuchmoreappropriateway to measure income inequality, because it is designed to identify informationthatcanexplainthe disparities in income distribution (Jachimowicz 2022, 2). However, the Ortega parameters ultimately focus more on income than wealth, which, while important, does not provide a full pictureofeconomicinequality.

Methods that measure transnationalism and income disparity, or that improve current systems, are very valuable. Still, only a measure that is wealth-focused, clearly defined, and capable of making systemic changes can accurately measure deprivation as experienced by the marginalizedpeoplelivingintheU.S.

Conclusion

There is no way to measure poverty in the U.S. that comes close to accuracy, let alone perfection. However, the more ameasureincorporatescriticalanalysesofwealth,contributorsto financial positionality, and depth of poverty, the better the chances are of accurately reflecting economic inequalityandthepovertythatitaimstomeasure.Themosteffectivemeasuretodoso is the Multidimensional Deprivation Index, which includes a variety of factors that indirectly account for racial and gender-based disparities. The MDI is flexible in that it can change over time as social and economic conditions continue to fluctuate. This is critical because one of the historical trendswhenitcomestowelfareandeconomicsystemsiscreatingsomethingthat,even

if itworksinthemoment,becomesinapplicablewithinafewyears.Ifasystemisinapplicable,it can no longer record accurate data, which then leads to a weaker understanding of what actual economic conditions people are experiencing and worsened social services. Each fault with systems of measuring poverty exacerbatesthediscriminationthatwomen,particularlywomenof color, experience in every realm of their life. Understanding poverty is a critical step towards understandingeconomicinequalityasawholeandreformingsystemsbasedonthatknowledge.

Bibliography

Andersen,MargaretL.,andPatriciaHillCollins.2016.“SystemsofPowerandInequality.”In Race, Class, and Gender: An Anthology,Ninthedition,51–73.Boston,MA,USA: CengageLearning.

Glassman,Brian.2019.“MultidimensionalDeprivationintheUnitedStates:2017.”United StatesCensusBureau.

https://www.census.gov/library/publications/2019/acs/acs-40.html.

“HowIsPovertyMeasured?”n.d.InstituteforResearchonPoverty AccessedMay3,2023.

https://www.irp.wisc.edu/resources/how-is-poverty-measured/.

Jachimowicz,JonM.,KristinBlesch,andOliverP Hauser 2022.“IncomeInequalityIsRising.

AreWeEvenMeasuringItCorrectly?”HBSWorkingKnowledge.August29,2022.

http://hbswk.hbs.edu/item/income-inequality-is-rising-are-we-even-measuring-it-correc tly

Koepke,DeannaJacobsen.2007.“Race,Class,Poverty,andCapitalism.” Race, Gender & Class 14(3/4):189–205.

Mitton,Lavinia.2012.“Mitton,L.(2012).TheFeminizationofPoverty.In:Evans,M.and Williams,C.D.Eds.Gender:TheKeyConcepts.London:Taylor&FrancisLtd.”In. Monnat,ShannonM.2010.“TheColorofWelfareSanctioning:ExploringtheIndividualand ContextualRolesofRaceonTANFCaseClosuresandBenefitReductions.” The Sociological Quarterly 51(4):678–707.

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Paik,Leslie.2021.“Introduction.”In Trapped in a Maze: How Social Control Institutions Drive Family Poverty and Inequality,1sted.,1–19.UniversityofCaliforniaPress.

Sen,Amartya,andSudhirAnand.1997. Poverty and Human Development: Human Development Papers 1997.NewYork:UnitedNationsDevelopmentProgramme.

Shook,Jeffrey,SaraGoodkind,RafaelJ.Engel,SandraWexler,andKessL.Ballentine.2020.

“MovingBeyondPoverty:EffectsofLow-WageWorkonIndividual,Social,and FamilyWell-Being.” Families in Society 101(3):249–59.

https://doi.org/10.1177/1044389420923473

LGBTQIHUMANRIGHTS:WHEREAREWENOW,ANDWHATISTHEIRFUTURE?

ByLoreleiBlau

The LGBTQI community, colloquially defined as lesbian, gay, bisexual, transgender, queer, intersex and any otheridentity,haslongbeenmarginalized.Theacronymusedtodescribe the community has varied over time and has many iterations, including LGBT, LGBTQ, LGBTQ+, LGBTQI and LGBTI, and I have chosen to use the acronym LGBTQI for the purposes of this essay I find it to be inclusive of the most identities, and it does not further stigmatize the word ‘queer;’ both points that are important to me as a queer womanwhovalues inclusivity. Anti-LGBTQI hate crimes and discrimination are one of the most salient human rights issues to arise in the past years. Various societal religious and cultural teachings have contributed to biased anti-LGBTQI viewpoints, but many strides have recently been made to reduce the marginalization of LGBTQI populations. Countries have passed legislation intended to destigmatize LGBTQI people, and pro-LGBTQI social movementshavebecomeincreasingly popular over time. This leads to a new category of human rights: LGBTQIhumanrights.While not yet specifically defined in international human rights law, I predict that LGBTQI human rights will soon become a new category of protection, similarly to the concept of women’s human rights. In this essay,Iwilldiscusstheexistingliteraturewhichmayormaynotensurethe preservation of human rights for LGBTQI people, advancements in society towards LGBTQI rights, violations of LGBTQI human rights and the future of LGBTQI human rights in international law. My main discovery in my research is that while the European Union prides itself on being a beacon for democracy and equality across the world, they have not made adequate advancements to protect LGBTQI people in their legislation, and have some ways to go.

ItisimpossibletobeginspeakingaboutLGBTQIlegislationanditsaccomplishmentsand failures without first discussing feminism. Dianne Otto points out that the ongoing fight for LGBTQI recognition in international human rights law would be impossible without women, who first did the work to break down established “natural” inequalities on the basis of sex; this paved the way forother“natural”assumptions,suchasmarriagedefinedasbetweenamananda woman, to be challenged (Otto 2015). I find her argument logical; while it is unfortunate, the path to banishing discrimination on the basis of sex, gender or identity is not an easy one, and small steps are necessary to acclimate legislators and conservatives to the way of reasoning required for LGBTQI acceptance. To clarify, I present a historical example: women’s suffrage. The arguments for women’s suffrage were considered forward-thinking for the time, as giving women the right to vote was a foreign idea, but in retrospect the logic used to gain women’s suffrage was not monumental or modern at all. Suffragettes argued that the best way for the woman to stay at home and take care of the home and the family was by allowing her a vote, since often the state of the home relies on the state of the city surrounding it (McCammon, Hewitt, and Smith 2004). Therefore, by letting women have a say in city proceedings, yougive them more control over thestateoftheirhomes(McCammon,Hewitt,andSmith2004).Whileit is also true that women did argue for equality in the protests for women’s suffrage, the more compelling argument, according to McCammon et al., was this “reform” tactic, where women acknowledge their differences from men and use the lens of maintaining the home to argue for suffrage. This supports the traditional view that a woman belonged in the home and appeased male lawmakers: the woman didnotwanttouprootgenderroles,ratherimproveherabilitytobe a homemaker by voting. By using the rationale of this traditional idea, suffragettes were ableto achieve more rights for women, which then further paved the way for more modern ideas of

feminism and equality between sexes. I find that the same logic applies to LGBTQI rights, because without feminists’ gateway step of first challenging the established women-are-less-than-men idea, it would be impossible to challenge the existence of gender at all.

The difference between sex and gender, a modern distinction made possible by past feminism, has been defined intwomajorlegaldocumentsacceptedininternationalhumanrights law Though these are not the only definitions of gender in international law, I feel that many scholars address them and therefore find them relevant. The United Nations defines gender identity as “reflect[ing] a deeply felt and experienced sense of one’s own gender…[which] may or may not be aligned with the sex assigned to them at birth” (United Nations 2019). The Yogyakarta Principles of 2007 define gender similarly, stating that gender identity is defined as “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, includingdress,speechandmannerisms”(Onufer Corrêa and Muntarbhornn.d.).ThenotabledifferencebetweenthetwoisthattheUnitedNations definition considers gender identity a personal feelingnotreflectedbyone’soutsideappearance, whiletheYogyakartaPrinciplesfactorinoutsideappearancesasapartoftheirgenderdefinition. Both of these definitions are referred to in the literature discussing sex and gender in internationallaw,thoughcriticismsbyfeministscholarssuchasAndreaBianchiandDianneOtto claim that these definitions by nature reinforce gender binaries (Bianchi 2009 and Otto 2015). The concept of themale-femalegenderbinaryisdiscussedbymanyduetoitsrelevancenotonly in the workplace but also in society. Bianchi points out that the language used in international law by nature conforms to the gender binary through the dichotomy of “opposites” used in negotiations; for example, “‘hard’ and ‘soft’ law has a gendered character…international law accords to hard law” describes how the typically masculine concept of “hard law” is prioritized in this field over the typically feminine “soft law” (Bianchi 2009). The gender binary is cemented into international law through the lived experience and vocabulary used daily in the field. It is important to recognize this for feminists who seek to “degender” the workplace, especially in male-dominated fields suchaslaw,anditisalsorelevantforLGBTQIrights.There exists a spectrumofLGBTQIpeoplewhodonotconformtothegenderbinaryeithermentallyor physically, and who are notincludedinthemale-femaledichotomy.Thisgroupofpeoplearenot represented in fields such as international law, and the existence of the male-female dichotomy and terminology makes it easier for LGBTQI people to be discriminated against due to their identity.

Microaggressions are the most common type of anti-LGBTQI behavior. This form of discrimination occurs commonly not only in countries which have anti-LGBTQIlegislation,but also in modern countries which are accepting of LGBTQI people. In the workplace, comments, whether snide, well-meant or ignorant, single out LGBTQI people for their identities. Women also experience microaggressions. These comments are oftensosmallthatitseemsirrationalfor the targeted to “call out” the behavior orreactpoorly,butaccordingtoGarcíaJohnsonandOtto, statistics showed a relationship between workplaces with high occurrences of microaggressions and lowered self-esteem in LGBTQI workers (García Johnson and Otto 2019). They also point out that typical workplace outfits are coded,eitherunconsciouslyorconsciously,as“masculine” or “feminine” (García Johnson and Otto 2019). This once again reinforces the gender binaryby forcing one to choose a gendered outfit each morning which may or may not reflect how the

individual feels about their gender or wishes to express itexternally;therefore,LGBTQIgender non-conforming individuals can feel excluded by these clothing options. While it is true that microaggressions such as the dress code or a small gender-related comment are usually not ill-intended, the fact remains that common workplace experiences such as these create opportunity for discrimination in small amounts against LGBTQI people, and that microaggressions occur daily around the world, even in places such as the European Union, whichclaimstobeforward-thinking.

Major humanrightsdocumentsininternationallawalsocreateopportunitiesforLGBTQI discrimination. The “Charter of Fundamental Rights of the European Union,” from theCourtof Justice of the European Union, is an article fromtheyear2000detailingthemostcrucialhuman rights standards for the European Union. It went into effect in 2009 and is widelyconsideredto be one of the most comprehensive documents for human rights to date. Yet, there is one article that allows for anti-LGBTQI discrimination: Article 9, the right to marryandstartafamily.The wording of this article is as follows: “The right to marry and therighttofoundafamilyshallbe guaranteed in accordance with the national laws governing the exercise of these rights” (European Union 2012). The other notable European Union Human Rights document, the “European Convention on Human Rights,” went into effect in 1953 and shares a similar definition of marriage. The Convention’s Article 12,therighttomarry,states:“Menandwomen of marriageable age have the righttomarryandtofoundafamily,accordingtothenationallaws governing the exercise of this right” (Council of Europe 1950).Notably,neitherofthesearticles truly protect the right to marry and establish a family for all European Union citizens, as they leave the decision of who can marry to each individual member state. This means that in some European Union states, marriage between any two people is not a human right; in fact, 13 EU states ban same-sex marriage completely (“LGBT Rights in Europe” 2023). In addition to this, 12 member states ban same-sex couples from adopting children (“LGBT Rights in Europe” 2023). For LGBTQI citizens in these countries, the human right of marriage and founding a familyisimpossible.

In my opinion, this is an anti-democratic occurrence and a blatant violation of human rights. LGBTQI couples inthesecountriesareunabletofullyparticipateinsociety,marriageand parenthood. The United Nations Human Rights Office of the High Commissioner agrees with me: in the 2019 publication Born Free and Equal, which analyzes LGBTQI human rights violations and accomplishments across the world, it states: “United Nations human rights treaty bodies have repeatedly urged States to reform laws criminalizing same-sex relations and have welcomed the legislative or judicial repeal of suchlaws.Anindividual’srightsareviolatedeven if the law in question is never enforced” (United Nations 2019). In other words, laws violating LGBTQI couples’ rights are human rights violations which occur across the European Union. Especially since the EU’s mission includes preserving equality and human rights for allcitizens and combating social exclusion and discrimination, these flagrant human rights violations for LGBTQI couples surprise me (European Union n.d.). The LGBTQI literature I have examined does not mention these articles at all: a gross oversight. Often, the literature pulls examples of other articles from these documents, for example, the anti-discrimination articles, but it doesn’t acknowledge how the vague language of the marriage articles contributed to anti-LGBTQI legislation. Rather, the literature focuses on advancements of LGBTQIrightsthathaveoccurred in the European Union, ignoring the fact that only certain member states have advanced LGBTQI rights. While one may argue that the Charter and the Convention ban discrimination based on gender or sexual orientation, this argument is ill-founded since both documents allow

member states to continue to discriminate against LGBTQI couples and violate their human rights.

While the European Union is generally considered to be one of the most democratic institutions preserving human rights across its member states, it is clear that work still needs to be done. The literature and documents discussing the European Union and LGBTQIacceptance and discrimination often ignore how the humanrightsdocumentsthattheEuropeanUnionbases its values upon allow directly for LGBTQI discrimination. In daily life, whether that be in the workplace or the marriage altar, LGBTQI people in the European Union are singled out and discriminated against. In order to help close the gap between the goals of the European Union and what actually occurs within its borders, the European Union needs to first codify LGBTQI rights as human rights into their internationallaw.LGBTQIpeopleexperiencemicroaggressions and discrimination similar to how women are and were discriminated against, and international human rights law should recognize that. Next, the European Union, to achieve its goals of preserving equality and human rights for all citizens and combatting social exclusion and discrimination, should end its legal human rights violations by ensuring that all member states legalize same-sex marriage and adoption (European Union n.d.). It is impossible to end systematic discrimination against LGBTQI people if it remains legal in legislation. Socially, much more work must be done to destigmatize LGBTQI people and reduce the effect of the male-female gender binary, but for now, beginning with legalizing LGBTQI human rights and recognizingtheminacategoryoftheirownisagoodstart.

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THECREDIBILITYCONUNDRUM ByVictoriaPercoco

Every 68 seconds, an American is sexually assaulted. Of those individuals, 90% are women, with statisticsshowingoneinsixwomenwillbesexuallyassaultedintheirlifetimes.As of this moment, 17.7 million women (and counting) have been victims of sexual assault, with those between the ages of 16 and 34 being most at risk (RAINN 2022). Despite the almost ubiquitous nature of sexual assault, it remains one of the most under reportedcrimesandoneof the least prosecuted. Out of every 1,000 rapes, only 310 are reportedtopolice.Only50ofthose reports leadtoarrestandonly28ofthosecaseswillbeprosecuted.Intheend,“lessthan0.5%of rapes will make it through the criminal justice system to conviction,” making it “by far the easiestviolentcrimetogetawaywith”(Hagerty2019,andJones2021,1787).

In 2017, it appeared that Americans were finally coming to reckon with this epidemic. After all, 2017 was the year of #MeToo when Jodi Kantor and Megan Twohey of the New York Times and Ronan Farrow of The New Yorker broke the story of sexual misconduct allegations against Hollywood film titan, Harvey Weinstein. In the aftermath of the story, dozens more women came forward alleging their own instances of abuse at the hands of Weinstein and,with the urging of actress Alyssa Milano, began using #MeToo on Twitter (originally startedin2006 by activist Tarana Burke) to share their own stories. What started out with a focus on the misconduct of Weinstein soon became a global movement that tapped into the experience of sexual abuse more broadly. It was not just actresses who interacted with Weinstein who were tweeting #MeToo, but women from all walks of life. Out came the allegations against NBC’s Matt Lauer. Out came the allegations against Senator Al Franken. Out came the allegations against comedian Louis C.K. Out came the allegations against bosses, supervisors, doctors, teachers, coaches, priests, and mentors. In less than 24 hours after Milano’s post, 4.7 million people around the world hadcontributedtothe#MeTooconversationwithover12millionposts, comments, and reactions (Santiago and Criss 2017). According to Facebook, nearly 50% of all U.S. users are friends with someone who contributed to the online conversation by sharing an accountoftheirownassaultorharassment(Tambe2018).

Much has been made of the #MeToo movement. Certain conservative circles have deemed the movement to be a cancel culture “witch hunt” of massive proportion,targetingmen merely for refusing to complywithnewstandardsofpoliticalcorrectness.Ontheotherhand,the movement has been credited withtangiblegainsmadeinthelastseveralyears.BillCosbyended up serving prison time for his offenses. More than 70 anti-sexual harassment bills have been passed in over 22 states. Workers in industries ripe for abuse have since unionized and legal defense funds have proliferated with the sole purpose of representing low-income, multiply oppressed survivors in court (Corbett 2022). #MeToo, advocates insist, created a unifying narrative: “sharing one’s account of abuse is a powerful act, one that can help reshape societal conceptions of sexual misconduct” (Tuerkheimer 2021b, 610). And yet, despitethesesuccesses, still today, across states and in federal court, in both civil and criminal cases, and both within institutions and the culture that surrounds them, we continue to preserve laws and practicesthat “downgradethecredibilityofaccusers”(Tuerkheimer2021a,2).

It is the aim of this paper to look more closely at the concept of credibility as a form of power (or lack thereof), specifically within the context of sexual assault and misconduct allegations made by female accusers. Throughananalysisofcontemporaryartifacts,Iwillargue that credibility is power and that women are constructed as unreliable narrators of their own

experiences of trauma and are subsequently treated differentlyfromothercrimevictimsbecause they lack power in prevailing gendered hierarchies. My analysis centers the experiences of female accusers for several reasons. First and foremost, gender cannot be separatedfromsexual assault. Female victims of male perpetrators make up the overwhelming majority of sexual assault cases meaning if and when victims do choose to come forward, their allegations are almost always received through a gendered lens. Thus, the same overwhelming majority of survivors face a credibility discount not because they are victims but because they are women “Their word is treated differently because of where they are situated in a society of rampant hierarchies,” most notably here, where they are situated within patriarchy (Tuerkheimer 2021b, 6). My focus on female victims is not meant to disregard the fact that men and boys are also victims of sexual assault, but rather to keep the focus on those whose claims of abuse are most threatening to existing power structures. “In a patriarchal society where male sexual prerogatives” and entitlement are at stake, credibility “discounting operates with special potency” to silence womeninawaythatisfundamentallydifferentfromhowitwouldoperatein the case of a male victim (Tuerkheimer 2021a, 11). The importance of differential outcomes

both the differences in treatment between male abusersandfemaleaccusersandbetweenfemale accusersofdifferentpositionalities–isatthecruxofthisanalysis.

ManasArbiterofTruth

“ItisnotmyresponsibilitytodeterminewhetherMr.KavanaughdeservestositontheSupreme Court.Myresponsibilityistotellthetruth.”

–Dr ChristineBlaseyFord

On September 27th, 2018, Dr. Christine Blasey Ford raised her right hand and swore to tell the truth, the whole truth, and nothing but the truth in front of the Senate Judiciary Committee investigatingherclaimofsexualassaultagainstSupremeCourtnominee,JudgeBrett Kavanaugh. “I am here today not because I want to be,” Ford said. “I am terrified.” In the following four hours of testimony and questioning, Dr Ford walked the committee – and the American public – through her account. She recalled a party she and Kavanaugh both attended when she was fifteen years old where he and a friend cornered her in an upstairs bedroom. She recounted Kavanaugh pushing her onto the bed, climbing on top of her while trying to take her clothes off, running his hands all over her body, and grinding into her. She explained how she tried to scream only to find her pleas muffled by Kavanaugh’s hand over her mouth. When she finally escaped to the safety of a locked bathroom, she described hearing Kavanaugh and his friend drunkenly“pinballing”backdownthestairschucklingamongstthemselves–asoundthat, to this day, haunts her. Her testimony marked the first time she spoke about the incident with anyone besides her therapist, husband, or closest friend in the 36yearssinceitoccurred(Blasey Ford2018).

Then came the questions from the Committee. They probed her on why she waited so long to come forward. They questionedheridentificationofKavanaughasherabuser:“Howdid you know BrettKavanaughandMarkJudge?Andisitpossiblethatyouhadmixedthemupwith somebody else? How are you so sure that it was h[im]?” They asked her if she had anyalcohol or drugs in her system. They even asked her to explain the memory of others: “Are you aware that the three people at the party besides yourself and Brett Kavanaugh… say that they haveno memory or knowledge of such a party?” (Reinstein 2018). Question after question, Ford’s hearing became something of a public gaslighting with Republican senators (through the

appointed Nominations Investigative Counsel, Rachel Mitchell, who, as a woman, was deemed better for optics) intent on casting doubt on Ford’s memory She was repeatedly “asked to note the location of her childhood home on a map, name everyone else at the party, and account for having described the event, at different points, as occurring in the early- and mid-80s” (Weaver 2018).

Judge Kavanaugh testified next.WhereasDr.Fordwascalm,collegial,ifattimestearful, Judge Kavanaugh appeared incensed, even combative. “He began his statement nearly yelling and didn’t turn it down for the betterpartofanhour”(Scott2018).IfDr.Ford’salcoholusewas questioned – implying that if she had been drinking, her judgment and recollection would have been clouded – the role of Judge Kavanaugh’s alcohol use was minimized. He repeated the phrase “I like beer” five times and emphasized the idea that one could drink alcohol and still have their faculties intact: “I liked beer I still like beer,” Kavanaugh said. “But I did not drink beer to the point of blacking out, and I never sexually assaulted anyone.” Kavanaugh, like the Committee’s questioning ofFord,continuedtocastFord’smemoryasmisguidedand,ultimately, false. “I’m not questioning that Dr. Ford may have been sexually assaulted by some person in some place at some time,” he accepted, “but I have never done this to her or to anyone. That’s not who I am” (Scott 2018). What was created by their opposing testimonies was a classic ‘he said,shesaid’onlythistime,onanationalstage.

The dynamic of a ‘he said, she said’ is particularly disadvantageous for the woman speaking. "Downgrading an accuser's word is especially pronounced when the accused tells a differentstory”(Tuerkheimer2021a,68).Facedwithconflictingaccounts,ourdefaultistothrow up our handsand“dismisstheentiremessasunresolvable”(Tuerkheimer2021a,68).Iftheissue is unresolvable, we tell ourselves that we cannot justifiably take action in either party’sfavorto break the tie. Except, in our attempttostayneutralby not doinganything,wedo,indeed,endup declaring a winner because in preserving the status quo – by allowing everyone to proceed like nothing happened – we allow an abuser to shirk the consequences of his actions. In a ‘he said, she said,’ ‘he’ wins, ‘she’ loses. In fact, while we may present ‘he said, she said’ cases as inherently neutral and unsolved, they are arguably most susceptible to the gendered power imbalances of patriarchy for it is the accused’s denial, and not theaccusationitself,thatistaken at face value as reason enough not to proceed. As Catharine MacKinnon writes in Not a Moral Issue, “in a society of gender inequality, the speech of the powerful impressesitsviewuponthe world, concealing the truth of powerlessness” (1983b, 155).Intheinstanceof‘hesaid,shesaid’ cases, the denial is more powerful than the accusation by virtue of being spoken by a man who outranks hisaccuserinoursocialhierarchy.Attheheartofa‘hesaid,shesaid’isnottheissueof being unable to verify either person’s account,butapowerimbalance.Bytreatingthesecasesas unresolvable, we “conceal the truth of powerlessness” by pretending the accuser’s and the accused’sclaimswereonequalfootingtobeginwith.Theyneverwere.

In a patriarchal society, man is the “measure of all things” (MacKinnon 1984a, 34). MacKinnon(1984a)writes:

Men’s physiology defines most sports, their needs define auto and health insurance coverage, theirsociallydefinedbiographiesdefineworkplaceexpectationsandsuccessful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other – their wars and rulerships – defines history, their image defines god,andtheirgenitalsdefinesex.(36)

When it comes to sexual misconduct allegations, their word defines truth. As a result, not only do female accusers face a steep credibility discount, but their abusers, especially men like Kavanaugh who are “protected by greater status or position,” receive a credibility boost (Tuerkheimer 2021a, 3). This credibility boost is socially normative. Wearetold“overandover again to recognize male authority – not only authority to make decisions, but to understand the world” (Tuerkheimer 2021a, 11-12). Men’s understanding of the world is reinforced both juridically and discursively Justice Stewart’s infamous “I’ll know it when I see it” definitionof obscenity provides a stark example. “Justice Stewart got into so much trouble because he said out loud what is actually done all the time… That is, the obscenity standard – in this it is not unique – is built on what the male standpoint sees” (MacKinnon 1983b, 148). Our standard of law, interpreted by men for the benefit of men, hinges on male subjectivity and since “law is a part of the cultural processes that actively contribute tothecompositionofsocialrelations,”that subjectivity works its way down through society and creates what Catharine MacKinnon dubs “an original entitlement” on the basis of maleness (Tuerkheimer 2021a, 5; MacKinnon 1983a, 37). Maleness creates an originalentitlementnottobequestioned;toliveinaworldthatismade in your image; to take your perception as fact. This entitlement means that when Christine Blasey Ford says – under oath and threat of perjury charges – that Brett Kavanaugh assaulted her,herwordisnotenough,buthisdenialis.

This monopoly on truth that men are given is not purely about semantics or about our cultural understandings of who is credible and who is not;whodeservestobebelievedandwho does not. Men’s words automatically being taken as truth has tangible, practical consequences for women’s lives. In the case of sexual misconduct allegations, power “operates through security and insecurity” (Spade 2015, 57). For women who have been violated, the choice to come forward and make an accusation against an abuser (especially a powerful one) is synonymous with giving up her own senseofsafety.InheropeningstatementtotheCommittee, Dr Fordexplainedthather“greatestfearshavebeenrealized–andtherealityhasbeenfarworse than what I expected.” She reported that she and her family were barraged with constant harassment and death threats when her identity was made public and that she was “called the most vile andhatefulnamesimaginable…[they]havebeenterrifyingtoreceiveandhaverocked me to my core.” Kavanaugh supporters posted her personal informationontheinternetresulting in hateful comments landing in her personal inbox, voicemail, and even right outside herhome. At one point, the family even had to move to a secure location with security until the media frenzy calmed down (Blasey Ford, 2018). This sense of personal security does not just impact theaccuserinquestion,buthasaradiatingeffectonallsurvivors.

The silencing of accusers is contagious. “When you are powerless, you don’t just speak differently,” writes MacKinnon. “A lot, you don’t speak. Your speech is not just differently articulated, it is silenced. Eliminated, gone” (MacKinnon 1984a, 39). The way we treat one survivor – when we vilify and endanger Christine Blasey Ford for a nation to watch – is a warning to survivors everywhere that says “don’t say a word.” When we disbelieve Christine Blasey Ford, but we elevate Brett Kavanaugh to the highest court in the land, we tell all survivors that they shouldn’t even bother coming forward. We make sexual assault a crime in name only and we rob the next woman in line “of a language with which to articulate [her] distinctiveness.”Allwhofolloware“deprivedofalifeoutofwhicharticulationmightcome”–a lifeinwhichtheirsufferingisrecognizedandsomethingisdonetoeaseit.(39).

-ChanelMiller

Chanel Miller understood this expectation of her silence. “For years, the crimeofsexual assault depended on our silence, the fear of knowing what happened if we spoke” she writes (Miller 2019, 327). Miller also understood the particular demand of her own silence as an imperfect victim. In January of 2015, 22-year-old Chanel Miller attended a fraternitypartywith her sister at Stanford University. She remembered drinking before and at the party, but most of the night was lost on her until she woke up in the hospital being asked by nurses if they could perform a sexual assault forensic exam (colloquially known as a rape kit). Unbeknownst to Miller who was unconscious at the time, she had been sexually assaulted by aStanfordstudent, Brock Turner, behind a dumpster outside the fraternity house. Turner stopped his assault only when he was caught by two other students who fought him off of her and reported the incident (Brockes 2019; Miller 2019). The criminal case that followed became “a textbook example of the double standards applied to sexual assault victims andtheirassailants”(Brockes2019).Men canmakemistakes;womencanbenothinglessthanperfect.

“I didn’t know that if a woman was drunk when the violence occurred, she wouldn’t be taken seriously. I didn’t know that if he was drunk when the violence occurred, people would offer him sympathy,” Miller writes. “I didn’t know that my loss of memory would become his opportunity.” (Miller 2019, 23). The role of alcohol in sexual assault cases has long been the basis of one of the most obvious double standards between victim and abuser If a woman is intoxicated when she is assaulted, she is said to have put herself in a state of vulnerability and “was asking for it.” This expectation around alcohol use is especially entrenched.Infact,police officers have openly admitted to a mentality within law enforcement that certain instances are “‘not rape’ because the accuser was drunk” (Tuerkheimer 2021a, 22). A drunken accused individual, on the otherhand,couldn’tpossiblybeheldaccountablefortheactionshetookwhile under the influence. Being drunk is just one of several characteristics used to undermine the credibilityoffemaleaccusers.

Just as female victims are placed in a hierarchy on the basis of sex in relation to men (patriarchy), they are also placed in a hierarchy in relation to one another In the context of victimhood, “hierarchyisconnectedtotheconstructionofvictimsasdeservingofresourcessuch as sympathy, support, and outside intervention to redresstheirsuffering”(Jankowitz2018,223). In this hierarchy, certain kinds of victims with specific characteristics are constructed as being more deserving of recognition and support than others. This hierarchy is predicated on her behavior in the lead up to the incident. At the top of this pre-assault hierarchy, we have the “perfect victim” who we recognize as being most credible. This victim is usually white (credibility is racialized as well)andassaultedbyastrangerratherthanaknownperpetrator.She was not intoxicated or unconscious at the timeofherassault,shewasmodestlydressed,shewas notflirtatious,andsheputtheutmosteffortintoresistingherabuserbothverballyandphysically. Chanel Miller was a young asian woman assaulted by a white man whoalsohappenedtobethe star of the Stanford swim team. At the time of her assault she was intoxicated to the point of unconsciousness, meaning she could not resist his abusenorrememberherassault.Iftheperfect victim is at the top of the hierarchy, Chanel was near the bottomandsheknewit.“Societygave [me] one thousand reasons; don’t speak if you lack evidence, if ithappenedtoolongago,ifyou

were drunk, if the man is powerful, if you’ll face blowback, if it threatens your safety” (Miller 2019,327).

The ways in which Miller deviated from the perfect victim made for fodder in the courtroom and amongst Turner’s supporters. “The case turned less on the specifics of Miller’s conduct… and more onhercredibilityasavictim.Miller’ssexualhistory,relationshipstatusand the question of whether or not she ‘did a lot of partying in college’ were all considered permissible points of access for Turner’s defense,” as well as her alcohol use and subsequent blacking out (Brockes 2019). All of these factors were used to cast Miller as a liar. Worse yet, they were used to cast her as a villain rather than a victim. In seeking aid as a woman unrecognizable to the state as a deserving victim, she was “seen as attacking [her] assailant” (Miller, 2019, 287). Miller says she learned that she would “be blamed for every jobhedoesn’t get, every game he doesn’t play His family, friends, community,team,willunleashhellonyou, are yousureyouwantthat?”SurvivorslikeChanelareforcedtothinklongandhard“aboutwhat this will mean for his life, even though he never considered what his actions would do to her” (Miller2019,287-88).AttheforefrontofTurner’sdefense,ofnationalmediacoverage,andeven at the center of the presiding judge’s sentencing recommendation was the understanding that Turner’spotentialmatteredmorethanMiller’strauma.

Like Dr. Ford, the example of Miller’s case goes beyond merely a conversation about credibility, as important as that conversation is. Miller, too, felt her sense of personal security fade away. At various points of thetrialanditsaftermath,especiallyonceTurnerwassentenced, she received hate mail and death threats on a regular basis. Like Dr Ford’s testimony, Miller’s casehasadisciplinarymessageforwomenatlarge,too,andthesemessageshavetangibleeffects on the way they live their lives. Miller has said that since the trial, every decision she makes –“what to wear, how to comport herself, the extent towhichsheshouldsmileornotsmile,where she shouldgoandwhatroutesheshouldtaketogetthere”–areallpassedthroughwhatshecalls “the lens of court” (Brockes 2019). Miller has learned “the rulesabouthowtobe”(Spade2015, 65). She has become her own voyeurbylearningtopoliceherself–toconstantlyaudit“howher mosttrivialchoicesmightbeleveledagainstherbylawyers”(Brockes2019).Sheisnotalone.

Survivors like Miller have said it was their cross-examination by law enforcement both inside and outside the courtroom whorefusedtobelieveheraccountthatmadeitseem“easierto suffer rape alone, then to face the dismembering thatcomeswithseekingsupport”(Miller2019, 287). Through Chanel Miller’s case, we come to understand that women have to fit a specific mold of “victim” in order to be intelligible to the stateasdeservingofjustice,sowomenstartto mindtheirbehaviorlongbeforeanyoneisassaulted.Womenlearnfromayoungagetoanticipate their credibility discount. We learn to move through theworlddifferently.Welearntokeepkeys clenched between our knuckles as we walk home. We learn to never take our hands or eyes off our drink. We learn to check the backseat of our car before we drive away and we learntolock doors quickly We learn to keep a close eye on our friends during a girls’ night out.Welearnto dress to avoid attention, to share our location with someone we trust before we head out on a date, to tell Uber drivers an address that is not actually ours. We do not learn these tricks in school or in books. We learn these tricks from the women who have come before us. We learn these tricks from stories of women whose victimhood was imperfect. Don’t get too drunk at a frat party. That’s what happened to Chanel Miller. Don’t go upstairs looking for a bathroom alone. That’s what happened to fifteen-year-old Christine Blasey Ford. Women change the way we move in the world not because we believe it will make us safer, but because wehopeitwill make it easier for us to get support when we need it. Maybe, just maybe, if we’re stone cold

sober when it happens, maybe then they’ll believe us. If we have our keys in our hands andwe fight back, maybe then we’ll have a shot at being credible. Maybe, if we do everything right, they’llfightforus.

This phenomenon of choosing the way you live planning for an assault that hasn’t yet happened is disciplinary power at its finest and encapsulates Dean Spade’s idea of population management. Women know their word is not enough, but a man’s denial is. Women learn that their behavior prior to their assault matters. By observing the conditions under which other women are not believed, we come to learn the “right,” “proper,” or “best” ways to behave that would maximize our credibility. “We struggle and strive to meet those standards and encourage and coerce others to follow them” (Spade 2015, 66). Those “others” are our fellow women. In the name of safety, we spreadourdisciplinaryknowledgetothem,too.Itfundamentallychanges the way women as an entiredemographiclive.Thatisnotabstractorintangible,thatisadistinct difference in quality of life and, as Spade puts it, creates an unequal distribution of lifechances between women and the men they go outoftheirwaytostaysafefrom,especiallywhenwomen deviatefromthoseprescribedprotectivemeasures.

This understanding comes from knowing not just that women are inherently seen as not credible, but that we are seen as consenting to sex “simply by being” (Tuerkheimer 2021a, 47). As Rebecca Solnit explains, our culture is “saturated withtheideathatamanhasarighttohave sex with a woman regardless of her desires” (Solnit 2014, 122). Male sexual entitlement goes hand in hand with sexual assault and is directly tied to systematicpowerimbalances.Whatmen think they areowedoftenhastobestolen.Theirabilitytodothiskindofstealingliesincriminal law consent definitions (largely created by men) that “put the onusontheaccusertorefusesex” knowing full well that is neither enough nor entirely possible for women in different circumstances. Putting the onus on the accuser to refuse sex makes abuse easier when the conditions canbeeasilycreatedtomakeconsentimpossiblewhilesimultaneouslyensuringone’s victim lacks all credibility Fifteen-year-old Christine Blasey Ford who has Brett Kavanaugh’s hand clamped over her mouth in a remote bedroom cannot adequately and verbally refuse consent. Chanel Miller, fully unconscious, cannot refuse to consent. The victim that doesn’t tell anyone within our artificial time frame is deemed not credible. The victim that was passed out drunkcannotpossiblybebelieved.

One of the very first questions survivors get asked is “did you say no?” This question “assumes that the answer was alwaysyesandthatitisherjobtorevoketheagreement.”Women learn that they are most credible to authorities when they show resistance, but they also know they are most vulnerable to harm by an abuser when they do so. These conditions create the perfect trap and both abusers and the masculinist state knowthis.Sowomenareraised“towork with dexterity, to keep their nimble fingers ready, their minds alert” (Miller 2019, 83). It is women who learn how to politely decline giving their number at the bar, how to move an unwanted hand fromherbody,ortosafelyturndownadrink.Butbeingadeptattactfullyputting up barriers to access doesn’t change the fact that men feel entitled to that access to begin with. One slip up on our part and we may not only be victimized, but then retraumatized by the experienceofcomingforwardandnotbeingbelieved.

The horrifying truth is that both Dr. Ford’stestimonyandtheconvictionofBrockTurner are considered, by the standards of most survivors, to be good, heartening outcomes. A poll taken immediately after Dr. Ford’s testimony reported that45%ofrespondentsbelievedshewas telling the truth as compared to just 24% who believed Anita Hill back during the 1991 confirmation hearings for Justice Clarence Thomas who was facing sexual harassment claims

(Montanaro 2018). Judge Aaron Persky, responsible forBrockTurner’ssentenceofameaslysix months (three of which he actually served before release), drew nationalattentionfordefending his sentence because “prison time would have a severe impact on Turner” (Gonzales and Domonoske 2018). In the aftermath of national condemnation and a state-wide petition in California, Persky was recalled from the bench in June of 2018 with 59% of voters supporting therecall.

Pollsters try to point to this shift in support as proof that attitudes around sexual misconduct andthecredibilityofthoseinvolvedarechanging.ButinthespiritofDean’sSpade’s quest for true liberation, we have to ask what about women’s lives has actually changed since?

Brock Turner is already a free man and Brett Kavanaugh is now Justice Kavanaugh. Each of these men had fervent, outspoken supporters who proved through their words and their actions (i.e. death threats to the accusers) that rape culture is alive and well regardless oftheincreasing number of women speaking out. Women do not feel safer because women are not safer. The ability to speak – to testify before Congress or a jury – however rare that is, is not the same as being believed. Dr. Ford was apparently more believable than AnitaHill(whichverywellcould be the result of racial differences that further play into the credibility discounting of women of color), but she was still the target of rampant character attacks that ultimately did not deviate from existing notions of women’s lack of credibility. Chanel Miller, while she did admirably summon the courage to speak out, openlyadmitsitwastheworstexperienceofherlifeinwhich she was “re-traumatized, publicly shamed, psychologically tormented, and verbally mauled”

(Miller2019,288)

At the center of the credibility conundrum is the fact that, despite an increasing number of women coming forward with claims of abuse, society continues not to take them seriously enough to put in place systems that make survivors feel like they have a chance of achieving safety, justice, and restoration. This has not changed despite the brave efforts of these two women and the many others that stand among them, through no fault of their own. If Catharine MacKinnon makes us think of what it means for women to be deprived of a language, wemust take that question one stepfurtherandthinkofwhatuselanguageisifnoonebelievesyouwhen you use it. Is a language liberatory simply if it exists where itoncedidn’t?Whatifthewordsof thatlanguagehavenomeaningtothepeopleandinstitutionswhoneedtohearitmost?Language can only be powerful when wielded by credible actors. Language is not power – credibility is. Accused abusers have it, accusers don’t.Thus,Menhaveit,womendon’t.Untiltheydo,women will continue to have few meaningful paths to justice. May it not take twelve million more #MeToo posts or thousands of other Dr. Fords and Chanel Millers to hold our institutions and theirmenaccountable.

Bibliography

Brockes,Emma,and@emmabrockes.2019.“ChanelMilleronWhySheRefusestoBeReduced tothe‘BrockTurnerSexualAssaultVictim.’” The Guardian,September25,2019,sec. USnews.

https://www.theguardian.com/us-news/2019/sep/25/stanford-sexual-assault-victim-chan el-miller-interview

Corbett,Holly.2022.“#MeTooFiveYearsLater:HowTheMovementStartedAndWhatNeeds ToChange.”Forbes.October27,2022.

https://www.forbes.com/sites/hollycorbett/2022/10/27/metoo-five-years-later-how-themovement-started-and-what-needs-to-change/

Gonzales,Richard,andCamilaDomonoske.2018.“VotersRecallAaronPersky,JudgeWho SentencedBrockTurner.” NPR,June5,2018,sec.America.

https://www.npr.org/sections/thetwo-way/2018/06/05/617071359/voters-are-deciding-w hether-to-recall-aaron-persky-judge-who-sentenced-brock-tur.

Hagerty,BarbaraBradley 2019.“AnEpidemicofDisbelief.”TheAtlantic.July15,2019.

https://www.theatlantic.com/magazine/archive/2019/08/an-epidemic-of-disbelief/59280 7/.

Jankowitz,Sarah.2018.“The‘HierarchyofVictims’inNorthernIreland:AFrameworkfor CriticalAnalysis.” International Journal of Transitional Justice 12(2):216–36.

https://doi.org/10.1093/ijtj/ijy003

Jones,Emily.2021.“UntestedandNeglected:ClarifyingtheComparatorRequirementinEqual ProtectionClaimsBasedonUntestedRapeKits.” Northwestern University Law Review 115(6):1781–1828.

MacKinnon,CatharineA.1988a.“DifferenceandDominance:OnSexDiscrimination.”In Feminism Unmodified: Discourses on Life and Law,32–45.Cambridge,MA:Harvard UniversityPress.

———.1988b.“NotaMoralIssue.”In Feminism Unmodified: Discourses on Life and Law, 146–62.Cambridge,MA:HarvardUniversityPress.

Miller,Chanel.2019. Know My Name: A Memoir VikingPress.

Montanaro,Domenico.2018.“Poll:MoreBelieveFordThanKavanaugh,ACulturalShiftFrom 1991.” NPR,October3,2018,sec.Politics.

https://www.npr.org/2018/10/03/654054108/poll-more-believe-ford-than-kavanaugh-a-c ultural-shift-from-1991.

NPRStaff.2018.“ChristineBlaseyFord’sOpeningStatementForSenateHearing.” NPR, September26,2018,sec.Politics.

https://www.npr.org/2018/09/26/651941113/read-christine-blasey-fords-opening-statem ent-for-senate-hearing.

RapeAbuseandIncestNationalNetwork.n.d.“Statistics.”RAINN.AccessedDecember22, 2022.https://www.rainn.org/statistics

Reinstein,Julia.2018.“HereAreAllTheQuestionsChristineBlaseyFordHadToAnswer AboutBrettKavanaughAllegedlySexuallyAssaultingHer.”BuzzFeedNews. September27,2018.

https://www.buzzfeednews.com/article/juliareinstein/christine-blasey-ford-brett-kavana ugh-senate-questions.

Santiago,Cassandra,andDougCriss.2017.“AnActivist,aLittleGirlandtheHeartbreaking Originof‘MeToo.’”CNN.October17,2017.

https://www.cnn.com/2017/10/17/us/me-too-tarana-burke-origin-trnd/index.html.

Scott,Dylan.2018.“The7MostImportantMomentsfromBrettKavanaugh’sSenate Testimony.”Vox.September27,2018.

https://www.vox.com/policy-and-politics/2018/9/27/17911652/brett-kavanaugh-senate-t estimony-christine-blasey-ford

Solnit,Rebecca.2014. Men Explain Things to Me.HaymarketBooks.

Spade,Dean.2015.“RethinkingTransphobiaandPower—BeyondaRightsFramework.”In 3. Rethinking Transphobia and Power—Beyond a Rights Framework,50–72.Duke UniversityPress.https://doi.org/10.1515/9780822374794-005.

Tambe,Ashwini.2018.“ReckoningwiththeSilencesof#MeToo.” Feminist Studies 44(1): 197–203.https://doi.org/10.1353/fem.2018.0019.

Tuerkheimer,Deborah.2021a. Credible: Why We Doubt Accusers and Protect Abusers Harper Wave.

———.2021b.“SexualViolationWithoutLaw.” New York University Annual Survey of American Law 76(2).

Weaver,Hilary.2018.“‘OneHundredPercent’:HowChristineBlaseyFord’sSimplestAnswer BecametheHearing’sMostPowerfulMoment.”VanityFair September27,2018.

https://www.vanityfair.com/style/2018/09/christine-blasey-ford-most-powerful-hearingmoment

CORPORATELAW:THEINTERSECTIONOFSHAREHOLDERVOTINGRIGHTS WITHAMERICANPOLITICS

ByMiaoSun

From making a policy change to proposing a new position, corporate voting (i.e. shareholder voting) dictates the formation of a corporation and underpins the corporation’s representative democracies. Shareholder voting rights are fundamental to investor protection, especially in quantitative settings. The right concerns a shareholder’s ability to have a meaningful impact on business situations, proposals, and management of the board ofdirectors, managers, and shareholders. Shareholders have limited power to initiate an action despite their approval/veto powers. Shareholders’ voting powers center on their ability to make choices “as means of error correction for decisions” (Thompson and Edelman 2009). AccordingtoLaPorta et al. (1997),shareholderswithvotingrightsthatmostpowerfullyamplifytheirpowerwithinthe corporation show stronger capital market performance. Similarly, corporations with higher shareholder engagement display better corporate governance and management standards. This paper will give a general description of the fundamentals of shareholder power under current corporate laws, and then provide an analysis of the differences and intersections between shareholdervotingrightsandvotingwithinAmericanpolitics.

FundamentalsofShareholderPower

To understand shareholders' power in corporate voting, we must examine shareholders’ overallscopeofpower,responsibility,andrestrictionsinacorporatesetting.Shareholdersarenot plenary owners of corporations or corporate decision-makers. Shareholders have a limited governance role, and their power is set to voting. The lack of shareholder power to initiate an action restricts shareholder power to approve or veto an established set of corporate changes/proposals. Shareholders also do not have the power to veto transactions that fundamentally change the business operation of a corporation. Through voting, they approve or deny the passage of fundamental transactions in a corporation such as mergers, asset sales, dissolution, and charter amendments. They also have the power to make recommendations, amend the bylaws, right to sue, and right to sell.Alloftheserightsandpowerarecloselytiedto their rights of voting – to approve or protest their ideals. Their right to sell their share of the corporation sets a value for such power: a value that can be transactionally exchanged and fundamentally impact the policies of a corporation. Most corporations follow a basic procedure where a record date would be set, and shares would be counted at a set date, with only record holders' votes. On the record date, all the shareholders will be tabulated as record holders, and become eligible to vote in the upcoming special meeting. The majority of states' corporations follow a majority Quorum, which regulates the numberofshareholdersthatmustshowuptothe meeting for the meeting to be effective, requiring more than 50% shares for a meeting to take effect. However, in Delaware, there is a minimum of 1/3 shares to be present forthemeetingto be effective. Delaware’s policies make shareholder voting easier and protect shareholder rights against potential situations. In addition to the traditional in-person shareholder voting, shareholders can also vote byproxy–thisiscalledproxyvoting.Theshareholderwouldappoint a revocable agent to vote at the meeting for them, and the proxy could have a discrete or a mandatetovoteacertainway

ShareholderVotingRightsandAmericanPolitics

In traditional shareholder voting theories, the shareholder’s vote-casting process in electing a director parallels the citizen's election of a congressional representative. Traditional ideologies of the corporate governance system recurrently consider corporations as representative democracies that enforce their legitimacy through representing the shareholders with directors. However, recent debates revolutionize traditional voting theories by proving that the shareholder franchise in corporate management is much more restricted compared to voters engaging in political elections. Thompson and Edelman argue that such restriction derives because the market for shares permits and promotes “a formofintensityvotingandletsmarkets mediate the outcome in a way that would be foreign to public settings.” The nature of shares allows corporate “voters” to purchase and sell shares based on the intensity they feel towards a corporate matter,unlikepoliticalelections,when“evenourrichestpresidentialcandidatescannot directly buy such power over the electorate” (2009). The economicdrivecomplicatesthevoting dynamic in corporate realms.Theconceptofshareholdersexpressingtheiropinionsoncorporate managementdecisionsbysellingorpurchasingsharesisalsoknownasthe“WallStreetrule.”

Anotheraspectthatdifferentiatesshareholdervotingfromvotinginpoliticalsettingsisits emphasis on shares instead of shareholders. Voting in political settings tends to highlight its fairness with “One person, one vote.” Yet corporate voting’s ties to intense voting and its economic underpinning prevent it from aligning with political voting to this end. According to scholar David Ratner, early American corporate law at timespermits“onevotepershareholder” (1970). However, the theory would only be appropriate for smaller corporations with a limited number of shareholders who arefamiliarwitheachother Inaddition,smaller,closecorporations also restrict the market for shares, which subsequently diminishes some of the economic drives incorporatevotingasthepreviousparagraphstated(Ratner1970).

In addition, shareholder voting is not the ultimate source of corporate authority. At its design, shareholder voting is not to be a plenary governance mechanism, despite the board of directors being provided with management authorities. Thepoweroftheshareholdersinmaking an impact on corporate governance is less than what is typically expected. For example, in the case of electingdirectors,thenomineesaretypicallypresentedbytheboarditself,andelectedon a simple plurality voting method. Under most state laws, plurality voting is a default rule in corporate voting. In this case, if all shareholders but one decided to withhold their votes to express their dissatisfaction with the nominee, the nominee would still be elected. With such logical underpinnings, the market permits a “low-cost exit to those who disagree with current corporate policy and exit choice that is much less costly than what may exist in the public setting”(ThompsonandEdelman2009).

Do these limitationsquestionthesignificanceofshareholdervotingincorporatesettings? The answer is purely empirical. Shareholder voting provides, overall, more benefits than drawbacks. An example of its significance is its facilitation ofcorporatetakeovers–anofferfor stocks enables the buyer to “assume control of the target by exercising the votes attachedtothe acquired shares” (Easterbrook and Fischel 1983). In addition, it provides a price increase that persistseveniftheinsurgentsaredefeated.

Conclusion

Though seemingly overlapping, corporate voting and political voting have adverse differences that lie in both their incentives and their products. Understanding the role that the

market plays in a voting context helps us better understand the mechanism of corporate voting and how its laws impact a shareholder’s decision-making in comparison to political decision-making. The comparison of the two revolutionizes traditional corporatevotingtheories and proves thatitoverestimatesshareholderimpactoncorporategovernanceandmanagement.It spurs new research possibilities on the difference between political and corporate voting engagement and their ties to policy making. Such clarification is especially salient in our modern-day world in fostering higher voting literacy among citizens in both the business and politicalrealms.

Bibliography

Easterbrook,FrankH.,andDanielR.Fischel.1983.“VotinginCorporateLaw.” The Journal of Law & Economics 26(2):395–427.

LaPorta,Rafael,FlorencioLopez-De-Silanes,AndreiShleifer,andRobertW.Vishny.1997. “LegalDeterminantsofExternalFinance.” The Journal of Finance 52(3):1131–50.

https://doi.org/10.2307/2329518

Ratner,David.1970.“GovernmentofBusinessCorporationsCriticalReflectionsontheRuleof OneShareOneVote.” Cornell Law Review 56(1):1–56.

Thompson,Robert,andPaulEdelman.2009.“CorporateVoting.” Vanderbilt Law Review 62(1): 127–76.

REVISITINGPENALTHEORY:JUSTIFICATIONSANDPRACTICESOF PUNISHMENT

Evaluating the Five Purposes of Sentencing in England and Wales

ByCynthiaWang

Section57ofSentencingAct2020,anactbytheParliamentoftheUnitedKingdomto reviseandconsolidateexistingoverarchinglegislationonsentencing,restatesthefivepurposes ofsentencingthathadpreviouslybeenoutlinedinSection147oftheCriminalJusticeActof 2003.Thesefivepurposesstatethatwhensentencing,judgesmust“haveregardfor”:

a) “Thepunishmentofoffenders,

b) Thereductionofcrime(includingitsreductionbydeterrence),

c) Thereformandrehabilitationofoffenders,

d) Theprotectionofthepublic,and

e) Themakingofreparationbyoffenderstopersonsaffectedbytheiroffenses.”

(Sentencing Act 2020, s.57)

Underlyingthefiveaimsaboveisanassumptionthatamixedjustificationofboth retributivismandconsequentialismforpunishmentisplausibleintheoryandpractice.Purposea) thepunishmentofoffendersisrootedinretributivistrationale,deemingthatdeserved punishmentinofitselfcouldbejust(Zaibert2022).Ontheotherhand,therestofthefive purposesofsentencingallappearutilitarianorconsequentialistinnature,favoringjustifications thatmaximizegoodtosociety.However,isitplausibleforretributivistandconsequentialist idealstoworkinconjunctionwitheachother,ordoesitultimatelyresultinakindof “pick-and-mix”sentencingthatinvitesinconsistency(“DevelopmentofSentencingPolicyin England”2020)?

Inthisessay,Iexplorethefeasibilityofbalancingfivepenalaimsofsentencingrootedin twofundamentally,radicallydistincttheoreticaljustificationsforpunishment.Iasktwo questions:Howplausibleisitto only haveonesinglepenalaimorto prioritize oneaimamong five?Iarguethatitisimplausibleandimpossibletoonlyhaveonesinglepenalaim,andthus thateffective,streamlinedsentencingwouldrequiredetailedguidanceonhowtoincorporate eachaimindifferentcases.

First,itisimplausibleboththeoreticallyandinpracticeforacriminaljusticesystemto onlyhaveasinglepenalaim.Theoretically,asystemthatsolelydrawsfromretributivismor utilitarianismwouldbeunjust.Ononehand,asolelyretributivistcriminaljusticesystemcould opendoorstoinjusticebyleavinglittleroomfordiscretion.Ifpunishmentweredealtbased purelyondesertcalculatedbytheseriousnessofanoffense,thereisanassumptionofcompletely individualresponsibilityandautonomythathasbeenchallengedbyoffensescommittedby offenderssuchasyouthsandpersonswithmentalillness(EastonandPiper2016,56-57).Not onlythat,buttheproblemofhardtreatmentisonedifficulttoignoreasthevalueofpunishment inofitselfmaynotbeself-evidenttothepublic,encapsulatingthequestion:“whyharmpeople whoharmpeopletoteachpeoplethatharmingpeopleiswrong?”(Northey2013,3).Onthe otherhand,asolelyutilitariancriminaljusticesystemwouldruntheriskofviolatingKant’s secondcategoricalimperative,thatoneshould"actinsuchawayastotreathumanity[…] alwaysasanendandnevermerelyasameans"(Korsgaard2012,29).Forinstance,acommon utilitarianjustificationforpunishmentisdeterrenceofcrime,listedaspurposeb)inthefiveaims ofsentencingabove.However,ifone’ssoleaimistodetercrime,thiscouldgivewayto increasinglydisproportionatesentencingandlackofpredictabilityofasentence(Canton2017,

pp.7,84-85).Notonlythat,butthequestionofmeasuringdeterrenceandeffectivenessof punishmentinleadingdirectlytodeterrenceisriddenwithlogisticalchallengesthat,ifleft unresolvedorunaccountedfor,couldupsetthistheorythathingesonmaximizingutility(Canton 2017).Beyondtheoreticalconsiderations,practicallyaswell,asingle-aimcriminaljustice systemisimpossiblebecausepunishmentitselfinvolvesavarietyofconsequences.Punishment, definedgenerally,is“theinflictionofsomekindofpainorloss,[sometimestermed‘hard treatment,’]uponapersonforamisdeed”(Thomasetal.2007).Punishmentcantakenumerous forms,fromfinestocommunityordersinvolvingrequirementssuchasunpaidworkand participationinmentalhealthorsubstanceabusetreatmentprogramstocustodialsentences. Eachsentencecarriesconsequencesforitsbearersinlosingtime,money,orconnectionswith familyandfriends,andeachsentencemayalsohavevariedfutureeffectssuchasaccomplishing deterrenceorfailingtopreventreoffending.Thecomplexityofpunishmentitselfandthewaysits effectsmaybeunpredictableineverycaserevealthatinpractice,itisimplausibletosetone singleaimforapenalsystemtoworktowards.

Inexaminingandevaluatingthecurrentcriminaljusticesystemandsentencing guidelinesofEnglandandWales,wecanseehowprioritizationofoneaimamongfivecould manifest.Asmentionedpreviously,purposea)thepunishmentofoffendersofthefivepenal purposesappearstoberootedinretributivism.Notonlythat,butguidancefromtheSentencing Councilrequiresjudgesandmagistratestoassessthefactsofthecaseanddecidethemost appropriatesentence“reflectingthecrime[…]committedand[…]proportionatetothe seriousnessoftheoffense”(“SentencingBasics”n.d.).Section63ofSentencingAct2020 reiteratesthatseriousnessofanoffenseshouldbemeasuredbasedonharmthatanoffense caused,intendedtocause,ormighthavecaused,andculpabilityoftheoffenderatfourlevels–intent,recklessness,knowledge,ornegligence(2020).Thisfoundationforsentencingshowsa clearpreferencetowardsretributivistjustificationsforpunishment,evenlistingpenalpurposea) punishmentofoffendersfirstandforemostabovetherest.Thus,reflectingontheplausibilityof prioritizationofoneaimamongfive,wecantakeabrieflookatawayinwhichretributionis prioritizedandanalyzeitseffectivenessinrelationtopunishment’sotheraimsandtothepublic’s legitimizationofthecriminaljusticesystem.

Whensentencinganoffense,calculationsofculpabilityandharminassessingseriousness createupperandlowerboundsonsentencetypeandlength.AbidingbyAndrewvonHirsch’s principleofproportionality,suchcalculationsaremeanttodenotehow“comparativeseverityof punishmentconnotesthedegreeofstringencyoftheimplicitdisapproval”(vonHirsch1992, 69-71).Thismeansthat,ingeneral,sentencelengthandseveritycoulddrasticallyincreasebased onguidelinessetfortheupperandlowerboundsonsentencesofeachoffense.Fromthe mid-1990sonwards,penalpolicyinEnglandandWaleshasshiftedtowardsbeingmorepunitive andpopulist,presentingasapoliticalcontesttowardsbeing“toughonlawandorder”with imprisonmentratesrisingbytwo-thirdssincethen(Newburn2007,425-26).Inparticular, averagesentencelengthforimprisonmentanduseoflongersentenceshasdrasticallyincreased–thenumberofpeoplesentencedto20yearsormorehasquadrupledinthelastdecade,andthe numberofadultsservinganExtendedDeterminateSentencehastrebledinsixyears(“Making SenseofSentencing”2022).“Formoreserious,indictableoffenses,theaverageprisonsentence isnow59.4months–morethantwoyearslongerthanitwasin2008”(“Prison:TheFacts” 2022).Thequestionthenbecomes,hasthisprioritizationofaretributivistapproachto punishmentthroughincreaseinsentencelengthandpunishmentseverityyieldedfavorable

outcomesforpublicapprovalofthecriminaljusticesystemandaddressingtheotherfour, utilitarianaimsofpenalsentencing?

Thereistensionbetweenapublicthatsupportsproposalsforharshersentencing,a politicalmovementtowardsansweringthatsupport,andacriminaljusticesystemthathasbeen increasingpunishmentseverityoverthepasttwodecades.Publicknowledgeinthecriminal justicesystemseemstosuggestthatmanyareunawareofthedrasticincreaseinsentencelength –inasurveyconductedbytheSentencingAcademy,56%ofrespondents“endorsedtheview thatsentencesare shorter nowthansince1996”(Robertsetal.2022).Ontopofthat,thefour otheraimsofpenalsentencingdonotseemtobeaddressed.Asfordeterrence,ratesof reoffendingarehigherthaneverwith“morethanfouroutoftenadults(44%)[being reconvicted]ofanotheroffensewithinoneyearofrelease”(“Prison:TheFacts”2022).Inregard toreformandrehabilitation,“withfewandisolatedexceptions,therehabilitativeeffortsthat havebeenreportedsofarhavehadnoappreciableeffectonrecidivism”(Martinson1974).

Thoughprotectionofthepublicisdifficulttomeasure,whenlookingatreparationsmadeto victimsandothersaffectedbyoffenses,manyvictimsandfamiliesfeltneglected,ignored,and powerlessincriminaljusticeprocesses:bythesenseofmysteryoverwhatasentencemeans,by insensitivityofofficersandrepeatedcontactwiththecriminaljusticesysteminParolehearings, andbyseveralotherfactorsthatdenyvictimsprivacyandsupport(“MakingSenseof Sentencing”2022,34-35).

Asaresult,wecanseehowdespiteprioritizationofaretributivistpenalaimmayhelpto streamlineproportionalityguidelinesforsentencing,separatefocusmustbedevotedtotheother fouraimstoboosttheirbenefits.Retributivismjustifiespunishmentondesertbutisnotopposed toitsbeneficialconsequencesthatutilitarianismstrivestomaximize.Thoughtheoretically, retributivismandutilitarianismaredifficulttonegotiateorcombinetocreatemixed justifications,inpracticeonacase-by-casebasis,perhapsthebenefitsofthetwocouldbe enhanced.Insettingguidelinesforrehabilitation,prisonreform,restorativejustice,andbeyond, thecriminaljusticesysteminEnglandandWalesmaystrivetobothsentenceondesertandoffer supportsystemstooffendersandvictimsalike,treatingnooneasameanstoanyend(Ministry ofJustice2022).

Bibliography

Canton,Rob.2017. Why Punish?: An Introduction to the Philosophy of Punishment.RedGlobe Press.

“DevelopmentofSentencingPolicyinEngland.”2020. The Lawyers & Jurists (blog).2020.

https://www.lawyersnjurists.com/article/development-of-sentencing-policy-in-england/. Easton,Susan,andChristinePiper 2016.“SentencingandPunishment:TheQuestforJustice.”

In Sentencing and Punishment,4thed.OxfordUniversityPress.

Hirsch,Andrewvon.1992.“ProportionalityinthePhilosophyofPunishment.” Crime and Justice 16:55–98.

Kant,Immanuel.1900. Fundamental Principles of the Metaphysics of Ethics Longmans,Green. Korsgaard,ChristineM.2012. Kant: Groundwork of the Metaphysics of Morals.Translatedby

MaryGregorandJensTimmermann.2nded.CambridgeTextsintheHistoryof Philosophy CambridgeUniversityPress.https://doi.org/10.1017/CBO9780511919978

“MakingSenseofSentencing.”2022.IndependentCommissionintotheExperienceofVictims andLong-TermPrisoners.

https://icevlp.org.uk/news/icevlp-report-making-sense-of-sentencing/. Martinson,Robert.1974.“WhatWorks?-QuestionsandAnswersaboutPrisonReform.”1974.

https://www.nationalaffairs.com/public_interest/detail/what-works-questions-and-answe rs-about-prison-reform.

MinistryofJustice.2022.“PrisonsStrategyWhitePaper.”GOV.UK.July28,2022.

https://www.gov.uk/government/publications/prisons-strategy-white-paper.

Newburn,Tim.2007.“‘ToughonCrime’:PenalPolicyinEnglandandWales.” Crime and Justice 36(1):425–70.https://doi.org/10.1086/592810.

Northey,Wayne.2013.“ABriefLookatRestorativeJustice.”

https://waynenorthey.com/wp-content/uploads/2014/02/A-Brief-Look-At-Restorative-J ustice1.pdf.

“Prison:TheFacts.”2022.BromleyBriefings.PrisonReformTrust.

https://prisonreformtrust.org.uk/wp-content/uploads/2022/07/Prison-the-facts-2022.pdf. Roberts,JulianV.,JonathanBild,JosePina-Sánchez,andMikeHough.2022.“Public KnowledgeofSentencingPracticeandTrends.”SentencingAcademy.

https://www.sentencingacademy.org.uk/post/public-knowledge-of-sentencing-practice-a nd-trends

Sentencing Act 2020, s.57.2020.TheNationalArchives.

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Sentencing Act 2020, s.63.2020.StatuteLawDatabase.

https://www.legislation.gov.uk/ukpga/2020/17/section/63

“SentencingBasics.”n.d.SentencingCouncil.AccessedNovember15,2022.

https://www.sentencingcouncil.org.uk/sentencing-basics/.

Thomas,DavidA.,DonaldC.Clarke,IanDavidEdge,ThomasJ.Bernard,andAntonyNicolas Allott.2007.“Punishment.”Britannica.December3,2007.

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Zaibert,Leo.2022.“RethinkingMixedJustifications.”In The Palgrave Handbook on the Philosophy of Punishment,editedbyMatthewC.Altman,221–41.

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POLARIZATION,PREJUDICE,ANDPERSISTENCE:REDUCINGCOVID-19 TRANSMISSIONRATESACROSSREGIMETYPES

ByNinaZhong

In response to the World Health Organization’s request todevelopaglobalstrategicplan toincreasevaccinationratesandreducetransmissionratesofCOVID-19,thismemowillprovide socio-political context for states with different regime types and provide recommendations accordingly. It is important to provide suggestionsaccordingtoregimetypesbecausefeaturesof regime types heavily affect the relationship between the government and its people. In other words, different regime types have different levels of control and authority over their citizens, which unfolds as different levels of freedom of press, freedom of speech, levels of decentralisation, etc. This memo will discuss socio-political contexts and recommend different strategies to increase vaccination rates in four states: USA, South Africa, Russia, and China—respectively a consolidated democracy, transitioning regime, hybrid regime, and autocratic regime. The goal of this memo is to recognize and analyze the varying degrees of freedom, the effects of political biases, and the distinctive socialcontextsacrossregimetypesto increase vaccination rates in order to support states in facilitating a smooth transitiontorecover from the devastatingsocio-economiceffectsofCOVID-19andimprovethewellbeingofcitizens aroundtheworld.

As a consolidated democraticregime,theUSplacesemphasisonthepreservationofcore liberties such as freedom of speech, and there is limited government authority over society (Siaroff 2013). These features of American democracy areimportantbecausefreedomofspeech actively contributestothepoliticalpolarisationinAmericatoday(SchertzerandWoods2021).A regime-type approach is important for the US because although the US has an abundance of funds andavailablevaccinestoensuremostcitizensreceivevaccinations,politicalpolarisationis the main reason for inadequate vaccination rates. There is a spread of misinformationregarding harmful effects of vaccines, specifically among Republicans (Rothwell and Dasai 2020). The effects of misinformation are detrimental, because lower vaccine acceptance results in more transmissions and deaths. According to Rothwell and Dasai, in a 2020 survey, “just over one in three Republicans (37%) deny that it is definitely true that COVID can be spread by people without symptoms compared to only about one in four (23%) Democrats.” As low vaccination ratesseemtohavepoliticalcauses,thismemosuggestsusingeconomicincentivesandaplurality ofsocio-economicactorstoencouragepolarisedcommunitiestoreceivevaccines.Forexample,

● The government should give out financial vouchers for citizens toaftereachvaccination orbooster;

● The government should provide companies with funding to allow employees to have longerperiodsofpaidleaveafteravaccinationorbooster;and

● Locally trusted, certified health and service NGOsshouldpassoutpamphletslocallyand post government-approvedinformationregardingthebenefitsofCOVID-19vaccinesand boosters.

As a transitioning regime, South Africa is successful in decentralisingpowerdowntoits provinces, facilitating negotiating between government oppositions, and allowing a plurality of channels for communication, yet there exists ethnic conflicts and income gaps (Lieberman and Lekalake 2022). A regime-type approach is important before there should be an active effort to solve ethnic problems and include citizens more in decision making processes, although this

memo can also give suggestions according to cultural attitudes because there is a history of underrepresenting Black and Brown populations in policymaking in South Africa. Nonetheless, the goal is to increase citizenry and ethnic representation, collaborate with government oppositions, and decentralise power to increase democratic procedures to increase vaccination ratesinSouthAfrica.Todoso,thetransitioningregimeshoulddothefollowing:

● Provincial leaders should reach out to district leaders and find local representatives to share the benefits of COVID-19 vaccines and boosters within their local communities throughsocialmediapostsandbulletinboardposters;

● Government should use research conducted by scientists with different ethnicities, hospitals and health care facilities should hire front-line workers from different ethnicities;

● Let government officials hold meetings with local representatives to understand the concernsofunvaccinatedcitizens;and

● Ask government oppositions to record government-approved messages to promote vaccinationsthroughradiosandtelevisedmedia.

Russia, a hybrid regime, lies between an electoral democracy and a closed authoritarian regime. The COVID-19 situation in Russia, in particular, should be analyzed through a regime-type approach, because Russia has an extensive historyoftransitioningfromaone-party state, to a transitioning democracy, and now a semi-authoritarian regime (McFaul 2021). In simpler terms, the government now controls the press andclosedpoliticalopposition.AsRussia has spread out populations with alargelandmass,thismemocouldsuggestdifferentpoliciesfor urban and rural areasinRussia.However,withweakdemocraticinstitutions,maintaininghuman rights is a key issue in the state’s attempt to increase vaccination rates. Russia’s regime type, thus, is more significant than issues of population density because extreme measures such as forced lockdowns and the use of violence to ensure citizen compliance could heavily violate international human rights norms. Thus, this memo suggests that Russia appeals not to political ideology or force, and instead appeals to medical research to convince its citizens to receive vaccines.Specifically,

● The government should post the benefits of COVID-19 information on state websites, forums,andstatebuildings;

● Local institutions should notify citizens of lockdowns at least a week before they are imposed;and

● The governmentshouldlimittheuseofimagesofstatefiguresandleft-leaningslogansin attemptstoconvincecitizenstofollowCOVID-19protocolsandtakevaccines.

In the case of China, a single party autocracy, the features of the regime type includean active dictatorship, the use of force, ideology, and censorship, while on the other hand, there is rising international pressure regarding human rights violations in China during COVID-19 (Maizland and Albert 2022; “Meet China’s New Tycoons” 2022). The Chinese government is facing difficulties in maintaining transparency in decision making processes with its people, which have led to multipleinstancesofpublicunrest(MaizlandandAlbert2022).Also,Chinais violating human rights norms by holding down citizens without consent at health camps and persisting month-long apartment lockdowns, prominently in Shanghai in summer 2022 (“Meet China’s New Tycoons”). While the memo can provide policysuggestionsbasedonChina’shigh GDP or its high population, the autocratic regime type is clearly the most significant because

China has largely violated human rights norms and caused a lack of trust amongst citizens towards the legitimacy of the government. As strategies, the government should take the followingmeasures:

● End lockdowns but ensure medical staffs and vaccination supplies are sufficient by investinghugefundsandassigningresponsibilitiesdowntothedistrictlevel;

● Spend extra medical funds on protecting the health of elders and patients with pre-existingdiseases;

● Formallyacknowledgethedetrimentalsocio-economicimpactsofCOVID-19onChinese social media platforms WeChat and Weibo toincreasetransparencybetweengovernment andcitizens;and

● Shorten quarantine periods for foreigners traveling to China, to encourage more international interactions and let Chinese citizens become more aware of loosened COVID-19policiesabroad.

Across regime types, thismemoencouragesstatestousegovernment-approvedmessages to broadcast more medical information regarding the benefits of COVID-19 through various media forms, whether through the form of local NGO social media posts or official televised state broadcasts. In most cases, broadcasting scientific information increases the validity of the government’smessage,andthusincreasesthelegitimacyofthegovernment.However,thememo recognizes that the relationship between the government and citizens are highly different in terms of people’s level of trust in the government, as well as the government’s level of censorship and surveillance across media forms. Thus, according to the regime type, thismemo suggests states can appeal todifferentnon-stateactorstospreadgovernmentmessages,appealto radical lockdown policies, or appeal to economic incentives to boost vaccination rates in an attempt to reduce the severe, long withstanding socio-economic impacts of the globalpandemic ondifferentregimetypes.

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