US Women’s Cabinet Representation Falling through the “Concrete Floor”

US Women’s Cabinet Representation Falling through the Concrete Floor

Since 1993, every U.S. president, regardless of party, has included at least three women in his initial Cabinet. Clinton appointed four women in his second term (and five total across his presidency). Clinton’s successor, George W. Bush, had three female appointees in his first term and four in his second. Barack Obama appointed four women in his first term and, eventually, another four in his second term. According to political scientists Claire Annesley,  Karen Beckwith, and Susan Franceschet, the United States, for decades, has had a “concrete floor” of nominating at least three women to cabinet posts.

Annesley, Beckwith and Franceschet are completing a comparative study on patterns of women’s appointments to cabinet posts in seven advanced industrialized democracies. They find that each country has a “concrete floor” or a minimum number of women necessary for a cabinet to be perceived as legitimate. As they summarized in the Washington Post: “Concrete floors matter because regardless of which party wins office, a minimal threshold of female appointments is generally predictable, and because selectors generally adhere to the standard set by their predecessors.”

How has U.S. President Trump fared?  At this point, he has fallen through the “concrete floor” with just two women nominated and confirmed for his cabinet. This marks a stunning reversal to a decades long norm.

While different countries have different norms in cabinet selection – for example Canada’s cabinet must always contain a representative from each province whereas in the United States geographic representation is less important than at least some racial and ethnicity diversity –  Beckwith and her colleagues found that all the countries they have studied consider women’s representation in cabinets to be salient.  Yet, norms on the degree of gender balance varies. In some countries, such as Germany and Spain, cabinets come close to being evenly balanced between men and women. In other countries, such as Britain, women tend to make up a substantial minority of cabinet positions.

In Evolving Norms and the Demand for Equal Female Inclusion in Governing Cabinets, Beckwith, Annesley and Franceschet discuss the most recent example: Trudeau’s cabinet, which was the first one with gender parity ever constructed by a North American government. They ask “How is this possible? How did Trudeau manage to find fifteen women to serve as ministers in his first government – enough women to staff the entirety of the smaller U.S. presidential cabinet – while during the same era in the United States, President Barack Obama only found four women out of 318 million people to nominate for his initial cabinet?” And now President Trump has not even met that standard.

When it comes to the more US-specific norm of cabinets having at least some racial and ethnic diversity,  Beckwith also points to divergence from the norm; President Trump has been heavily criticized for forming the first cabinet without a Latino in decades.

The Washington Post used photos of all white men in decision-making mode to convey “the glaringly obvious” lack of diversity in the Trump administration.  Among those photos is one that Rep. Carolyn B. Maloney (D-N.Y.) used on the House floor to questions this administrations’ representative legitimacy – the photo was of Vice President Pence and six male advisers in the Oval Office surrounding President Trump while he signed an order restricting federal funds for abortion-related activities in foreign countries.

These forms of push back demonstrate the “concrete floor” and consequences of ignoring it. According to Beckwith and colleagues “Wealthy democracies can no longer have men-only cabinets, or, as we have written elsewhere, a prime minister can no longer ‘over-select from just half the population’ in appointing a cabinet. Having women in the national cabinet has become crucial and conventional – even in the United States, where women have now served in every presidential cabinet since 1983, under Democratic and Republican presidents alike. Indeed, having just one token female in a cabinet is no longer enough.”

Of course representational criteria are not the only criteria the Trump administration has broken with precedence to ignore.  Experiential and affiliation are described in greater detail in our video clip and below.

Beckwith and her colleagues make the point that for cabinet appointments across the countries they studied neither supply nor process is an obstacle to achieving gender parity in cabinet posts. “Across all parties, wealthy democracies have large numbers of highly educated, politically elite women who could serve in cabinets as ministers or department secretaries… an incoming head of government can, if she or he wants to do so, quickly and effectively establish a gender parity cabinet with relatively little opposition.”  Present President and the U.S. included.




Infrastructure investment, design and gender-based violence?

Infrastructure investment, design and gender-based violence

The Democrats, Republicans, and the White House are in the midst of hashing out a large scale infrastructure bill in the coming weeks and months. Aside from addressing the maintenance needs of much of the United States, infrastructure spending is billed as a way to boost jobs, and stimulate the economy. President Trump has also called cities dangerous war zones throughout the campaign and since taking office – a claim that has been challenged.  While he has not focused in his statements on violence against women within urban areas, it is possible that his proposed new infrastructure spending could be an opportunity to address gender-based violence and some of its affects.

In a 2016 interview, Dr. Anu Ramaswami, Director of the Sustainable Healthy Cities Network and a professor at the Humphrey School of Public Affairs, University of Minnesota pointed out that cities are not gender neutral, and that very little is known about how safe women feel or best practices for incorporating safety from gender-based violence in public infrastructure projects.

‘So far, much of the study of women’s safety has focused on topics such as domestic violence, and relatively little is known about dangers to women in public spaces,’ said Anu Ramaswami. Now, efforts are increasing to figure out what makes certain areas feel insecure. For example, women will cross the street if one side has certain types of shops or businesses – from liquor stores to more off-putting establishments. ‘Cities are not gender-neutral,’ Ramaswami said. ‘We should think about how planners can help from a gender perspective and make sure that social services – the police, the judiciary, hospitals – are engineered while taking gender issues into account.’ Building Safer and More Inclusive Cities

Some consequences of women feeling unsafe in urban spaces include decreased employment and educational opportunities and more driving/less public transportation (both of which disproportionately affect low income women).  These conditions can be alleviated through thoughtful design in infrastructure planning, such as lighting, wait times, etc.   For example, Yingling Fan, Associate Professor in the Urban and Regional Planning area at the Humphrey School, found the “basic amenities including benches and shelters significantly reduce perceived waiting times. Women waiting for more than 10 minutes in surroundings perceived to be insecure, report waits as dramatically longer than they really are, and longer than do men in the same situation.”  Perceptions of longer wait times can decrease use of public transportation.

However, according to the World Bank the consideration of gender-based violence in infrastructure projects is growing.  “GBV [gender based violence] is increasingly brought into the design and implementation of large-scale projects, particularly in the transport, infrastructure, and urban development sectors. Incidents of GBV span the map of women’s daily movements—so a broad focus is needed in developing safe environments.”  The World Bank highlights two projects they funded – one in Brazil and another in Ecuador, where major transportation infrastructure projects were designed with safety for female users at the center.

What if US infrastructure projects included a similar requirement?  Given an administration that seeks to reduce regulations, this may be unlikely.  However, there may be other ways to work with the state and local governments implementing infrastructure projects to adopt a similar approach.  With a possible trillion dollar investment forthcoming, perhaps now is the time to figure those strategies out.




Baby UI Revisited: Paid Parental Leave under Trump

During the campaign, then candidate Trump advanced a proposal to provide six weeks of paid leave to new mothers through the Unemployment Insurance (UI) benefits program.  According to reports, the administration is now considering adding new fathers based on earlier criticism. In crafting this proposal, his advisors were likely looking back to a similar plan dubbed “Baby UI,” a US Department of Labor regulation advanced by the Clinton administration and later rescinded under the Bush administration.

“Baby UI” allowed (and encouraged) states to create parental leave programs that would allow both male and female workers to collect UI benefits while caring for a new baby.

Some UI experts have argued that individual states could advance such a program without federal approval, but the idea fell out of favor due to the stress placed on the UI programs by the recession and the chilling effect of Bush’s reversal of the Clinton plan.

What are the merits of a program delivered through Unemployment Insurance? While the idea holds promise for allowing the US to finally join the rest of the developed world in providing wage supports to parents after the birth or adoption of a baby, a deeper examination of the proposed policy parameters and funding mechanisms suggests that additional work is needed to craft a national program that accomplishes key policy goals and minimizes unintended consequences.

Let’s turn to the funding mechanism first.  The Trump campaign said it would pay for the estimated $2.5 billion a year cost by reducing fraud in the unemployment insurance system, which it estimated at $3.4 billion.  There are three concerns about this approach:  (1) reducing abuse, the extent of which is contested, is not cost neutral. It costs money to monitor and curb fraud, and deterrence efforts often do not deliver the expected revenues; (2) employers that currently provide leave benefits would likely drop coverage and require workers to use government benefits instead, which may inflate the expected costs to the state; and (3) the UI tax system is largely “experience rated,” meaning that the tax rate charged to employers depends on the utilization of benefits by their employees, which is meant to deter employers from excessive use of the program.

Leaving aside the questions about the extent of fraud (i.e., how much can be reduced and the cost of achieving such a reduction, which are debatable and well summarized in the New Yorker) and leakage from private offerings, in this post we examine the third point: employer incentives in the UI system.

The UI system contains ingrained incentives for employers based on how taxes are calculated that may have negative economic consequences for women.

The Unemployment Insurance system is currently funded through a complex payroll tax system that includes statutorily defined and interconnected federal and state components, totaling at least a combined 6% tax rate on an employer’s payroll for the first $7,000 of each worker’s wages.  However, all states have a significant amount of discretion and vary their portion of the tax based on how much a particular employer’s workers use the system.  Commonly referred to as “experience rating,” this means that an employer’s UI tax rate increases when more of their workers use the program. This system is in part designed to keep UI programs solvent but it also discourages employers from unnecessarily or capriciously laying workers off.

If used for a maternity leave program, however, that system would create additional disincentives for employers to provide paid leave to new mothers on their payroll or even hire pregnant women or those that are likely to become pregnant.

Such a tax penalty could result in an increase in the already relatively high levels of discrimination against pregnant workers, new mothers or women likely to become pregnant, since employing them may increase an employer’s UI tax rate and bill. Therefore, one unintended consequence of using the UI system to finance maternity leave is that it may reduce employer incentives to hire these workers in the first place, promote them or pay them fairly.

That leads to a second set of considerations related to unintended consequences.  Several scholars and advocates have already summarized the problems associated with singling out mothers for these benefits and the new administration seems to be listening and considering the addition of fathers.  Increasingly, millennial fathers are interested in playing equal roles in parenting.  Excluding fathers from the program would not only deny men that opportunity, but also provide economic reinforcement for the assumption that only women are responsible for infant care.  Workplace discrimination against pregnant workers and parents is technically illegal, but it remains common according to EEOC complaints  and research conducted by the Work Life Law Center.

Unless a separate funding mechanism is put in place, the Trump administration proposal would only make this problem worse by penalizing employers when their female workers (and also potentially their male workers, if they are added) use the program.

It is also not clear how eligibility for the program would be determined.  If current criteria are used, which are determined at and vary by state, the Institute for Women’s Policy Research (IWPR) has found that UI eligibility criteria often leave lower-income women out.  IWPR finds that “the criteria were designed to benefit full-time workers with incomes large enough to support a family, which means that low-income and part-time workers are typically ineligible. Women are frequently disenfranchised by state eligibility criteria that fail to consider the social and economic issues that affect women’s employment patterns and their earnings.”  Benefit levels also vary dramatically from state to state, generally providing only around 50% of lost wages when caps, wage credits and other criteria are combined.   At 50% wage replacement, many workers would be unable to make use of the program.

In addition, the Trump proposal does not address the right of a worker to take a parental leave without losing their job or suffering other negative employment consequences such as demotion.

Such a right would be even more critical if the program increases the economic penalty for employers when female workers take leave.  The federal Family and Medical Leave Act (FMLA) currently gives workers the right to take 12 weeks of unpaid leave to care for a new child, but it only applies to around 60% of workers in the U.S.  A patchwork of state level unpaid leave laws provides some additional workers the right to take parental leave, but for the most part these laws (which pre-date the federal FMLA) cover a similar set of workers.  Only four states (Minnesota, Maine, Oregon, and Vermont) provide a leave entitlement to additional, but not all, workers.  Unfortunately, without additional protections the workers that are most economically vulnerable are the same workers that could get fired for taking a maternity leave under the Trump proposal (low-wage, younger, workers of color).

All of these issues do not necessarily diminish the potential benefits of taking advantage of the significant UI infrastructure for delivering wage replacement during parental leaves.

In fact, the three states that currently provide wage replacement to new parents (California, New Jersey, and Rhode Island) depend in varying degrees on this infrastructure, but do so while also addressing some of the unintended consequences highlighted here.  Other states, like Minnesota, have looked in detail at how a state could make use of the UI program structure of revenue collection and benefit disbursement to deliver a program efficiently and are considering adoption of a similar approach.  Congressional proposals, such as The FAMILY Act being reintroduced by Senator Gillibrand, would provide uniform benefits through a payroll tax and benefits system administered by the Social Security Administration.  If the Trump administration proceeds down an alternative UI-based path, the research findings presented here would assist them in building upon and learning from the effective approaches already implemented in three states and planned in others.

— Debra Fitzpatrick, Co-director, Center on Women. Gender and Public policy, Humphrey School of Public Affairs

— Colleen Manchester, Associate Professor, Department of Work and Organizations, Carlson School of Management

Photo by Mark Panado




Title IX and Campus Sexual Assault under Trump

Two important Trump education picks have either refused to endorse or openly criticized Title IX, the landmark 1972 federal law that prohibits discrimination on the basis of sex in any federally funded program. Betsy DeVos, Trump’s nominee for Education Secretary, refused to answer whether she would enforce the law during her confirmation hearing, while Jerry Falwell Jr., Trump’s pick to lead a federal task force on higher education, has stated he would like to curb the rules that require colleges to investigate campus sexual assault under Title IX. What might a rollback of Title IX under the Trump administration imply for the incidence of campus sexual assault and campus climates? The challenges and opportunities to fight sexual assault on campus are better understood when we consider 1) legislation in place concerning campus sexual assault, and 2) the role of formal and informal institutions in the enforcement of these laws.  Specifically, enforcement of existing formal rules has helped to create campus climates in which it is clear that sexual violence is not tolerated, and in which victims are encouraged to come forward and report crimes because they can expect a quick, protective response. A change in federal policy will bring about a corresponding and equally important change in informal institutions, sending a chill over campuses that have only recently begun to work in earnest against campus sexual assaults.

Existing Legislation

Title IX is one of three major pieces of legislation concerning sexual violence on campus. This legislation requires campuses to report and investigate cases of sexual violence and requires that campus authorities trained on issues of domestic violence, sexual assault, and internal institutional hearing processes carry out the investigations.

Title IX is well-known for requiring women’s sports to be funded equitably. As part of the law’s protection against discrimination resulting from acts of violence against women, Title IX also calls for regulating campus reactions to sexual assault. Since violence against women has a chilling effect on women’s participation in academics and other activities on campus, violence systematically keeps women from accessing education.  (It should be noted that not all sexual assault is heteronormative, but the vast majority appears to be, which provides us with a starting point for policy.) Title IX measures are clarified and enforced by the Department of Education, frequently in the form of Dear Colleague Letters (DCLs). DCLs are a quick way for the administration to convey clarification or modification of existing law. DCLs are elements of sexual assault prevention or enforcement easily modified within an administration or with an incoming different administration.

The most recent DCL germane to sexual assault and Title IX was issued in 2011, to clarify that in cases of alleged sexual assault, schools are to follow the ‘preponderance of the evidence’ standard in order to determine the accused’s responsibility. In other words, the accused will be considered responsible for sexual assault if evidence indicates that it is more likely than not that the accusations are true.

While the ‘beyond a reasonable doubt’ burden of proof is better known, that is the standard for determining guilt in criminal cases. The ‘preponderance of the evidence’ burden of proof is the standard for enforcing civil rights legislation as well as for issuing civil protective orders. Current Title IX regulations thus allow college campuses to proceed quickly to hearings that protect students in cases of sexual assault.  Further, the 2011 DCL specifies that, “If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.”

The second key piece of legislation is the Clery Act of 1992.  Clery calls for colleges to compile yearly public reports of crimes on campus (not just sexual violence), and to issue timely reports to the campus community when there is a continued threat to public safety. The Clery reporting process is mandated for all crimes reported to “Campus Security Authorities” or local police, and the campus adjudication, which may follow, takes place separately from any criminal proceedings.

Congress has revised the Clery Act various times, most recently in the 2013 re-authorization of the Violence Against Women Act (VAWA, first passed in 1994): the third key policy regulating campus responses to sexual assault. The 2013 re-authorized VAWA includes a specific section on college campuses called the Campus SaVE Act (Campus Sexual Violence Elimination Act), which, among other things, adds stalking to the list of Clery-reportable crimes.   Public policy has thus been carefully crafted to facilitate formal institutional reporting processes, and to make crime information public and accessible.

 

Formal and Informal Institutions

There are both formal and informal mechanisms at work in institutional responses to sexual assault on US college campuses. As economist Douglass North has defined them, formal institutions are “rules that human beings devise” (North 1990, 4). In this case, they are comprised of the government legislation and regulations regarding sexual assault on campus based on the legislation described above. On the other hand, informal institutions are “conventions and codes of behavior” (North 1990, 4). With regard to campus rape, informal institutions are those social norms and attitudes that impact key factors in campus responses: the victim’s decision to report or not report; the typically gendered perspectives on victims and perpetrators (specifically, campus officials’ reactions to reports and how these are colored by perceptions of who rapists (in most cases, men) and victims (in most cases, women) are; and the rape myths that are part of rape culture prevalent society-wide. Changes in culturally derived informal institutions will typically lag behind changes in formal institutions, creating an inefficient tension between the two (North 1990, 54).

Such tensions are evident between the formal institutions facilitating reporting of sexual assault, and the informal institutional practice of under-reporting these crimes. Under-reporting of rapes and sexual assaults ranges from 95% on college campuses to 65% nation-wide. Yet, under-reporting does not get as much popular attention as false reports do. Indeed, there is much hand-wringing over the phenomenon of false accusation, even though it is really quite rare.  Studies on false reporting of rape indicate rates ranging from 2% to 13.7%, with a couple of outliers at 41% and 45%. False accusations (where specific perpetrators are named) are especially harmful of course, and these are a small subset of false reports. Despite the infrequency of false reports and accusations, vivid accounts capture media attention. The Duke lacrosse case, for instance, is often referenced in discussions of campus sexual assault. Class differences, which often but do not always overlap with race differences, further complicate perceptions of perpetrators.

Because of enduring stereotypes of rapists as visibly disturbed strangers who leave obvious physical injuries on their victims, campus communities are often reluctant to view college students as assailants. Yet there are key commonalities between rapists who are incarcerated as a result of conviction, and rapists who are undetected by the criminal justice system and never brought to justice.

According to the ‘predator theory’ in psychology, each set of assailants tends to be repeat offenders. These aggressors usually brag about overpowering women, they typically assault acquaintances, and they often leave no clear physical injuries. Despite the actual similarities in criminal behavior between rapists who are caught and those who are not, general desires to avoid falsely accusing alleged assailants who do not conform to society’s image of how criminals look further complicates Title IX enforcement.

Also important for our consideration are systematic informal institutions of bias, typically gendered, against the accusers. Men are excused for sexual aggression because they are drunk, for instance, while women get less sympathy for an assault if they have been drinking. Instead, women are often assessed as being irresponsible for ‘allowing’ assault to take place.

Rape myths and gendered biases are part of the rape culture that surrounds us. Rape culture presents violence as sexy, and sex as violent, thus providing a permissive social context for sexual violence.  Indeed, sexual violence is a reflection of the intersection of gender inequity and violence in society. Much of this violence is heteronormative and disproportionately victimizes women, although the sexism inherent in sexual assault is connected to other forms of oppression including homo- and trans-phobia.

In the end, both formal and informal institutions need to be utilized in the fight against sexual violence on campus.

While I have focused on the challenges presented by informal institutions that educational leadership will have to take into account, each of these challenges has its corresponding opportunity: informal institutions, like culture itself, are ultimately malleable. If the incoming administration shifts the focus to the rights of the accused, by limiting the response of campus sexual assault to the criminal justice system as suggested, this also limits on-campus victim protection options. All of this is likely to bring on a corresponding shift in cultural norms where victims are even less likely to report incidents of sexual assault, and campus communities are even less likely to take sexual assault seriously.

– Anne Marie Choup, Associate Professor of Political Science, University of Alabama in Huntsville

Photo by Wolfram Burner




Betsy DeVos, Focus on the Family, and our Public Schools

From 1998 to 2010, Betsy DeVos and her family’s foundations donated millions dollars to Focus on the Family. A decade earlier, she and her parents gave the organization funds to launch its political lobbying firm, the Family Research Council. Their donations helped transform Focus on the Family from a small organization centered on James Dobson’s conservative Christian parenting books into a multimedia empire with syndicated radio broadcasts, a publishing house, and an extensive online presence that promotes and echo-chambers its conservative Christian worldview. The immense investments in Focus by DeVos and her family reveal her deep connection to the ideals of the organization and to Dobson himself, who was its CEO until 2009. When DeVos states, “If confirmed, I will be a strong advocate for great public schools. But, if a school is troubled, or unsafe, or not a good fit for a child . . . we should support a parent’s right to enroll their child in a high-quality alternative,” we should not assume that she agrees with most educators on the definition of what constitutes a “great public school” or an “unsafe” one.

Due to her financial support of Focus on the Family, it is reasonable to believe that her priorities align closely with Dobson’s. A closer look at Dobson’s public efforts to bring conservative Christian perspectives into the public conversation about schools will make the differences in these pivotal definitions more apparent.

Beginning in 1970, with his bestselling childrearing book Dare to Discipline, Dobson has attempted to transform the American family and the American school system from one centered on children and multicultural pluralism to one centered on his conservative understanding of biblical truth. His ultimate goal for students is not to increase their critical thinking skills but to ensure that they can achieve salvation and help bring the nation closer to his theological ideal. Dobson includes chapters such as “Discipline in the Classroom” and “The Barriers to Learning,” criticizing the consequences of an education system centered on societal rather than divine goals.

This book was written during the era of ongoing racial desegregation and protest, but he addresses these questions obliquely by highlighting the consequences of permissive leadership in public schools. Dobson, for instance, linked the Supreme Court’s rulings that removed religious devotion in the schools to an increase in disciplinary problems.

He seeks to redress this by advocating that teachers enforce their authority. In Dobson’s view, teachers, like parents, teach through role modeling:  teachers must embody their divine role as leaders to whom children must submit while also teaching curricula that reflects God’s Truth—a truth that must be embodied but never questioned.

Focus supported Christians attending public schools through the 1990s, even as these schools were embracing pluralism and representing their diversifying student body in their curricula. Dobson and Focus argued that public schools gave Christian students and teachers an opportunity to influence liberal Christians and non-Christians through words and actions. They pushed these public-school missionaries to advocate for a curriculum that reflected their values. The appropriate curriculum for Dobson was the narrative that he learned in school in the 1950s and 60s: histories of triumphant white Christian men modeling leadership qualities as they built an exceptional nation of founded on democracy, economic strength, and military might.

In 2002, however, Dobson called for parents to remove their children from public schools after students in one California district attended a play that included the lines “I’m gay and that’s okay.”

In representing the Christians parents’ perspective, Dobson emphasized that the school had ignored the Christian students’ (eternal) safety in favor of the (immediate) safety of others. The school, he argued, had put the children at risk of imitating the attitudes of their teachers, actors in these dramas, and friends who were no longer forced to hide their sexuality. Such imitations of any non-heterosexual conduct, Focus has long taught, disobeyed God by rejecting divinely-ordained conventional gender roles. With the risk of damnation looming and efforts at reform failing, Dobson urged parents to do what he did in 1973 when the American Psychological Association voted to depathologize homosexuality–drop out in protest to promote Christian alternatives.

During the many decades that DeVos family has financially supported Focus, the organization has shared its vision with Betsy DeVos and other supporters of what constitutes a great school:

great schools center around a singular narrative of America driven by the stories of great (white Christian) men; great schools teach curricula and employ teachers who act as “safe” heterosexual role models for students; and great schools teach children to submit to adults rather than challenge them.

Unsafe schools do the opposite, teaching critical thinking, multiple truths, and modeling a variety of ways to be ethical men, women, and transgender citizens.

 

— Susan B. Ridgely is associate professor of American religion at the University of Wisconsin-Madison and author of Practicing what the Doctor Preached: At Home with Focus on the Family (Oxford, 2016).

Photo by Matthew




Gender Bias in Policing: Will Sessions Continue Progress?

On January 12, 2017, the United States Department of Justice and the City of Baltimore adopted a settlement agreement, known as a consent decree, governing changes to policing in Baltimore.  On February 2, 2017, representatives from the Department of Justice and Baltimore City officials assured U.S. District Judge James K. Bredar that they remain committed to enforcing that agreement.  But will Attorney General nominee Senator Jeff Sessions commit to the consent decree’s enforcement?

The consent decree was the culmination of a Department of Justice investigation into the Baltimore City Police Department, an investigation triggered by the death of Freddie Gray in police custody in April 2015 and the uprisings that followed.

The investigation was wide-ranging, looking not just at police misuse of force, but a number of other deficits in policing alleged by the citizens of Baltimore.  Included in those complaints was the contention that Baltimore City Police engaged in gender biased policing.

The Department of Justice ultimately found evidence of gender bias in the Baltimore City Police Department’s handling of sexual assault cases: in the treatment of victims of sexual assault, particularly transgender victims, and in the failure to adequately investigate reports of sexual assault, including the failure to routinely request testing of rape kits.

In December 2015, the Department of Justice issued guidelines to help law enforcement identify and prevent gender bias when responding to sexual assault and domestic violence.  The guidelines suggest that police departments provide:

  • training and review and revise policies to ensure that police gather evidence in an unbiased manner;
  • that police treat victims with respect and conduct interviews in a manner that encourages victims to participate;
  • that police investigate sexual assault and domestic violence claims thoroughly and effectively and appropriately classify reports of sexual assault and domestic violence;
  • that police departments collect and use data regarding sexual assault and domestic violence to inform their policing;
  • and that police departments hold officers who commit sexual assault or domestic violence accountable for their actions.

The Department of Justice has investigated gender biased policing in a number of police departments.  In Puerto Rico, the Department of Justice found that police officers who committed intimate partner violence were permitted to continue to work, in some cases despite multiple arrests.  The Department of Justice found that sexual assault cases were routinely mishandled in New Orleans, Puerto Rico, and Missoula, Montana, and entered into consent decrees in each of those jurisdictions which required police to adopt policies and practices based on the guidelines.

Similarly, the Baltimore consent decree requires that the police adopt a trauma-informed, victim-centered, multi-disciplinary response to sexual assault cases, including training for detectives, thorough investigation of reports of sexual assault, and enhanced data collection, analysis and reporting.

Senator Session’s views on sexual assault became the subject of public scrutiny when Sessions told a reporter that although President Donald Trump’s boast about grabbing women’s genitals without consent involved “improper language,” Sessions would not characterize such actions as sexual assault, calling the characterization “a stretch.”  In his confirmation hearings, however, Sessions told Senator Patrick Leahy that such an act would “clearly” be sexual assault.  At best, there is reason to be concerned about Sessions’ understanding of sexual assault and his willingness to commit the Department of Justice to continued monitoring of police handling of such claims.  Moreover, Sessions has been noncommittal about his willingness to support legislation addressing violence against women.  Sessions voted against the 2013 version of the Violence Against Women Act and stated that he would defend the Act only if he considered it “reasonably defensible” during his Senate confirmation hearings.

Moreover, according to media reports, Senator Sessions has been critical of consent decrees like the one entered in Baltimore.  In his confirmation hearings, Senator Sessions would not commit to continued enforcement of the consent decrees if police show improvement short of full compliance.

President Trump is reported to have been “taken aback by the waste of money” required by federal monitoring of consent decrees.  Police unions in some cities (although not currently in Baltimore) are eager to renegotiate the consent decrees and believe that those efforts will be well-received by the Department of Justice under Sessions (although modification of the decrees would ultimately require approval from the federal courts overseeing them).

All of this raises concerns about Senator Sessions’ commitment to improving the quality of policing in cases of sexual assault and intimate partner violence.  There is reason to wonder whether the Department of Justice will continue to investigate and seek to remedy gender biased policing under the current administration.  Victims of sexual assault in Baltimore will simply have to wait and see whether the Department of Justice continues to push for needed police reforms.

– Leigh Goodmark, Professor, University of Maryland Carey School of Law

Photo by Thomas Hawk