The Role of the Courtroom in Combating Domestic Violence

May 8th, 2017 in Analysis, Legislation in Court, State Legislation

The rhetoric surrounding the courtroom can be idealistic. The courtroom is supposed to be a symbol of justice, where every party has a fair opportunity to be heard. Yet the reality for survivors of domestic violence is far from this ideal. Survivors who have the strength to seek their day in court have already shown an incredible amount of strength and courage. They should be met with hope, encouragement, and assistance. But this is a goal yet to be achieved.

Survivors often feel unsafe walking into the courtroom. Not only are survivors at more risk after leaving their abuser, “[a]busers also use court appearances as opportunities to stalk and maintain contact with their ex-partners.” Survivors face an uphill battle in the courtroom. As Sara Ainsworth of Legal Voice stated, “[t]here’s an enormous bias against anyone making accusations [of abuse].”stop-domestic-violence-logo

Domestic violence survivors may end up in the courtroom for a variety of reasons, including seeking a protective order and child custody proceedings. Current law in Massachusetts governing domestic violence in custody proceedings falls far short of the protection society owes to survivors. First, the definition of abuse is narrow, only encompassing physical abuse. Specifically, Massachusetts General Laws Section 31A defines abuse as “(a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury.” The statute further states that either a pattern of abuse or a ‘serious incident’ of abuse (defined as “(a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress”), triggers a rebuttable presumption that granting the abuser sole or shared custody is not in the best interest of the child. The presumption is triggered by a preponderance of the evidence, and can be rebutted by a preponderance of the evidence. A past or current protective order does not automatically trigger the presumption.

Further, while the facts that brought about a protective order can be admissible, protective orders themselves cannot be admitted as evidence of abuse. This means that even if a survivor has succeeded in protecting herself and her child(ren) by obtaining a protective order, she will not automatically get custody of her children. She will have to face her abuser again in the courtroom, and will have to prove once again that abuse has occurred. Further, even if there was extensive verbal, emotional, and psychological abuse, the presumption against custody will not be triggered.

In addition to dealing with statutes that do not adequately protect them, survivors must also deal with judges who may not understand their experiences. In fact, women who are seeking protection for themselves and their children from an abuser are often met by similar behavior from judges. Domestic abuse is often described with what is termed the ‘Power and Control Wheel.’ The wheel describes that variety of ways abusers use their power to manipulate and control their victims. The Texas Council on Family Violence created a power and control wheel that describes the ways judges also reinforce women’s entrapment.

The role of the court in protecting domestic survivors must extend beyond equitable orders. It is an unfortunate truth that sexism is still a very real reality in the courtroom. Moreover, many judges do not understand the dynamics of domestic violence, and do not handle custody disputes with the appropriate sensitivity to domestic abuse, even if they are statutorily required to do so. Judges have the opportunity to empower victims, or to make them feel even less in control.

The idea that judges can play a positive role in protecting domestic abuse survivors is not new. In 1999, The Northeastern University Press published an article titled “Battered Women in the Courtroom: The Power of Judicial Responses.” The article lists multiple ways judges can support survivors: supportive judicial demeanor; take the violence seriously; make the court hospitable; prioritize women’s safety; address the economic aspects of battering; focus on the needs of children; enforce orders and impose sanctions on violent men; and connect women with resources. Specific recommendations targeted sexism during proceedings, including “refusing to joke and bond with violent men”; “talking with battered women rather than around them”; “correcting institutional bias in favor of men”; and “eschewing bureaucratic/perfunctory or hostile attitudes toward victims and casual or collusive attitudes with batterers.”

The article identified five types of judicial demeanor in hearings for protective orders: 1) good-natured; 2) bureaucratic; 3) firm or formal; 4) condescending; and 5) harsh. Interestingly, “[t]here types . . . were demonstrated toward violent men[:] [f]irm or formal, bureaucratic and good-natured. Most judges were good-natured with women and firm with violent men. Condescending and harsh demeanor was not directed toward violent men.” (emphasis added). There is no excuse for the gender discrimination revealed by this study.

While this study is dated, women still face judges who are hostile toward domestic violence survivors. Judges can make a difference by understanding that survivors can be overwhelmed in the courtroom; ensuring a the record is comprehensive; not blaming the victim; and having zero tolerance for violence and gender discrimination during proceedings.

Judges can be powerful role models by choosing to treat women with respect and taking the humble approach of recognizing their need to learn the dynamics of domestic abuse in order to be effective judges.

KatherineKatherine DePangher,

Boston University School of Law, class of 2018

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When the shoe doesn’t quite fit: Fitting a digital world into an analog statutory structure

May 8th, 2017 in Analysis, Local Legislation, Uncategorized


Few issues in recent years have bedeviled lawmakers at the state and local level as much as the question of how to react to the online “sharing” economy, where people with a car they don’t use much or a typically empty spare bedroom decide to monetize their asset. When voters in Austin, Texas decided to require Uber and Lyft drivers to submit to mandatory fingerprint background checks, those two companies simply closed down their operations in the city. The overall picture for ridesharing and homesharing laws is, to be blunt, a mess. For the time being, flying under the radar would seem the safest course for the industry, since most jurisdictions still don’t regulate them at all.

These crosscurrents make the homesharing site Airbnb’s decision to approach the city of Washington, DC and offer to collect and remit taxes all the more curious. Even more interesting is that the District hasn’t bothered as yet to amend its laws regarding transient accommodations, meaning the entire industry continues to operate in a legal grey area in the city. Is this actually the company striving to be a good corporate citizen, as they claim? Is this a savvy move on the company’s part to insulate itself within regulatory opening? Or is it nothing more than regularized bribe for the city not to focus regulatory scrutiny on the company’s operations?airbnb+plans

As much as one might think Airbnb’s decision to pay taxes was a tax issue, the tax laws turn out to be something of a red herring. The District of Columbia’s official code imposes a 4.45% excise tax on all temporary lodging, defining that term as “any hotel, inn, tourist camp, tourist cabin, or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients.” Plainly if Airbnb fits anywhere in this statute, it falls under the “any other place” catchall.

Although Airbnb itself directs potential hosts to the taxing provisions, the more interesting questions here arise on the regulatory side, or, more precisely, the zoning side. Washington’s official code delegates detailed zoning regulations to a special Zoning Commission, charged with regulating a plethora of facets of the cityscape. The Zoning Commission in turn prescribes regulations for the permissible use land in the city. Use of a property as a Hotel, Inn or Motel, Bed and Breakfast, Boarding House, or Rooming House each triggers separate requirements. For example, a Hotel license requires just three rooms, but no parking spaces, while an Inn or Motel license requires 30 rooms with the availability of a parking space for each. Boarding House licenses and Rooming House licenses require the holder to offer at least five rooms in addition to meals, while a Bed and Breakfast license, while not having a minimum number of available rooms, apply to “guesthouses, housekeeping cabins and cottages, tourist homes and youth hostels.” Ultimately, none of these licenses seem appropriate for an Airbnb host since all of them require the applicant to register as either corporation or some other form of business and comply with a variety of city sanitary and fire codes.

Instead, potential hosts need a Home Occupation Permit, which allows the holder to conduct limited business or professional activities from a residentially zoned structure. Residential use regulations set out in detail what a Home Occupation Permit holder may and may not do on the premises. Even a cursory reading of these regulations reveals how their drafters intended them to apply: to (very) small-businesses or self-employed persons who operated their income producing activities from a small portion of their home or apartment.

One rule (11-203.4(b)) provides that only 25% of the premises may be used for the owner occupation; how is an Airbnb host supposed to enforce that? Draw lines on the floor or his or her apartment indicating the 25% of floor space a guest can use? Another subset of rules (11-203.6) limits the number and nature of retail sales on the property, while yet another (11-203.5) proscribes most types of outdoor signage. Section 11-203.8 of the regulations seems to offer some relief to potential hosts by providing that the owner may operate a Bed and Breakfast facility (and very kindly providing a dispensation from the floor area limitations mentioned earlier). Unfortunately, this exception does not apply to residences in a “multiple dwelling” (i.e. apartment buildings) and, more importantly, requires the owner to obtain a Bed and Breakfast license.

As things stand there appear to be three legal categories would-be hosts fall into. First, hosts who live in the place they’re renting and have fewer than two guests at a time must get a Home Occupation Permit and a Bed and Breakfast license. Second, hosts who live in the place they’re renting and have three or more guests at a time need special approval from the Zoning Commission and a Rooming or Boarding House license. Third, hosts who don’t live in the place they’re renting need a use variance from the city. The chart below lays out these categories. Hosts also need to remember that city laws don’t do anything to address separate apartment or condominium building rules.

Even the Washington, DC Department of Consumer and Regulatory Affairs (DCRA) admits this legal structure needs updating to reflect current practice. “The process was developed before the advent of services like Airbnb, so some updating to account for emerging business models may be warranted,” a DCRA spokesman conceded.

Given this regulatory patchwork, it seems clear that shoehorning the digital marketplace in transient accommodations into existing law is, at best, a half-hearted solution. Many hosts undoubtedly violate this legal framework, either deliberately or from sheer ignorance. With Airbnb paying taxes to the city, however, it seems unlikely that DC will crack down on violators. Condo boards and building management may be the only people properly incentivized to enforce the current law. And as our history repeatedly teaches us, any legal regime which turns large groups of citizens into scofflaws invites people to treat the rest of the laws with that much less respect.


KipMatthew Kipnis, Boston University School of Law class of 2018

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Raising the Minimum Wage: Look No Further Than Your Own Backyard

May 8th, 2017 in Analysis, Federal Legislation, State Legislation

By: Brynn E. Felix

The United States has a minimum wage problem. In 2015, roughly 2.6 million workers earned at or below the federal minimum wage—a measly $7.25 per hour. The federal minimum has not budged since 2009 and continues to depreciate in value: by 2015 the $7.25 hourly wage had already lost approximately 8.1% of its purchasing power to inflation. With a looming Trump administration likely falling in lock-step with a Republican-controlled House and Senate, it seems safe to predict that the federal minimum isn’t going anywhere for the next four years.

Efforts by Democrats to raise the federal minimum wage to $10.10 largely stalled out, even after a letter signed by 600 economists supported the hike. Citing “close to 17 million workers” who would benefit from the raise, the economists pointed to

“important developments in the academic literature on the effect of increases in the minimum wage on employment, with the weight of evidence now showing that increases in the minimum wage have had little or no negative effect on the employment of minimum-wage workers, even during times of weakness in the labor market. Research suggests that a minimum-wage increase could have a small stimulative effect on the economy as low-wage workers spend their additional earnings, raising demand and job growth, and providing some help on the jobs front.”

Pros & Cons of Increasing the Minimum Wage

In addition to the economic arguments provided by the 600 economists who favor raising the minimum wage, proponents also point to the fact that the current minimum wage fails to provide a living wage for workers living in urban centers and places with higher costs of living. Indeed, the value of the minimum wage has significantly declined since the 1960s and 1970s. Moreover, low wage earners are more likely to spend the majority of their income locally, which benefits the local economy. In addition to the economic arguments, proponents have effectively framed the narrative as pursuit of economic justice. Too many working families are struggling to make ends meet, juggling multiple jobs with no relief in sight.

o-MINIMUM-WAGE-facebookCritics claim that forcing businesses to raise the minimum wage will inevitably cause them to reduce their employment ranks, rendering “many less skilled workers unemployable.” A wage hike would mean fewer jobs and an increase in unemployment. In response to Senator Bernie Sanders’ proposal to raise the federal minimum wage to $15, the Heritage Foundation claimed that approximately seven million full time jobs would be eliminated by 2021. Moreover, doubling the federal minimum wage would have a greater impact on states with lower costs of living. In a nutshell, opponents decry minimum wage increases as “’feel good, sound good’ policies that appease the masses, harm businesses, and displace workers.”

Fight for 15

The Republican-controlled 114th Congress needed no further convincing.

Seeing their prospects fade at the federal level, minimum wage advocates have reacted by strategically shifting their efforts to local reforms. Municipalities in particular have become the forefront of the movement for a living wage.

Seattle was the first major metropolitan city to enact a minimum wage hike amid the failed effort to increase the federal minimum wage. In early 2014, Seattle saw months of contentious debates and public demonstrations, bringing thousands of strikers and economic justice activists to the streets. The “Fight for 15” campaign had officially begun.

“It was the experience of a lifetime,” said former McDonald’s worker Martina Phelps. “After seeing my co-workers literally struggling and not having enough money to take care of their children, it was set in my mind that I can do something about this.”

Labor triumphed. By June of 2014, the Seattle City Council unanimously approved a city ordinance that raised the $9.50 an hour wage to $15 an hour. “No city or state has gone this far,” one councilmember noted, “We go into uncharted territory.” The ordinance contains different phase-in schedules that vary by business size: employers with 500 or more employees will pay $15/hour by 2017, while smaller businesses have until 2021 to gradually implement the raise. The first increases took place in April of 2015, while large employers currently pay $13/hour.

Building on Seattle’s success, the Fight for 15 spread like wildfire to other urban centers and state legislatures.

By December 2015 Chicago mayor Rahm Emanuel signed into law an ordinance to raise the city’s minimum wage to $13/hour by 2019. Three months later California legislators enacted a law that will elevate the state minimum wage to $15/hr by 2022. New York legislators followed suit with their own $15/hr measure, which will take effect in New York City by 2018.

In the meantime, the University of Washington’s Evans School of Public Policy and Governance published a study in July 2016, noting that Seattle’s wage increase had elevated the pay of minimum wage workers by nearly 12%, in contrast to a 5% increase seen by workers just outside the city limits. While the preliminary study concluded that low-wage workers’ employment levels and wages rose, the media continued to promote polemic interpretations of the study’s results. Supporters and opponents alike, eager to vindicate their own predictions, used the report to claim victory over their opponents. These two headlines are from the Seattle Times (July 25, 2016) and Forbes (July 26, 2016), respectively:

What actually happened? In reality, by July 2015, data demonstrated that the wage hike had a minor impact on employment and numbers of hours worked, along with significant increases in wages earned. Signs of misleading reporting were documented by the New Yorker: “Last February [2016], the Washington Policy Center and the American Enterprise Institute suggested that several Seattle restaurants were closing in anticipation of having to pay their staff more, though when a Seattle Times report went out to interview the owners she found more mundane causes: a bad location, a rebranding.“

Despite several media outlets prophesizing negative economic consequences of raising the minimum wage, voters in Arizona, Colorado, Maine, and Washington overwhelmingly approved November ballot measures to increase their respective state minimums. In total, 29 states now offer a higher minimum wage than the federal minimum.

Where do we go from here? Oregon may give us a clue.

With a few exceptions, the “Fight for 15” victories largely occurred on Democratic turf. In its article, The Bitter Lesson From Seattle’s Minimum Wage Hike, Investor’s Business Daily lamented:

“[S]uch foolishness seems to have infected the Democratic Party, with its now near-ubiquitous ‘Fight for $15’ campaign…forcing sharply higher wages on troubled local economies where the median wage is low and can have a devastating effect.”

Fears that increasing the minimum wage could harm states with lower costs of living are not unfounded; however, that alone should not be the reason for jurisdictions to reject minimum wage increases. Indeed, Oregon offers an innovative model that addresses concerns about significant economic disparities head on. In March of 2016 the Oregon State Legislature enacted a statewide law that raises the minimum wage, set at $9.25 at the time of passage, to $12.50, $13.50, or $14.75 by 2023—depending on the region. To accommodate both the high cost of living in Portland and the economic differential in nonurban counties, the legislature devised a system that divides the state into three regions: Standard, Portland Metro, and Nonurban Counties. By 2023, the Standard minimum wage will reach $13.50 and will be adjusted annually to compensate for any increases to the Consumer Price Index for All Urban Consumers. The Portland Metro area will hover at $1.25 above the Standard wage, while the minimum wage in Nonurban Counties will be fixed at $1 below the Standard minimum:

This multi-layered approach addresses many of the issues that may arise when different regional economies are subjected to uniform across-the-board wage hikes. By centrally managing wages by locality, Oregon was able to legislate for each sub-region’s unique economic situation. While such a plan might prove to be unconstitutional at the federal level due to the requirement that states be treated equally under the law, this approach may nevertheless provide a blueprint for other states that struggle with satisfying the needs of wildly different demographics.

The Takeaway

One of the greatest silver linings to emerge from the gridlock, obstructionism, and ever-intensifying polarization of Congress is the reminder that inaction at the federal level does not have to stall progress at the local level. Municipalities and local governments have proven to be successful incubators of policies that help the working poor. In Washington, a bold proposal in 2014 to raise the city’s minimum wage to $15 an hour catalyzed momentum for a statewide vote in 2016 to raise the state’s minimum wage to $13 an hour. Similarly, state legislatures like Oregon are adopting wage increases with creative and innovative implementation schemes. Only time will tell what effects these experiments will have—and how the media will attempts to shape the underlying narrative—but in the meantime, local advocates and policymakers should take full advantage of these beautiful laboratories.

Brynn Brynn E. Felix

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