UCLA Journal of Gender and Law

Drawing on the author’s own experience of gender discrimination, harassment, and retaliation during her clerkship and in the years following it, this Article analyzes the deficits in current federal and D.C. judicial reporting systems to demonstrate the urgent need for reform. This Article focuses on federal policies, because those would be affected by the JAA, while also addressing D.C. policies, based on the author’s personal experience. This Article then analyzes the strengths and weaknesses of the JAA and specifically argues that D.C. judges should be covered under the proposed legislation. Finally, the author reflects on her attempts to report the misconduct, how the system failed her when she tried to report, and her efforts to seek justice for herself and accountability for the misbehaving former judge.

Based on an immense and heretofore underutilized archive of trial transcripts and legal briefs, this Article provides the first holistic study of sexual assault trials in the Jim Crow south. It reveals that, rather than merely procedures for determining legal guilt or innocence, these trials were also (and often primarily) rituals for discerning which member or members of a community had violated that community’s social mores in such a way as to warrant violence—the violence of ostracism, incarceration, or death. Sexual assault certainly represented a violation of the Jim Crow south’s social mores, but to many it was not the most significant such violation. Rather, transgressing the race, sexual, gender, and class hierarchies on which Jim Crow society depended was the far greater crime. To juries in the Jim Crow south, a white woman behaving promiscuously or a Black woman refusing to act subordinately might be more deserving of punishment than her rapist. Likewise, a white man who acted too effeminately or a Black man who acted too familiarly with white women might deserve punishment regardless of whether he had committed a rape; indeed, his violation of these social mores might be more significant to his neighbors than rape.

For generations, scholars have closely examined sexual assault trials. Undergirding nearly all of their analyses is the presumption that these trials represent sites where adversaries debate whether the interaction between the accused and the accuser was, in fact, sexual assault. According to this idea, attorneys and witnesses in such trials seek to persuade jurors that their version of the facts is actually true, and jurors seek to determine whether a sexual assault actually occurred. In other words, implicit or explicit in nearly all of the voluminous scholarship on sexual assault trials is the idea that, for all of the problems with these trials, the pursuit of truth—the resolution of the question of what actually happened—is their impetus, or at least one of their animating features. Even scholars that argue that jurors rely on dominant cultural myths or narratives in deciding rape trials appear to presuppose that jurors do so in order “to assess what ‘really happened’” or decide whom they will “ultimately believe.” Likewise, even those scholars a generation ago that approached trials (sexual assault trials or otherwise) from a “legal storytelling” perspective—rejecting the idea of a unitary, objective truth and arguing that decisionmakers choose among truths—still presumed that jurors seek a truth.

This Article suggests that, at least in a particular place and at a particular moment in time, this idea is wrong—or, rather, that it is incomplete, reflecting only a fraction of what was happening. It posits that sexual assault trials at this place and time, in fact, consisted of two distinct yet complementary procedures: an inquiry to determine whether a sexual assault had occurred (called the “surface trial”) and an inquiry to determine whether the accuser or the accused deserved punishment for violating a rigid but unwritten social code (called the “shadow trial”). In the shadow of the surface trial was a simultaneous inquisition in which community members adjudicated violations of social mores. Shadow trials were largely unconcerned with the demands of procedural or substantive law, but nonetheless featured highly ritualized hearings for assessing perceived wrongdoing. These shadow trials took place in courthouses, featuring lawyers and a judge, but they were fundamentally not legal procedures; nor were they lawless. They were, rather, procedures for determining the guilt or innocence of multiple parties in an extralegal sense. Often, the shadow trial supplanted the surface trial as the primary inquiry; often, the outcome of the shadow trial informed the verdict of the surface trial. This “shadow trial” model challenges legal scholars to think more expansively about how trials—and the law itself—are part of broader systems and structures of oppression; about how ostensibly neutral legal procedures serve to reinforce society’s punitive hierarchies; and about how the language of the law can obscure this reality.

This Article argues that inaccurate ideas about women and work during economic downturns, including misconceptions about which women work and how they work, lead to inadequate policy responses and ultimately hurt working women. New Deal-era federal women’s aid programs, designed around an artificial picture of the average working woman, did not provide the same robust level of jobs support that men’s programs provided. Similarly, the major federal stimulus package during the Great Recession invested in male-majority industries but failed to invest in industries dependent upon women’s labor, in part because of the misconception that working women were already “winning” the jobs race. Framing the average working woman during the pandemic recession as a remote worker in a two-income household has the potential to steer federal policy away from avenues that would help the majority of women workers who are not remote workers in two-income households. Recovery efforts during the Great Depression and the Great Recession were gender-informed and effective, but biased toward men. These recovery efforts were concentrated in male-majority industries and consequently led to men’s employment recovering long before women’s employment did. Because pandemic-related job losses have been so unevenly borne by women, gender-informed recovery policies are not only justifiable, but necessary to achieve equitable recovery.

This Article also questions the speculation, articulated in an influential paper by a group of economists, that the COVID-19 pandemic will accelerate changing social norms and lead to greater gender parity by increasing the number of people who are accustomed to working remotely and driving men to take on additional childcare responsibilities. The conditions following theGreat Depression and the Great Recession were more conducive to changing gender norms and expectations because both events disrupted traditional male-breadwinner models of the family and resulted in large numbers of families in which the woman was employed and the man unemployed. But neither resulted in lasting improvements in gender equity in the home or at work. Both events were followed by a reactionary impulse to return to a traditionally gendered view of the organization of labor. The pandemic recession does not present the opportunity to disrupt gender norms by creating more households headed by women breadwinners, yet the risk of a conservative reversion to more traditionally gendered norms is still present.