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Open Access Publications from the University of California

UCLA Journal of Gender and Law

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The UCLA Journal of Gender & Law (formerly the UCLA Women's Law Journal), established in 1989, is dedicated to the critical analysis of gender as it is structured and reinforced by the law and legal institutions. Integral to this mission is the promotion of scholarship that attends to the ways that race, class, ability, sexuality, nationality, religion, and other forms of marginalization constitute and intersect with gender as a lived and legal reality. We strive to incorporate critiques of the law as a tool of oppression, as well as solutions for collective liberation that operate within and beyond the law.

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Test to Identify and Remedy Anti-Gay Bias in Child Custody Decisions After Obergefell

For the last three decades, about half of all marriages have ended in divorce, and many of these couples had children. The law concerning parental rights and access to children after divorce has shifted and changed through state law and modern trends. The chief consideration for court decisions involving contested custody and parental responsibility today is what arrangement is in the best interest of the child, or children, involved. When the Supreme Court decided Obergefell v. Hodges in 2015, expanding the rights of same-sex couples by recognizing their fundamental right to marry, the case also expanded the parental rights of gay and lesbian parents nationally. Gay couples use assisted reproduction and adoption to have children; in addition, many children with gay parents were born to these parents in earlier heterosexual marriages or relationships.  After Obergefell, courts will inevitably be faced with increased litigation concerning physical custody and parental decision-making in contested child custody cases involving lesbian, gay, and bisexual (LGB) parents. As courts grapple with case-by-case determinations of the best interest of the children involved in these cases, gay parents will need to remain vigilant to ensure that judicial anti-gay prejudice does not affect those decisions.

In this Article, we propose a new test for gay parents who believe that a court has improperly allowed anti-gay animus to affect its custody/parenting time determination. Part I of this Article describes the judicial standards that have evolved over the last century governing decisions involving child custody in divorce litigation, with particular emphasis on the modern best interest of the child standard. Part II describes emerging constitutional protections for gay people, including the right to marry recognized in Obergefell, and a recognition of the important role that gay parents have in the lives of their children. Properly read, Obergefell protects LGB parents from having their custody rights to their children restricted on account of their sexual orientation. Part III describes pockets of political and judicial resistance to Obergefell in the United States legal system, and suggests that attorneys remain alert to both overt and oblique expressions of judicial prejudice against gays. It also proposes an appellate test for use when LGB parents appeal a trial court decision alleging that their parental rights have been improperly restricted by judges who harbor antigay animus. While the new test would help gay parents who seek to assert their rights in family court, it ultimately protects those with the least amount of power in disputed custody cases: the children involved.

“For His Eyes Only”: Why Federal Legislation Is Needed to Combat Revenge Porn

Nonconsensual pornography causes dramatic and, in some cases, irreversible harm to the victim.  Beyond the obvious embarrassment suffered, victims are often threatened with bodily harm, fired from their jobs, or forced to change their names.  Some have been driven to suicide.

Today, intimate photo-sharing among partners is common, and not coincidentally, revenge porn postings are on the rise.  In the absence of relevant criminal statutes, perpetrators are rarely held accountable for their actions and victims are rarely remedied.  “In the real world, civil lawsuits are no remedy at all,” says Mitchell Matorin, an attorney who has represented revenge porn victims.  Civil litigation is costly, and even if a lawyer is willing to take on a case, the harms inflicted on revenge porn victims often do not fit nicely into existing legal theories of remediable injury.  To address this problem, twenty-seven states have enacted laws that criminalize the distribution of nonconsensual pornography.  However, these state laws vary in scope, and they often contain loopholes, such as prohibiting prosecution when the images originated as “selfies,” or requiring a specific motive of the perpetrator.  This leaves too many victims without a remedy.

One state, Illinois, has crafted a law that addresses these failings. The Non-Consensual Dissemination of Private Sexual Images statute in the Illinois Criminal Code allows a revenge porn victim to recover damages no matter the origin of the images, and requires only an intent to disseminate the image rather than an intent to cause harm.

This Article argues that lawmakers should adopt a federal criminal statute modeled after Illinois’ in order to prevent perpetrators of revenge porn from slipping through the cracks of inadequate state law.  Part II describes how revenge porn has become a widespread problem within the United States, explaining why it should legally be considered a form of sexual abuse and addressing common misconceptions regarding consent in the context of personal-information sharing. Part III discusses the current lack of legal remedies available to revenge porn victims, and finally, Part IV proposes a comprehensive amendment to the United States Code aimed at closing common loopholes in revenge porn laws and providing victims with the recognition and remedies they deserve.

Gender Differences in Negotiation: Implications for Salary Negotiations

Despite incentives aimed at achieving equality for women in the workforce, women continue to lag behind men in terms of pay and leadership positions. This is despite the fact that women, on average, have equal or better educational credentials and offer comparable skill sets to employers.  A variety of causal factors have been postulated for this disparity, including women’s tendency to choose to enter fields with lower pay at higher rates than men, and their greater concern for work-life balance in order to prioritize childcare obligations. However, another contributing factor exists that receives less attention: often, women are not as effective at self-advocacy in the workplace as are men. Women may fear the potential negative social consequences of ardent self-promotion, and this can lead to a reticence to negotiate that results in women receiving significantly less pay for the same work as men.

Part II of this article explores the nature of the gender disparity manifested in the salary negotiations process. Part III discusses a number of culturally dictated gender stereotypes and behavioral norms that can act as obstacles to women’s success in salary negotiations.  Finally, Part IV recommends several strategies and tactics intended to enhance women’s effectiveness in salary negotiations that women may take into consideration.