"Sex is to rape, as kissing a hand is to a punch in the mouth."
Below the Belt: A Biweekly Column by NOW President Kim Gandy
June 27, 2007

As I searched for information about Judge Jeffre Cheuvont's ruling that rape survivor Tory Bowen could not use the word "rape" in testifying against her assailant, I ran across the above title of an unrelated blog post -- and it really hit home. Yes, the same body parts are involved in rape and sex (also in a kissed hand and a punch in the kisser), but with completely different motivation and impact. "Rape" isn't the only word the judge banned -- Cheuvont also prevented her (and the prosecutors) from saying sexual assault, victim, assailant, and sexual assault kit on the grounds that it might prejudice the jury.

Meanwhile, Tory is being forced to search for other ways to describe being raped. To describe what happened to her as sex, she says, feels like another assault.

Another scary part of this thing is that jurors aren't being told about the ban. Will they think "how can we convict him of rape, when the victim herself doesn't even call it that?" Even more frightening is that this approach is trendy -- Dahlia Lithwick at Slate reports that a growing number of defense attorneys are requesting that the word rape be banned in courtrooms, from the mouths of both prosecutors and witnesses, and judges are agreeing.

Aside: Apologies to readers for focusing yet again on the courts, but with recent news from that arena being so consistently and egregiously anti-woman, can you blame me?

Moving on from Cheuvont (who will not be up for a vote from Nebraskans until 2010) -- and from one horror show to another, the Bush administration's push to make Leslie Southwick a U.S. Court of Appeals judge promises no relief from the bad news.

Southwick was nominated by Bush & Co. for a seat on the Fifth Circuit (one step below the Supreme Court), which hears cases from Mississippi, Louisiana, and Texas. Just take a gander at his track record. When he was a state-level Court of Appeals judge, he sided with a white employee who was fired for using a racial epithet to describe an African-American coworker. Southwick didn't just support the employee's reinstatement, he even wanted back pay for her, because administrators had "overreacted" in firing her. The N-word, he explained, is merely "somewhat derogatory," and anyway, he opined, the worker who used it wasn't really motivated by any "racial hatred or animosity... towards her coworker or towards blacks in general." When this case went to the state Supreme Court -- no progressive trailblazer -- Southwick's ruling was unanimously overturned.

In another case, Southwick converted his own homophobia into Mississippi law -- supporting a custody change from the primary-caretaker mother to the father because of the mother's "homosexual lifestyle." Southwick decided that Mississippi had "spoken on its position regarding the rights of homosexuals in domestic situations" in banning same-sex adoption, and he extended that reasoning to deny custody to the birth mother, insisting that a parent's "morality" had to be considered in a custody case, and deeming it his prerogative to keep this child from being "reared in a lesbian home."

Southwick refuses to apologize for any of his past rulings because to do so would be "[changing] a horse in midstream." And Bush wants this racist, homophobic horse on the court that is one step below the Supreme Court! The most recent word on this situation is that the Senate Judiciary Committee has postponed a vote on Southwick's nomination for the fourth time.
Word on the street? Not good. Rumor has it that Senate Democrats are negotiating with the White House to reduce Southwick's nomination from the Court of Appeals to the lower federal district court. If you ask me, this is a lose-lose situation. Why? Because either way, Southwick can be counted on to rule like a grade-A bigot, and the people looking for a fair trial are the losers.

Even if Bush doesn't get his wish, and agrees to nominate Southwick instead as a federal district court judge, then we'll be bracing ourselves for Southwick's rulings on sex and race discrimination and sexual harassment claims in the federal circuit. A horror show coming soon to a court too near to all of us, for sure.

Beyond Southwick and the Nebraska judge, I couldn't go without mentioning yet another chilling decision from the U.S. Supreme Court, which ruled earlier this month that home care workers don't deserve overtime pay under federal law. Home care workers number over a million in this country. Half are people of color, and ninety percent are women, according to 2000 census data. The Supreme Court struck down a Court of Appeals decision that had supported the home care worker, Evelyn Coke, who had been paid less than minimum wage and had been refused federally mandated overtime pay.

Astonishingly, the Supreme Court ruled that these workers, who provide essential in-home care for elderly and disabled people, do not deserve the protections of federal law because of the industry they work in. Our work is cut out for us -- to fix this ruling and restore basic rights to those who provide such important care for all of us. Watch your email box for a NOW Action Alert in the near future, as we work toward legislation to repair the damage that has been done.

Frightening judges, scary strategies and rulings -- but hopefully not paralyzing. Rather, they should spark us into motion, and indeed already have. NOW has joined several national human and civil rights organizations in an outcry against Southwick's nomination. In response to another recent Supreme Court decision assaulting the rights of women and minority workers, which was the topic of my last "Below the Belt" column, House Democrats (notably, eleven Congresswomen and five Congressmen, and lead sponsor Rep. George Miller) have already introduced a corrective bill, the "Ledbetter Fair Pay Act of 2007." So the bad news might keep coming, but we've got to keep coming back at them by supporting and pressuring the political leaders with the power to write justice back into the storyline.