BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 42 March 2001 Number 2

[Pages 239-290]
SEX IS NOT A SPORT:CONSENT AND VIOLENCE IN CRIMINAL LAW
Cheryl Hanna*

Abstract:  Does consent excuse violence against another? Generally, it does not. Recently, however, criminal defendants charged with violence against their sexual partners have asked courts to treat violent sex or sadomasochism (S/M) as a sport, like prize fighting and hockey. While most courts have refused to do so, a recent New York case, People v. Jovanovic, let stand a ruling that effectively permits a defendant to argue consent as a defense. This Article argues that the liberal argument treating S/M as a matter of sexual autonomy fails to account adequately for the history and practical application of the doctrine of violent consent. It concludes that by recognizing consent in the S/M context, the law is evolving in a direction that could lead to the glorification of sexual violence, rather than the sexual liberation of consenting adults.

[Pages 291-348]
ABRAHAM'S LEGACY: AN EMPIRICAL ASSESSMENT OF (NEARLY) FIRST-TIME OFFENDERS IN THE FEDERAL SYSTEM
Michael Edmund O'Neill*

Abstract:  Congress has expressly directed the United States Sentencing Commission to ensure that the federal sentencing guidelines make allowances for sentences other than imprisonment for certain first-time offenders. The aim of this Article is to demystify the criminal history categories used in that process, to create a working definition of the “first-time federal offender,” and to establish whether, as an empirical matter, such individuals are commonly imprisoned in federal correctional facilities. The data shows that a substantial number of offenders who have no prior convictions are lumped together with offenders who may be recidivists or who may have prior violent felonies. This Article proposes modifications to the criminal history categories, recommending the establishment of a guided downward departure for true first-time offenders, or, in the alternative, creating a new criminal history category for those same offenders.

[Pages 349-390]
CONSTITUTIONALIZING CHEVRON: FILLING UP ON INTERPRETIVE EQUALITY
Erik Andersen

Abstract:  This Note proposes a new approach to constitutional interpretation, arguing that application of the Chevron doctrine to constitutional interpretation is a logical outgrowth of Supreme Court decisions and could harmonize some tensions in the Court’s current doctrines. This proposal would give Congress an explicit role in interpreting the Constitution, while the Court retains its role as supreme interpreter. Additionally, this Note suggests how this method can be used to critique current Court decisions while putting aside the agenda of individual commentators.

[Pages 391-420]
NOT KIDS ANYMORE: A NEED FOR PUNISHMENT AND DETERRENCE IN THE JUVENILE JUSTICE SYSTEM
Christine Chamberlin

Abstract:  This Note surveys the history of the juvenile justice system, including the philosophy behind its formation and its similarities and differences with the adult criminal system. Recently, many states have implemented changes to their juvenile justice systems. This Note advocates a system like that of Massachusetts, where certain juvenile defendants are automatically transferred to adult court, and where other juvenile defendants, who remain in juvenile court but meet certain requirements, may receive a blended juvenile and adult sentence. This system retains the goal of rehabilitation of juvenile delinquents while also focusing on punishment and deterrence.

[Pages 421-454]
INDIVIDUAL LIABILITY OF SUPERVISORS FOR SEXUAL HARASSMENT UNDER TITLE VII: COURTS' RELIANCE ON THE RULES OF STATUTORY CONSTRUCTION
Scott J. Connolly

Abstract:  The United States Supreme Court has not considered the issue of individual liability under Title VII for workplace sexual harassment. There is, however, almost complete consensus on this issue among the federal courts. Only the United States Circuit Court of Appeals for the First Circuit has refused explicitly to rule on the issue. Several district courts in the First Circuit allow supervisors to be sued in their individual capacities under Title VII. Other district courts, however, have rejected such lawsuits. This Note reviews the case law addressing the issue of individual liability of supervisors under Title VII, and concludes that Title VII imposes liability only on employers. Simply stated, supervisors cannot be sued as individuals under Title VII.

[Pages 455-484]
BRINGING ORDER TO CYBERMEDICINE: APPLYING THE CORPORATE PRACTICE OF MEDICINE DOCTRINE TO TAME THE WILD WILD WEB
Brian Monnich

Abstract: The model of health care offerings via the Internet, generally known as “cybermedicine,” may prove to be a significant advance in the provision of medical services. At present, however, cybermedicine presents many potential hazards to “cyberpatients” because it is virtually unregulated. This Note asserts the need for a revival of the corporate practice of medicine doctrine to address these dangers. The corporate practice of medicine doctrine prohibits corporations and other lay entities from employing physicians. This Note examines the various kinds of cybermedicine, describes the advantages and disadvantages flowing from the practice of medicine over the Internet, and advocates the application of the corporate practice of medicine doctrine to cybermedicine as an intermediate regulatory measure to stem the dangers and abuses that currently abound in cybermedicine.