Wednesday, February 14, 2018
Dalhousie law professor Craig’s impeccably researched book, which analyzes how Canada’s criminal justice system contributes to the trauma of sexual assault victims, is an outstanding work that dovetails perfectly with the #MeToo movement. Working from interviews with legal professionals, analyses of problematic judicial decisions, and reproductions of stomach-turning trial transcripts, Craig (Troubling Sex) skewers the still prevalent notion that Canadian sexual assault survivors enjoy a free pass in the courts. By reproducing contemporary accounts of aggressive cross-examinations that “whack the complainant,” unsavory defense strategies intended to intimidate complainants into withdrawing their cases, and reliance on rape myths—revealing clothing, alcohol use, past sexual history—in criminal trials, Craig expertly makes the case that, despite progressive law reforms, the legal system remains predominantly unsafe for survivors. Combining academic rigor with an eminently readable style that is cohesive and fearless (prominent lawyers and judges are pointedly called to account), Craig makes several proposals—including improved education and training for all judicial system participants, public reporting of all decisions, and making courtroom culture less imposing—that would mitigate harm without impinging on the rights of the accused. This is a must-read title for judges, lawyers, politicians, courtroom staff, and anyone concerned about sexual violence.
Tuesday, February 13, 2018
Rigel Christine Oliveri, Sexual Harassment of Low-Income Women in Housing: Pilot Study Results
Sparked by the #metoo movement, we are once again having an important national discussion about the prevalence of sexual harassment in America. The conversation is a necessary starting point, but it’s focus on high-status workplaces overlooks other contexts in which sexual harassment occurs. This Article focuses on one such area: the sexual harassment and exploitation of low-income women by their landlords. Although it is a significant national problem, there have been no reliable empirical studies about its nature and prevalence.
The lack of information causes difficulties. Policymakers and legislators cannot address sexual harassment in housing if they do not know basic facts about it such as how common it is, who is likely to experience and perpetrate it, and what form it takes. The law, much of which is borrowed from the employment context, remains underdeveloped and unresponsive to the unique challenges presented by housing harassment.
This Article and the Pilot Study upon which it is based seek to remedy this situation. The Study involved detailed interviews of one hundred randomly selected low-income women. These interviews reveal important insights into who is most at risk for housing harassment, the characteristics of the landlords who engage in it, the form it is likely to take, and how women respond to it.
The Study results both challenge and improve upon assumptions made by more theoretical scholarship, and lead to suggestions for changes to both law and policy. In particular, the results underscore the argument for treating sexual harassment in housing as a phenomenon that is entirely different from employment harassment, with a new framework that recognizes the economic reality of low-income housing. From a policy perspective, the results reveal the need for greater regulation of the landlord-tenant relationship, and the necessity of providing more resources to the most vulnerable renters.
Wednesday, February 7, 2018
“Carceral feminism” refers to a reliance on policing, prosecution, and imprisonment to resolve gendered or sexual violence. A very early manifestation of this approach came with the UK’s Criminal Law Amendment Act of 1885. The act responded to public concern over slim evidence of the entrapment of British girls into the sex trade by raising the age of consent and outlawing “gross indecency” — which, as it happens, also gave the government a more effective means to arrest suspected gay men. (Famously, this was the law under which Oscar Wilde was convicted.)
The carceral impulse has arisen in each of feminism’s three waves and is most visible among today’s so-called sex-work “abolitionists,” who argue against decriminalizing sex work and instead for the criminalizing the purchase of sex. While intended to aid sex workers, in practice this approach leads to the isolation of workers from their systems of support and prevents them from earning a living.
Elizabeth Bernstein, a professor of women’s studies and sociology at Barnard, was one of the first to use the phrase “carceral feminism.” It appears in her 2007 article “The Sexual Politics of the ‘New Abolitionism.’”
She describes carceral feminism as failing to address the underlying economic conditions that exacerbate gendered violence. Neoliberalism shaped “a carceral turn in feminist advocacy movements previously organized around struggles for economic justice and liberation,” she writes. Instead of pushing for the preconditions necessary for feminist liberation, the “carceral turn” restricts feminist horizons to the individual and the punitive, rather than the collective and redistributive.
What does carceral feminism look like in practice? In the 1970s, class-action lawsuits filedby women against police departments that either ignored domestic violence calls or provided inadequate services — however well intended — spawned an approach to the issue of domestic violence overly reliant on prisons and punishment. Such cases resulted in the 1994 Violence Against Women Act, or VAWA for short, which was included in the largest crime bill in US history. It was a $30 billion piece of legislation that, among other things, funded the hiring of 100,000 new police officers across the country.
What grew from carceral feminism’s efforts to combat domestic violence should concern us all. Another example: Today, nearly half of all states have a mandatory arrest law, which requires that if someone places a call to law enforcement about domestic violence, the police must arrest someone in response.
Monday, February 5, 2018
I'd been waiting to hear from Catharine MacKinnon on the MeToo movement. As one of the founders of the law of sexual harassment, I was quite interested in her view. She is much more optimistic about the impact of MeToo than I had expected.
Catharine MacKinnon, NYT, #MeToo has Done What the Law Could Not
The #MeToo movement is accomplishing what sexual harassment law to date has not.
This mass mobilization against sexual abuse, through an unprecedented wave of speaking out in conventional and social media, is eroding the two biggest barriers to ending sexual harassment in law and in life: the disbelief and trivializing dehumanization of its victims.***
Many survivors realistically judged reporting pointless. Complaints were routinely passed off with some version of “she wasn’t credible” or “she wanted it.” I kept track of this in cases of campus sexual abuse over decades; it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one-fourth of a person.
Even when she was believed, nothing he did to her mattered as much as what would be done to him if his actions against her were taken seriously. His value outweighed her sexualized worthlessness. His career, reputation, mental and emotional serenity and assets counted. Hers didn’t.
It is widely thought that when something is legally prohibited, it more or less stops. This may be true for exceptional acts, but it is not true for pervasive practices like sexual harassment, including rape, that are built into structural social hierarchies. Equal pay has been the law for decades and still does not exist. Racial discrimination is nominally illegal in many forms but is still widely practiced against people of color. If the same cultural inequalities are permitted to operate in law as in the behavior the law prohibits, equalizing attempts — such as sexual harassment law — will be systemically resisted.
This logjam, which has long paralyzed effective legal recourse for sexual harassment, is finally being broken. Structural misogyny, along with sexualized racism and class inequalities, is being publicly and pervasively challenged by women’s voices. The difference is, power is paying attention.
And on what law reforms are needed:
Sexual harassment law can grow with #MeToo. Taking #MeToo’s changing norms into the law could — and predictably will — transform the law as well. Some practical steps could help capture this moment. Institutional or statutory changes could include prohibitions or limits on various forms of secrecy and nontransparency that hide the extent of sexual abuse and enforce survivor isolation, such as forced arbitration, silencing nondisclosure agreements even in cases of physical attacks and multiple perpetration, and confidential settlements. A realistic statute of limitations for all forms of discrimination, including sexual harassment, is essential. Being able to sue individual perpetrators and their enablers, jointly with institutions, could shift perceived incentives for this behavior. The only legal change that matches the scale of this moment is an Equal Rights Amendment, expanding the congressional power to legislate against sexual abuse and judicial interpretations of existing law, guaranteeing equality under the Constitution for all.
Tuesday, January 30, 2018
Joan Biskupic, #MeToo in the Courts: Sexual Misconduct Kept Under Wraps, CNN Investigation
The abuse women have suffered in the nation's courthouses has been a largely untold story. And its system for complaints -- where judges police fellow judges -- is a world so closely controlled and cloaked in secrecy that it defies public scrutiny.***
Rarely do sexual misconduct allegations against federal judges become public, . . . as they did in late 2017, with myriad complaints against California-based US Appeals Court Judge Alex Kozinski that drew national attention in the current #MeToo moment, forcing his resignation....CNN compiled and reviewed nearly 5,000 judicial orders related to misconduct complaints and available online over the past 10 years. The documents, covering an array of misbehavior beyond sexual misconduct, are remarkably short on details.The CNN analysis found that:
- Very few cases against judges are deeply investigated, and very few judges are disciplined in any way. In many years, not a single judge is sanctioned.
- None of the actual complaints (more than 1,000 are filed annually) are made public. In the public judicial orders, claims are sparingly summarized, and accused judges' names rarely appear. Some orders refer to "corrective action" by a judge without saying what happened.
- Judicial orders are dumped onto circuit court websites as a series of numbered files with no indication of the allegations, person complaining or outcome. The practice makes it even more difficult to identify the most serious misconduct cases hidden among the opaque lists of documents because each order must be opened and individually read to gain even minimal information about the nature of the complaint.In the 12-month period that ended September 30, 2016, there were 1,303 complaints filed. Of those, only four were referred to a special committee for the most serious level of investigation, according to the Administrative Office of the US Courts. In 2015, of the 1,214 complaints, four went to a special committee.Going back to 2006, fewer than 10 cases annually were deeply investigated and even fewer resulted in disciplinary action. In six of the past 11 years, not a single judge was reprimanded, suspended or otherwise sanctioned for misconduct.
Monday, January 29, 2018
In light of Kesha's dramatic performance at last night's Grammy Awards, some excerpts and commentary on her lawsuit.
Kesha's producer Dr. Luke sued her for breach of contract, and Kesha alleged sexual assault and drug-related assault against the producer grounds for terminating the contract. Reading between the lines, it seems the judge, Shirley Werner Kornreich, thought Kesha was making up the allegations in order to get out of a contract for better profits elsewhere.
At a quick glance, it looks like Kesha's counterclaims of assault were dismissed for lack of subject matter jurisdiction in NY, with some dicta about lack of merit, and for statute of limitations for the assaults. The breach of contract action is still proceeding through contentious discovery.
Lucia Graves, Guardian, The Kesha Ruling is Offensive, Dismissive, and Utterly Predictable (Apr. 7, 2016)
To the non-legal mind, Kesha’s court case is eminently reasonable. She would like to be unshackled from a decade-old contract tying her to producer and collaborator Lukasz Gottwald (aka “Dr Luke”), a man she says has drugged, raped and psychologically abused her from the time she was 18. Specifically, she would like to be freed from working with his company Kemosabe, a subsidiary of Sony, explaining in a recent injunction request: “I know I cannot work with Dr Luke. I physically cannot. I don’t feel safe in any way.” (Gottwald has consistently denied all allegations.)
It doesn’t take a legal genius to determine that even if proving she was raped is an impossibility, she should be taken very seriously when she says she feels unsafe working with this man. But the legal mind presiding over her most recent case disagrees because, as it turns out, there are a million legal reasons why her personal story can’t be heard in any meaningful way. That her attorneys were beholden to these rules, stuck making a legal argument that didn’t reflect the severity of what she says happened to her, is an indictment of our justice system and how we handle rape survivors.
In a ruling Wednesday, New York supreme court justice Shirley Kornreich dismissed Kesha’s claims in the case on a litany of technicalities. Kornreich threw out the rape claims on the grounds that any abuses happened “outside New York and beyond the legal time limit”. She also found that Kesha’s claims that Gottwald emotionally abused her didn’t clear an absurdly high bar for intentional infliction of emotional distress.
Kesha's allegations, from Gottwald v. Sebert,
Kesha alleges that "soon after" she moved to Los Angeles in 2005, Gottwald began to make sexual advances, and forced her to take drugs and alcohol so he could take sexual advantage of her while she was intoxicated. While Kesha's CCs allege that she was sexually, physically and verbally abused by Gottwald for a decade, she describes only two specific instances of physical/sexual abuse. Kesha alleges that "one occasion" was when Gottwald "forced" her to snort an illicit drug before they boarded an airplane, after which Gottwald "continuously forced himself on" her during the flight, while she was intoxicated. CCs, 26. In the other incident, Gottwald allegedly told her to take "sober pills," which were a date rape drug (GHB), after which Kesha. believed Gottwald had raped her when she was unconscious because she woke up naked, sore and sick in his hotel room, with no memory of how she got there. This occurred in 2005.
Kesha allegedly "immediately" called her mother and told her mother that she had been raped and needed to go to an emergency room. Kesha does not deny that the alleged airplane and rape incidents took place in 2005 and 2008. .... Kesha expressly states that she "never dared talk about, let alone report, what Dr. Luke had done to her,'' except purportedly telling her mother about the rape. CCs, ilil27, 28 & 41. She conclusorily alleges that the Sony Parties knew of, should have known about, ratified and concealed Gottwald's abuse, before and after Kemosabe was formed. She further alleges that she kept silent about it because Dr. Luke threatened to destroy her career and her family if she told anyone. [FN: The only other specific "attack" allegedly occurred in Gottwald's Malibu house, when Gottwald screamed, threatened, thrashed his arms violently and backed her into a comer, which frightened her.]
With respect to.verbal abuse, Kesha alleges that Gottwald told her that she was worthless and inferior to other recording artists with whom he worked, and insulted her songwriting, vocals, clothing, weight, body and appearance. He allegedly denigrated her worth by saying that she would be nothing without him and that there were "a million girls out there like you." He reportedly criticized her weight "incessantly" and instructed her
to stop eating in front of others. In January 2014, Kesha entered a rehabilitation treatment center, where she claims she was diagnosed with bulimia nervosa, severe depression, post-traumatic stress, social isolation and panic attacks, which she blames on Gottwald's alleged abuse.
The judge's response on whether this was a gender-based hate crime:
The court agrees that the 3rd and 6th CCs fail to allege gender-motivated violence. Although Gottwald's alleged actions were directed to Kesha, who is female, the CCs do not allege that Gottwald harbored animus toward women or was motivated by gender animus when he allegedly behaved violently toward Kesha. Every rape is not a gender-motivated hate crime.
FN. Kesha cited one case, in which the court upheld gender-based employment discrimination, retaliation and hostile work environment claims based on deprecatory, vulgar and offensive remarks about women, including that they were useful only for administrative services and sex. Anderson v Edmiston & Co., Inc., 131 AD3d 416 (1st Dept 2015). Here, there are no facts to support Gottwald's animus toward women. Gottwald is alleged to have made offensive remarks about Kesha's weight, appearance and talent, not about women in general. Askin v Department of Educ. of the City of NY, 110 AD3d 621, 622 (1st Dept 2013) (no age-related animus shown where only allegations were that plaintiff 54 years old and was treated adversely or less well than others); Bennett v Health Mgmt Sys., Inc., 92 AD3d 29 (1st Dept 2011) (plaintiff mustdemonstrate discriminatory motive to support City HRL claim); Serdans v NY and Presbyterian Hospital, 112 AD3d 449 (1st Dept 2013) (no disability-based discriminatory animus shown by remarks that plaintiff brought her situation upon herself or should take her assets elsewhere). Although Kesha, again in conclusory language, alleges that Gottwald is known to abuse other women, she does not allege discriminatory motive or violence toward others.
SurvJustice, which helps university women report assault, joined with Equal Rights Advocates and the Victim Rights Law Center to file the suit, which argues that the changes are discriminatory, violate federal law and are having a “chilling effect” on assault reports. In addition, schools are either not responding to the fewer complaints or not taking action as quickly, according to the suit.
The suit was filed Thursday in the Northern District of California against DeVos, the Department of Education and Candice Jackson, acting assistant secretary for civil rights at the department.
The suit argues that DeVos and Jackson hold “discriminatory stereotypes” about women and are convinced that many who report sexual abuse or assault “misunderstood a harmless romantic advance,” are lying or later regretted a “consensual sexual encounter.”
This “discriminatory mindset not only motivated decision makers at the department, it flows from the top of the Executive Branch,” the complaint adds, referring to President Donald Trump.
DeVos issued a new policy in September increasing protections for those accused of sexual assault in kindergarten through college. She said that the Obama administration hadn’t ensured the rights of the accused and moved to adopt what she termed “fundamental fairness.” Shortly before the changes, DeVos called the 2011 Obama-era policies addressing campus sexual assault “shameful” and “wholly un-American.”
She raised the standard of proof for accusers from a “preponderance of evidence” to “clear and convincing evidence.” The new guidelines also allowed even cases of sexual assault to be settled by mediation.
Victims’ rights and women’s rights groups sued Education Secretary Betsy DeVos on Thursday, saying that rules that she issued last year to guide campuses on how to manage sexual assault complaints violated federal law and discriminated against accusers.
Three organizations, represented by prominent civil rights litigators, filed a complaint in the Northern District of California outlining ways that the guidance issued by Ms. DeVos in the fall had had a “chilling effect” on campus sexual assault investigations.
Since the guidance was issued, the groups charged, accusers have been less inclined to pursue sexual assault cases, and colleges have demonstrated a lack of urgency and clarity in pursuing them.
In September, Ms. DeVos rescinded Obama-era guidance on how colleges should manage the investigations under Title IX, the federal law that prohibits sex discrimination and governs the rules on investigating sexual assault on campus.
Thursday, January 25, 2018
Dr. Lawrence G. Nassar was lauded as the go-to doctor for the United States’ best gymnasts. After he pleaded guilty to multiple sex crimes, Judge Rosemarie Aquilina cleared her docket to give each of his accusers a chance to speak at the sentencing hearing. More than 150 women, including several Olympians, confronted Dr. Nassar in the courtroom and spoke of their abuse. It took seven days.
It was an extraordinary use of the courtroom — and a new way of thinking about justice.
On today’s episode: Emily Bazelon, who covers legal issues for The New York Times Magazine.; Makayla Thrush, a former gymnast who made a statement at the sentencing, spoke to Sabrina Tavernise, a Times reporter.
Judge Aquilina, who has now allowed nearly 140 girls and women, including several prominent Olympic gymnasts, to give statements against Dr. Nassar, leaned forward from the bench. She smiled at the gymnast, Bailey Lorencen, and delivered her own heartfelt statement in a manner and tone befitting a therapist.
“The military has not yet come up with fiber as strong as you,” Judge Aquilina told Ms. Lorencen, calling her a “heroine” and a “superhero.” She added: “Mattel ought to make toys so that little girls can look at you and say, ‘I want to be her.’ Thank you so much for being here, and for your strength.”
Belying the stone-faced image of dispassionate jurists, Judge Aquilina has emerged as an unusually fierce victims’ advocate in a sentencing hearing that has drawn national attention for the scope of Dr. Nassar’s abuse and for the role that institutions like U.S.A. Gymnastics and Michigan State University played in employing him for decades.
Judge Aquilina’s vow to let every victim speak has also unexpectedly turned the hearing into a cathartic forum that has emboldened dozens of women who had remained silent to come forward with accounts of abuse by Dr. Nassar. Court officials initially had expected 88 young women to speak when the hearing began last week, but the number is expected to top 150 by the time these proceedings conclude.
Judge Aquilina, 59, who has written crime novels and served 20 years in the Michigan Army National Guard, has offered encouragement, consolation and tissues. She has made no secret that she wants Dr. Nassar to spend the rest of his life suffering in prison.
And, in an extraordinary session streamed live on the internet over several days, she has opened her courtroom to any victim who wishes to speak, for however long she wishes to speak. That goes for their coaches and parents, too.
“Leave your pain here,” Judge Aquilina told one young woman, “and go out and do your magnificent things.”
Stephen Gillers, a professor of law at New York University, said that although judges are often thought of as unbiased and impartial, it is important to remember that this is a sentencing hearing, not a trial. Dr. Nassar, who has already received a 60-year federal sentence for a child pornography conviction, pleaded guilty to several state sexual assault charges and will be sentenced after the “victim impact statements” are finished.
For survivors of rape and abuse, testifying about what they’ve experienced can be a brutal ordeal. They can be badgered and disoriented by defense attorneys on the stand, and have their characters closely prodded and maligned. But Judge Aquilina, again, upended this ritual, enabled by the fact that it was a sentencing hearing, not a trial. She turned obligation into empowerment. She told the women speaking, again and again, how strong they were, how powerful, how full of potential. After Mattie Larson spoke about how Nassar turned “the sport I fell in love with as a kid into my personal living hell,” Judge Aquilina commended her courage. “You are so strong and brave and you are not broken,” she said. “You are glued back together perfectly. Thank you for being part of the sister survivors. Your voice means everything.”
Though many have commended Aquilina for giving victims a forum to speak, one judge who has known her for years criticized her as showing favoritism.
Ingham County Circuit Judge William Collette said Nassar’s sentencing was “the most violative” sentencing proceeding he can recall. Collette questioned why Aquilina would allow women who are not part of the criminal case to address Nassar in court. He also found it inappropriate for her to tell Nassar, “I just signed your death warrant.”
“There has to be some semblance of fairness, no matter how much you hate the person,” Collette said.
“Doing justice is one thing," he said. "It is not a judge’s function to get people healed.”
Wednesday, January 10, 2018
10th Circuit Rejects First Amendment Challenge by Student Expelled for Social Media Comments after Sexual Misconduct
Yeasin v. Durham, 10th Cir., Jan. 5, 2018
Dr. Tammara Durham, the Vice Provost for Student Affairs at the University of Kansas, expelled Navid Yeasin from the university after finding that by physically restraining and later tweeting indirectly but disparagingly about his ex-girlfriend, he had violated the university's student code of conduct and sexual-harassment policy. After Yeasin sued Dr. Durham in Kansas state court, the university reinstated him. Yeasin then sued Dr. Durham in federal court, asserting a claim under 42 U.S.C. § 1983 based on his First Amendment right to freedom of speech and his Fourteenth Amendment right to substantive due process. He argued that Dr. Durham had violated these rights when she expelled him for his off-campus online speech. Dr. Durham successfully moved to dismiss Yeasin's complaint based on qualified immunity. Yeasin appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Yeasin and A.W. dated from the fall of 2012 through June 2013. On June 28, 2013, Yeasin physically restrained A.W. in his car, took her phone from her, threatened to commit suicide if she broke up with him, threatened to spread rumors about her, and threatened to make the University of Kansas's “campus environment so hostile, [that she] would not attend any university in the state of Kansas.” .
For this conduct, Kansas charged Yeasin with criminal restraint, battery, and criminal deprivation of property. On July 25, 2013, A.W. sought and obtained a protection order against Yeasin from the Johnson County District Court. The order was “entered by consent without any findings of abuse.” In August 2013, Yeasin entered a diversion agreement with the state on these charges. Yeasin v. Univ. of Kansas, 360 P.3d 423, 424 (Kan. Ct. App. 2015).
That same month, A.W. filed a complaint against Yeasin with the university's Office of Institutional Opportunity and Access (IOA), alleging that Yeasin had sexually harassed her.... Then, “[a]fter considering the Johnson County District Court's final protection from abuse order,” the IOA decided to issue Yeasin a no-contact order.
The no-contact order informed Yeasin that the university had “received information concerning an allegation that [he] may have violated the University's Sexual Harassment Policy in interactions with University of Kansas student [A.W.].” The letter also put Yeasin on notice that he was “prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [A.W.], her family, her friends or her associates.”
After Yeasin received the no-contact order, he tweeted the following messages on August 15, August 23, and September 5 . . . . On September 6, 2013, Brooks e-mailed Yeasin the following warning: While your August 23rd tweet does not specifically state the name of your ex-girlfriend, this communication is in violation of the No Contact Order. I am writing to you to clarify that any reference made on social media regarding [A.W.], even if the communication is not sent to her or [does not] state her name specifically, it is a violation of the No Contact Order.
All told, Yeasin posted fourteen tweets referring to A.W. without specifically naming her; of these, three were posted after the IOA e-mailed Yeasin and told him to stop.
On October 7, 2013, the IOA issued an investigative report concluding that Yeasin had sexually harassed A.W. in violation of university policy by physically restraining her during the June 28, 2013 incident and by posting the fourteen tweets....
Dr. Durham said her decision was based on several facts supported by the preponderance of the evidence, such as the Johnson County protection order and A.W.'s hearing statement that “her grades had slipped significantly during the summer because of the emotional toll her interactions with Mr. Yeasin had taken on her.” Dr. Durham further relied on A.W.'s statement to the hearing panel that her relationship with Yeasin had “affected her day-to-day on-campus activities, since she [couldn't] enter public campus places without receiving glares and remarks from Yeasin's friends telling her she needs to leave and that her presence is unwanted.”
On these bases, Dr. Durham found that Yeasin's June 28, 2013 conduct and his tweets were “so severe, pervasive and objectively offensive that it interfered with [A.W.]'s academic performance and equal opportunity to participate in or benefit from University programs or activities.” She found that his tweets violated the sexual-harassment policy because they were “unwelcome comments about [A.W.]'s body.” And she found that his conduct “threatened the physical health, safety and welfare of [A.W.], making the conduct a violation of Article 22, A. 1 of the Code.”
As a result of his conduct, Dr. Durham decided to expel Yeasin from the university and ban him from campus.
Yeasin contested his expulsion in Kansas state court. The court set aside Yeasin's expulsion, reasoning that the hearing panel's findings, adopted by Dr. Durham, “were not supported by substantial evidence.” The court also determined that “KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.”
Yeasin's case presents interesting questions regarding the tension between some students' free-speech rights and other students' Title IX rights to receive an education absent sex discrimination in the form of sexual harassment. Department of Education Office for Civil Rights Dear Colleague Letter on Sexual Violence (OCR Sexual Violence DCL), April 4, 2011 (:Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.”). But even if Yeasin could show that Dr. Durham violated his First Amendment rights, we conclude that he has failed to show a violation of clearly established law. We don't decide whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.
Monday, December 4, 2017
Sandra Sperino, Sexual Harassment Cases Often Rejected by the Courts
Many actors, politicians and executives, including at NPR, are now facing sexual-harassment allegations in the court of public opinion.
But in actual courts, such cases filed by workers against their employers are very often dismissed by judges. The standard for harassment under the law is high, and only an estimated 3 percent to 6 percent of the cases ever make it to trial.
That stands in stark contrast to the large pool of people who say they have experienced sexual harassment. In surveys, a quarter to half of women say they've experienced sexual harassment at work. But only a small fraction — estimates range around 5 to 15 percent of women — report their complaints to their employers, largely due to fear of retaliation.
Legal experts say the high dismissal rate of sexual harassment cases also has a chilling effect.
University of Cincinnati professor Sandra Sperino has read roughly 1,000 sexual-harassment cases that were dismissed before they went to trial.
"You'll see case after case where a woman was groped at work and the court will dismiss the case as a matter of law, finding that's not sexual harassment," Sperino says.
In a 1986 decision, the Supreme Court said the behavior needs to be "severe or pervasive" in order to qualify as harassment, whether it's on the basis of sex or race. Sperino says judges' interpretations of what qualifies are out of step with common sense and standard office policies.
Sandra Sperino & Suja Thomas, Boss Grab Your Breasts? That's Not (Legally) Harassment
There remains a sense among Americans that the country’s legal system is well equipped to handle the harassment cases that will likely be brought as more women come forward with accusations, including against celebrities like Matt Lauer and Garrison Keillor. The country has laws protecting people against harassment in the workplace and courts in which those laws are supposed to be enforced. Several high-profile lawsuits — including Gretchen Carlson’s suit against the former Fox News chairman Roger Ailes, which was settled for $20 million — have reinforced this impression.But this notion is misleading. In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts. The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial. How did we get here?
In the 1986 case Meritor Savings Bank v. Vinson, the Supreme Court held that Title VII of the Civil Rights Act prohibits harassment in the workplace based on sex, race, color, religion or national origin. Today, Meritor is viewed as a landmark case that officially recognized sexual harassment as an impermissible form of discrimination.
But in issuing its judgment, the Supreme Court used the words “severe or pervasive” to describe the level of seriousness that conduct must reach before meeting the legal definition of harassment. Those words are not found in Title VII. Instead they are a judicial interpretation of the statute — and have had lasting consequences.
Some conduct is clearly so serious that it always counts as harassment. For example, a supervisor raping an employee has consistently been viewed as “severe” enough to meet the bar. Supervisors who have subjected workers to sexual epithets and taunting every day for a long enough period meet the standard for “pervasive.” Other conduct, by contrast, is never going to meet the threshold — say, if a supervisor asks an employee out on a date once and does not treat her differently after she declines.
In the early and mid-1990s, the federal courts wrestled with the meaning of the “severe or pervasive” standard, and judges during that period created a very high bar for plaintiffs to meet. Unlike typical workers, these judges had lifelong job security and powerful positions. They also did not have the benefit of deliberating with a large group of people with different experiences as a jury does. These early cases have cast a long shadow, and today, some judges appear to simply be following the standards set by earlier courts. These standards have not aged well.
Tuesday, November 28, 2017
Victims of domestic violence would get protections under bills introduced last week by Democrats in the House of Representatives and Republicans in the Senate.
The Democrats' bills would protect the wages and benefits for victims of domestic violence and prohibit landlords from discriminating against victims.
The Republican legislation would protect the confidentiality of the victims by prohibiting the disclosure of addresses in voter records or release of school records to parents who are the subject of personal protection orders. Another bill would exempt victims from jury duty.
"This is a package of bills that will conceal where a victim of domestic violence lives so they can't be stalked," said Sen. Rick Jones, R-Grand Ledge, one of the sponsors of the GOP package of bills. "Most states are doing this now and you have to deal with all the different ways you can find people."
Tuesday, November 21, 2017
In Last Year, 40 Lawmakers in 20 States Publicly Accused by 100 People of Sexual Misconduct or Harassment
Since last year, at least 40 lawmakers – nearly all men – in 20 states have been publicly accused by more than 100 people of some form of sexual misconduct or harassment, a USA TODAY NETWORK analysis found.
The total, which doesn’t include confidential or anonymous complaints or government staffers who have been accused of sexual misdeeds, reflects unprecedented levels of scrutiny on statehouses across the country.
Swift action has been taken against high-profile men, including Hollywood producer Harvey Weinstein, and others accused of sexual harassment. There have been varying degrees of punishment for lawmakers.
Two weeks ago, Kentucky House Speaker Jeff Hoover resigned from his leadership position amid growing pressure over a report that he settled a sexual harassment complaint made by a staff member.
Florida's Senate president earlier this month ordered an investigation into allegations that Sen. Jack Latvala, who is running for governor, made inappropriate comments or touched six women. Latvala has denied the claims.
Earlier this year, Rep. Mark Lovell, a freshman Tennessee lawmaker, resigned amid allegations of sexual harassment. The resignation followed last year's expulsion of former Rep. Jeremy Durham, who had inappropriate sexual contact with at least 22 women, according to an attorney general's investigation.The ways lawmakers have handled sexual harassment and assault allegations has left some experts looking for change.
“The consequence must fit the transgression,” said Jennifer A. Drobac, an Indiana University law professor and expert on sexual harassment cases. “You have to withdraw the privileges, kick them out of Congress or out of the statehouse. Take away the privileges of their employ and their health care benefits.”
Debbie Dougherty, a professor in the Department of Communication at the University of Missouri who has written several reports on sexual harassment, said the latest wave of sexual harassment allegations against powerful men follows a slow but steady stream of similar accusations against officials at FOX News, Uber and the National Park Service.
“It’s like a stone rolling downhill. You see some and then you see some more and then you see a lot,” said Dougherty.
“The problem has been ignored and minimized for so, so many years that I think we’re just seeing the tip of the iceberg.”
Monday, November 20, 2017
An amendment to the tax reform bill working its way through Congress would deny businesses the ability to write off sexual harassment settlements as business expenses.
The Senate tax bill, passed by the Senate Finance Committee Thursday, includes an amendment that says businesses cannot deduct settlements, payouts, attorney fees or other expenses related to sexual harassment or sexual abuse, if such payments are subject to a nondisclosure agreement.
The amendment was proposed by New Jersey Democratic Senator Bob Menendez.
The proposal could affect sexual harassment settlements in a couple of ways. Businesses would no longer be allowed to write off legal settlements, fines and other expenses associated with sexual assault and harassment as "ordinary and necessary business expenses." And by denying these deductions, the amendment would make it costlier for companies to cover up misconduct.
"Right now a company can secretly settle allegations of sexual harassment in the workplace, silencing the victim and making it harder for other victims to come forward to seek justice," wrote Juan Pachon, spokesperson for Menendez, in an email to CNNMoney. "To add insult to injury, these same corporations can actually take a tax break for those payouts. Senator Menendez believes it's wrong for corporations who fail to protect their employees from sexual harassment to be able to write it off as an 'ordinary business expense."
Daniel Hemel, assistant professor of law at the University of Chicago law school, says the amendment's specific mention of non-disclosure agreements seems intended to disincentivize them -- a move that stops short of banning their use altogether.
"This is a pretty soft punishment if you're trying to deter closed agreements," he says. "I would think of this as largely symbolic legislation, but not exclusively so. It may change the way that some subset of sexual harassment cases are handled. But look, if an employer has a very strong preference for a closed agreement, then the tax deduction is unlikely to convince them to have an open agreement."
So at the end of the day businesses can still right off the settlements as long as they have an open, transparent agreement.
The question is what impact what tax restrictions might have on settlements. The availability of the deductions could actually helps victims at it increases or leverages the available monies employers have to settle the cases and provide compensation to victims.
Only a handful of scientific studies have tested the effectiveness of sexual harassment training, which is nearly ubiquitous in American workplaces and intended to help protect workers as well as minimize an employer’s own legal and financial risks.
[R]esearchers don’t have much evidence that sexual harassment training is effective at certain key goals: reducing the number of incidents in a workplace; or helping to shift its culture toward one that takes the issue seriously.
Last year, the Equal Employment Opportunity Commission published a reportthat found only two research papers based on large-scale studies of anti-harassment training in workplaces (rather than in lab settings).
The research showed that the training does have benefits — particularly in increasing awareness of what constitutes sexual harassment and how it should be reported. But it also showed that some efforts had a negative effect, such as a study where male participants were more likely to blame the victim and less likely to report harassment.
That sentiment has also reached Capitol Hill, where harassment allegation reports recently emerged. "Going forward, the House will adopt a policy of mandatory anti-harassment and anti-discrimination training for all Members and staff,” House Speaker Paul Ryan (R-WI) said in a statement Tuesday. “Our goal is not only to raise awareness, but also make abundantly clear that harassment in any form has no place in this institution.”
There’s just one problem with this initiative: It’s probably not going to do anything to curb sexual harassment.
The research from sociology and organizational psychology on the billion-dollar anti-harassment training industry suggests these programs aren’t actually effective at stopping or preventing abuse.
“Over 90 percent of large US employers have harassment trainings in place, but it’s having very little effect, if no discernible effect, on the overall number of harassment complaints that are reported,” Harvard sociologist Frank Dobbin told Vox. “I don’t think we can sit around and wait for training to solve the problem.”
Experts who study workplace harassment view these trainings as more of a strategic defense against future lawsuits than a solution to a pervasive problem.
Now that we’ve had something of an awakening about the pervasiveness of sexual harassment in the American workplace, the conversation is shifting to what to do about it. In many workplaces, the answer seems to be that we need mandatory training and clearer policies.
That seems to be the dominant thinking on Capitol Hill. After more than 1,500 former congressional aides signed a letter calling for action, the House and Senateadopted mandatory anti-harassment training for all lawmakers and staffers. This “sends a clear message: harassment of any kind is not and will not be tolerated in Congress,” Sen. Amy Klobuchar (Minn.), the ranking Democrat on the Senate Rules Committee, said in a statement.
Unfortunately, there is little evidence that training reduces sexual harassment. Rather, training programs, along with anti-harassment policies and reporting procedures, do more to shield employers from liability than to protect employees from harassment. And the clearest message they send is to the courts: Nothing to see here, folks.
Wednesday, November 15, 2017
A lawsuit filed by an anonymous former student claiming that Colgate University unlawfully expelled him in his senior year based on accusations of sexual abuse by three female students was dismissed Wednesday by a federal judge for the U.S. District Court for the Northern District of New York.
U.S. District Judge Lawrence Kahn granted the small liberal arts university in Hamilton summary judgment with respect to each cause of action in the lawsuit brought on by John Doe in August 2015, Doe v. Colgate University, 5:15-cv-1069.The plaintiff’s attorney said he planned to appeal the ruling to the U.S. Court of Appeals for the Second Circuit.
The anonymous plaintiff in the lawsuit attended the university from 2011 until he was expelled during his senior year in April 2015, after being found responsible for three instances of sexual misconduct against the unnamed students that occurred during the 2011-12 academic year. He contended the touching was consensual and not reported to college officials until much later. The plaintiff alleges that in his expulsion, Colgate University violated Title IX—a federal law that prohibits sex-based discrimination in education—and the state’s Human Rights Law. The plaintiff also claimed that the university was in breach of contract, breach of the covenant of good faith and fair dealing, violated the New York General Business Law, as well as demonstrated liability based on equitable estoppel theory and was negligent.
Kahn granted the plaintiff anonymity in April 2016 after a magistrate judge had earlier denied the request. The plaintiff successfully argued that the potential harm he faced outweighed the public’s interest in his being identified.
In his decision released Tuesday, Kahn wrote that the plaintiff “fails to provide sufficient evidence that gender bias motivated Colgate’s decision to expel him.”
The plaintiff had argued that the school was biased in favor of women due to student activism and the reaction to what occurred in Columbia University, when a female student carried a mattress throughout the campus after an inquiry by the university found a lack of evidence that she was raped by a male student. The plaintiff also claimed that Colgate’s investigation was tainted because the primary investigator, Val Brogan, once worked in the Abused Persons Unit at the Onondaga County Sheriff’s Department, and might be biased against men.
Friday, November 10, 2017
Rethinking Campus Response to Sexual Violence: Betsy DeVos, Title IX, and the Continuing Search for Access to Justice
Friday, January 5, 2018 from 8:30 -10:15 am
- Hannah Brenner, California Western School of Law
- Mary M. Penrose, Texas A&M University School of Law
- Verna Williams, University of Cincinnati College of Law
- Cory Rayburn Young, University of Kansas School of Law
- Nancy Chi Cantalupo, Barry University Dwayne O. Andreas School of Law
- Ben Trachtenberg, University of Missouri School of Law
The Trump Administration recently revised the Title IX process addressing sexual violence on college campuses. These revisions, coupled with a Sixth Circuit decision finding due process protections lacking in a university’s Title IX hearing, underscore the importance of ensuring that both victims and accused receive access to justice following allegations of sexual violence. Against the backdrop of these and other current events, this panel considers strategies for rethinking the response from a legal access to justice perspective. As lawyers and legal academics, this topic is important to us, our students, institutions, and society as we strive to find balance between the rights of victims and accused. The voices on this panel offer diverse viewpoints regarding Title IX’s role in addressing sexual violence. Panelists will discuss necessary protections for those bringing claims of sexual violence to ensure fair resolution that causes limited harm to these individuals and their educational opportunities, and protections for those accused of perpetrating sexual violence, recognizing that consequences may extend far beyond the classroom. We challenge attendees to return to their campuses and respectfully engage one another to find meaningful solutions to an issue that, thus far, has failed to adequately guarantee access to justice for all.
For other programs coming up at AALS, see Law and Gender Programs at AALS 2018
Wednesday, November 8, 2017
Elizabeth Sheehy, A Feminist Reflection on Domestic Violence Death Reviews , in Myrna Dawson, ed. Domestic Homicides and Death Reviews: An International Perspective (Hampshire: Palgrave Macmillan, 2017) 373-398.
This paper interrogates what contribution feminist knowledge and praxis might make to assessing and deepening the work of Domestic Violence Death Review Committees (DVDRCs). While DVDRCs may be struck by governments or civil society and may differ in terms of the form and content of their governance, all DVDRCs have their origins in the work of frontline feminist activists who documented the unique features that differentiate woman killing from other forms of homicide and demonstrated that intimate femicide is predictable and therefore preventable. Another uniting characteristic of DVDRCs is that their work is overwhelmingly focused on the deaths of women, since women account for the vast majority of domestic violence deaths -- 83% of such deaths in Canada.
DVDRCs build on the important work of frontline feminists by studying domestic violence homicides, identifying risk factors, ascertaining points of contact with legal and social structures that might have intervened, and making recommendations for change in law, policy, and practice for the purpose of preventing such deaths in the future. Yet when one reads the reports of DVDRCs, feminists, feminist analysis, and feminist practice are almost entirely absent from the overwhelming majority. This paper will investigate what imperatives a feminist framework might bring to this work.
Wednesday, October 25, 2017
Kate Webber Nuñez, Toxic Cultures Toxic Cultures Require a Stronger Cure: The Lessons of Fox News for Reforming Sexual Harassment Law, 122 Penn State L. Rev. (forthcoming):
A series of sexual harassment scandals have disrupted Fox News, causing the departure of some of its top executives and anchors. The upheaval at Fox News, however, came from public disclosure and social pressure; the actual law prohibiting harassment failed to deter or stop the rampant abuse at the network. Legal scholars have previously identified the problems with federal harassment law that could explain why widespread sexual harassment occurred at the highest levels of Fox News. Specifically, the existing literature details how women are forced to report harassment nearly immediately, despite the many career reasons not to, and yet are not fully protected against retaliation when they do. Scholars have also documented that if a victim’s claims do make it to court, the standard for proving harassment is a nearly insurmountable burden to overcome. These identified weaknesses in the law would seem to explain why it failed to act as a stronger deterrent to Fox News. Fox News, however, is headquartered in New York City, a jurisdiction with its own local anti-harassment law that is much more strongly worded. In fact, the New York City Human Rights Law removes each of the identified problems in federal harassment law. The example of Fox News therefore demonstrates that with entrenched harassing cultures, stronger anti-discrimination statutes that “fix” the identified weaknesses of current law are not a complete solution. Thus, this article advocates for two alternative means of strengthening harassment law: expanded use of systemic harassment claims and limits on the use of confidential settlements and mandatory arbitration agreements. This analysis is of particular relevance in light of recent sexual harassment scandals affecting companies such as Uber and The Weinstein Company.
Robyn Holder & Kathleen Daly, Sequencing Justice: A Longitudinal Study of Justice Goals of Domestic Violence Victims
What women as victims of domestic violence want from criminal justice has long interested researchers and advocates. This article foregrounds the ways in which ‘justice’ matters to victims and how a desire for justice may change over time. We find that victims have multiple justice goals, which are ordered and unfold through the criminal justice process. The goals are directed towards three domains of victim, offender and community; and are influenced by both personal and public interests. Accountability is a threshold goal from which others—punishment, deterrence, rehabilitation or another—may be contemplated. From the perspective of victims, achieving justice is sequencing these goals through hybrid processes with differing degrees of victim participation.