Monday, April 16, 2018
Film: I Am Evidence
I AM EVIDENCE exposes the alarming number of untested rape kits in the United States through a character–driven narrative, bringing much needed attention to the disturbing pattern of how the criminal justice system has historically treated sexual assault survivors.
Why is there a rape kit backlog? What can we do to fix the problem? This film explores these questions through survivors’ experiences as they trace the fates of their kits and re-engage in the criminal justice process. I AM EVIDENCE illuminates how the system has impeded justice while also highlighting those who are leading the charge to work through the backlog and pursue long-awaited justice in these cases.
In this film, we seek to send a clear message to survivors that they matter, that we as a nation will do everything possible to bring them a path to healing and justice, and that their perpetrators will be held accountable for their crimes.
Tuesday, April 10, 2018
John attended a party, drank six beers, then proceeded to a bar and drank more beer and alcohol. He left the bar in the early morning, sufficiently intoxicated that he cannot remember what happened for the remainder of the night. Based on text messages he later found on his cellphone, John knows that he called Jane. The two had engaged in several prior physical encounters. Jane, who had also been drinking, joined John in his bed. According to Jane’s subsequent statement, the two engaged in some consensual sexual acts, but Jane stopped consenting and John continued to engage in non-consensual sexual acts. John was found responsible for violating Miami University’s sexual assault policy and was suspended for four months. John sued Jane, Miami University, and individual University employees. John and Jane reached a settlement. The court dismissed John’s remaining claims. The Sixth Circuit affirmed the dismissal of John’s Title IX hostile-environment claim, Title IX deliberate-indifference claim, and 42 U.S.C. 1983 substantive-due-process claim. The court reversed, in part, finding that John sufficiently pleaded procedural-due-process and equal protection claims against one employee based on the claims that she was not an impartial adjudicator and did not fully disclose the evidence against him. The court also reversed a finding of qualified immunity as to that employee and held that John sufficiently pled his Title IX erroneous-outcome claim.
Doe v. Miami University (6th Cir. Feb. 9, 2018) (opinion by Karen Nelson Moore)
We agree with the district court that John has pleaded sufficient facts to cast “some articulable doubt on the accuracy” on the outcome of his disciplinary hearing. He alleges that he was so intoxicated that he cannot recall the critical events in question. Thus, John’s only knowledge of what occurred is drawn from Jane’s description. In her written statement, Jane describes a series of sexual acts between herself and John, some of which were consensual and some of which were not.
She states that she initially agreed to digital penetration, but at some point told John to stop. Id. John did stop, but only after some period of time had passed. Then John asked Jane if he could engage in oral sex. According to Jane, she said no, but John proceeded anyway and Jane responded by pushing him away, rather than re-verbalizing her denial of consent. John then stopped. Jane also states, however, that “I never said no.”
[John was suspended by Miami for three terms].
Taken together, the statistical evidence that ostensibly shows a pattern of gender-based decision-making and the external pressure on Miami University supports at the motion-to dismiss stage a reasonable inference of gender discrimination. John alleges facts showing a potential pattern of gender-based decision-making that “raise a reasonable expectation that discovery will reveal” circumstantial evidence of gender discrimination. He asserts that every male student accused of sexual misconduct in the Fall 2013 and Spring 2014 semesters was found responsible for the alleged violation, and that nearly ninety percent of students found responsible for sexual misconduct between 2011 and 2014 have male first-names. Additionally, John incorporated an affidavit from an attorney who represents many students in Miami University’s disciplinary proceedings, which describes a pattern of the University pursuing investigations concerning male students, but not female students. Lastly, John points to his own situation, in which the University initiated an investigation into him but not Jane, as evidence that Miami University impermissibly makes decisions on the basis of a student’s gender. Discovery may reveal that the alleged patterns of gender-based decisionmaking do not, in fact, exist. That information, however, is currently controlled by the defendants, and John has sufficiently pleaded circumstantial evidence of gender discrimination.
John also alleges that the two other members of his Administrative Hearing Panel (Van Gundy-Yoder and Elliott) and the two individuals who decided his appeals (Ward and Brownell) were not neutral decision-makers. He argues that Van Gundy-Yoder and Ward were biased due to their research interests. But merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased. John also alleges that all of these individual defendants faced institutional pressures to find him responsible due to external influence from the federal government and lawsuits brought by private parties.
Tuesday, April 3, 2018
Julie Goldscheid & Rene Kathawala, State Civil Rights Remedies for Gender Violence: A Tool for Accountability
This article focuses attention on state civil rights remedies that provide a civil cause of action against those who commit acts of gender-based violence and frame the harm as a violation of the survivor’s civil rights. Though many of these laws long have been on the books, they are not widely used. The #MeToo movement has rightly focused public attention on the ways gender violence persists, and on the gaps in legal remedies for survivors. At the same time that law and policy-makers work to enact new laws to fill gaps, existing laws should be invoked to promote accountability and provide redress for survivors. State civil rights remedies do just that.
In 1994, after four years of hearings, Congress enacted a civil rights remedy as part of the Violence Against Women Act (VAWA) (“VAWA Civil Rights Remedy”), which provided a private right of action against an individual who committed an act of gender violence. The law was modeled after other federal civil rights legislation and authorized a survivor of gender-motivated violence to bring a civil cause of action against the individual who committed the harm. The Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down the federal law as an unconstitutional exercise of Congress’ Commerce Clause powers and of Congress’ enforcement powers under the Fourteenth Amendment. While the law provided redress for survivors during the six years it was in effect, both pre-existing and later-enacted state and local remedies also provide a private right of action for gender violence as a civil rights violation. This article reviews those state statutes and the associated case law interpreting them. It demonstrates that those state laws can more widely be used by those who seek to hold those who commit acts of gender violence accountable.
In the wake of the #MeToo movement, when high-profile and high-net-worth individuals are being held to account, and when reports of sexual violence that occur outside traditional employment settings are capturing public attention, those laws may be of increased utility. Trends in employment in which fewer workers are employed in settings covered by traditional federal and state anti-discrimination laws expose the gaps in existing civil rights frameworks and render additional remedies all the more important. The state laws reviewed here have not been the focus of much advocacy, scholarship, or litigation. This article advances an additional and under-utilized theory of recovery for gender violence survivors that offers a useful tool for accountability, redress and equality.
Monday, March 26, 2018
Amidst a crowd of students and advocates rallying for stronger gun regulations, Oregon Gov. Kate Brown signed Monday the first piece of legislation addressing the issue since the deadly shooting at Marjory Stoneman Douglas High School last month.
The law expands the prohibition of gun ownership to people convicted of domestic violence against non-married intimate partners — closing the so-called "boyfriend loophole."
It also blocks people convicted of misdemeanor stalking from owning a gun.
"Closing the 'intimate partner' is an important step to keep Oregonians safer from gun violence," Brown said. "I'm hopeful that the tide is turning on our nation's gun debate."
The legislation was one of Brown's top priorities coming into the short legislative session, which ended Saturday.
Deborah Epstein & Lisa Goodman, Discounting Credibility: Doubting the Testimony and Dismissing the Experience of Domestic Violence Survivors and Other Women, 167 U. Penn. L. Rev. (forthcoming)
In recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight-style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories of abuse by their male partners are simply not believed. To fully grasp the nature of this new moment in gendered power relations—and to cement the significant gains won by these public campaigns—we need to take a full, considered look at when, how, and why the justice system and other key social institutions discount women’s credibility.
We use the lens of intimate partner violence to examine the ways in which women’s credibility is discounted in a range of legal and social service system settings. First, judges and others improperly discount as implausible women’s stories of abuse, based on a failure to understand both the symptoms arising from neurological and psychological trauma and the practical constraints on survivors’ lives. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on both inaccurate interpretations of survivors’ courtroom demeanor and negative cultural stereotypes about women and their motivations for seeking assistance. Moreover, even when a woman manages to overcome all the initial modes of institutional skepticism that minimize her account of abuse, she often finds that the systems designed to furnish her with help and protection dismiss the importance of her experiences. Instead, all too often, the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse.
Two distinct harms arise from this pervasive pattern of credibility discounting and experiential dismissal. First, the discrediting of survivors constitutes its own psychic injury--an institutional betrayal that echoes the psychological abuse women suffer at the hands of individual perpetrators. Second, the pronounced, nearly instinctive penchant for devaluing women’s testimony is so deeply embedded within survivors’ experience that it becomes a potent, independent obstacle to their efforts to obtain safety and justice.
Monday, March 19, 2018
Sexual harassment “was not considered anything you could do something about — that the law could help you do something about — until a book was written by a then-young woman named Kitty MacKinnon,” the Supreme Court justice Ruth Bader Ginsburg said at the Sundance Film Festival in January. She was there to attend the premiere of the documentary “RBG,” which will be released this spring. And the book, “Sexual Harassment of Working Women,” published in 1979, argued that sexual harassment in the workplace is sex discrimination and prohibited by equal protection laws.
“It was a revelation,” Justice Ginsburg said. “And it was the beginning of a field that didn’t exist until then.”
The Supreme Court agreed with Catharine A. MacKinnon. In its first case involving sexual harassment in 1986, with Ms. MacKinnon as co-counsel, the court ruled unanimously that sexual harassment is sex discrimination.
For over 40 years, Ms. MacKinnon, 71, has been a pioneer and lightning rod for sex equality. Along with her work on sexual harassment, she has argued, more controversially, that pornography and prostitution constitute sexual abuse of women in the context of social inequality.
Ms. MacKinnon now teaches law at the University of Michigan and Harvard. (In 1990, I studied with her, in a class called “Sex Equality,” when she was a visiting professor at Yale Law School.) Her most recent book, “Butterfly Politics,” surveys her four decades of activism.
Last month, she met Gretchen Carlson, the former Fox News anchor who, more recently, became a public face of sexual harassment. In July 2016, Ms. Carlson sued Roger Ailes, then chairman and chief executive of Fox News, claiming sexual harassment. After dozens of women came forward with their own accounts of harassment by Mr. Ailes, he was forced to resign.
Two months later, 21st Century Fox, the parent company of Fox News, settled Ms. Carlson’s harassment claim for $20 million and issued a rare public apology for her mistreatment. (Mr. Ailes died in May.)
Ms. Carlson, 51, is the author of the best-selling book “Be Fierce: Stop Harassment and Take Your Power Back.” A former Miss America, she was named chairwoman of the Miss America board of directors in January.
The article includes an in-depth interview with both women.
Sexual violence is a significant and longstanding problem on college campuses that has been made even more visible as of late by the media attention to the #MeToo movement. Title IX of the Education Amendments of 1972 addresses discrimination (including sexual violence) that impedes access to education; the law demands compliance from federally funded schools related to their prevention of and response to this problem. The United States Supreme Court has interpreted the law to contain a private implied right of action that can be brought against a school for its deliberate indifference to severe and pervasive sex discrimination about which it has knowledge. Over the past several years, a handful of district courts in the United States have rendered opinions that effectively refined the class of individuals who are entitled to protection under Title IX. These cases create two separate classes of individuals with different rights: students and non-students. Two cases in particular, K.T. v. Culver-Stockton College and Doe v. Brown University, both held that non-students who were sexually assaulted on campus by students enrolled at that university were not entitled to bring a Title IX cause of action for damages against the school for its deliberate indifference to their complaints of sexual assault. The Doe case is currently on appeal to the First Circuit and the Eighth Circuit dismissed the K.T. without ruling on this question of standing. Even more recently, in the sex abuse scandal involving a Michigan State University physician who was convicted of assaulting dozens of girls, athletes, and students, lawyers defending the university argue that the subset of victims who were not enrolled students (but who were treated by the doctor on campus) lack standing to sue under Title IX. There is growing evidence to suggest that these cases represent an emerging development in the evolution of Title IX jurisprudence. This article seeks to add to the ongoing and complex Title IX conversation by exposing a novel, yet very real conundrum: to whom does Title IX apply? Should students who are officially enrolled in an institution be safer than those who are not? Are non-students who interact within the university context simply left out of the spectrum of Title IX protections? And what sort of campus safety dynamic is created if we distinguish between kinds of victims in terms of extending protections of the federal law? After extensive analysis, the article concludes that creating safer campus communities probably demands an extension of rights to individuals who engage in the programs and activities of a university, regardless of their status as students.
Wednesday, March 14, 2018
On March 30, state Sen. Jeff Jackson, a Democrat, filed a bill that would change this horrific law. (He filed a similar bill with two Republican co-sponsors in 2015.) The text of SB 553 is short and to the point, reading, in part: "a person may withdraw consent to engage in vaginal intercourse in the middle of the intercourse, even if the actual penetration is accomplished with consent and even if there is only one act of vaginal intercourse."
Currently, the bill sits in the Senate's Rules Committee, where it is likely to be tabled. Jackson tells Broadly he plans to refile the bill again next year. "This really shouldn't be a controversial matter," he says. "North Carolina is the only state in the country where no doesn't really mean no. Right now, if a woman tells a man to stop having sex he is under no legal obligation to do so, as long as she initially consented. If sex turns violent, the woman has no right to tell the man he must stop."
Jackson says he first encountered this loophole when he worked as a criminal prosecutor, when his office was forced to dismiss a rape charge because of these circumstances. "Very few legislators are aware that this is the current state of our law," he says. "They're very surprised when I tell them. Most of my conversations have been educating our members about this plainly unacceptable loophole in our rape law. I have not had any members defend the loophole. Every legislator I've spoken to agrees we need to fix this. . . .
While North Carolina may be the only state where women explicitly can't withdraw consent after sexual intercourse has begun, most other states see this as a gray area. Only South Dakota, Connecticut, California, Illinois, Maine, Maryland, Kansas, and Minnesota affirmatively recognize that consent can be withdrawn at any time during sex; Illinois is the only one that's made it law.
Wednesday, February 28, 2018
Students and staff could be punished if they fail to obtain affirmative consent for sex through “words or clear, unambiguous action” under a policy change approved Wednesday by the Minnesota State Board of Trustees.
The policy applies to some 375,000 students at the state-run system’s 30 colleges and seven universities, as well as faculty and staff and anyone who has sex on campus.
“As an English teacher, I just never thought I’d see a sentence that included sexual activity and the words clear and unambiguous in the same sentence, but you know, progress,” trustee Louise Sundin joked.
More than a thousand U.S. colleges, including the University of Minnesota and every college in California and New York, have adopted “affirmative consent” language in recent years.
It puts the onus on the partner initiating sex to obtain clear consent rather than on the receiving partner to object — “Yes means yes” instead of “No means no.”
Tuesday, February 27, 2018
Massachusetts Sen. Elizabeth Warren and Nevada Rep. Jacky Rosen introduced legislationTuesday that would require public companies to publicly report allegations of sexual harassment and other types of harassment in the workplace.
The Democrats argue investors are entitled to know the specifics of harassment allegations — and any settlements public companies have made. The legislation, called the “Sunlight in Workplace Harassment Act,” was first reviewed by BuzzFeed News before its introduction.
If passed, Warren and Rosen’s legislation would require public companies to annually report the number of settlements they entered related to sexual harassment and the total amount of money spent on them. It would also require reports on settlements made based on complaints related to race, religion, sex, gender identity, genetic information, sexual orientation, national origin, disability, service-member status, or age discrimination.
The bill would also require the companies to report the “average length of time” for an employer to resolve a complaint regarding sexual harassment. But the bill specifically prohibits the disclosure of the names of employees involved in the settlements.
“What the #MeToo movement has taught us is that we're not going to change the culture where this misconduct is brushed aside or openly tolerated in workplaces across America without more transparency on how these issues are being handled.”
There is no log of how many campus rape cases go to trial each year, but experts and victim advocates agree that the number is vanishingly small. The Department of Justice estimates that between 4 percent and 20 percentof female college students who are raped report the attack to law enforcement. Of reported cases, only a fraction lead to arrests, let alone a trial.
The one at Yale, then, might seem like a perfect case to test the fiercely debated question of whether college rape accusations are best handled by internal university panels or by law enforcement.***
“This isn’t about which institution is better,” said Janet Halley, a Harvard Law School professor who has written about the legal implications of Title IX enforcement. “It’s about what happens when you put two institutions into the same process and they have different rationalities, different institutional cultures — but above all different rights attached to them.
“This is oil and water flowing in together.” ***
The debate around who should handle investigations seems unlikely to fade. Even as Ms. DeVos has permitted universities to more closely align their hearing processes with those the criminal justice system, she has also retained the requirement that schools investigate claims of sexual misconduct, rather than simply hand them off to law enforcement.
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.