Wednesday, November 26, 2014
Saturday, November 22, 2014
John Goldberg (Harvard), Jotwell, When is Sexual Abuse Within the Scope of Employment?, reviewing Martha Chamallas (Ohio State), Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013), available at SSRN.
Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability.
Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability.
Modern doctrine maintains that an employee’s on-the-job wrong will be imputed to her employer when the wrong is foreseeable, or involves the realization of risks characteristic of the employer’s enterprise. Under these tests, vicarious liability has at times extended to employees’ intentional acts of physical violence, as well as to negligence perpetrated by drunken, off-duty employees.
It is thus surprising, Chamallas argues, to find prominent cases in which courts decline to impose vicarious liability for sexual abuse. For example, the California Supreme Court refused to hold a hospital liable for its medical technician’s molestation of a young woman during the performance of an ultrasound, and also declined to hold a school district liable for a teacher’s abuse of a student during a school-sanctioned extra-curricular activity. According to Chamallas, modern legal tests for “scope of employment” are capacious enough to permit liability in cases such as these. Moreover, standard instrumental rationales for respondeat superior (“let the master answer”)—that it incentivizes appropriate precaution-taking by employers, better ensures compensation of victims, and fairly comports with the risks characteristic of the employer’s enterprise—arguably also favor liability. So why would courts decline to hold employers liable under the circumstances?
Friday, November 21, 2014
Alexandra Brodsky, a Yale Law student, wrote an editorial in WaPo:
In 2008, Wagatwe Wanjuki reported to her school, Tufts, that her boyfriend had repeatedly assaulted her. But the college refused to investigate the claim. The stress of the abuse and institutional betrayal took a toll on her grades, but without the school’s support she could not afford the tutoring she needed. Tufts then expelled Wanjuki for her substandard academic performance in 2009. (Tufts declined to comment on Wanjuki’s experience, citing confidentiality laws.) No longer enrolled as a student, Wanjuki’s student debt continued to accrue. Years later, she transferred to Rutgers University. Now a prominent anti-violence activist (and friend of mine), she graduated in August with a degree in sociology. But she also has more than $100,000 in debt from two schools.
Under Title IX, schools must ensure that all students have equal access to educational opportunities regardless of gender. According to courts and the Department of Education, this requirement includes an affirmative duty for colleges and universities to help survivors of gender-based violence continue their educations. That means schools must provide services such as tutors, dorm changes that allow victims to avoid their abusers, and mental health support to survivors who report harassment or abuse – even if they do not pursue disciplinary charges against the offender.
Yet stories from students across the country show that colleges and universities often shirk their responsibilities to support survivors. Students are then left to fend for themselves (with the help of their families, if they are lucky) as they try to stay in school. Thousands of dollars can disappear into rent for a new apartment off campus, away from an abusive ex, or into bills for hours of much-needed counseling. When a school denies survivors the services and support they need to recover, students may be forced to take out additional loans — or even to leave school, a semester’s tuition down the drain.
Tuesday, November 18, 2014
Jed Rubenfeld, NYT, Mishandling Rape
Our strategy for dealing with rape on college campuses has failed abysmally. Female students are raped in appalling numbers, and their rapists almost invariably go free. Forced by the federal government, colleges have now gotten into the business of conducting rape trials, but they are not competent to handle this job. They are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.
We have to transform our approach to campus rape to get at the root problems, which the new college processes ignore and arguably even exacerbate.***
Is the answer, then, as conservatives argue, deregulation — getting the government off the universities’ backs? Is it, as the Harvard law professors suggest, strengthening procedural protections for the accused?
Neither strategy would get to the true problems: rapists going unpunished, the heady mixture of sex and alcohol on college campuses, and the ways in which colleges are expanding the concept of sexual assault to change its basic meaning.***
But if schools are genuinely interested in preventing sexual assault, they need to overhaul how they think about assault and what they do about it. Prevention, rather than adjudication, should be a college’s priority.
Here's the response from 75 Yale Law Students. Professor's Campus Rape Op-Ed Gets it Wrong [Thanks Dara Purvis].
More than 75 students at Yale Law School have signed an open letter pushing back on a recent New York Times column about campus rape written by one of their professors.***
[W]hat has drawn the most ire are Rubenfeld's comments about consent. In his column, Rubenfeld characterizes affirmative consent policies as unenforceable and overly broad, and suggests that such an approach categorically redefines all drunk sex as rape.
Monday, November 17, 2014
“The phone call. The phone call," sighed Allison Strange. "There’s always that one call that you never expect to get.”
On Sept. 6, 2011, the caller ID showed her son's cell phone, but the voice on the other end wasn't Josh. Her son had been arrested for rape.
Josh Strange avoided prosecution, but he did face the justice of Auburn University, where he was a sophomore. Under federal civil rights law, colleges and universities have to conduct their own investigations into sexual assault reports, separate from a criminal one. And after a 99-minute hearing, the discipline committee – chaired by a university librarian – reached its decision.
“Josh was as white as a piece of notebook paper, and just looked like he had been punched in the stomach,” remembered Allison Strange, who was outside the hearing room. “I walked up and I looked, and Josh said, ‘Mom, I’m gone. They don’t want me here anymore. I can’t stay. They’ve expelled me.’”
In the aftermath, Allison and Josh Strange formed the group Families Advocating for Campus Equality that pushes for universities to get out of the business of adjudicating sexual assault cases. Allison Strange wants those cases to be left to the criminal justice system, and she says you only need to look at her son's case to understand why.
Saturday, November 1, 2014
Susan Hanley Duncan (Louisville) has published The Devil is in the Details: Will the Campus SAVE Act Provide More or Less Protection to Victims of Sexual Assault [WL only], 40 J. College & Univer. Law 443 (2014). From the Introduction:
Campus violence, especially sexual harassment which includes sexual violence, remains a major issue facing colleges and universities today. Colleges and universities must not abrogate their legal obligations to law enforcement; they have a shared responsibility under federal civil rights laws to proactively provide safe environments for students to live and learn. Despite several laws addressing the problem, guidance from federal agencies, and greater education efforts, the statistics still reflect a sad reality-young people in colleges and universities, especially young women, are not safe. The White House Council on Women and Girls released a report in January 2014, Rape and Sexual Assault: A Renewed Call to Action, which portrayed a frightening landscape of sexual violence on college campuses, in the military, and among certain defined populations including LGBT individuals and Native American women.More needs to be done now. To that end, President Obama and Congress recently revised legislation hoping these modifications would make college and university campuses safer. In addition, the President formed a White House Task Force to Protect Students from Sexual Assault, a task force of senior administration officials to provide him with recommendations within ninety days on the topic of best practices for preventing and responding to sexual assault and rape. In addition, he requested that the task force explore how well universities and colleges are complying with the law, and provide him with ideas on how to increase transparency with enforcement and encourage better collaboration between governmental agencies enforcing the law.This renewed focus on campus sexual assaults comes at the same time the new Campus Sexual Violence Elimination Act (Campus SaVE Act) goes into effect on March 7, 2014. This new law seeks to increase transparency, accountability, and education surrounding the issue of campus violence, including sexual assaults, domestic violence, dating violence and stalking. The law remains hotly debated within victim advocate circles and college and university administrators as to whether it will help victims or reduce their protections under Title IX. All the interested parties agree, however, that the law leaves many questions unanswered and are anxiously watching the negotiated rulemaking process in hopes for more clarity.
Tuesday, October 21, 2014
Amanda Marcotte, Slate, South Carolina Says "Stand Your Ground" Law Doesn't Apply to Abused Women
South Carolina has an expansive "stand your ground" law that paves the way for someone to get immunity from prosecution by declaring that they killed another person in self-defense. Liberals have been critical of these laws, arguing that they make it far too easy for violent people to deliberately provoke or escalate confrontations and then avoid prosecution when things get out of hand. (There is some proof that such laws correlate with a rise in the murder rate.) There are also concerns that the laws are unfairly applied, due to massive racial disparities in who successfully invokes "stand your ground" to avoid punishment. Now comes a reason for women to be especially worried.
In South Carolina, prosecutors are trying to argue that a woman's right to stand her ground in a domestic dispute is less than a man's right to stand his ground with some stranger he's gotten into a fight with. Andrew Knapp at the Charleston Post and Courier—which has been aggressively covering the issue of domestic violence in recent months—reports that three North Charleston women have been "charged with murder during the past two years after stabbing a boyfriend or a roommate she said attacked her," despite the existence of the state's strong "stand your ground" law.
[h/t Molly McBurney]
We recently blogged here about legal scholarship on this issue. In this article, Professor Mary Anne Franks argues:
This two-track system of self-defense — Battered Women’s Syndrome for women and Stand Your Ground for men — has far-reaching implications outside of the courtroom. Battered Women’s Syndrome sends the legal and social message that women should retreat even from their own homes in the face of objective, repeated harm to their bodies; Stand Your Ground sends the legal and social message that men can advance against strangers anywhere on the basis of vague, subjective perceptions of threats.
Monday, October 20, 2014
When Dominique Strauss-Kahn was accused of assaulting Nafissatou Diallo, the maid who was sent to clean his hotel room, hospitality workers thought the story seemed all-too-plausible. In a New York Times op-ed, Jacob Tomsky, a veteran of the hotel industry, wrote that housekeepers are assaulted by guests “more often than you’d think,” and that their employers don’t offer much protection. In a recent account on xoJane, an anonymous woman describes a decade’s worth of sexual harassment in different parts of the hotel industry—from working the front desk to cleaning rooms. It’s so systemic, she says, that the women developed coordinated strategies to cope with it—like enlisting other housekeepers to stay with them when they’re assigned to clean the room of a “known pervert.”
These anecdotes are alarming—and now, new empirical research paints a truly dire picture of the lives of female hotel workers. For a new paper in the journal Gender, Work & Organization, a team of researchers from the Department of Tourism, Sport and Hotel Management at Griffith University in Australia, interviewed female hotel workers employed by 5-star hotels on the Gold Coast, a city in Queensland. Of the 46 women who participated in the study, 44 had experienced some kind of inappropriate advance from a male guest—ranging from jokes to propositions to assaults. Sanrda Kensbock, the study’s lead author, wasn’t able to give me a breakdown by type of incident, but it’s safe to say that—whatever form it takes—harassment a widespread problem. “We found guest-initiated sexual harassment to be pervasive and normalized within the hotel workplace,” she wrote. “The low status of hospitality workers renders them particularly vulnerable, with the power held by the instigator being a critical component of sexual harassment.”
Thursday, October 16, 2014
In our zeal to address campus sexual assault, and compensate for past inaction, we may be running afoul of basic due process protections. It's not a zero sum game here--we can both respond meaningfully to campus assault and comply with the usual and important protections of due process.
Dozens of Harvard Law School faculty members are asking the university to withdraw its new sexual misconduct policy, saying that it violates basic principles of fairness and would do more harm than good.
“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required” by the federal anti-discrimination law, known as Title IX, they wrote in an op-ed article signed by 28 current and retired members of the Harvard Law faculty and posted online by The Boston Globe on Tuesday night.
“It’s a totally secret process, in which real genuine unfairnesses can happen, and it’s so airtight that no one would know,” Janet Halley, one of the professors who signed the article, said Wednesday.
More here, New Republic, Accused College Rapists Have Rights Too: The Victims Deserve Justice. The Men Deserve Due Process.
Thursday, October 9, 2014
Julie Goldscheid (CUNY School of Law) & Debra J. Liebowitz (Drew) have posted Due Diligence and Gender Violence: Parsing its Power and Its Perils, Cornell Int'l L. J. (forthcoming).
Human rights advocates increasingly invoke the due diligence standard to hold States responsible for their actions and omissions with respect to gender violence. This paper traces the development of the due diligence obligation and analyzes how the due diligence principle has been interpreted in key international policy documents and developing gender violence caselaw from the United Nations, European, and Inter-American human rights systems. On its face, the due diligence obligation calls on the State to take responsibility for preventing gender violence, prosecuting and punishing perpetrators, and protecting and providing redress for gender violence victims. The notion of State responsibility for gender violence offered by the due diligence obligation is foundational, and is appealing in many ways, particularly when considering the near-universal history of non-responsiveness, State approval of, and all-too-frequent participation in, gender violence.
We argue that emerging interpretations of the due diligence obligation as applied to gender violence pay insufficient attention to the risks of State intervention. While State response is clearly needed, we should be cautious about the ramifications of the demand. A reflexive focus on State response can encourage an undue emphasis on criminal justice responses with adverse consequences such as arrests of survivors. It risks situating the State as the entity charged with program delivery when other entities would be more effective. An appropriate model of state responsiveness should explicitly grant the State discretion not to respond, or to delegate its response to other stakeholders such as community members, survivors, NGOs, and advocates. It should consider the impact of any intervention on those at the margins — particularly those from racial, ethnic, religious, and sexual minorities — and should take into account the experiences and recommendations of both advocates and survivors. A careful balancing of the need for State accountability with the risk of over-intrusiveness can best advance foundational human rights principles, such as non-discrimination, equality, autonomy, and dignity, in service of ending gender violence and promoting justice.
Mary Anne Franks (Miami), Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women's Syndrome and the Vindication of Male Privilege, 68 Univ. Miami L. Rev. (2014)
Proponents of Stand Your Ground laws cynically exploit the image of vulnerable women to defend expansions of self-defense doctrine, despite the fact that such laws actually reinforce and exacerbate existing gender divides in self-defense law that disproportionately harm women. The appropriation of women’s right to self-defense by Stand Your Ground supporters masks the law’s hostility toward women’s use of force and obscures the real achievement of such legislation: the normalization and promotion of (often white) male violence in an ever-expanding variety of scenarios. Battered Women’s Syndrome, the chief narrative available to women who fight back, forces women to plead for mercy and subjects their behavior to extensive scrutiny and evaluation. Stand Your Ground, the chief narrative men can now use to justify provoking deadly fights, often allows men to escape evaluation altogether by granting immunity from prosecution and even from arrest. This two-track system of self-defense — Battered Women’s Syndrome for women and Stand Your Ground for men — has far-reaching implications outside of the courtroom. Battered Women’s Syndrome sends the legal and social message that women should retreat even from their own homes in the face of objective, repeated harm to their bodies; Stand Your Ground sends the legal and social message that men can advance against strangers anywhere on the basis of vague, subjective perceptions of threats. Male violence is not only tolerated, but celebrated; women’s violence is not only discouraged, but stigmatized. Invoking the image of vulnerable women to promote aggressive self-defense rhetoric serves to distract from the reality that violence remains chiefly a male privilege.
Tuesday, October 7, 2014
Gov. Andrew M. Cuomo said on Thursday that he had instructed the State University of New York to overhaul its approach to preventing, investigating and prosecuting sexual assault, including making affirmative consent the rule on all 64 of its campuses.
Mr. Cuomo, announcing the change at a news conference in Manhattan, said SUNY’s new approach, which is to be put into effect in the next 60 days, would eventually lead to a statewide law regulating sexual assault policies at all New York colleges and universities.
Calling campus sexual assault a national epidemic, the governor said: “This is Harvard and Yale and Princeton, Albany and Buffalo and Oswego. It is not SUNY’s problem by origination. I would suggest it should be SUNY’s problem to solve and SUNY’s place to lead.”
Monday, October 6, 2014
Jelke Boesten, University of Leeds, UK, has recently published Sexual Violence During War and Peace (Palgrave Macmillan). The abstract reads:
The idea that rape is widely used as a weapon of war has taken root in international institutions, influencing how post-conflict justice and transitional justice are perceived and pursued. Despite this global attention, there has been no progress eradicating or even mitigating sexual violence in war or in peace and very little progress prosecuting crimes of sexual violence. With particular reference to post-conflict justice, this book asks what sexual violence means from a socio-political perspective and in what ways contemporary "peacetime" violence is linked to wartime rape. Evidence from Peru and the internal armed conflict of 1980-2000 shows that acts of wartime rape are deeply embedded in existing configurations of gender and power and that sexual violence serves not only wartime terror but also peacetime hierarchies.
Saturday, October 4, 2014
Isn't that an oxymoron? Slate, Iceland Announces U.N. Men Only Gender Equality Conference
Iceland announced on Monday an unusual plan to tackle the problematic state of gender equality in the world, particularly violence against women. The plan, as explained by the country’s foreign minister, Gunnar Bragi Sveinsson, to the U.N. General Assembly is to hold a conference on the issue in January. The twist: Only men and boys are invited to participate.
Here’s what Sveinsson had to say:[W]e want to bring men and boys to the table on gender equality in a positive way. Iceland and Suriname will convene a “Barbershop” conference in January 2015 where men will discuss gender equality with other men, with a special focus on addressing violence against women. This will be a unique conference as it will be the first time at the United Nations that we bring together only men leaders to discuss gender equality.
Friday, October 3, 2014
Thus reads an interesting blog post from the Good Men Project. An excerpt:
Last night I was searching the Internet for a video on “women abusing men” to run here on The Good Men Project. Not only were there just a few actual hits, most of which I’d already seen, but I also found that most of the results that did come up were for men abusing women. Even though I typed “men” first, Google found more results for the reversed phrase, indicating the huge imbalance of available online material. And yet, recent statistics confirm that men represent approximately 40% of the victims in cases of abuse.
Susan Ayres, Texas A & M Law, has uploaded to SSRN "Using Dramatic Narratives to Teach Domestic Violence." The abstract reads:
The 2003 call of the ABA for teachers to incorporate domestic violence into the law school curricula remains gravely important today. Domestic violence intersects many areas — from family law, to torts, to criminal law. Along with sexual assault, it is one of the most difficult subjects to teach. Students, like the general public, find it hard to comprehend why a person batters, or why a victim stays with the batterer. While students may learn about domestic violence from case law and scholarly excerpts, the best lessons may be learned through narratives, which provide a window into the reasons for battering and the multi-faceted reasons a victim stays with a batterer. In this article, I describe a teaching approach that incorporates narratives by the award-winning, multi-racial writer, Ai (1947-2010). This valuable approach offers a picture of domestic violence that is more compelling than that of casebooks or statistics, and provides students — as future lawyers — with the ability to respond to clients experiencing domestic violence with greater empathy and understanding.
Tuesday, September 30, 2014
Gov. Jerry Brown has signed a bill into law that makes California the first in the nation to have a clear definition of when people agree to sex. The law goes further than the common "no means no" standard, which has been blamed for bringing ambiguity into investigations of sexual assault cases.
The new law seeks both to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an "affirmative consent" and stating that consent can't be given if someone is asleep or incapacitated by drugs or alcohol.
"Lack of protest or resistance does not mean consent," the law states, "nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time."
The White House rolled out a new sexual assault prevention campaign engaging men as part of the solution: It's On Us
What College Men Think of the New Rape Prevention Campaign That's Targeting Them. According to this report, they're ok with it.
Saturday, September 27, 2014
Integrating fraternities will reduce campus sexual assault?
Slate, Accept Women--Or Else
All on-campus fraternities at Wesleyan University must soon become coeducational or they will be shut down, the university announced Monday, giving its small but often under-fire Greek system a three-year deadline to open its doors to female students.
“The culture of these houses contributes to the culture of sexual assault in a way we weren’t willing to stand for anymore,” Updegrove said in May. In a blog post in April, Roth wrote that it’s "clear that many students see fraternity houses as spaces where women enter with a different status than in any other building on campus, sometimes with terrible consequences."
We previously posted about the nail polish that can warn of date rape drugs.
Two bartenders in Washington, D.C., have teamed up to create the prototype for a product meant to combat date rape called the “DrinkLock.”
DrinkLock is described as a “reverse coaster,” which can be used as an actual coaster or affixed to the top of someone’s drink using a square adhesive seal. When the seal is removed, it will read “void” if anyone has tampered with it.