Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, September 22, 2017

Dept Ed Rescinds Obama Title IX Procedures for Campus Sexual Assault

Today the Dept of Education rescinded the prior Title IX "Dear Colleague Letter" on handling claims of campus assault and issued its own letter.

2017 Dear Colleague Letter (Sept. 22, 2017)

The purpose of this letter is to inform you that the Department of Education is withdrawing the statements of policy and guidance reflected in the following documents:
    • Dear Colleague Letter on Sexual Violence, issued by the Office for Civil Rights at         the U.S.Department of Education, dated April 4, 2011.
    • Questions and Answers on Title IX and Sexual Violence, issued by the Office for         Civil Rights at the U.S. Department of Education, dated April 29, 2014.


These guidance documents interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct. The 2011 Dear Colleague Letter required schools to adopt a minimal standard of proof—the preponderance-of-the-evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard. The Letter insisted that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students. The Letter discouraged cross-examination by the parties, suggesting that to recognize a right to such crossexamination might violate Title IX. The Letter forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis. The Letter provided that any due-process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them.

 

Legal commentators have criticized the 2011 Letter and the 2014 Questions and Answers for placing “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” As a result, many schools have established procedures for resolving allegations that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. 

 

The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints. The guidance has not succeeded in providing clarity for educational institutions or in leading institutions to guarantee educational opportunities on
the equal basis that Title IX requires. Instead, schools face a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX’s goal of educational equity

 

The Department imposed these regulatory burdens without affording notice and the opportunity for public comment. Under these circumstances, the Department has decided to withdraw the above referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits. The Department intends to implement such a policy through a rulemaking process that responds to public comment. The Department will not rely on the withdrawn documents in its enforcement of Title IX.

DoE Q&A on Campus Sexual Misconduct (Sept. 22, 2017).  This allows for mediation and provides required procedures for adjudicating campus sexual misconduct.

 

September 22, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, September 19, 2017

How Title IX Enforcement Probably Discriminates against Minority Students

Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nevada L. Rev. 2 (forthcoming 2018)

Abstract

This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, preventing evaluation of possible disparate racial impact. Further, several aspects of the university disciplinary apparatus—including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures—increase the risk that black students will suffer disproportionate suspensions and other punishment.

This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men—or, instead, even now provide inadequate protection for college women—few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar biases.

This article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.

September 19, 2017 in Education, Race, Violence Against Women | Permalink | Comments (0)

Monday, September 11, 2017

Dept of Education to Ensure Due Process for those Accused of Sexual Assault under Title IX

 Wash Post, Devos Decries "Failed System" on Campus Sexual Assault, Vows to Replace It

“We must do better because the current approach isn’t working,” she said.

Christina Hoff Sommers, Protecting Due Process in Sexual Assault Cases on Campus, Chronicle of Higher Ed.

used to wonder what was worse: Republican politicians ignoring women’s issues or Republican politicians talking about them. The recent speech by Secretary of Education Betsy DeVos is a welcome exception: Her address on the need to reform campus sexual-assault procedures was empathetic and judicious. She offered a way forward that should appeal to fair-minded people across political and cultural divides.

"One rape is one too many," she said. But, she added, "One person denied due process is one too many."

She acknowledged the suffering of both victims of sexual assault and those falsely accused of assault: "Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined." Those are non-negotiable principles, and she promised to revamp the current system for adjudicating cases of campus sexual assault, which she called "broken."

That broken system was created by a letter from a little-known public official. No one in the House or Senate voted for it, and no judge reviewed it. The public was not notified in advance and did not discuss it before it was issued. On April 4, 2011, Assistant Secretary of Education Russlyn Ali sent out her now-famous "Dear Colleague" letter to colleges across the country.

The letter advised them to determine guilt in sexual-assault cases by the lowest standard possible — a preponderance of evidence — and to "minimize the burden on the complainant." It said nothing about the rights of the accused. Informal measures for resolving "he said, she said" confrontations were ruled out of order. "In cases involving sexual assault," Ali instructed, "mediation is not appropriate even on a voluntary basis."

Ali thought college administrators were doing too little to protect students from the reported epidemic of sexual violence and harassment on campus. I have argued elsewhere that these reports were exaggerated, and that most college officials did take the problem seriously, but I don’t question her sincerity. I do question her judgment and her right to regulate by fiat. Secretary DeVos was right to say, "Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students."

Colleges were panicked by Assistant Secretary Ali’s "Dear Colleague" letter and rushed to meet the new requirements. They revamped their disciplinary committees and hired Title IX officers to run programs with titles like the Office for Sexual and Gender-Based Dispute Resolution. According to Emily Yoffe, Harvard has 55 full- and part-time Title IX coordinators. Princeton has 41.

Fearing Title IX investigations and loss of federal funding, many colleges set up extrajudicial sex courts, where defendants could be found guilty of a crime even if there was a 49.9 percent chance that they were innocent. At last count, more than 150 lawsuits have been filed since 2011 by students (mostly young men) alleging unfair treatment in a campus sexual-assault proceeding.

See also, prior post, Harvard Law Profs Call for DOE to Revise Title IX Campus Assault Policy

September 11, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, August 30, 2017

Trump's OCR Resolving Campus Sexual Assault Cases More Often

The Chronicle, Federal Sex-Assault Investigations are Being Resolved More Often. These 11 Cases Show How.

Since President Trump took office, one of the most closely watched issues in higher education has been his Education Department’s shifting approach to enforcement of campus sexual-assault policy.

 

Candice E. Jackson, acting assistant secretary for the department’s Office for Civil Rights, directed her staff to sharply scale back the scope of sexual-violence investigations under the gender-equity law known as Title IX. Her instructions sought to cut down on a backlog of cases that the department said had "exploded" under President Barack Obama

 

Mr. Trump’s presidency is still young, but signs have emerged already that the department is delivering on that pledge. Sexual-violence investigations are still being opened at a rapid pace — this week, the department acknowledged six new ones, for a total of 350 active cases. But resolutions have grown more frequent, too, with two more announced this week.

o far, 11 sexual-violence cases have been resolved in the Trump era. Here’s what we know about them:

 

The resolutions are coming at a faster clip.

The civil-rights office is on pace to resolve more sexual-violence cases this year than it did in any other since the department issued its controversial 2011 "Dear Colleague" letter. Last month was especially busy — five cases were resolved in July alone. That’s the most resolutions of any month in the enforcement era marked by the 2011 guidance.

 

They’re also being delivered more quietly.

After President Obama’s civil-rights office first released its list of Title IX sexual-violence investigations, in May 2014, it became common for the department to announce its resolution agreements in news releases. Those public disclosures have been much less frequent since President Trump took office. Of the 11 investigations resolved in the Trump era, just two of those resolutions — involving Wittenberg University — were announced on the department’s website (in March). As BuzzFeed reported at the time, the department did not give the same treatment to a case involving the University of Alaska system, resolved in February, nor has it done so with a more recent case at the Butte-Glenn Community College District, resolved last month.

 

The new trend is "administrative closure."

The civil-rights office will administratively close an investigation — which means it issues a closure letter but no findings or resolution agreement — in certain situations, such as when investigations overlap with the actions of other agencies. For instance, OCR will close a complaint if the same party has filed similar allegations with another civil-rights agency or a state or federal court. It will also close a complaint if it receives "credible information" that the allegations have been resolved and that there are no broader, systemic allegations in question. The office may also close a complaint administratively if a complainant withdraws his or her allegations or refuses to cooperate.

August 30, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Symposium on Campus Sexual Assault

The Journal of Legal Education's summer issue features a symposium exploring on campus issues related to sexual harassment, Title IX, and academic policies, including the following articles:

August 30, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, August 29, 2017

Harvard Law Profs Call for DOE to Revise Title IX Campus Assault Policy

Four Harvard Law Faculty ask DOE to Change Campus Sexual Assault Policies

Four members of the Harvard Law School faculty have called on the U.S. Department of Education to revise the Obama Administration’s policies enforcing Title IX in matters of sexual harassment and sexual assault on college and university campuses.

 

The four scholars — Janet HalleyJeannie Suk Gersen ’02Elizabeth Bartholet ’65, and Nancy Gertner — have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were among the 28 Harvard Law School professors who published a statement in the Boston Globe on Oct 15, 2014, criticizing Harvard University’s sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”

 

On August 21, in a memo entitled “Fairness for All Students under Title IX,” the four scholars urged the Department of Education to adopt what they describe as “an agenda of fairness for all students, accusers and accused.”

 

Said Jeannie Suk Gersen: “In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers.”

 

Janet Halley said: “To fully address campus sexual assault, the college definitions of violations and processes need legitimacy. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.”

 

The memorandum is available here:

http://nrs.harvard.edu/urn-3:HUL.InstRepos:33789434

August 29, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, August 23, 2017

The Sex Discrimination Roots of Campus Sexual Assault

Deborah Brake, Back to Basics: Excavating the Sex Discrimination Roots of Campus Sexual Assault, Tenn. J. Race, Gender & Soc. Justice (2017)

This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and mutually reinforcing strategies for dislodging the social practices that separate women from power. Sexual assault is just such a practice, and sex discrimination law has long recognized it as a form of sex discrimination. And yet, the current controversy over Title IX’s approach to campus sexual assault has become mired in the weeds of procedural discourse and de-gendered narratives of alcohol and campus partying culture, obscuring the gendered reality – and gender inequality – at the root of the problem. This article traces the evolution of Title IX’s current framework for regulating institutional responses to campus sexual assault with the goal of shoring up the sex discrimination roots underlying that framework. It begins this work by acknowledging that neither courts nor the enforcing agency has fully explained how and why the requirements in the Office for Civil Rights 2011 Dear Colleague Letter (DCL) stem from the statutory ban on sex discrimination. It proceeds to sketch the contours of the sex discrimination grounding for the principles in the DCL, moving beyond sexual assault itself as a gendered practice to focus on how gender scripts and rape myths affect institutional responses to it. The article concludes with a call for further work connecting the statutory ban on sex discrimination to the DCL’s specific requirements for institutional responses to campus sexual assault.

August 23, 2017 in Education, Gender, Violence Against Women | Permalink | Comments (0)

Monday, August 7, 2017

The N.F.L.’s Domestic Violence Policy:  Revealing the Limits of an Internalities Approach to Domestic Violence

From Guest blogger, Jamie Abrams:

The National Football League’s (NFL’s) response to domestic violence provides a good example of the limits of internalities and the expansive and transformative power of externalities to apply a framework introduced in my last blog entry.  In August 2014, the NFL Commissioner Roger Goodell announced a new Personal Conduct Policy. The policy was enacted after a high profile case of domestic abuse involving Ray Rice and his then-fiancée.  Commissioner Goodell faced harsh criticism for allegations against him ranging from giving Rice an inappropriately light punishment to attempting to cover up the scandal by ignoring the existence of the security camera footage until the media released it.  The revised policy stated that assault, battery, domestic violence or sexual assault involving physical force would be subject to a suspension of six games without pay for the first offense.  The suspension would apply regardless of whether the player was formally charged.  A second qualifying offense would lead to a lifetime ban from professional football.    The NFL sought to ensure a “fair and consistent process for player and employee discipline” that would “set a higher standard.”

The NFL’s response, however, rested entirely on internalities.  It depended on the victim coming forward to report the allegations of assault.  It added an additional punitive and professional outcome to the existing criminal and civil consequences.  In its application, the policy only raised the stakes for the victim in coming forward to report domestic violence against prominent athletes.  This approach is inherently limited in its efficacy and insulates the NFL (which is a proxy for the state in this example) from accountability.

When understood in the context of externalities and broader political framings, the NFL could have dramatically reframed its approach in actually using its power as the NFL to change behaviors.  The culture of the NFL could have been more closely examined to see the ways in which it acts as a provoker of domestic violence and the ways in which it could better prevent domestic violence.  For example, in a highly masculine environment, might the publicity, threatened job loss, and income loss embedded in the NFL policy – particularly when initiated by the victim – actually exacerbate the risk of domestic violence?  Might the NFL work to change its culture of masculinity in ways that effectively address the medical, social, and statistical risks of domestic violence that are unique to NFL culture? 

Expanding the lens to include externalities offers an insightful contrast to consider what might be missing from an internalities approach.  It reveals how the NFL camaraderie and the team atmosphere of the NFL might be leveraged to create positive peer associations and stronger cultural values and beliefs about healthy relationships.  It reveals how the NFL might also provide more support for its players who are prior victims of abuse or witnesses of abuse or hold other risk factors.  With the power and resources of the NFL expanded to an externalities approach, perhaps stronger lasting change could be achieved.

 

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Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

August 7, 2017 in Guest Bloggers, Sports, Violence Against Women | Permalink | Comments (0)

Friday, August 4, 2017

Moving Beyond the Internalities of Domestic Violence

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Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism

 

Imagine if domestic violence activists could reframe its politicization and present the issue for public response anew.  How would the issue be framed and described?  What legal solutions would be identified?  Who would be accountable for effective results?  I suggest that such an exercise would reveal that the domestic violence movement is politicized around the internalities of victims and perpetrators in ways that collaterally restrain efforts to end domestic violence. 

Internalities are the condition of being internal or contained within.  This term describes the ways in which domestic violence is politicized as a problem internal to the relationship in which it occurs.  In this internalities framing, there are two actors – the victim and the perpetrator.  Other actors, such as law enforcement, social support services, and lawyers, all intervene to assist once initiated, but the problem and legal responses to it are understood and defined by its internalities.  The internalities framing puts our focus on the victim and the perpetrator as a contained unit:  How can this victim be protected?  How at risk is this victim for future violence?  How will the perpetrator be prevented from contact with this victim?   The “crisis” of domestic abuse is built around the victim and her needs, an understandable point of emphasis from a public safety and health standpoint,  but a narrow one from the perspective of ending domestic violence.

There are considerable strengths to an internalities framing, particularly when understood in historical context.  It uniquely grew out of understandings of domestic violence as discerned from women victims and the consciousness-raising dialogues that brought these individual experiences together collectively. This framing gave powerful voice to a silent epidemic historically insulated in the family with minimal state intervention or response.   Giving voice to the experiences of survivors and developing social, political, and legal interventions to those experiences is one of the greatest accomplishments of the second-wave feminist movement.

There are also inherent limitations to this approach.  From a politicization perspective, an internalities framing risks politicizing domestic violence as if it spontaneously erupts out of the relationship, which insulates the state from accountability.  Consider, for example, the iconic “Cycle of Violence.”  It visually depicts and explains abuse as a single victim and a single perpetrator on a continuous cycle without externalities or collateral harms to family, community, employers, the economy, etc.  It pretends that abuse just erupts and sustains itself on this cycle within the internal family unit, without consideration of the political, economic, social, legal, medical triggers that also play a role.  Lethality risk assessments likewise ask victims about internalities only, such as victim pregnancies, perpetrator drug/alcohol abuse, perpetrator weapon access, and recent violent incidents between the two.

There is an interesting power paradox embedded in this internalities approach.  Victims gain autonomy by shaping law reform approaches and framing domestic violence in the public arena, but they, in turn, hold implicit accountability for the effectiveness of those interventions.  This autonomy paradoxically immunizes the state and perpetrators from accountability, which was the exact goal of the early battered women’s movement.  This creates an insider-outsider politics that positions the victim as the insider party accountable for effective interventions and risk assessments.  The state is cast merely in a supporting role coming to her aid as an outsider.  This insulates the state from accountability and casts the crisis and accountability for effective solutions around the victim, rather than the perpetrator. 

This framework ignores the ways in which state actors in the judicial and law enforcement process might provoke or exacerbate risks of family violence or might exercise more proactive risk assessments and accountability.  It also ignores the ways in which those externalities will likely lead the perpetrator to recidivist behaviors with a new partner even if the state were able to successfully break the cycle of violence in the preceding relationship.

Missing from this framing of violence are the ways in which externalities can play a critical role in exacerbating, triggering, and facilitating domestic violence.  Some examples of relevant externalities systemically excluded from our politicization of domestic violence are economic distress, the perpetrator’s own history of prior abuse, job loss or dissatisfaction, mental illness, larger gender inequality and cultural norms, and changes in custody/parenting status.  Ignoring externalities compromises the extent of state interventions; fictionalizes the family as an isolated unit separated from other political and social systems; and reveres state actors as universally working to end family violence, ignoring the possibility that state action can also sometimes provoke or exacerbate violence.

Note:  This blog post previews arguments that I make in a forthcoming chapter in the book The Politicization of Safety (N.Y.U. Press) following a conference on The Politicization of Safety organized by Jane Stoever at the University of California–Irvine School of Law this April

August 4, 2017 in Guest Bloggers, Violence Against Women | Permalink | Comments (0)

Tuesday, July 11, 2017

Appointed Legal Counsel for Victims of Campus Sexual Assault

Merle Weiner, Legal Counsel for Survivors of Campus Sexual Assault, 29 Yale J. L & Feminism 123 (forthcoming 2017)

Abstract

This Article argues that survivors of campus sexual violence often need legal counsel before, during, and after campus disciplinary proceedings. Lawyers have been overlooked as a critical resource for survivors, and this omission means that most survivors do not receive essential services for addressing their victimization and furthering their recovery. This Article sets forth the reasons why institutions of higher education should make available free legal services to their students who are victimized, and addresses the reasons why institutions might be hesitant to do so. The Article then argues that potential institutional concerns do not relieve colleges and universities of their existing legal obligation to provide some survivors with free legal services. This Article suggests that schools would best meet their legal obligation by providing all survivors with free legal services. The Article then puts its theoretical discussion into perspective by describing the University of Oregon’s unique on-campus program that provides free legal counsel to student survivors. The Article concludes by recommending that the Office for Civil Rights clarify campuses’ legal obligation to provide free attorneys for some survivors and by suggesting that campuses offer all survivors this service. The result would be a better campus response to sexual violence, a decline in the overall rate of post-assault traumatic distress, a likely reduction in the rate of campus sexual violence, and greater progress toward the goal of gender equality.

July 11, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Thursday, July 6, 2017

New Study Provides Insights of Sexual Harassment of Graduate Students by University Faculty

Nancy Chi Cantalupo & William C. Kidder have posted A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty, Utah Law Review (forthcoming)

One in ten female graduate students at major research universities reports being sexually harassed by a faculty member. Many universities face intense media scrutiny regarding faculty sexual harassment, and whether women are being harassed out of academic careers in scientific disciplines is currently a subject of significant public debate. However, to date, scholarship in this area is significantly constrained. Surveys cannot entirely mesh with the legal/policy definition of sexual harassment. Policymakers want to know about serial (repeat) sexual harassers, where answers provided by student surveys are least satisfactory. Strict confidentiality restrictions block most campus sexual harassment cases from public view. 

Taking advantage of recent advances in data availability, this article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. It also situates this review within the available and most relevant social science literature on sexual harassment and violence in education and the workplace, as well as on methodological limitations of litigated case data, which tend to contain a higher concentration of high-severity cases compared to a random sample.

Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.

July 6, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, June 20, 2017

Should Domestic Violence be Decriminalized?

Leigh Goodmark, Should Domestic Violence be Decriminalized?, 50 Harv. J. Law & Gender 43 (2017)

Abstract

In 1984, the United States started down a path towards the criminalization of domestic violence that it has steadfastly continued to follow. The turn to the criminal legal system to address domestic violence coincided with the rise of mass incarceration in the United States. Levels of incarceration have increased by five times during the life of the anti-domestic violence movement. The United States incarcerates approximately 2.2 million people, with another 5 million under the scrutiny of parole and probation officers. While the criminalization of domestic violence did not have “a significant causal role” in the increase in mass incarceration in the United States, scholars have argued that the turn to criminal law to address domestic violence has contributed to the phenomenon of mass incarceration. Given the current focus on overcriminalization and decreasing mass incarceration, the time may be ripe to consider alternatives to criminalization of intimate partner violence. In her 2007 article, The Feminist War on Crime, law professor Aya Gruber wrote, “Although I am skeptical about the ability of criminal law to solve social inequality problems, there may be good reasons to keep domestic violence crimes solidly on the books.” Professors Cecelia Klingele, Michael Scott and Walter Dickey have called for the development of scholarship addressing “crime problems for which arrest, prosecution, and conviction are the most appropriate responses to crime, along with instances in which invocation of traditional response is particularly fruitless or counterproductive.” Both generally and specifically in the context of intimate partner violence, these articles ask about the continued utility of criminal interventions. This article takes up those questions and asks: should domestic violence be decriminalized?

June 20, 2017 in Violence Against Women | Permalink | Comments (0)

Friday, June 16, 2017

Economic Justice in Cases of Domestic Violence

Margo Lindauer, "Please Stop Telling her to Leave": Where is the Money: Reclaiming Economic Power to Address Domestic Violence, 39 Seattle U.L. Rev. 1263 (2016)

In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support for victims. I discuss the feasibility of using these systems to provide such support. From there, I provide a safety and security analysis with an eye towards economic freedom.

June 16, 2017 in Violence Against Women | Permalink | Comments (0)

Tuesday, May 30, 2017

The Unlikely Focal Point in the Title IX Campus Assault Debate: The Preponderance of Evidence Standard

Deborah Brake, Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard, 78 Montana L.Rev. 109 (2017)

In the heated controversy over the obligations Title IX places on colleges and universities to respond to sexual assault, no issue has been more contentious than the standard of proof used to make findings of responsibility in internal student misconduct processes. In 2011, the Office for Civil Rights (OCR) of the U.S. Department of Education released a “Dear Colleague” letter (DCL) clarifying the obligations imposed on institutions of higher education to use fair and equitable grievances procedures in resolving allegations of sexual assault. Among numerous other requirements, the DCL alerted colleges and universities that it expected them to use the normal civil standard, a preponderance of the evidence (POE), in resolving internal complaints of alleged sexual assault. From the beginning, detractors of the DCL have decried the unfairness of forcing campuses to find students responsible for sexual assault based on a preponderance of the evidence, and the POE remains the singularly most controversial piece of the Title IX framework.

On the surface, the POE is an unlikely focal point in the debate over Title IX’s application to sexual violence. Notwithstanding the emphasis OCR’s critics have placed on the POE, the agency’s 2011 endorsement of the POE largely ratified the status quo. Most educational institutions were already using the POE for sexual misconduct cases well before OCR weighed in. Moreover, it is unclear how much distance separates the POE and its closest competitor, the clear and convincing evidence standard. Although this article defends the POE and argues against ratcheting up the standard to require proof by clear and convincing evidence, it contends that the actual impact of OCR’s endorsement of the POE standard is disproportionate to the pitched debate it has prompted. Understanding why the POE is so contentious requires an examination of the broader debate over Title IX’s application to campus sexual assault.

 

May 30, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Friday, April 14, 2017

Books: Two Books Argue Against the Furor Over Rape on Campus

Jill Filipovic, Two Books Explore the Furor Over Rape on Campus

According to our last president, several sitting senators, feminist activists and female college students all over the country, sexual violence on campus is one of the most pressing issues facing young American women. Statistics promulgated by the Obama White House declare that an estimated one in five college women will be sexually assaulted. To combat this scourge, universities have hired new administrators, mandated anti-rape training sessions at freshman orientation and sped up the disciplinary process for accused assailants. Prominent feminists and lawyers say many schools are still doing too little to protect female students and far too much to protect male ones.

 

But according to the Northwestern professor and cultural critic Laura Kipnis, the opposite is true: It’s now men who are the victims of a nationwide sexual panic, one seated more in traditional views of women as vulnerable and sexually passive than in a feminism that recognizes young women to be self-sufficient independent actors (who are also human enough to make, and learn from, stupid sexual blunders).

 

Kipnis’s “Unwanted Advances: Sexual Paranoia Comes to Campus” focuses on one professor whose career was ruined by accusations of sexual assault and the ensuing Title IX investigation. Kipnis is drawn into this man’s professional drama after she too was on the receiving end of two Title IX complaints stemming from an essay she wrote deploring her university’s policy of frowning on relationships between teachers and students. Her book is a look at the secretive and largely unaccountable processes by which campus sexual assault allegations are investigated and adjudicated, using a handful of real incidents to illustrate her broader argument that complex interpersonal relationships and dumb drunken mistakes are now the quasilegal purview of well-paid administrators more interested in protecting a university’s reputation — even if it means ruining a few men’s lives — than seeking either truth or justice. The high-volume conversation about campus sexual assault, she says, is a kind of black-and-white gender traditionalism dressed up in feminist clothes, obscuring ambiguities and power plays inherent to human sexual desire, and instead casting adult women as innocent victims (or victims-in-waiting) and men as either rapists or potential predators.

 

And yet I loved reading it. Kipnis’s book is maddening; it’s also funny, incisive and often convincing. ***

 

If only the same could be said about “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” by KC Johnson, a professor at the CUNY Graduate Center, and Stuart Taylor Jr., a contributing editor at National Journal. An in-depth look at how universities compromise due process norms in adjudicating sexual assault cases — and it is clear they do — is overdue; instead, the authors choose a handful of egregious examples to make the case that campus sexual assault isn’t all that common and that the bigger problem is innocent young men railroaded by promiscuous women who get drunk and regret their choices, or flat-out lie at the behest of conniving campus feminists. Instead of an honest analysis of the complex issues and competing values at play, the book teems with vastly overstated claims, questionable statistics and quotes massaged beyond their original meaning.

April 14, 2017 in Books, Violence Against Women | Permalink | Comments (0)

Thursday, April 6, 2017

Trial Lawyers' Report Concludes Campus Sexual Assault Process Unfair Against Accused

New Report on Colleges and Sex Assault Cases

With the Trump administration reportedly debating whether to reverse Obama administration guidance on how colleges should investigate sexual assault, a group of trial lawyers has released a report suggesting the current processes on many campuses are unfairly slanted against the accused.

 

The guidance, issued in a 2011 Dear Colleague letter, was meant to clarify areas of the law, the administration said at the time. It beefed up protections for victims of sexual assault and was a way to push colleges to more thoroughly respond to complaints. Such guidance does not carry the force of law, but it did contain a threat that colleges’ federal funding could be revoked should they fail to comply

 

The American College of Trial Lawyers, in a report last month, said this prospective loss of funding, combined with heavy media attention on cases of sexual assault, has resulted in colleges sometimes disregarding the rights of those accused and on occasion recklessly siding with someone making a complaint to avoid backlash.

 

It suggested that:

  • All hearings in sexual misconduct cases be conducted keeping in mind even the appearance of partiality -- fact finders assigned to the cases should be vetted for any conflicts of interest or affiliations.
  • Anyone accused in a case should be provided with full details of the allegations against them and kept abreast of all evidence as the case proceeds.
  • Those accused should be advised of their right to a lawyer and be allowed to have one present at all stages of an investigation.
  • Parties, including the one accused, should be allowed to do cross-examination of witnesses. (This could be particularly controversial, considering it is generally advised that victims do not interact with the alleged perpetrator. The lawyers' group notes that court systems have said there are alternate ways to see victim testimony, such as via a tape-recorded message or closed-circuit TV.)
  • The accused should be provided with a written record in case they wish to appeal.

April 6, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, March 28, 2017

Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases

Joann Sahl, Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases, 101 Marquette L.Rev. 527 (2016) [WL link]

Domestic violence is the most common tort committed in our country, involving nearly 1.3 million victims. When a domestic violence incident occurs, the press regularly reports it. Highlighted in these articles is the name of the perpetrator.
 
Perpetrators identified as committing an act of domestic violence face public outrage, contempt, and stigma. This is particularly true if a court determines that the act of domestic violence necessitates a civil protection order (CPO) that bars the perpetrator from having any contact with the victim. Nearly 1.2 million people receive a CPO each year. More people use this civil remedy than those who seek a tort remedy, or those who are involved with the criminal justice system.
 
The CPO process, and its related orders, produces real and lasting “prejudicial collateral legal consequences” that extend past the life of the CPO. These consequences can include preventing the perpetrator from finding or keeping employment, obtaining a professional license, or being admitted to an academic institution. The prejudicial legal consequences arise because information about the perpetrator's involvement in a CPO case is not confidential. At least twenty-seven states, Guam and Puerto Rico allow public access to protection order files.
 
This continuing public access to CPO cases, even when there is no active order, means the former batterer is subjected to perpetual prejudicial consequences from the CPO case. To end these ongoing consequences, the courts should allow perpetrators to seal inactive CPO cases from public view. This sealing remedy is necessary to ameliorate the significant economic impact of those consequences. * * * 
 
Proposing a remedy to help those once labeled a batterer may ignite controversy. As one author has noted, “[w]orking to improve the conditions abusers face has long been considered taboo in the battered women's movement.” However, the sealing remedy proposed by this article is not at odds with the CPO process and its underlying rationale. A CPO is to provide “a simple, immediate remedy to increase the safety of victims." Once the court, or the victim, determines that the CPO is no longer necessary for the victim's safety, the CPO has achieved its purpose, so the collateral consequences related to the CPO should end as well.

March 28, 2017 in Violence Against Women | Permalink | Comments (0)

Thursday, February 23, 2017

The Mistaken Reliance on Title IX to Deter and Punish Campus Sexual Assault

Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kansas L.Rev. (2016)

Abstract:     

This Article attempts to answer an essential question related to Title IX’s role in student sexual assault at universities: is it better to improve and universalize student safety and conduct codes or rely on the new Title IX framework that has emerged? The tentative answer offered is that it is a mistake to solely or primarily depend on Title IX to deter and punish offenders in university sexual assault cases. This conclusion is based upon the uncertainty related to various aspects of Title IX doctrine and the regulatory regime that has emerged to enforce the statute. Consequently, this Article concludes Congress should adopt a basic, uniform student safety and conduct code that will cure many of the shortcomings of a legal regime based entirely upon Title IX. This legislation, unlike proposals aimed at merely strengthening the Title IX framework, might potentially avoid some of the backlash that has emerged in the wake of Title IX’s growing application in student-to-student sexual assault cases at universities while better addressing the issue.

 

February 23, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Wednesday, February 22, 2017

Bringing Tort Law to the Campus Sexual Assault Debate

Sarah Lynnda Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kansas L.Rev. (forthcoming)

Abstract

In the last few years, campus sexual assault has risen to prominence as a national public concern. As policy-makers scramble to figure out how best to address this problem, the contours of the conversation in scholarship, media articles, and policy-making have devolved into two competing adjudicative frameworks: criminal law or Title IX. In this criminal law versus Title IX debate, two questions dominate. First, who can better adjudicate claims of campus sexual assault: criminal courts using criminal laws, or schools using Title IX? Second, if schools do adjudicate sexual assault claims under Title IX, are students entitled to the same procedural protections as criminal defendants? In this Symposium piece, I argue that this criminal law versus Title IX framing is unduly narrow. It ignores a third, important mode of adjudication for sexual assault claims: tort law. In this essay, I show why tort law has been left out of the campus sexual assault debate, and the potential impact of its inclusion. Incorporating tort law into the campus sexual assault debate has three specific benefits. First, conceptualizing campus sexual assault as a tort reminds us that the same wrong can be legitimately framed and addressed in multiple ways. Second, tort law sets a useful standard for determining the scope of procedural protections in campus sexual assault proceedings. Third, tort law suggests that affirmative consent may be appropriate for campus sexual interactions. Ultimately, bringing tort law into the campus sexual assault debate opens up the vast and fertile ground between the two poles of criminal law and Title IX, and creates a space where better institutional design and a more effective solution to this social problem might be found.

February 22, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Tuesday, February 21, 2017

The Burden of Asylum for Gender-Related Persecution

Joanna Kallinosis, Refugee Roulette: A Comparative Analysis of Gender-Related Persecution, 6 DePaul J. Women, Gender & L. (2017)

This essay examines the existing law regarding gender related persecution and the burden imposed on female asylum applicants to fit their claims within the circumscribed notion of a refugee within Immigration law of the United States of America. Such difficulties are contrasted with the Canadian Immigration system, where women enjoy greater freedom in the interpretation of requisites necessary to be granted asylum. Section I of this essay explores the problems women face in gaining asylum in the United States. Section II of this essay will analyze the conflicting claims and claimants. Section III of this essay will explore past trends in asylum law; discuss the framework for evaluating asylum claims under current US asylum law; analyze the competing judicial interpretations of asylum law and discuss the inconsistency of judicial decisions. Section IV of this essay will discuss the projection of future trends. Section V of this essay will propose an amendment to the Refugee Act to include a Sixth category of gender or sexual persecution.

February 21, 2017 in International, Violence Against Women | Permalink | Comments (0)