Thursday, May 7, 2020
By Prof. Justine Dunlap
It was the worst of timing.
The Trump Administration’s Title IX regulations governing sexual misconduct were issued in draft form in November 2018. A year later, word came that they would be released in final form in December 2019, along with leaked drafts of what the final regs would contain. This allowed a sneak peek into which of the more than 120,000 comments proffered during the notice and comment period were considered and incorporated, and which failed to budge the regulators. So those of us who follow these things were waiting for the regs to drop. Some waited with anticipation, some with dread, others perhaps with mere curiosity.
Then the coronavirus hit and the resulting COVID-19 illness required schools across all learning levels and ages to become vehicles of remote learning. Schools, including IHE, are continuing this mode of remote learning through the summer and are now considering what the Fall term will look like on campus—or whether it can even be on campus. Further, institutions of higher learning are undergoing significant financial challenges due to coronavirus closures. Layoffs and furloughs are inevitable.
Amidst this, on Wednesday, May 6th, the Title IX final regulations were released, with an implementation date of August 14, 2020 attached. So merits aside for a moment, the timing is abysmal. These regulations constitute a major shift in Title IX law in numerous ways. They require significant changes in how schools conduct hearings on alleged sexual misconduct. It will be extremely hard for IHEs to plan for the regs’ implementation from—quite literally—afar. Moreover, the staff needed to implement these new regs may be unavailable, perhaps because they have been redirected to deal with student COVID-19 related crises. The American Council on Education, eighteen state attorneys general, and at least three senators had asked the DOE to delay the already delayed final regulations until the COVID pandemic abated. Somehow, Secretary of Education Betsy DeVos’s response that “civil rights really can’t wait” is supremely unsatisfying.
Tuesday, April 14, 2020
The Department of Justice began investigating the Edna Mahan Correctional Facility for Women in 2018. The Justice Department report was released this week. The primary finding was of rampant sexual abuse of incarcerated women by correctional officers and other staff. Since the investigation began DOJ reports:
In May 2018, an Edna Mahan correction officer was found guilty of five counts of sexually abusing prisoners. According to the sentencing judge, the “pervasive culture” at Edna Mahan allowed this correction officer to abuse his “position of authority to indulge in [his] own sexual stimulation.”
In July 2018, another Edna Mahan correction officer pled guilty to three counts of official misconduct after he admitted sexually abusing three separate prisoners.
In January 2019, another correction officer pled guilty to official misconduct charges after admitting that he repeatedly sexually abused two Edna Mahan prisoners over a period of several years. In sentencing him, the New Jersey court concluded that the officer had “sexually assaulted a vulnerable population.”
Others have been indicted.
As reported by the NY Times, “Sexual abuse should not be a part of any prisoner’s punishment,” Eric S. Dreiband, the head of the Justice Department’s Civil Rights Division, said in a statement accompanying the report, the result of an investigation by the division and the U.S. attorney’s office in New Jersey. “Women prisoners at Edna Mahan are at substantial risk of sexual abuse by staff because systemic deficiencies discourage prisoners from reporting sexual abuse and allow sexual abuse to occur undetected and undeterred.”
Incarcerated women have complained for decades of the sexual and other abuse they are subjected to while confined. Edna Mahan's women were no different. The women endured years of abuse, which included being forced to have sex with other women while staff observed. The report went on to say that “Our society requires prisoners to give up their liberty, but that surrender does not encompass the basic right to be free from severe unwanted sexual contact.” The question has to be asked - why did it take years of reporting for any significant investigation to be done? Other incarcerated women report similar abuses at a wide number of facilities but life is often more difficult for them if they report the abuse. The women of Edna Mahan were courageous in their reporting but not after years of being threatened into silence.
Most incarcerated women lost their liberty for non-violent crimes. Most incarcerated women were abused during their pre-incarceration years. These women do need prison. They need services. Whether the needed help is for substance abuse, mental health, education or reunification with children, prisons to not provided supportive environments that will assist women to have healthy lives. The abolition of prisons for women and girls is a national movement, led by the National Council of Incarcerated Women and Girls.
Those interested in joining the abolitionist movement will readily find local organizations leading the efforts locally. Prisons for women have a sordid history of physical and sexual abuse of women and failure to provide services even at the level male provided to incarcerated men. Time indeed is up on the incarcerated of women and girls.
Wednesday, April 8, 2020
Many articles have surfaced reporting the increase in domestic violence since the beginning of self-quarantine imposed by many countries during the pandemic. Survivors of gender violence have enforced psychological, if not physical, boundaries, dependent upon the whims of the abusive partner. Targets of intimate partner abuse are accustomed to being tracked by their abusers. Constant texting, following, and other surveillance are part of an abused partner's daily routine.
Now many survivors are trapped with their abusers. Because of lockdowns, self-quarantines and other measures designed to prevent the spread of novel coronavirus, many families experiencing abuse are now forced to be with the abuser 24 hours a day. Other additional stressors are unemployment, being with children 24 hours a day, and increased substance abuse. Calls to domestic violence hotlines have increased significantly.
The United Nations asked that countries make the safety of domestic violence survivors a priority and and few have made special accommodations part their response to the pandemic. But how? No country has made anti-domestic violence a priority beyond basic and inadequate resources and certainly have not made significant inroads into changing the cultural acceptance of abuse. Some countries have converted women's shelters into health facilities. Some shelters have introduced measures barring new victims for fear of further spreading the virus. Few replacement shelters have become available during the interim.
Chickens are coming home to roost. Governments have not been aggressive in addressing the root causes of abuse or in providing adequate remedies for those who have experienced intimate partner violence. Advocates are often only able to provide temporary relief to the abused. Legal systems may provide limited relief but are not the answer to a long term solution. The tools needed to provide independence such as sufficient financial support, housing, and education are and always have been in short supply for survivors.
Few tools are available to help under these circumstances. Police can conduct wellness checks. Neighbors can report disturbances. But those measures are stopgap, as well, unless backed up by long term remedies addressed in part above. After years of education and advocacy addressing intimate partner abuse, the current reality is evidence that we have come no closer to eradicating violence from our culture than when we started. How will this inform advocates' next steps?
Sunday, March 29, 2020
By Co-Editor Prof. Justine Dunlap
No doubt many of you are practicing social distancing but cuddling up to Netflix. Here’s a recommendation for you: avoid those pandemic movies and watch Unbelievable. This eight-episode series chronicles the case of a young girl, called Marie, living in foster care, who reports being raped by an intruder. The series is based on a true story reported by ProPublica and The Marshall Project and published in December 2015. It is compelling.
Back to the story but here’s your spoiler alert: a few details follow. Marie’s story has holes, inconsistencies. Police officers and others make her repeat what happened repeatedly. Latching onto the inconsistencies, they push and she begins to doubt herself and recants. She is later prosecuted for filing a false report. While this happens, her rapist moves on and continues raping elsewhere. Two detectives who catch the cases in other cities believe their victims. They are dogged as well as compassionate. That’s all I’ll say about the series so I don’t reveal all.
We’ve all heard it: tell the truth, it’s easier to keep your story straight. Turns out, that’s not necessarily true. Trauma affects one’s ability to recall exactly what happened. Sometimes it is also said: details give a story the ring of truth. But trauma interferes with one’s ability to recall details. The truth may be being told even in an inconsistent story.
So what’s a truth-seeker to do? To paraphrase a former president, believe but verify. Don’t disbelieve a crime victim just because the crime is sexual assault and the victim is confused. Become educated about the effects of trauma. Do due diligence but don’t gaslight. Oh, and be sure to watch Unbelievable on Netflix. Don’t take my word for it, it was Salma Hayek’s Women’s Day pick.
Tuesday, January 14, 2020
At the beginning of a year, many states see new laws going into effect. One that deserves special mention is SB 212 in Texas. Passed last summer and becoming effective on January 1, 2020, this law mandates that if any non-student employee of a postsecondary educational institution becomes aware of any incident of dating violence, sexual assault, sexual harassment or stalking, that employee must report the incident to their institutions’ Title IX coordinator. If an employee fails to comply with this requirement, he or she can be charged with a criminal misdemeanor. Further, the failure to comply will result in the employee being fired.
The law has received both praise and pushback. The organization “Help Save our Sons” calls it a terrible law. Survivor groups oppose it as well. A Forbes magazine opinion piece calls it “the worst of both worlds.” The law likely had its origins in a Baylor University Title IX investigation that was beyond inadequate. Although perhaps well-intentioned, this law heaps further trauma on a victim, as it requires reporting sexual assault (and allegations of a similar nature) even if the victim/accuser does not want that to happen. Making an official report further removes control and violates the autonomy of a person who has already been subjected to a violation of autonomy and loss of control. There are good ways to help survivors and demonstrate that a university is committed to combatting sexual assault. Sadly, this law is not one of those good ways. It is a bad law that should not be copied by other states.
Monday, December 16, 2019
by Justine Dunlap, who continues her exploration of the challenges facing survivors of gender violence and their advocates.
In the next several weeks, the Department of Education is set to finalize Title IX regulations it proposed in November 2018. During the notice and comment period, the proposed regulations received over 100,000 comments. According to some reports, DOE made modest modifications as a result. However, it appears that the final regs will largely track the proposed ones. The changes from the way Title IX complaints/investigations were handled under Obama-era guidance include: 1) allowing schools to use a higher level of proof—a clear and convincing rather than a preponderance of the evidence standard, 2) mandating some type of cross-examination, which had been previously discouraged, and 3) imposing a narrower definition of acts that would violate Title IX.
On December 10, 2019, four congresswomen—including Elissa Slotkin, the representative from the district encompassing Michigan State University, the situs of Larry Nassar’s crimes and an ineffectual Title IX investigation—introduced a bill that would prohibit DOE Secretary Betsy DeVos from implementing the regulations. What will happen next is unclear except for this: the battle will rage on. And at least partially obscured in the battle will be some of the problems that pre-existed the proposed regs. Prior guidance could be fuzzy and/or overinterpreted to err on the side of extreme policies that benefitted few but the cottage industry of Title IX trainers that has emerged over the past several years. New regs would be most helpful if they created a clearer process and implemented ways that actually supported victims who choose to report, without simultaneously creating the impression that the outcome was foreordained.
Sunday, June 23, 2019
This past week I had the privilege of attending a performance of What The Constitution Means To Me in New York City. This particular performance was special because domestic violence advocates from around the country were in the audience. As was Jessica Lenahan whose US Supreme Court Case is a topic addressed by actor Heidi Schreck in the play. Schreck tells the story of traveling as a 15-year-old to various veteran's organizations giving her speech on the Constitution. That is how she earned money to attend college. The walls are lined with framed headshots of white male veterans wearing their slim double-pointed hats.
The play movingly addresses the Supreme Court's refusal to protect women from violence, and the rollback of women's rights, particularly reproductive rights. These topics are timely for discussion and are eloquently addressed.
The stage set silently reinforces the power that white men have over women. And that was the greatest irritant for me.
I appreciate those who served in the military. Those who were disabled from their military experiences deserve ongoing restorative support without the resistance that many veterans encounter from our government.
But what we do not need is another veteran memorial, another military park or statue. A public memorial honoring the women of all genders who have suffered violence at the hands of intimate partners would be welcome. Memorials to individuals of all genders who experienced sex-based violence, including veterans, are urgently needed. Public recognition of the indignities suffered by women of color and indigenous women would do much to bring awareness to the intersection of race, ethnicity, and sex on the spectrum of discrimination and violence against women. A memorial to all of the women who suffered and the many who died because of war would bring a face to the human suffering war creates. Perhaps we could refocus suffering as well as heroism.
Since only the work performed primarily by males is honored in this country -- police, fire, military for some examples -- that is the culture we honor. The next time that your town wants to erect another statue to male culture, think about protesting. I would argue that public statues and memorials are unnecessary. But I realize in an age where civics are no longer taught, and women are largely ignored in history, education happens around public monuments and this is one place where the re-education of America can begin.
Sunday, June 2, 2019
A study by the Thompson Reuter Foundation looked at what countries were the most dangerous ones for women. One western country was included: the United States.
The Foundation queried 500 experts to ask in" which countries they believed women were most at risk. Countries were ranked in six key areas: health care, sexual violence, non-sexual violence, cultural practices, discrimination and human trafficking." Sexual and non-sexual violence against women was the factor that placed the United States in the top ten. The experts recognized that the #MeToo movement exposed serious problems of sexual violence experienced by US women. The US ranked third with Syria when assessing on " sexual violence, including rape, sexual harassment, coercion into sex and the lack of access to justice in rape cases." The US overall ranking is 10.
The factors considered in determining the ranking were: health care, sexual violence, non-sexual violence, cultural practices, discrimination, and human trafficking.
The overall rankings considering all factors are:
5. Saudi Arabia
7. Democratic Republic of Congo
10. The United States
Thursday, May 2, 2019
Whatever Joe Biden is, he is not a feminist. Despite his original co-sponsorship of the Violence Against Women Act and his ongoing 20+ years support of the act, Mr. Biden does not understand what the #MeToo movement is about.
During the 1991 Clarence Thomas hearings, Mr. Biden left Anita Hill isolated and vilified by men analyzing her credibility. At the time, then-Senator Biden had control of whether to abandon the witness or permit other women to testify to the sexual harassment they endured from now Justice Thomas. Mr. Biden chose to stand with the boys. Now he refuses to apologize to Anita Hill. Politically there are advantages to his apologizing. Women of all colors would appreciate the acknowledgment of his role in further entrenching and institutionalizing the stereotype of women as liars. Professor Hill suffered. She was a target of controversy for years. Eventually, she left the University of Oklahoma after being shunned by the University President. The same President was previously a US senator and had voted for Thomas' confirmation. There was also a movement to defund Hill's endowed chair and to revoke her tenure. Biden's actions further entrenched the stereotype that women lie, and that what black women say can be further discounted.
Mr. Biden may believe that supporting the Violence Against Women's Act, originally passed three years following the Thomas hearings, was sufficient penance and that women would forgive him any perceived misogyny. Well, that might have been the case if Biden hadn't refused to apologize to Professor Hill. Not a feminist, and not self-reflective, Biden is refusing to take responsibility for his significant role in postponing for decades the restoration of women's credibility.
Tuesday, April 2, 2019
This startling sentence comes at the end of the movie Wind River, a graphic 2017 murder mystery/thriller that has at its core the issue of missing and murdered indigenous women (MMIW). Since the release of that movie, a database that more thoroughly documents MMIW has been created. This database, which is housed at the Sovereign Bodies Institute website, was created by Annita Lucchesi, a doctoral student, and cartographer. Lucchesi used the Freedom of Information Act requests to obtain information from many law enforcement entities.
Here is a description of the database from the Sovereign Bodies Institute website:
The MMIW Database logs cases of missing and murdered indigenous women, girls, and two-spirit people, from 1900 to the present. There are many lists and sources of information online, but no central database that is routinely updated, spans beyond colonial borders, and thoroughly logs important aspects of the data, and overall, there is a chronic lack of data on this violence. The Database works to address that need, by maintaining a comprehensive resource to support community members, advocates, activists, and researchers in their work towards justice for our stolen sisters.
Other efforts to reliably document murdered and missing indigenous women include proposed federal legislation. Savanna’s Act was introduced in the 115th Congress and unanimously passed in the Senate. Thereafter, it stalled in the House. A revised version of the bill was recently re-introduced by Senator Lisa Murkowski. It had 11 co-sponsors.
The congressional findings in the bill are as shocking as the Wind River coda. They include:
(1) On some reservations, Indian women are murdered at more than 10 times the national average.
(2) American Indians and Alaska Natives are 2.5 times as likely to experience violent crimes—and at least 2 times more likely to experience rape or sexual assault crimes—compared to all other races according to the National Congress of American Indians.
(3) More than 4 in 5 American Indian and Alaska Native women, or 84.3 percent, have experienced violence in their lifetime according to the National Institute of Justice.
(4) More than 4 in 5 American Indian and Alaska Native men, or 81.6 percent, have experienced violence in their lifetime according to the National Institute of Justice.
(5) According to the Centers for Disease Control and Prevention, homicide is the third leading cause of death among American Indian and Alaska Native women between 10 and 24 years of age and the fifth leading cause of death for American Indian and Alaska Native women between 25 and 34 years of age.
(6) Investigation into cases of missing and murdered Indian women is made difficult for Tribal law enforcement agencies due to a lack of resources, … a lack of interagency cooperation, … and a lack of appropriate laws in place.
With efforts like the MMIW database and, one can hope, bipartisan federal legislation, perhaps the shameful failure to document missing and murdered native women and girls can begin to be rectified.
Thursday, January 31, 2019
By JoAnn Kamuf Ward, Director, Human Rights in the US Project & Lecturer-In-Law, Columbia Law School.
While 2018 has been dubbed the year of the woman, it is abundantly clear that misogyny is alive and well. And, in order to address the underlying structures and beliefs that allow gender inequality to persist requires transformation. It requires a cultural shift. Treating acts of discrimination, harassment, and assault on an individual basis is simply insufficient. It is not enough that four women have announced they are running for President. It is not enough that more than 100 women were elected to Congress.
As advocates fighting for passage of the ERA and US adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) have long recognized, the laws and institutions we have in place are insufficient to guarantee women’s equality.
Tarana Burke founded #MeToo to challenge the underlying beliefs that allow assault and harassment to occur. It is about reshaping relationships of power and privilege. As she has so clearly stated, “we need to dramatically shift a culture that propagates the idea that vulnerability is synonymous with permission and that bodily autonomy is not a basic human right.”
It is not surprising that Tarana Burke has defined eradicating gender-based violence as a human rights issue. Human rights are about systems change. They are about centering the experience of those most vulnerable to violations. And, they are about a new, affirmative approach to addressing discrimination and inequality. That includes changing how each of us views our individual and collective responsibilities to address gender discrimination and inequality. It requires reshaping gender and racial stereotypes that have led to current dynamics of power and privilege. We must reform institutions to eradicate implicit and explicit bias. We must also change the laws in place to prevent and respond to acts of discrimination, assault, and harassment in order to foster more collective accountability.
In the United States, the predominant paradigm for dealing with sexual harassment, gender-based violence, and discrimination has historically been largely individual. Yet, focusing on individual perpetrators and isolated incidents falls short of the transformative change that is required. As Dahlia Lithwack wrote in September, it is a myth “that patriarchal systems, based in entrenched power, and supported by others in power, could be brought down by individual, brave women.” Systemic change is essential, because the system in which we operate has failed women.
#MeToo has also made clear that the challenges we face are societal and institutional.
And, in response to the movement, global human rights actors have spoken out. UN experts have recognized the need for more concerted action to address the oppression that exclude women from positions of power in order to eradicate all forms of gender discrimination, and there is increasing guidance on core elements of a rights-based approach to gender-based violence and harassment though law and policy grounded in human rights principles, building off existing standards found in principles of CEDAW. There are also calls for more specific international protections for women in the workplace. And examples of how U.S. workplaces can be transformed through human rights-based worker driven solutions, such as the Fair Food Program.
As already reported on this blog, across the U.S. local advocates, law school clinics, and local governments are also looking to human rights to foster broader based approaches to advancing gender equity, focusing on eradicating negative stereotypes, and identifying and addressing barriers to equality for women and girls by adopting CEDAW principles.
CEDAW offers a framework to foster gender equality and eliminate discrimination against women. It defines what constitutes discrimination against women broadly to encompass laws and policies that negatively affect women’s human rights, and identifies pathways to more equitable opportunities and outcomes in a wide range of areas. According to CEDAW, governments must:
In order to ensure equal enjoyment of rights for all women, CEDAW calls for policies that reflect the ways that individual’s multiple identities, including her race, nationality, disability, age, as well as economic and social status, impact her enjoyment of rights, and calls for targeted and culturally-appropriate solutions.
Recognizing the power of these principles, the umbrella organization of state and local civil and human rights agencies – many of whom are charged with resolving complaints of individual discrimination – passed a resolution in support of CEDAW in 2017 – calling on its members to support municipal, county, and state-wide policy efforts to affirm the rights of women, eliminate all forms of discrimination, advance gender equity, and promote and affirm the principles of CEDAW. This is an important foundation for a more affirmative, proactive approach to advancing women’s rights and achieving the transformative change that is needed.
To cultivate action, and support state and local government human rights implementation, the Columbia Law School Human Rights Institute recently published a Gender Equity Toolkit. Developed in partnership with the Leadership Conference on Civil and Human Rights and UNA-USA, the toolkit highlights specific ways that state and local agencies and officials can utilize CEDAW to promote and protect women’s rights, including: fostering human rights education and awareness; assessing the status of women through a gender analysis; and incorporating CEDAW principles into local law and policy.
The Toolkit offers a menu of activities that can strengthen protection for women’s rights, and serve as a springboard for local, city, and state efforts to break down the barriers that continue to impede full equality for women, and redefine relationships of power and privilege.
Thursday, January 24, 2019
For over a week last January, 156 women provided victim statements during a sentencing hearing for sexual assailant Larry Nassar. On this January 16th, John Engler resigned under pressure as the interim President of Michigan State University. Engler’s offense was a recent interview in which he suggested that some of the survivors were enjoying the spotlight. These comments were not the first to stoke controversy, but they were what finally led university trustees to demand his resignation. Engler, an MSU alumnus and former governor, was appointed last February after President Lou Anna Simon was forced out because of her failures in the Nassar case. (She has since been charged criminally with lying to investigators; her preliminary hearing is scheduled to begin January 31). Nassar will spend the rest of his life in jail. However, it took nearly two decades of allegations to get there and, as the Engler resignation suggests, even now the survivors are scapegoated or, to use the phrase coined by Professor Jennifer Freyd, subject to institutional DARVO, an acronym for Deny, Attack, and Reverse Victim and Offender.
This past week also saw movement in another case involving longstanding allegations of sexual assault. RCA dropped its recording relationship with musician R. Kelly. Kelly is the subject of a recent documentary about these assaults and, one by one, artists with whom he had collaborated are removing those recordings from streaming sites. As with the Nassar victims, it is alleged that Kelly’s victims were often underage. And as with Nassar, prior investigations—in Kelly’s case, a prior prosecution—did not yield results.
In light of these two recent events involving assaults on women and how long it takes reports of those assaults to matter, the recent Gillette razor commercial and the reaction to it deserve special note. For those not paying attention, Gillette released an ad urging men not to behave like bullies or jerks especially, but not exclusively, regarding treatment of women. Boy (so to speak), did that ad hit a nerve and then some. It is as if suggesting that if men and boys choose not to fight or not to leer or not to out-testosterone the Y chromosome human standing nearby, they are emasculated. Really? Have we come to that? Has the “locker room talk” and “boys will boys” defenses led to enshrining boorish behavior? Perhaps it demonstrates naivete to be surprised but still. I hereby tip my hat to Gillette and pledge to buy their razors.
So, it has been an interesting week or two at the start of the new year. Progress has been made. But, as usual, that progress is not linear.
Wednesday, November 7, 2018
Sexual abuse of those detained in ICE centers is no secret. Statistics show that there were 1448 complaints of sexual assault in just over five years with 237 assaults in 2017 alone. Some of the assaults were on children. Several employees have been arrested. This with only 40% of sexual assaults in detention centers being reported by administrators.
Yet in a civil suit filed on behalf of assault victims, ICE has raised the centuries old defense that the detainee, who was assaulted when detained with her three year old son, consented to the assault. In this context, however, consent (even if it did exist) is irrelevant because in the detention setting, any sexual contact between an employee ad a detainee is a criminal offense.
In E.D. v. Sharkey a detainee filed suit because she was assaulted while detained with her three year old son. Among the defendants are those employees who stood by while the assault occurred and failed to protect E.D. The institutional defendant claims that it should not be liable to the Plaintiff because they are a detention center and not a prison or jail and therefore should not be accountable under the Prison Rape Elimination Act.
The ACLU has filed an Amicus brief in support of E. D.
Saturday, October 6, 2018
After spending a depressing Saturday mourning our political process and anticipating the anti-female and anti-LGBTQ opinions that the confirmation of Brett Kavanaugh likely will bring, I am just beginning to recover. Having been a fully engaged, practicing lawyer during the Hill-Thomas hearing, I felt sucker punched. I realized that this time around I actually had some hope that the voices of women would be heard. That little part of me that thought this time around would be different was angry. Nothing had changed.
We have witnessed an absolute disregard for what is happening in the country. After all, the next presidential Supreme Court Nominee will be a conservative justice. What does the Senate think it had to lose by passing on Justice Kavanaugh. The objections to Kavanaugh center not only on the sexual assault allegations, but on his behavior at the Senate hearings when he disrespected women senators. The Senate's failure to acknowledge the concerns of millions of men and women resulted from the immovable belief by men in power that they are beyond questioning or examination. They don't care. At the Hill-Thomas hearing the women were silenced as in Kavanaugh, but the raw hatred of women was kept at bay.
But something else changed since Hill-Thomas.
While Senator Grassley may believe that the protests were helpful to the Republican Senators, he is wrong. The confirmation of Brett Kavanaugh has inspired younger women to vote and carry on. The confirmation of Brett Kavanaugh is a catalyst for women. I am particularly heartened by the young women who demonstrated. Watching women being arrested for protesting following the confirmation hearings is so hopeful. Many of the women and men who are demonstrating are in their twenties. Their energy and persistence is inspiring. And they vote.
Our new leaders have arrived.
Tuesday, September 18, 2018
When I heard that an additional day of congressional hearings was scheduled for Monday, I cringed. I vividly remember the Anita Hill hearings. We owe a debt to Prof. Hill. She was one of the first women to publicly take on the topic of sexual harassment against a powerful man who had the support of powerful men. Prof. Hill was not protected. She was promised anonymity by the FBI only to be brought to testify at the Thomas confirmation hearing. She experienced professional and personal criticism and retaliation. Witnesses who could have supported her claims were prevented from testifying.
Is Prof. Ford facing the same fate? She attempted anonymity but quickly was "outed". Will supporting witnesses be permitted to testify? Or will Prof. Ford be forced to testify to details of a traumatic event only to find Judge Kavanaugh confirmed? My only hope comes from the #MeToo movement. 600 graduates of Ms. Ford's high school have signed a letter of support, stating that her description of events comports with their experiences. A much smaller number of women who knew Judge Kavanaugh when he was in high school have signed a letter attesting to his good character.
Anita Hill commented on Prof. Ford's predicament. In today's New York Times, Prof. Hill reflects on how Congress can "do better". Prof. Hill said the committee must follow “some basic ground rules.”
Thursday, May 31, 2018
Prof. Justine Dunlap has been following the Larry Nassar case. She reports on the settlement between MSU and Nassar's victims.
Michigan State University recently entered into a $500 million settlement with Larry Nassar’s victim/survivors. Of that amount, $425 million goes to the plaintiffs and $75 million is reserved for future claimants. The $425 million will be placed in a fund from which costs and lawyers’ fees will be extracted. Then a determination will be made as to how much each of the 332 survivors will receive; the range of payments is said to be between $250,000 and $2.5 million.
The settlement sum has drawn much attention. Naturally, it has been contrasted with the $100+ million paid out by Penn State University for the victims of Jerry Sandusky’s crimes. In that case, however, there were only a small fraction of the number of victims—approximately 10% of number that are present in the Nassar case.
Further, the anticipated settlement was central to Moody’s downgrade of MSU’s long-term bond rating in early May. Moody’s rationale was that the agreement—the mediation of which was then ongoing—could result in significant “financial ramification” to the university. Moody’s noted that the increased financial risk from Nassar-related pending lawsuits would involve “ongoing legal costs and university investment into enhanced risk management and governance issues increasing costs.”
MSU’s legal costs have not been cheap. More than a year ago, the university paid Skadden Arps attorney Patrick Fitzgerald $990 per hour for his investigation of how the university handled the matter. In the present settlement mediation, MSU was represented by Robert Young, Jr., a former Michigan Supreme Court justice, for the hourly rate $640. A veritable bargain by comparison.
How MSU will finance the settlement remains unclear. MSU interim president John Engler indicted in a statement released the day after the settlement that the university’s insurers were involved in the process and he anticipated that they would honor their contractual obligations. But even if they do, that amount won’t cover the costs. And what about state money? The $500 million price tag is almost double what the school receives from the state annually (that sum is $281). Engler, a former Michigan governor, said that he would not seek additional funds from the state to satisfy the settlement. Legislators have also made clear that they would not support such a request.
The settlement is about more than the money that the survivors (and lawyers) will receive. It is, one hopes, a further step in resolution, coming less than four months after Nassar was sentenced to 40-125 years in prison. A resolution to a case that was 20 years in the making, as Nassar’s crimes were first reported in the late 1990s. It remains to be seen whether it is also a real step in either institutional or legal reform.
On those counts, whether real change is happening at the university remains a matter of opinion. The university touts, as surely it must, all that it has done and is continuing to do. Much of the information on the President’s page of the school’s website has to do with its post-Nassar initiatives. On the other hand, other groups, such as Reclaim MSU, assert the University’s recent steps are a continuation of the problem that failed to stop Nassar 20 years ago.
As to legislative reform, the state legislature is considering legal changes, including alterations in the applicable statutes of limitations and the stripping of immunity from state actors who knew but did not act. Of course, time will tell what legislative changes are wrought. More significantly, time will tell whether any legislative changes made were ones that actually matter.
Thursday, April 26, 2018
Bill Cosby was found guilty on three counts of aggravated indecent assault. This verdict came at the end of a second trial, the first one having ended in a mistrial last year. What happened in between? Certainly the lawyers had time to organize their better cases. Witnesses had time to prepare for the emotional strain of testifying in a highly publicized trial. But was there also a cultural shift?
Sisters organized beginning with the Women's March. #MeToo and Times Up happened. Both men and women began to believe women leading media to speculate that the verdict reflects the impact of the #MeToo movement.
What is speculative is whether this case will translate into a higher rate of convictions in sexual assault cases generally. This may be unlikely. During Cosby's second trial, several women testified as to Cosby's pattern of assaults. This is a result that is unlikely happen in other jurisdictions where establishing a pattern of behavior is not generally permitted in criminal trials.
In order to create an effective shift on the criminal law side, prosecutors must have a sincere and educated interest in trying the difficult cases. Prosecutors must find effective ways to persuade jurors to believe women and understand trauma. One ingredient in creating a possible a sea change in sexual assault prosecutions would be to have trauma experts not only testifying in sexual assault cases, but working with prosecutors as cases are planned. If history is any guide, states will be unwilling to commit the resources to support effective prosecution. Sexual assault survivors are reluctant to report, let alone prosecute, the crimes committed against them. When we begin to see improved results for women in local prosecutions, then we can credit the movement in creating a broader culture shift. Until then, we know #MeToo remains effective in exposing celebs.
Sunday, January 7, 2018
Is Matt Damon one of the celebs looking to derail the #MeToo movement? For those of you who have the sense not to follow celebrity "news", Mr. Damon remarked during a recent interview that there is a big difference between patting someone on the rear and rape. Well, I concede, there is a difference, but Mr. Damon should not diminish the serious psychological harm that comes to women who endure unwanted physical touching day after day. The behavior not only demeans their work, but their entire being, causing some severe psychic pain and loss of self-esteem. Just ask the women at Ford. Or ask the women who left the entertainment industry, forfeiting their chosen careers due to harassment. Mr. Damon also suggested that men who grew up believing patting women's rears was ok should be treated differently.
Let's not get distracted as Joan Vennochi did. Yes- there are degrees of behavior. There are even differences on what an appropriate employer response should be to reports of current or past sexual harassment.
Let's look at two unexplored aspects of Mr. Damon's chatter. First is the timing. Why interrupt a relatively nascent movement that is just beginning to see effects outside of the entertainment industry? Mr. Damon's follow-up remarks saying that all of the unwanted behavior must be eradicated, do not justify the timing of criticizing the movement when the impact of his remarks could slow, if not stop, the momentum. Mr. Damon is defensive from criticism that he did not "know" about Harvey Weinstein's behavior . That is possible. But it is not plausible that Damon did not understand the consequences of creating diversion at a critical time in women's attempts to be heard.
Second point, once again Mr. Damon removed men's responsibility for decision making and subtly put it on the women of the #MeToo movement. Mr. Damon failed to mention that the men being fired from their positions were being fired by men. Next time Mr. Damon decides to pontificate about men's behavior, perhaps he could make it clear that he is criticizing the male CEO's for their post-allegation responses. The silence of not naming the problem shifts blame to the victims.
Equally unfortunate that the focus of recent firings has been solely on physical behavior, including threats or demands for sex. We risk making inappropriate physical behavior or threats involving sexual demands the bar for firing when non-physical displays of misogyny should be adequate.
Monday, December 4, 2017
By Margaret Drew
NBC executives should be worried. Their unwillingness to address sexual harassment is well documented. Disrespect for women exhibits itself in many forms. While the degrees of disrespect vary, they are interconnected. Matt Lauer should have been fired thirty seconds after his "interview" with Hillary Clinton during the last presidential campaign ended. During that interview, Lauer repeatedly interrupted Ms. Clinton. He diverted her from the intended topic of the president's role as commander-in-chief by frequently raising the well worn e-mail issue. When matters turned to issues of military leadership, Lauer reminded Clinton that time was short, attempting to prevent her from giving a comprehensive answer. And then Mr. Trump, on the other hand, was unchallenged, even when he made statements that could be easily disproved. More details of the interview may be seen here. NBC failed to discipline Lauer for what most female viewers recognized as misogyny. Hillary Clinton's turmoil during that interview and her split second decision-making on handling the dilemma is documented in her memoir What Happened.
And was NBC management not listening when Katie Couric revealed in 2012 that Lauer often pinched her on her rear "alot". That behavior alone was sufficient to fire Lauer. Then let's not forget that not only did NBC delay in reporting on the Trump/Bush sex videotape, NBC had it in its possession since 2005.
Either of the prior behaviors were adequate to alert NBC execs that there was likely more serious sexual misconduct going on. But those with the power to stop the abuse refused to investigate. Other actions by NBC were telling. The network refused to run a well-documented expose of Harvey Weinstein's sexual offenses written by Ronan Farrow, despite the network's approval of the article as well-documented. NBC's failure to honor its commitment to Farrow was puzzling, but consistent with the network's refusal to address mysoginy and sexual misconduct in any form. NBC would have had the scoop on the Weinstein debacle. The New Yorker ran the article instead. A more recent New Yorker article refers to NBC's actions post-Lauer as the "Theater of Accountability."
Are NBC execs worried that the next people fired for sexual misconduct will be one of them?
Tuesday, November 21, 2017
The celebrity men are falling. Charlie Rose is the latest formerly venerated but large egoed man to fall under the weight of sexual harassment allegations. The line of the dethroned is getting longer, but the time is getting shorter.
During the 1980’s I was one of a handful of lawyers who tried divorce cases on grounds of abuse. “No Fault” divorce had arrived in all but a few states. Trying cases on any other grounds was considered distasteful. But my clients wanted their truth heard in court. The judgments my clients received would today be considered amazing. In the 80’s the judgments were viewed as just compensation for the suffered abuse.
Then came the 90’s. Domestic abuse was discussed widely and openly. Those jurisdictions that had not yet enacted civil protection order statues, did so. Slowly women, who were primarily if not exclusively the petitioners, came forward to demand protection. Judges heard stories of abuse that shocked them.
But then things changed.
So many women came forward seeking protection from abuse that judges assumed that not all of the women’s claims could be true. Judges had difficulty accepting the prevalence of gender bias. By the end of the decade, the seeds had been sown in family court culture for women seeking divorce to be found not credible in that surely women were seeking protection orders only to gain a “leg up” in the divorce proceedings. No mind that all of the data shows that seeking a protection order does not result in an advantage for the abused parent. Quite the opposite. Raise abuse when children are involved, and the mother's presumed motive will be to "alienate" the children from their father.
So I am compelled to raise the alarm. With so many women, and some men, coming forward alleging sexual harassment by celebrities what will be the tipping point where accusers are branded as liars? Am I being an unnecessary alarmist?
We have not scratched the surface of sexual harassment. Rather than #MeToo, perhaps #NotMe would give a more accurate count of who has and has not been the victim of sexual harassment. I am afraid that our non-celebrity sisters will be deprived of their opportunity to air their grievances and be believed. That is where the work needs to be done. Finding platforms for the most vulnerable to air their stories without retaliation has a short window.
So if you have a plan – whether to provide legal services to those who tell their stories and are vulnerable to immediate discharge from work or other consequences – or if you hope to publicize how common sexual harassment is in all levels of our nation- do it soon.
File legislation, record the stories of our unknown sisters, bring the powerful to the workplace to prevent firing when disclosures are made, Prepare for the backlash and have a plan to defeat it - but do it within the next fifteen minutes.