Thursday, August 5, 2021
By Co-Editor Prof. Justine Dunlap, who has been following sexual assault investigations
A 168-page report that is the result of interviews –179 of them. A report that is the result of a real investigation. That is what is New York Attorney General Letitia James released earlier this week. This report, the product of months of work, concluded that New York Governor Andrew Cuomo has sexual harassed 11 women. The report also stated that his office was a toxic workplace and that there was retaliation against at least one public accuser.
It is refreshing that the reports of sexual harassment by Cuomo were investigated. And they were investigated after Cuomo referred them to General James last spring when a raft of allegations made news. James took the referral seriously and conducted a real investigation. What a juxtaposition to the failure to investigate the sexual harassment and/or sexual abuse claims levied against Larry Nassar and Brett Kavanaugh as reported earlier this week.
Further, it is likely obvious to nearly all but Andrew Cuomo that he must resign. And if he doesn’t, he will be removed from office. He asked for this investigation and must live with the outcome. Cuomo’s digging in and excuses are not going to hold. He said in March—wait for the report. Well, the report is here—the result of a real investigation—and its conclusions are clear.
Sunday, August 1, 2021
By Co-Editor Prof. Justine Dunlap
Two extraordinarily inadequate investigations recently made the news—both involving the FBI and investigations of sexual assault allegations. In mid-July, the FBI Inspector General released its report on the multiple errors made by the FBI’s Indianapolis field office after it received allegations against Larry Nassar from U.S.A. Gymnastics.
Among the many shocking things in the report over which to be outraged, two stand out: First, had the field office done its job, perhaps 70—120 girls would not have been sexually abused. Second, the mendacious FBI agent responsible for this faux investigation was pursuing a job with the U.S. Olympics Committee whilst he was supposed to be pursuing the allegations against Nassar. Shameful. This man, W. Jay Abbot, has since retired. The Department of Justice should reconsider its decision to not prosecute him.
According to the New York Times, Rachel Denhollander, a Nassar survivor who pushed to get him investigated, said she was not surprised by the F.B.I. Inspector General report. “Botched investigations and cover-ups … are … what survivors are up against. … And they constantly get asked the question, ‘Why don’t [you] report?’ Indeed.
The FBI has also recently released a letter concerning its background investigation of then-Supreme Court nominee Brett Kavanaugh. The letter states that the FBI received over 4500 tips regarding Kavanaugh during his contentious confirmation process. It investigated ten and referred “relevant” others to the White House Legal Counsel office. Really?
It was certainly known at the time that the FBI was not conducting a real investigation. But the sheer volume of tips is incomprehensible. Can we be sure that there were unbalanced and off-the-wall tips? Absolutely. But all 4500? Not so much.
I absorbed these reports not as a survivor but through the eyes of one who has researched and written about the challenges of disclosing and reporting sexual assault and intimate partner violence. I stand in awe of Denhollander and Chrisine Blasey Ford and others like them who come forward in the face of heartbreaking and disgraceful investigative responses like these.
Sunday, June 20, 2021
By Justine Dunlap, Co-Editor
Last year I wrote a post about Juneteenth, the day in 1865 that enslaved persons in Texas finally learned of their freedom about 30 months after the fact. Free at last. A momentous day, indeed. Yet it was an under-recognized day outside of Texas.
Little did I think that one year later, I would be writing another post on the topic, marveling that June 19th is now a federal holiday. It seems fitting that it is the first federal holiday after Martin Luther King, Jr. Day became a holiday in 1983. I lived in Washington, DC at that time and remember hearing Kansas Senator and former Republican presidential candidate President Bob Dole speak positively about the bill passing both houses and being signed into law by conservative icon President Ronald Reagan.
The Dr. King Holiday bill passed the Senate by a vote of 78-22. The Juneteenth legislation passed the Senate unanimously. Who’d a thunk it? Surely not I, in these famously and bitterly divided partisan times. Will I take it? Yes. Am I happy that it occurred, taking a mere two years rather than the 15 or so that the King Holiday took? Yes. Do I think it heralds a new day of cooperation and consensus on issues of racial equity? No. But nonetheless, I am thankful that Congress did the right thing on this one.
I ended with this poem last year. It seems well worth including again.
“We Rose” by Kristina Kay Robinson
From Africa’s heart, we rose
Already a people, our faces ebon, our bodies lean,
Skills of art, life, beauty and family
Crushed by forces we knew nothing of, we rose
Survive we must, we did,
We rose to be you, we rose to be me,
Above everything expected, we rose
To become the knowledge we never knew,
Dream, we did
Act we must
Tuesday, June 1, 2021
By Justine Dunlap, Co-Editor
From June 7 through June 11, the Department of Education’s Office of Civil Rights will conduct 40 hours of virtual public testimony aimed to improve the enforcement of Title IX of the Education Amendments of 1972. The public testimony spots are filled but individuals are encouraged to submit written testimony.
These hearings are being held in response to Executive Order 14021, issued March 11, 2021, in which President Biden ordered Secretary of Education Miguel Cardona to conduct a review of Title IX, including the much discussed and controversial regulations that went into effect last May.
Much about the new regulations deserve scrutiny and change. But they are not all bad. One beneficial component of the new regulations is the deletion of the term responsible employee and the concomitant de-emphasis on the widespread designation of nearly all university employees as mandatory reporters. Mandatory reporters are employees who must report when a student discloses an assault to them, even if the student opposes reporting.
As I detail in Harmful Reporting, 51 New Mexico Law Review 1 (2021), widespread mandatory reporting can be harmful to someone who wants to disclose sexual assault and receive help but who is against or even ambivalent about a formal report that removes the process from the student’s control. Sexual assault is, at its core, about the loss of control and healing involves regaining control. Thus, mandatory reporting—initially conceived as a positive step to address campus sexual assault--can depress disclosure and continue trauma to the discloser by removing her autonomy and control. Either of these results is contrary to the mandate of Title IX to provide equality in educational opportunity.
More information about the upcoming hearings, including how to attend or submit written comments, can be found at https://www.ed.gov/news/press-releases/department-educations-office-civil-rights-announces-virtual-public-hearing-gather-information-purpose-improving-enforcement-title-ix
Sunday, April 25, 2021
Truth-telling is an indispensable part—but only one part—of the moral universe’s arc bending towards justice. To achieve critical impact, truth-telling must be seen, received, and acted upon.
Truth-telling has often come through the camera lens. Mike Wallace used it effectively in 60 Minutes back in the day. Its documentation of war or famine has been useful to tell the world of these tragedies.
A new day, a new camera lens—the lens of the cellphone camera. This lens has documented truths to us all. The truth of the beating and killing of black and brown persons by the police. A truth already known to many but disbelieved or ignored by others. Because of this camera lens, white people cannot no longer credibly deny this truth.
Derick Chauvin is convicted by the truth told through Darnella Frazier’s cellphone camera. Darnella Frazier, thank you for showing us the truth.
There have been multiple killings by police in the week since Derick Chauvin’s conviction. In two cases, the truth-telling lenses are police body cameras. The videos were released quickly in one case and are still being withheld in the other. The videos must be released so that the camera lens may continue to serve its truth telling function, which can, if allowed, lead to accountability.
Say their names:
Ma’Khia Bryant 16
Andrew Brown, Jr. 42
Thursday, March 11, 2021
At long last, the announcement that so many were waiting for—with either anticipation or dread. Fewer than 50 days into his administration, President Biden dropped his charge to freshly confirmed Education Secretary Cardonas: review the Title IX regulations that went into effect in May 2020 for their consistency with Title IX. Not as tautological as it may seem, since there are differing views on what Title IX means, what its provisions require, and how its enforcement may legitimately differ, depending on whether it is a court proceeding or an administrative action.
President Biden’s announcement was not a surprise. After all, Senator Biden was the sponsor of the 1994 Violence Against Women Act. Vice-President Biden chaired the 2014-17 White House Task Force to Protect Students from Sexual Assault. And his administration includes the highest ranking woman in American Politics: Vice President Kamala Harris.
Secretary Cardonas has 100 days to make recommendations on what, if anything, needs to be changed. The “if anything” is lawyerly caution. No doubt there will be changes. The post-announcement chatter includes whether the new regulations will be rescinded, with a return the Obama-era guidance, or whether the Biden Administration will put its own stamp on Title IX regulations. The latter would be wise. Although rule-making is time consuming, it is a surer way to go than the Dear Colleague letter guidance that was used in the prior two administrations. Also, the new regulations have much to dislike, but their move away from universities categorizing nearly all employees as mandatory reporters is a wise step. And although this process is very polarized now, perhaps there is a way to craft a product that is neither court-like with court-like protections nor perceived as inherently biased towards the accused. Then both “sides” would be mad and perhaps a good outcome is achieved.
Monday, July 27, 2020
By Co-Editor Prof. Justine Dunlap, UMass Law School
Do you hear it? Strain, pause, listen, and rejoice. It’s obscured by much noise and tumult but the arc of the moral universe bent a little more towards justice last week. The U.S. Senate voted 86 to 14 on July 23rd to change the names of U.S. military bases that were named after confederate officers. The House of Representatives had already and predictably passed its equivalent, although the Senate bill gives the military three years to do this, juxtaposed to the House’s one year. The details will be worked out, but it’s a veto-proof vote.
This vote comes shortly after the Secretary of Defense banned the display of the confederate flag on military bases, albeit in a round-about manner. And on June 30th, the Republican Governor of Mississippi decommissioned its state flag, which incorporated the Confederate Flag within its design. Citizens of the state will vote on a new flag design in November.
Yes, it’s telling, demoralizing, and unjust that it has taken so long. And the arc’s movement is the result of those who are and have been drum majors for justice; those who have persevered and remained steadfast and optimistic (thank you Congressman John Lewis). And yet it remains a surprising delight that 86 members of today’s polarized Senate voted in favor. A miracle, perhaps. Or just the arc bending a little bit towards justice.
Thursday, June 18, 2020
Editors' Note: Continuing our symposium on Black Lives Matter, we publish this post for Juneteenth
By Co-Editor Prof. Justine Dunlap, UMass Law School
In the 7-10 days before Juneteenth, it has gotten a good deal of attention. For this increased awareness, we have President Trump’s scheduler to thank. That person initially selected this date for Trump’s first height-of-Covid rally in Tulsa, OK. This choice was particularly problematic because of the Tulsa race massacre that killed many black people in the affluent black neighborhood of Greenwood in Tulsa in 1921.
Much outcry ensued over this scheduled event and now a lot more white people know a lot more about Juneteenth, the real emancipation day for enslaved African-Americans. It occurred on June 19th, 1865, when news of Lincoln’s January 1863 Emancipation Proclamation reached and was read to enslaved people in Galveston, Texas. Many of us, regardless of race, had been taught that Lincoln’s document did the trick, with an occasional hint that there were some problems with that interpretation of history. Imagine being free but not being informed of that freedom for 2 & ½ years.
Once celebrated officially primarily in Texas, Juneteenth is an official state holiday in 46 states and is celebrated by parades and other festivities befitting a joyous day of independence. Juneteenth.com contains much information about this critical yet under-celebrated day. Spend some time today exploring it. It also contains the poem below by Kristina Kay Robinson.
From Africa’s heart, we rose
Already a people, our faces ebon, our bodies lean,
Skills of art, life, beauty and family
Crushed by forces we knew nothing of, we rose
Survive we must, we did,
We rose to be you, we rose to be me,
Above everything expected, we rose
To become the knowledge we never knew,
Dream, we did
Act we must
Monday, May 18, 2020
Ostensibly, September 2017, when the Department of Education withdrew “Obama-era guidance” concerning the implementation of Title IX regulations, was the start of battle timeline. After these documents were withdrawn, stakeholders awaited the proposed Title IX regulations with varying levels of anticipation or dread. Those arrived in November 2018, to both praise and gnashing of teeth. Next came the comment period, wherein more than 124,000 comments were logged. There followed speculation as to what the final regulations would be as well as speculation as to when they would be released. December 2019 seemed likely. December 2019, January 2020, February 2020, Corona Pandemic, March 2020, Corona Pandemic, April 2020, Corona Pandemic, May 2020—final regulations issued during this global crisis that has hit schools very hard. More praise or gnashing of teeth. A week later came the inevitable lawsuit challenging the regulations, whose current effective date is August 14, 2020. So everyone has come out of their corners swinging. And the battle will rage on.
In some ways, this is a familiar battle. New administrations produce new regulations or rescind current ones. It is but one proof of the phrase that elections have consequences. That it is the common course of things makes it no less critical for the stakeholders involved. However, the handling of sexual misconduct cases/Title IX enforcement at institutions of higher education has never fallen into the category of “it ain’t broke, don’t fix it.” Both complainants and respondents have sued institutions for the handling (or alleged mishandling) of Title IX complaints. Much ink has been spilled about high profile Title IX cases at IHE’s that have been handled abysmally. Thus the criticism that schools are not well equipped for this.
Time will tell whether the regulations will go forward as they were issued on May 6th. But regardless of that outcome, it is unlikely that the new regulations will be what survivor groups want. The new regulations, as they now stand, contain mandates but also degrees of flexibility. It is important for those who can, to step forward to assist schools as they work to implement these regulations in the best way possible in this strange new world.
Sunday, April 5, 2020
By Co- Editor Prof. Justine Dunlap
Perhaps your Netflix queue recently has included catching up with Season 8 of Call the Midwife. The series is set in 1964 in Poplar, a poor and working-class East London neighborhood. Its storyline of what happened to poor women who were unable to obtain a legal, safe abortion could not be more timely, poignant, or persuasive at the moment. Last month, the Supreme Court heard arguments about a Louisiana anti-abortion law that hews closely to a Texas law struck down by the Court in 2016. The laws may be the same but the Court composition is different. So, a result that should be easily predictable is not.
Even more presently, Texas is at it again. As non-essential medical services are being curtailed to open spaces for the treatment of COVID 19 patients, Texas, along with Oklahoma, Ohio, and Alabama, have declared abortion services to be non-essential. For many women, that decree is dispositive; the window for getting the procedure may well expire before such an order is lifted. Litigation has ensued. Courts in Ohio and Alabama have enjoined their laws but Texas and Oklahoma suits have been unsuccessful to date.
According to NPR, Dr. Bhavik Kumar, a doctor at a Planned Parenthood clinic in Houston, said that many women are grasping for alternatives even though they are unsafe. They ask “what they can do themselves, how they can use things at home, different herbs or vitamins or objects to help them not be pregnant. " This scene is virtually straight out of several Call the Midwife Season 8 episodes. And as a character in the series put it: “I’ve seen them cry. The girls who are trying to feed five kids on a can of corned beef. Wives with black eyes covered in panstick, and a husband who drinks a skinful every night.”
For a needed dose of compassion and perhaps more than a soupcon of shame, the governors of the states that are taking advantage of this pandemic and putting more women’s lives at risk should be required to watch the series.
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, December 15, 2019
by contributing co-editor Prof. Justine Dunlap
On November 23rd, two days before the International Day for the Elimination of Violence Against Women, a crowd estimated between 35,000—100,000 marched in the streets of Paris to protest that country’s problem with intimate partner violence. Many carried signs with the names and ages of women who had been killed. Other cities such as Strasbourg and Lyon also saw marches. France’s rate of 26% of women reporting partner abuse is below the global average of 30% but is the 6th highest of the 28 E.U. countries. There is a femicide in France once every three days, according to figures kept by the government. Women’s advocates have been drawing attention to the problem throughout the year; these efforts have included putting up posters every time a woman is murdered.
The protests were also timed to occur just before the government announced new efforts to combat IPV. Among the new efforts introduced are school-based awareness programs, more social workers in police departments, and new laws recognizing psychological abuse. Advocates for women argued that the funding was inadequate to meet the task. Even with the new programs, the proposed budget to combat IPV is roughly the same amount as the French government allotted to the issue last year. This amount, roughly $400,000, is not only less than what activists had sought but also less than a government advisory body had said was necessary to address the problem.
It seems likely that marches will continue; protests happen in France regularly—viz. the yellow vest movement. Here in the U.S., we have our movements too--#Me Too, for instance. But what if all U.S. survivors took to the streets one day, along friends, family, and co-workers of those women killed by current and former partners. That would be quite a day.
Sunday, April 28, 2019
By Prof. Justine Dunlap
Joe Biden—boy is this guy generating a lot of press. Much of which is a natural pro and con discussion of his past acts, be they legislative, political, or personal. There’s so much to catalog about Uncle Joe, it’s hard to know where to start. But his seemingly ceaseless need to touch people warrants a little more ink as his embracing nature can serve as an object lesson in gradation for us all.
The current #MeToo world teaches that women have been subject to all levels of objectionable behavior. For centuries, they were deprived of the legal or moral support to take action, to get redress, to speak out, or to have the costs of speaking out not exceed the costs of staying silent. In many quarters, that deprivation remains palpable, the benefits of #MeToo notwithstanding. However, the attention now afforded unwanted behavior makes it more likely that behavior that treads on the criminal side will have consequences.
The #MeToo movement, it is also said, has blurred the line between offensive and non-offensive behavior. In other words: men just don’t know how to act anymore or no longer know the rules of engagement.
The first response to that concern is this: It is not really that hard to distinguish appropriate from inappropriate behavior about 90% of the time. So, except around the edges, it’s easy to stay within the lines. One lesson then: avoid the edges if you are not sure.
The second response is: objectionable behavior comes in different forms but, like the difference between a personal foul and a flagrant foul in basketball, some actions are simply and obviously worse than others. Which brings us back to Joe Biden. And, perhaps, back to new rules of engagement.
We can hope that we have all gained valuable perspective from the increased focus on how one’s behavior makes another person feel. Joe Biden now has this perspective. He now gets it, he says. His touchiness, his need and desire to establish a human connection, has endeared him to some and may be a source of some of his popularity. But his touchiness is not universally popular or always individually appreciated. His actions have made some recipients uncomfortable and, with some of the photos floating around the web, even some non-recipients may have had a hindsight-is-20-20 cringe.
Two things seem clear from Biden’s former embrace of the embrace. First, it is not a respecter of gender. Just search for the pictures of his up-close and personal clutching of his boss, the famously reserved President Obama. And, second, this universality suggests that it is not based in predation.
So it’s good to hope that Biden “gets it” and will henceforth more carefully think about whether his need for a human connection is matched by the prospective huggee. So too should those touchers among us try to get it. A clasp on the shoulder or a side hug are not always welcome. But we all know—natural touchers or not—that such a clasp or a hug is not equivalent to the predatory actions that led to #MeToo.
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 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.
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.
Sunday, April 22, 2018
Editors' note: In this post Prof. Dunlap reflects on essential conflicts of interest faced by universities when risk management is a factor in determining how to proceed with Title IX complaints.
The March 26 arrest of William Strampel, the former dean of Michigan State University’s College of Osteopathic Medicine, served as a vivid reminder of the poor decision-making that occurred at MSU regarding serial abuser Larry Nassar. It turns out that as early as 2004—two years into Strampel’s tenure as Dean and 10 years before he was put in charge of ensuring that protocol regarding Nassar’s contact with gymnasts was followed—a memo voicing concern about Strampel’s behavior was sent to Lou Anna K. Simon. Simon was then the MSU Provost and went on to become MSU president; she stepped down on January 24, 2018, the same day as Nassar’s sentencing.
Hindsight is, of course, 20-20. Further, the Me Too Movement has heightened awareness of the ubiquity of sexual harassment. And it is likely not possible to know what action, if any, Simon took against Strampel. What we do know, however, is that it was wildly inappropriate to have Strampel providing oversight for Nassar.
So it is worthwhile to examine subsequent efforts by MSU undertaken after its 2014 Title IX investigation resulted in Nassar being permitted to seeing patients again. One such effort was the university’s hiring of famed former prosecutor Patrick Fitzgerald—apparently at $990 hour—to, in Fitzgerald’s words, “assist MSU in responding to allegations of misconduct concerning” Nassar. These allegations re-emerged after a 2016 investigative series from the Indianapolis Star newspaper.
Surely, the university ought not be criticized for doing risk management--although the choice of a law firm that billed the public university close to $4.1 million is open to question. Of more concern is the misimpression in the minds of many that Fitzgerald was doing a thorough review of what went wrong. It is now clear that was not what Fitzgerald was retained to do. His work did not even result in a written report, Fitzgerald told Michigan Attorney General Bill Schuette in response to Schuette’s request for the production of any report.
Now that the Attorney General has appointed William Forsyth as a special prosecutor to investigate MSU’s mishandling of the case, there is hope for an independent investigation. And indeed it is Mr. Forsyth’s investigation that has led to the criminal charges filed against former Dean Strampel in March. Who knows what will follow? Can we hope that part of Forsyth’s investigation will serve as a template on the mistakes a university should avoid. Or is it too much to hope that an institution focused on liability can ever do the right thing?
Sunday, April 8, 2018
Prof. Justine Dunlap continues her series on the repercussions of the Larry Nassar sexual assault case.
Enough is enough. When a man now charged with sexual crimes was the one put in charge of monitoring serial sexual abuser Larry Nassar, it gives foxes who are in charge of the henhouse a bad name. In the present whirlwind news cycle, which over the past few weeks was surely whipped into a feverish state, one could be forgiven for missing the arrest of William Strampel, age 70, the former dean of Michigan State University’s College of Osteopathic Medicine. Strampel was arrested and detained overnight on March 26th on a four-count criminal complaint that includes an allegation that he did not enforce protocols put into place by the university to guard against further offenses by Nassar.
In his decanal role, Strampel supervised the MSU Sports Medicine Clinic where Nasser abused girls and young women. This supervision was especially key after a 2014 investigation into complaints against Nassar resulted in the university requiring, among other things, that Nassar conduct “procedures of anything close to a sensitive area” only with another person present. Sadly, we now know that having an adult in the room did not stop Nassar, who abused his victims while they were covered up with items such as towels. But perhaps if Nassar thought the adopted protocol, which was also sent to a person in the university’s Title IX office, would be rigorously enforced, he might have ceased his activities for fear of actual apprehension. But Nassar may well have known that he had little to fear from Strampel’s oversight. After all, since Strampel said during a 2016 meeting concerning that he didn’t “think any of the women were actually assaulted by Larry,” one can only wonder what he said privately to Nassar.
The charges were brought by William Forsyth, the special prosecutor appointed by the Michigan Attorney General to investigate how MSU may have botched its handling of the Nassar affair. In addition to counts related to improperly supervising Larry Nassar, Strampel has also been charged with sexual misconduct of his own, based on a long pattern of degrading, intimidating and sexualizing female medical students. Additionally, nude pictures and pornographic videos were found on Strampel’s MSU work computer. Suffice it to say that, in light of these allegations against Strampel, it appears that the university placed one predator in charge of monitoring another predator.