News + Insights from the Legal Team at Zalkind Duncan & Bernstein

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We have repeatedly discussed on this blog how schools handle sexual misconduct allegations through internal grievance procedures. However, students involved in these processes must remember that the conduct that gives rise to Title IX allegations may also give rise to civil and criminal legal proceedings. Students involved in school misconduct cases need to understand how these different proceedings may intersect and impact one another before deciding how to approach their cases. 

University Title IX and sexual misconduct policies prohibit sexual harassment, which includes sexual assault, dating violence, and stalking. All these behaviors are also criminal—though the definitions used in the criminal law and in school policies may differ. For example, in Massachusetts criminal law, indecent assault and battery is defined as an intentional, unjustified touching of a person’s private areas (a term that has been defined through case law to include various body parts). In many college and university policies sexual assault means sexual acts without consent, which is often defined as “affirmative, voluntary, knowing, and continuous agreement to engage in a specific form of sexual activity” (to quote the Wellesley College policy). All criminal sexual activity is generally also prohibited by school sexual misconduct policies, but there are categories of sexual misconduct that are prohibited by schools but may not be criminal. 

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This is a follow up to two previous blog posts about clemency: you can read the first post here and the second post here. 

After almost a year in office, last month Governor Maura Healey finally issued new Executive Clemency Guidelines. These Guidelines inform how the Massachusetts Parole Board evaluates whether petitioners are granted clemency. As explained in my previous blog post, there are two forms of clemency: commutation and pardon. A commutation is a reduction in sentence, which means the convicted individual faces a shorter period of incarceration than originally mandated. A pardon forgives the underlying offense, which means the individual’s conviction is erased. Governor Healey’s new Guidelines should enable more people to both viably petition for and receive grants of clemency because the new Guidelines have improved the previous Guidelines issued by Charles Baker in several significant ways. Further, Governor Healey’s new Guidelines track many of the recommendations provided by the Massachusetts Bar Association and Clemency Task Force Proposed Clemency Guidelines. 

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pexels-armin-rimoldi-5553051-1-scaledWe frequently represent graduate students who have experienced discrimination or harassment in their programs, something that studies have indicated is unfortunately common.  The unique status of graduate students within universities affects what legal protections for discrimination apply to them. Graduate students often hold multiple roles simultaneously – student, research assistant or teaching assistant, advisee, and mentee. Their success as early-career researchers is uniquely tied to their relationships with faculty mentors and others in their discipline, meaning they may be less likely to report discrimination. But when it comes to asserting legal claims, the key issue is how their mixed status as student and employee affects what claims they can pursue.  

 
Relevant anti-discrimination statutes 

For graduate students who also carry out paid work, there are overlapping protections from discrimination under federal and state law. Various provisions of the Civil Rights Act of 1964 prohibit discrimination in educational programs and institutions, including Title IX (sex) and Title VI (race, color, and national origin). Title VII of the Civil Rights Act and the Massachusetts anti-discrimination statute, Massachusetts General Laws Chapter 151B, bar discrimination in employment. And the federal Americans with Disabilities Act (ADA) prohibits disability-based discrimination in both employment and education. Outside Massachusetts, the anti-discrimination laws of other states protect students and employees as well, often providing stronger protections than federal law. 

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MA-SJCEarlier this month, the Supreme Judicial heard a case regarding the standard for “Anti-SLAPP” motions. As we have written before, Massachusetts’ Anti-SLAPP law protects people who have engaged in protected speech from lawsuits based on that speech. The statute allows defendants to move to dismiss a lawsuit against them “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Anti-SLAPP motions are particularly important for employees who report illegal and unsafe conduct; those employees need assurances that they will not face retaliatory and costly lawsuits targeting them for their speech.  

The Anti-SLAPP statute provides a means to seek dismissal of a legal claim that is based solely on a party’s “right of petition under the constitution of the United States or of the commonwealth.” The statute instructs that the plaintiff can defeat a motion to dismiss under the Anti-SLAPP suit by showing : (1) the defendant’s exercise of its right to petition didn’t have any basis in fact or law and (2) the defendant’s acts caused actual injury to the plaintiff. 

Since the statute’s passage, courts have grappled with the countervailing constitutional rights at issue when a party files an Anti-SLAPP motion. As the Supreme Judicial Court explained in 2017 in a case called Blanchard, the target of an Anti-SLAPP motion – typically, a plaintiff – also has a constitutional right to use the courts to petition. An Anti-SLAPP dismissal can “potentially infringe” on an “adverse party’s exercise of its right to petition, even when it is not engaged in sham petitioning.” To balance these interests, the Blanchard Court adopted an “augmented framework” for evaluating Anti-SLAPP motions. Under Blanchard, the person filing the Anti-SLAPP motion must demonstrate that it is facing a legal claim based “solely” on its “petitioning activities” and not some other basis.  

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This month, the Supreme Judicial Court heard argument in Sutton v. Jordan’s Furniture. This case addresses questions about how commission-based pay plans can be structured to comply with the Wage Act, Overtime, and now-repealed Sunday Pay laws. 

The Statutes and Past Interpretation 

Massachusetts’ overtime statute requires employers to pay employees time and a half for hours worked in excess of forty hours in a work week. Until it was repealed this year, the Sunday Pay statute similarly required a higher rate of pay for hours worked on Sundays. The Massachusetts Wage Act sets out requirements for payment of wages, including promptness, and extends that protection to commissions, which are treated as wages when the commission amount is “definitely determined” and “due and payable.” The Wage Act also prohibits special contracts designed to evade the Wage Act’s requirements. 

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This month, the Supreme Judicial Court heard oral argument in Graham v. District Attorney for Hampden County, a case raising the questions of whether the Commonwealth has a duty to investigate the Springfield Police Department (SPD),what that duty entails, and what evidentiary disclosures state prosecutors must make about any exculpatory evidence that prosecution teams may have in events involving the police department. The decision will have significant implications for defendants wrongfully convicted of crimes based on false reports filed by police officers justifying use of force against defendants. CONTINUE READING ›

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glenn-carstens-peters-npxXWgQ33ZQ-unsplash-scaledThe Internet is the central forum in our society for expressing ideas. Many of us read or create countless public messages and posts each day on platforms like Facebook, Instagram, Twitter, or TikTok, in addition to private text messages or emails. This activity is generally protected by the First Amendment’s guarantee of freedom of speech. Yet even just a few words on a screen can be terrifying in the context of an abusive family or romantic relationship. Many restraining orders and even criminal charges are based, in whole or in part, on social media posts or electronic communications. What is the right balance between protecting free speech online and protecting victims of harassment and abuse? 

Twenty years ago, in Virginia v. Black, the Supreme Court clarified that free speech protections do not apply to “true threats,” which it defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black involved a statute banning cross-burning. This past June, the Justices returned to the concept of “true threats” in the context of social media in its decision in Counterman v. Colorado. The ruling has complex implications for both victims and defendants in restraining order hearings and criminal cases involving harassing speech. 

The Supreme Court’s Decision 

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Over the last several years, it has become increasingly common to send or request nude or intimate images in the context of personal relationships. However, it is important that all parties to sexting and similar activities be consenting adults. (Sexual photos of minors under 18 are considered child pornography under state and federal law, much to the surprise of many teenagers.) If a former romantic partner, hacker, or other individual distributes such photos without consent, or threatens to do so, the subject of the photo is considered a victim of “sextortion” or “revenge porn.” Different states have adopted different approaches to these phenomena, and past proposed legislation in Massachusetts on this subject has not passed, leaving revenge porn victims with few options in this Commonwealth.

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This is a follow up to a previous blog about clemency: you can read that post here.

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Last month, Governor Maura Healey recommended seven individuals to the Governor’s Council for pardons and on July 19, 2023, the Governor’s Council unanimously voted in favor of all seven pardons. A pardon is complete forgiveness of the underlying convicted offense, which erases the crime from an individual’s criminal record. These pardons make Governor Healey the first Governor in Massachusetts in over thirty years to successfully grant pardons during her first year elected. These seven pardons also mark the highest number of pardons granted by a Massachusetts Governor in their first term in over forty years.

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Photo of Yale UniversityWhen can a person accused of sexual misconduct sue the accuser for defamation? Since the #MeToo movement began, more and more people accused of sexual assault have turned to defamation lawsuits as a weapon to combat those allegations. In 2022 Johnny Depp won his defamation claim against his ex, Amber Heard, who had written an op-ed describing herself as a survivor of domestic violence, without naming Depp. (Depp was also found liable for defaming Heard when his lawyer called Heard’s claims a “hoax”). In 2020 a judge found singer Kesha had defamed her former music producer by telling a friend he had raped her; New York’s highest court recently overturned that decision, and the parties settled. A crowdsourced Google spreadsheet of allegations of sexual misconduct against men in media resulted in a lawsuit against the woman who started the spreadsheet, and a six-figure settlement for the plaintiff. Defamation claims in sexual assault cases have gone the other way too; A jury recently found that Donald Trump defamed E. Jean Carroll by calling her sexual assault allegations against him a hoax. In these high-profile instances, defamation suits have become a vehicle to set up a jury to decide whether allegations of sexual misconduct are true. CONTINUE READING ›

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