Labor Day Weekend is fast approaching and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. Although there has been recent news about potential reforms to the Department of Education’s (DOE) regulations and guidance on sexual misconduct, no changes have taken effect to date and therefore it is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure.
Since the election, there has been a spike in racist harassment and hate crimes across the county directed at minorities and immigrants. As reflected in data collected by the Southern Poverty Law Center (SPLC), nearly 900 hate incidents were reported in the ten days following November 8. The incidents have ranged from graffiti of swastikas and nooses, rampant use of racial slurs, verbal denigration of minorities and immigrants, and physical harassment, including assaults or attempted assaults. These incidents have been most prevalent at K-12 schools and college campuses and reflect a disturbing deterioration of the educational environment in our schools. These are only the reported incidents to SPLC, a small non-profit located in Alabama; it is most certainly only a fraction of all incidents since the election. While there are sometimes competing concerns between the free speech rights of students and the protection of minority students, the incidents that have been reported thus far include racist threats of violence that goes beyond free speech rights. There is a real concern that the failure to adequately respond and remedy this behavior during students’ formative years in middle and high school will normalize it and cause further spillover onto college campuses.
Minority and immigrant students who are at colleges and universities across the country may be understandably anxious about whether they will have protection against such harassment under the new presidential administration. If campaign rhetoric is to be believed, the Trump Administration intends to gut the Department of Education (DOE). In addition to its responsibilities administering federal funding and enforcing federal education laws, the DOE is the agency charged with enforcing civil rights laws that apply to K-12 schools and colleges, which includes Title VI, the law that protects students at federally-funded schools from discrimination on the basis of race or national origin.
This week, two Massachusetts teenagers were convicted of sexually assaulting a heavily intoxicated 16-year old girl. Another teenager had videotaped the incident and disseminated the videos on Snapchat, the hugely popular social media app. The main evidence in the case came from another teenage girl who was not present at the scene but had received snapchat videos showing the victim naked, “almost in a headlock,” being fondled, kissed, or forced to perform sex acts, and slurring the word “stop.” Although Snapchat automatically deletes video and images after they are viewed, the witness was able to preserve the images by saving screenshots of them on her phone. The defense presented no witnesses, and the jury was out for less than a day before convicting the defendants on the charges, which could result in a sentence of as much as twenty years in prison. The male teenager who took the videos, but did not participate in the sexual assault, had previously pled guilty to related charges.
The sexual assault of an incapacitated minor, whether documented by social media or not, is obviously an egregious crime with serious penalties, and the videotaping or photographing of a sexual assault of a minor, also violates a number of criminal laws. However, Snapchat users, who are primarily in their teens or early twenties, may not realize that seemingly mundane photos or videos capturing everyday moments could also rise to the level of a crime or violate college or university policies against sexual harassment.
This is the second in our series of posts about changes in the rules that govern proceedings for defendants charged with violating probation in Massachusetts state court. For Part 1 of this series, click here.
In addition to changing some of the language of the rules to avoid confusion, the new procedures give the courts new authority to release defendants on conditions, which should help avoid unnecessary detention of defendants accused of violating probation.
The new rules correct confusing ambiguity between “preliminary” and “full or final” probation hearings and specifically provide for two separate hearing procedures – a “probation detention hearing” and a “probation violation hearing” – and set forth specific rules for each type of hearing.
In a probation detention hearing, held immediately following an alleged violation of probation, the court must determine “whether probable cause exists to believe that the probationer has violated a condition of the probation order and, if so, whether the probationer should be held in custody.” A probation detention hearing may be conducted at the initiative of the court or the probation department. For good cause, the court may order that the probationer be detained in custody pending the detention proceeding. If no judge is available a magistrate can conduct a hearing but the magistrate’s custody order is only valid until the date the judge will next be present, on which date the judge will have to conduct a fresh detention hearing.
Probation detention hearings must be conducted in the courtroom on the record and afford the probationer a number of rights. The probationer is entitled to counsel and a reasonable time to prepare for the hearing. At the hearing, the probation officer (with or without assistance of DA) is required to present evidence to support a finding of probable cause, and the probationer is entitled to be heard in opposition, and may submit relevant evidence. Importantly, in cases involving criminal charges, the criminal court’s finding on probable cause to issue charges does not bind the probation court in its determination of whether there is probable cause to find a probation violation because, in most cases, a criminal defendant does not have the opportunity to fully and fairly contest a criminal probable cause determination.
On September 8, 2015, Massachusetts district courts and the Boston Municipal Court will implement significant changes to probation violation rules. Individuals who are currently under a term of probation issued in a criminal case after a finding of guilty or after a continuance without a finding (“CWOF”) should take notice of these new rules. The new rules do not apply to individuals who are under pretrial probation. The rule changes will have a direct impact on the way that probationers and their criminal defense counsel handle these cases going forward. We are outlining these changes in two posts. This post focuses on how the new rules will operate to clarify record-keeping and help the courts make reasonable determinations about detention and transport between courts when a defendant is charged with violating probation by committing a new crime. For part 2 in this series, click here.
Defendants may be brought before the court accused of violating probation either because they have been arrested and accused of committing new crimes (an arrest is an automatic probation violation) or because they have violated conditions of probation but not any laws. (For example, a common condition for defendants on probation for DUI is the requirement to abstain from alcohol.) Whether the basis for the probation violation is a new criminal charge or non-criminal conduct, the rules now specify that the notice of violation may be withdrawn prior to adjudication (thereby terminating the proceeding) only with court approval. Such approval and the fact of withdrawal must be recorded on the docket. Previously, a notice of violation could be withdrawn solely with the discretion of the Probation Department without any court approval, which could lead to confusion and lack of record-keeping regarding the process by which the probation proceeding had been terminated.
Note: This post is Part 2 in our series of blog posts detailing protections under the Massachusetts Domestic Workers Law. Click here to return to Part 1.
What are the Employer’s Notice and Record-Keeping Obligations?
The new law and proposed regulations also impose a number of record-keeping obligations on household employers.
Domestic workers are permitted to request a written evaluation of their work within three months of their employment and every year thereafter. If an employer completes a written evaluation, the worker has the right to review it and dispute its contents under Massachusetts’ personnel record law, M.G.L. ch. 149 s. 52C. In the event of a disagreement, the personnel records law requires an employer to either amend the evaluation or include the worker’s written response with the evaluation in his or her records and in any transmission to a third party of the evaluation. M.G.L. ch. 149 s. 52C.
Earlier this spring, the Massachusetts Domestic Workers Bill of Rights Act took effect, providing expansive new protections and rights to individuals who provide household services, including childcare, housekeeping, housecleaning, cooking, and eldercare.
In the past, domestic workers have had informal and flexible arrangements with their household employers with respect to job description and duties, hours and rate of pay, rest and vacation time, and the grievance and termination process. This has created a potential for abuse particularly in cases involving domestic workers who are vulnerable due to immigration status or who lack the ability to advocate for themselves due to limited English skills. Until the passage of the new law, domestic workers have had only limited recourse in state and federal wage and hour laws, tort, and contract law to remedy wage violations or poor working conditions.
The Massachusetts Supreme Judicial Court (“SJC”) has issued extensive revisions to the rule governing criminal pleas, which will take effect on May 11, 2015. As I explain below, while the changes address a narrow issue, they impact criminal defendants because they further constrain what little judicial discretion is left in sentencing and reinforce the false premise that the prosecution and the criminal defendant enter into a plea bargain on equal terms.
Rule 12 of the Massachusetts Rules of Criminal Procedure governs judicial procedure for accepting a guilty plea and sentencing a defendant who has pleaded guilty. A criminal defendant may plead guilty to a charged offense with or without a plea agreement with the prosecution. However, when a criminal defendant decides to “plead out” or “take a deal,” that typically refers to the defendant agreeing to plead guilty in exchange for the prosecutor reducing the charge or requesting that the judge impose a recommended sentence or type of punishment, or both. If the plea agreement contains a recommended sentence, the defendant can join in the recommendation or reserve the right to object and request a lesser sentence or a different type of punishment.
Researchers at Harvard Business School (HBS) and Hunter College recently issued a report based on their survey of more than 25,000 HBS graduates on issues related to work, family responsibilities, and the gender gap in senior management positions in the workplace. The study concludes that these highly educated and ambitious professional women are and have been “leaning in,” well before Sheryl Sandberg coined the phrase, despite having significantly more childcare responsibilities than their male peers. Yet, these women have not earned senior management roles at the same pace as their male counterparts. These results make clear that gender discrimination is still rampant in the workplace, even in the upper echelons of corporate America.
The survey showed that HBS men have been given more powerful leadership roles than their female counterparts. Specifically, the men were significantly more likely than women to have direct reports, profit-and-loss responsibility, and positions in senior management. However, the gender gap between men and women cannot be explained by the conventional wisdom that women “opt out” of ambitious career tracks to be home with their children. Approximately 74 percent of HBS women in Gen X (ages 32 to 48) are working full time, and of both Gen X and Baby Boomers (ages 49-67), only 11 percent of women surveyed stayed at home full-time to take care of their children. Interestingly, these figures are almost identical to a study conducted almost two decades earlier by Deloitte & Touche, which showed that 70% of women who left Deloitte continued to be employed full time and fewer than 10% were out of the workforce to care for children.
On November 4, 2014, Massachusetts voted in favor of a ballot initiative that requires employers with 11 or more employees to provide their employees with paid sick time. Massachusetts is now the third state in the nation to enact paid sick time protection for employees. The new law, which goes into effect on July 1, 2015 and will be enforced by the Massachusetts Attorney General’s Office, provides a significant benefit and protection against retaliation or interference with taking protected earned sick time for a number of workers across the Commonwealth.
The law will require employers with 11 or more employees to provide one hour of paid time off to employees for every 30 hours worked, with a maximum of 40 paid hours in a year. In determining the number of employees, all employees performing work for compensation on a full-time, part-time or temporary basis are counted. The paid sick time may be used in several different circumstances: 1) to care for the employee’s own physical or mental illness; 2) to care for the employee’s sick family member, including a child, spouse, or parent; 3) to attend or accompany a family member to a routine medical appointment; or 4) to deal with the physical, psychological, or legal consequences of being a victim of domestic violence.