In recent weeks, potential new draft regulations from the Department of Education’s Office for Civil Rights (OCR) have garnered considerable media attention, despite not being yet released. Last week the full text of those draft regulations was leaked to the public. Among several other notable changes to current practice at most colleges and universities (detailed in my colleague Naomi Shatz’s tweets after we first got our hands on the draft regulations), the draft would require a significant increase in respondents’ rights to cross-examine their accusers and other witnesses. Meanwhile, in the past months, the Sixth Circuit Court of Appeals has focused in a string of decisions on whether respondents in Title IX cases at public schools have a due process right to confront and cross-examine their accusers, and recently issued a new decision, in Doe v. University of Michigan making the strongest statement we have seen yet from any court of appeals in favor of cross-examination. The regulations and the Sixth Circuit’s decision are both plainly intended to increase the rights of accused students, yet they offer schools very conflicting guidance about how to do so. In addition, the regulations could have significantly unintended consequences in practice.
Allegations of sexual assault on campus involving students of different colleges are very common. My experience representing students involved in such proceedings has typically been that if a college is presented with an allegation that one of its students has sexually assaulted, harassed, or abused another person, the college will investigate that allegation, regardless of whether the complainant is a student at that college, an alumnus of the college, or an individual with no connection to the institution. (This can vary depending on the terms of the college’s Title IX policy, but most policies at least allow for such investigation.) The college’s ability to provide complainants who are not its students with some types of help may be limited—it probably cannot meaningfully offer academic accommodations, for example—but it can and (again, in my experience) usually does proceed to investigate the allegations and mete out any discipline that it concludes is warranted. A ruling by the First Circuit Court of Appeals in one recent lawsuit suggests that there are limits on colleges’ obligations to complainants in such situations, but in my view it is unlikely to result in dramatic changes in most colleges’ practices.
Justice Gaziano, of the Massachusetts Supreme Judicial Court (“SJC”), makes a proclamation in the first paragraph of that Court’s recent decision in Commonwealth v. Wilbur W. that may be startling to many members of the public, especially teenagers: “When two minors have consensual sexual relations, both of whom are members of the class the statute [criminalizing statutory rape] is designed to protect [i.e. they are under 16], each has committed a statutory rape.” What Justice Gaziano does not mention is that the crime of statutory rape carries a penalty of up to life in prison, as well as lifelong sex offender registration. This reality raises significant questions about how we as a society handle sex between juveniles and when the criminal law is an appropriate—or humane—tool. The SJC largely dodged those questions in Wilbur W., but they are bound to recur, probably sooner rather than later, in the courts of the Commonwealth. In the meantime, juveniles remain subject to the same criminal liability as adults for having sex with anyone under 16—even if the sex is consensual, and regardless of how their age compares to that of their partner.
In addition to the many other changes contained in the criminal justice bills that have recently passed the Massachusetts House and Senate, criminal justice reform in the Commonwealth could include one additional significant change in the laws of evidence. The Senate’s bill includes a provision that would disqualify a parent from testifying against a minor child in most criminal cases. The effect would be to make parent/child communications generally legally private, much like confidential discussions between married people. As a lawyer who works often with families—and as a parent—I believe very strongly that this provision works a necessary change in the law and hope that the conference committee now working to create a uniform bill will include it. Continue reading
The last two years have been exceptionally active for defamation cases in matters involving allegations of sexual harassment or assault. Just during the last week, for example, a lawyer for Harvey Weinstein announced that he intends to sue the New York Times following an explosive story alleging he has sexually harassed actresses and workers at his company for years. (That story was quickly followed by an even more damning story in The New Yorker; that story’s author, Ronan Farrow, reports that Weinstein has also threatened him with suit.) In cases involving the same legal principles and similar allegations—but the opposite party alignment—a number of Bill Cosby’s accusers are suing him for statements that they say paint them as liars (and at least one such suit has been allowed to move forward, though two others have been dismissed; the judge overseeing the cases drew a distinction between statements that disputed an accuser’s credibility based on disclosed, non-defamatory facts, and statements that implied the existence of non-disclosed defamatory facts). And a disastrously poorly fact-checked story published in Rolling Stone about an alleged rape at the University of Virginia has spawned a series of lawsuits and, most recently, an interesting opinion by the Second Circuit Court of Appeals concerning the viability of a lawsuit by UVA students who claimed that the article defamed them. Continue reading
The Sixth Circuit Court of Appeals recently decided Doe v. University of Cincinnati, upholding a preliminary injunction preventing the University of Cincinnati from suspending a student it found responsible for sexual assault. The decision is significant for all students facing suspension or expulsion at public colleges and universities.
In the underlying case, two students met on Tinder, then met up in person and had sex. The complainant, Jane Roe, alleged that the sex was not consensual; the respondent, John Doe, insisted that it was. The university followed a procedure that many colleges, public and private, employ: it first tasked an employee of the Title IX office with conducting an investigation in which she interviewed witnesses and gathered evidence from both sides, and then prepared a report. Following the investigation, the university held a hearing where both students had the opportunity to appear before a panel that would render a decision as to whether John Doe was responsible for sexual misconduct. During that hearing, the accused student was supposed to have the ability to present written questions to the hearing chair and request that they be posed to the complainant. Per the university’s policy, a witness who was unable to appear could submit a notarized statement. Continue reading
In the world of disciplinary hearings under Title IX, the process for students accused of sexual harassment or sexual assault on campus often begins this way: an accused student (the “respondent” in campus disciplinary parlance) is called into a meeting with a school administrator and informed of a disciplinary charge that could result in expulsion. At most schools, the information that the school provides about the actual charge consists of the date of the alleged event (or a range of dates); the identity of the complainant (the student who is making the accusation) and the provision of the student code that the respondent allegedly violated, or another summary description such as “non-consensual sexual conduct.” In practice, this information is often not sufficient to allow the respondent to identify the actions that the school is investigating, particularly where the allegations stem from a long-term romantic relationship with the complainant, much less to prepare a defense. It also may not give respondents adequate notice to allow them to evaluate whether they may face criminal charges, and make informed decisions about whether to waive their 5th Amendment right to remain silent by making statements during the school’s investigation.
Like that of many states, Massachusetts law provides for enhanced criminal penalties for specified drug offenses committed in close proximity to parks or schools. Defendants who commit such offenses in so-called “school zones,” which the statute defines as any location within 300 feet of a school of any kind, including any public or private accredited preschool or Head Start facility, or a “park zone,” defined as any location within 100 feet of a public park or playground, at any time of day except between the hours of midnight and 5 a.m., are subject to a mandatory two year sentence, on top of any punishment imposed for the underlying crime. The statute is explicitly clear that “lack of knowledge of school boundaries” is not a defense; a person who is found to have committed a drug offense within the stated distance from a school is subject to the enhanced penalty regardless of whether they knew of the school’s location or even of whether the school was easily recognizable as such (an issue with some preschools and Head Start facilities, which are often located inside larger buildings primarily devoted to other purposes.) As draconian as this law remains, it is actually an improvement on the version of the law in place until 2012, under which “school zones” included any location within 1,000 feet of a school, regardless of the time of day.
In its decision in Commonwealth v. Peterson, issued on January 3, 2017, the Supreme Judicial Court (“SJC”) set a limit on the statute’s application for the first time. In Peterson, the defendant was a passenger in a car with three other people. When the car stopped at a traffic light at an intersection near a public park, the police officers in the car behind it determined that its inspection sticker had expired. They pulled the car over shortly afterward, at a location that was no longer within one hundred feet of the park. The ultimate results of the stop were the discovery of drugs and a semi-automatic weapon, and the arrest of the defendant, who was charged with a number of crimes including a violation of the school zone statute.
Massachusetts now has two types of restraining orders—abuse prevention orders under M.G.L. c. 209A, which are intended specifically to address and prevent domestic violence and are only available between family or household members (including people who have been in a substantial dating relationship), and harassment prevention orders under M.G.L. c. 258E, which can be issued absent any such connection where the standards for such orders are met. The basic procedure for either order is the same—a court can issue the order ex parte, without the knowledge or participation of the defendant against whom the order is sought. The defendant is then served with the order, and has the right to appear at a contested hearing, no more than 10 days later, regarding whether the order should be extended. The entry of any such order—even if it is not extended at the 10-day hearing—creates a permanent record maintained by the Commission of Probation. The courts have refused to expunge such records except where an order was issued due to “fraud on the court.” In a new decision, M.C.D. vs. D.E.D., the Massachusetts Appeals Court has now held that even where a court determines that a party committed perjury in order to obtain an order, the standard for expungement is not met. Continue reading
Dr. Roger Ian Hardy, a Massachusetts fertility specialist, was a recent beneficiary of the Massachusetts definition of rape, as “sexual intercourse with another compelled by force and against the victim’s will or compelled by threat of bodily injury.” Dr. Hardy has been accused of molesting multiple female patients during gynecological exams and procedures, under the guise of providing medical treatment. As horrifying as the allegations are, the Middlesex County District Attorney has stated that no charges will be brought, due to what the Boston Globe calls an “apparent gap” in the law. At least as to the crime of rape, that conclusion is probably legally correct—but legislators should be careful, if they seek to close that gap, not to create deeper problems by sweeping all sex that results from any form of deception into criminal conduct.
Massachusetts courts have held that obtaining sex through fraud is not rape at least since 1959, when the Supreme Judicial Court decided Commonwealth v. Goldenberg. Goldenberg, another doctor, had sex with a patient who came to him for an abortion, claiming that the sex was part of the procedure. The Court held that he hadn’t raped her, because he hadn’t used force–she consented to the act, although under false premises. If Goldenberg were the only case to that effect, I suspect the District Attorney here would prosecute Dr. Hardy and argue that its holding is outdated, and that in view of the law’s ongoing evolution in this area the Supreme Judicial Court should overrule it. But in 2007, in Suliveres v. Commonwealth, the SJC upheld Goldenberg (in a case in which a man pretended to be his twin brother in order to have sex with the brother’s girlfriend) and said that the legislature had ample time to act to change the law if it disagreed with the result in that case; because it hasn’t acted, the law stays the same. These cases certainly foreclose a successful prosecution for rape in Dr. Hardy’s case. (That said, I find it surprising that the District Attorney has not charged him with indecent assault and battery, which has different elements, does not require force, and arguably could apply.)