Boston Lawyer Blog

The Massachusetts Legislature Should Update the Law on Evidentiary Privilege—to Protect Families

Published on: January 12, 2018 | by Ruth O'Meara-Costello

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 ›

Sessions’ New Marijuana Policy Is a Tweak, Not a Sea Change

Published on: January 8, 2018 | by David Russcol

Perhaps motivated by California’s legalization of recreational marijuana, which just became effective at the beginning of the year, Attorney General and longtime cannabis opponent Jeff Sessions recently issued a brief statement changing the Department of Justice’s approach to marijuana, even as support for marijuana legalization is hitting all-time highs. Over the course of the Obama Administration, Deputy Attorneys General David Ogden and James Cole had issued increasingly detailed and refined guidance, instructing U.S. Attorneys to take a largely hands-off approach to marijuana to the extent it was legal under state laws; federal authorities would focus on enforcing certain red lines such as sales to minors, use of weapons or violence, and interstate trafficking. With the clarity of these guidance memos, participants and investors in marijuana markets – first medicinal and, more recently in a few places, recreational – developed a comfort level that, as long as they carefully observed state requirements, the risk of federal prosecution was remote (even though there continued to be tension between state laws and the federal Controlled Substances Act). Now Attorney General Sessions has rescinded all of that guidance, sparking a blaze of consternation among industry observers. CONTINUE READING ›

Massachusetts House and Senate Agree on Some Aspects of Sweeping Criminal Justice Reform

Published on: December 27, 2017 | by David Russcol

Over the last few months, the Massachusetts Senate, and then the House, debated and passed bills that would make significant changes to the state criminal justice system, ultimately resulting in a more flexible and forgiving system, with a greater ability for those who have gone through the system but subsequently stay out of trouble to move on with their lives. Both chambers’ bills would crack down on certain specific offenses, such as increasing penalties for selling or trafficking in opioids like fentanyl, but reduce mandatory minimums and other penalties like those for non-violent drug offenses, sometimes retroactively. And both would take a less strict and punitive approach toward low-income defendants who cannot afford to post bail or to pay fines and fees. CONTINUE READING ›

Massachusetts Moves Toward New Law on College Sexual Assault

Published on: November 8, 2017 | by Naomi Shatz

On November 2, 2017, the Massachusetts Senate unanimously passed a bill that would dictate how colleges and universities in the Commonwealth must handle sexual assault allegations. As a mecca for higher education, with over 100 colleges and universities, Massachusetts could have been a leader in tackling campus sexual assault in a way that both protects the educational rights of victims of assault, and provides fair procedures to both victims and the accused. The bill that just passed, unfortunately, fails to achieve this goal.

The Senate’s final version of the bill more or less tracks the Obama-era guidance on sexual misconduct; guidance that was revoked by the U.S. Department of Education in September. Despite various individuals and groups (myself included) testifying to the Massachusetts legislature in April about the need for procedural protections for both the complainant and accused in these cases, the Senate bill focuses exclusively on the needs of complaining students, without providing procedural protections to both students that would enhance transparency and ensure that each student can adequately advocate for him/herself.

Beyond Sports and Sex Part 3: Title IX and Dress Codes

Published on: October 31, 2017 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from harassment based on sex stereotyping.

Title IX prohibits educational programs that receive federal funding from discriminating on the basis of sex. Because discrimination by definition means treating one person differently from another, there are only a few limited areas in which schools can draw explicitly gender-based distinctions and not run afoul of Title IX.

One area where schools have historically had explicitly gendered policies is in their dress codes. When Title IX was initially enacted, the implementing regulations prohibited sex distinctions in “rules of appearance.” This regulation seemed to squarely prohibit the implementation of gender-specific dress and grooming codes. However, the Reagan administration revoked those regulations in 1982, fewer than ten years after they had been issued, indicating that differentiating on the basis of sex in “rules of appearance” might very well be permissible under Title IX.

Beyond Sports and Sex Part 2: Title IX and Bullying/Harassment Based on Gender Stereotypes

Published on: October 24, 2017 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination.

To those people who have been following the social movement around campus sexual assault (and this blog), it may be clear by now that Title IX prohibits sexual harassment–that is, harassment that is sexual in nature. But Title IX also prohibits sex and gender-based harassment–that is harassment of someone because of their sex, whether or not the nature of the harassment is sexual. Courts have relied on case law developed under Title VII, which prohibits employment discrimination, to hold that Title IX prohibits harassment against students simply because of their sex. For example, the Eighth Circuit has held that Title IX prohibits harassment where “the underlying motivation for the harassment is hostility toward the person’s gender.” CONTINUE READING ›

What do Rolling Stone, Harvey Weinstein, and Bill Cosby have in common? The law of defamation.

Published on: October 18, 2017 | by Ruth O'Meara-Costello

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 ›

Doe v. University of Cincinnati: The Sixth Circuit Weighs in on Title IX and Due Process

Published on: October 13, 2017 | by Ruth O'Meara-Costello

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 ›

Beyond Sports and Sex Part 1: Employment Discrimination Claims Under Title IX

Published on: October 5, 2017 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault.

The common conception of Title IX is that it is a law aimed at protecting students. That conception is too limited. Title IX’s reach is broader than the student body—it is directed at the educational program that receives federal funds, and broadly prohibits discrimination in such programs. The language of the statute states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Federal Regulations promulgated by the Department of Education make clear that Title IX prohibits employment discrimination in educational programs. 34 C.F.R. § 106.51 et seq. CONTINUE READING ›

Massachusetts Changes its Felony Murder Doctrine for the Better

Published on: September 22, 2017 | by David Duncan

One fall evening in 2009, four men met up at one Timothy Brown’s apartment. They had earlier been driving around together when two of them, Hernandez and Hill, decided to rob two women at gunpoint. Hernandez, who had brandished a gun during the robbery, hid it in Brown’s kitchen when they arrived at the apartment. In the early hours of the next morning, three more men arrived with a proposal to rob two drug dealers. These three and Hernandez agreed to the second robbery and left in a car. Before they left, Hernandez retrieved his gun and they asked Brown for hooded sweatshirts to cover their faces and for the loan of his handgun. Brown provided them with the clothing and gun. CONTINUE READING ›