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In June, Supreme Court Justice Sonia Sotomayor attracted attention for her dissent in Utah v. Strieff.  In that case – which held that a court need not suppress the fruits of a suspicionless stop if the individual has a pre-existing warrant for their arrest – Sotomayor wrote that the Court’s opinion would encourage more baseless stops and thus “risk treating members of our communities as second-class citizens.”  Setting aside legalese, Sotomayor cited the authors W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates, and discussed the humiliation that people of color experience due to their disproportionate targeting by the criminal justice system.  She ended her opinion with the following passage:

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. Continue reading

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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

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I previously wrote about a Massachusetts federal district court decision that was groundbreaking because it tackled the question of whether a private university’s sexual misconduct investigation and disciplinary procedure was fundamentally fair, and concluded that it was not. Last week another local federal court weighed in on the college sexual misconduct issue and found in favor of the accused student, but went in a distinctly different legal direction.

John Doe v. Brown University is one of the few cases on this issue to proceed all the way to trial. The case arose out of a November 2014 sexual encounter between John Doe and Ann Roe. Roe complained about the incident in November 2015, and the case was heard by Brown in 2016. Notably, in fall 2015 Brown adopted a new Title IX policy that contained Brown’s first definition of consent, and a new process for handling sexual misconduct cases. While Brown informed its investigator and panel that the case against Doe would proceed under the 2014-2015 policy that was in effect at the time of the incident, Brown also provided the panel with the 2015-2016 policy and specifically told the panel that that policy codified the community’s understanding of consent, so they could look to it if it assisted them. Continue reading

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Six months ago a judge in the federal district court in Massachusetts issued what many people who litigate cases surrounding college sexual assault adjudications consider the most comprehensive decision on the topic. In Doe v. Brandeis University, Judge Dennis Saylor denied Brandeis University’s motion to dismiss the complaint by its former student as to claims that Brandeis breached its contractual duties towards him, handled his case with negligence, and used a fundamentally unfair process to evaluate the accusation against him.

The case arose out of a January 2014 sexual assault complaint against John Doe by his former boyfriend. Under Brandeis’ policy, the complaint was investigated by a Special Examiner who also decided whether John Doe was responsible for sexual assault. (This “single investigator” model, promoted by the White House, has gained significant traction with schools nationwide in the last three years, despite significant concerns about its fairness).

Despite noting that “the Handbook is no model of clarity,” the judge nonetheless found for Brandeis on most of the contract claims based on Doe’s allegations that Brandeis failed to follow its Handbook. The judge similarly rejected most of Doe’s tort claims, with the exception of a claim for negligent supervision based on Brandeis assigning an administrator with no familiarity with the process as the final decision maker in the case. The judge was skeptical that Doe could prevail on the claim, but allowed it to survive the motion to dismiss. Continue reading

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Students wrongfully disciplined for alleged sexual misconduct on campus have had a difficult time convincing federal courts to entertain lawsuits based on Title IX, the federal law prohibiting gender discrimination in education. Although the Department of Education has used (some would say exceeded) its administrative authority under Title IX to compel schools to adopt detailed policies for addressing and adjudicating complaints of sexual misconduct, courts were hesitant to recognize claims of unfairness in these campus tribunals based on Title IX itself. An example of this approach, which I have covered before, was a federal district court’s dismissal of a lawsuit against Columbia University for failure to identify a “smoking gun” demonstrating that the flaws in Columbia’s investigation of an alleged sexual assault were specifically due to gender bias. Although a few courts more recently found that plaintiffs had made out a sufficiently plausible case to proceed, they did not challenge the basic idea that someone bringing this type of case needs to have at least some evidence of gender bias at the outset.

But the Second Circuit Court of Appeals recently reversed the Columbia case, holding that the district court had required too much of the plaintiff without the benefit of discovery in the course of litigation. Briefly, the male plaintiff in the Columbia suit, identified as John Doe, had sex with a female fellow student in the bathroom of her suite; she later alleged that the interaction was not consensual. Doe claimed that he was not informed of his rights, that Columbia’s investigator never followed up on his witnesses or evidence, and that he was precluded from offering evidence in his favor. He was suspended for 3 semesters, which even the complainant stated was too harsh. Continue reading

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Since the United States Supreme Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335 (1963), the right to assistance of counsel in criminal proceedings has been fundamental in protecting due process rights of criminal defendants.  However, the Supreme Court has repeatedly rejected arguments that the right to counsel should extend to pre-charge proceedings such as questioning by police.  The Court has consistently limited the Sixth Amendment right to counsel to proceedings occurring after a formal charge has been brought, as it did in Moran v. Burbine, 475 U.S. 412 (1986), where it upheld a defendant’s conviction although police concealed from him that an attorney was attempting to reach him before he was questioned and confessed.

In Comm. v. Brazelton, 404 Mass. 783 (1989), the Supreme Judicial Court held that there was no right to counsel under Art. 12 of the Massachusetts Declaration of Rights when deciding whether to submit to a breathalyzer test, and adhered for Art. 12 purposes to the federal Sixth Amendment limits:  the right to counsel under the state constitution, as under the federal constitution, comes into being only when formal criminal proceedings commence against a person in court.  In Comm. v. Neary-French, (No. SJC-12057, August 16, 2016), the SJC revisited the issue.  The defendant in Neary-French argued that an amendment to the Massachusetts OUI statute subsequent to Brazelton, which makes it a per se crime to operate a motor vehicle with a blood alcohol content exceeding .08, made the decision whether to submit to a breathalyzer test a critical stage in a criminal prosecution.  If that were the case, Art. 12 would require the assistance of counsel in making the decision.  The Court rejected the argument and reaffirmed that Art. 12, like the Sixth Amendment, assures the assistance of counsel only after formal charges are brought. Continue reading

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On August 1, 2016, Massachusetts passed an historic revision to its Equal Pay Act. The new law, called An Act to Establish Pay Equity (“the Act”), strengthened the existing legislation in a number of key ways, as we discussed in detail in a previous blog posting. Specifically, the law: broadens the definition of “comparable work,” making it harder for employers to distinguish between work on the basis of job titles alone; prohibits employers from reducing seniority for employees who took protected parental, family, or medical leave; extends the statute of limitations from one year to three years (which means employees who received unequal pay can recover up to three years’ worth of the salary differential, plus liquidated damages for that same amount); prohibits employers from asking about a prospective employee’s salary history prior to making an offer of employment and negotiating a salary; and does not allow employers to prohibit employees from talking about their salaries with coworkers. As with the previous version of the law, it is still illegal to retaliate against someone for asserting their rights under this Act. The amended statute also explicitly provides legal protections for employers who can show their good faith efforts to comply with the law.

The new law may require some sizeable shifts in the way that courts, employers, and employees look at the concept of “equal pay for equal work.” Change doesn’t happen overnight, and the new law is going to require employers to make several changes to their budgets, hiring practices, and office culture. These changes are going to take time. Because the new law does not go into effect until July 1, 2018, employers have nearly two years to get familiar with the law, implement changes, and make sure they aren’t caught flatfooted when July 2018 rolls around, and employees can start recovering 3 years’ worth of salary discrepancies, plus liquidated damages, and attorney fees for lingering salary inequality.

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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.)

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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.

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Yesterday, the State Senate passed a bill that would reform several different aspects of the juvenile justice system, with the goal of reducing children’s interactions with the court system, making those interactions more humane, and enabling them to move on from youthful mistakes and become productive adult members of society. The bill, S. 2417, would have to be passed by the State House in the next few weeks and get the Governor’s approval to become law, but it includes a number of welcome reforms.

One of the most consequential changes, which commentators have called for repeatedly, is to allow records of juvenile crimes to be expunged. Current law in Massachusetts permits some criminal records, including juvenile records, to be sealed after a waiting period of several years, meaning that the public and most employers would not be able to access those records. However, law enforcement, courts, and schools can still access sealed records for certain purposes. What is currently nearly nonexistent under Massachusetts law, in contrast, is expungement – total deletion of a record so that nobody would ever know that it existed, not employers, not law enforcement, and not the courts. Many states automatically expunge juvenile court records once an individual reaches a certain age, so that bad decisions during adolescence do not follow children into adulthood and prevent them from being admitted to schools or getting jobs. These states recognize that it is counterproductive to maintain the stigma of a criminal record on individuals who have learned from their mistakes and are trying to get back on the right track. People who try and fail to make a living by legitimate means may resort to illegal conduct to make ends meet.

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