Boston Lawyer Blog

The Use of Snapchat, Even Under More Innocent Circumstances, May Have Serious Criminal or Civil Implications

Published on: July 20, 2016 | by Monica Shah

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.

Massachusetts Senate Passes Juvenile Justice Reform Bill, Which Would Enable Expungement of Juvenile Convictions

Published on: July 13, 2016 | by David Russcol

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.

Massachusetts Board of Higher Education Report on Campus Safety Pays Scant Attention to Due Process

Published on: June 29, 2016 | by Ruth O'Meara-Costello

The Massachusetts Board of Higher Education, the state agency responsible for guiding public colleges in Massachusetts, has recently waded into the thorny underbrush of law, morality, politics, and public relations that is the current state of discourse around sexual assault on campus. An existing 2014 Board Resolution declared “zero tolerance” for sexual violence on campus, and in 2016 the Board’s Commissioner established a Task Force on Campus Safety and Violence Prevention to make recommendations about campus safety in general and sexual assault in particular. The Board accepted the resulting report, “Securing Our Future: Best Practice Recommendations for Campus Safety and Violence Prevention,” at its June 14, 2016 meeting.

As attorneys whose role in campus proceedings is often to represent accused students, the question we ask when reviewing any new guidance is what implications it might have for the accuracy and fairness of fact-finding following accusations of sexual assault or harassment on campus. The sections of the report that deal with sexual assault are not groundbreaking, and will ring familiar to anyone who has already perused the reports of the White House Task Force to Protect Students from Sexual Assault and the extensive guidance that the federal Department of Education’s Office of Civil Rights has released on this issue. But disappointingly, to the extent that the report does give any guidance as to what procedures schools should follow, it appears to endorse practices that deprive students of constitutional rights and subject them to biased inquisitions without first giving them fair notice of the accusations against them.

New Massachusetts Criminal Sentencing Best Practices Seek to Reduce Over-Incarceration

Published on: June 7, 2016 | by Ruth O'Meara-Costello

In May 2016, the departments of the Massachusetts Trial Courts that handle criminal offenses issued recommended protocols and best practices designed to assist judges to impose appropriate but not overly punitive criminal sentences. The reports emerging from the working groups of the District Courts and the Boston Municipal Court and the Superior Court explicitly share the goal of reducing over-incarceration while making use of the social science evidence available regarding which sentences (particularly including conditions of probation) are most likely to successfully prevent recidivism.

I focus here on the detailed Superior Court Report (“Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing”), which sets forth principles intended to guide judges in imposing sentence. Many are uncontroversial, such as that judges should impose sentences consistent with goals including “deterrence, public protection, retribution, and rehabilitation.” Other key protocols set forth in the Report are more interesting, and at least one is fairly controversial.

States sue Federal Government over Prohibitions on Discrimination Based on Gender Identity

Published on: May 26, 2016 | by Naomi Shatz

Yesterday, 11 states sued the U.S. Government in a Texas federal court over recent guidance documents its agencies issued defining “sex” in various civil rights laws to include “gender identity.” The suit is the latest in a widening legal battle over transgender rights — specifically the right of transgender people to use restrooms that accord with their gender identities.

The lawsuit challenges two recent documents from federal agencies. On May 3, 2016, the EEOC released a fact sheet on bathroom access for transgender employees, which states that discrimination based on transgender status is sex discrimination under Title VII. On May 9, 2016 the U.S. Department of Justice (DOJ) sued North Carolina over a recently-passed law that required public employees and public school students to use bathrooms that correlate with the sex listed on their birth certificates, and an executive order that required cabinet agencies to use the same definition of “sex” in segregating their bathrooms. On May 13, 2016 the DOJ and U.S. Department of Education (DOE) issued a “Dear Colleague Letter” stating that “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The lawsuit argues that these interpretations of Title VII and Title IX constitute a radical change in the law, and that the executive branch, through these two departments, cannot change the law in this way.

Employees Who Care for Elderly or Disabled Family Members Are Entitled to Protection from Discrimination

Published on: April 19, 2016 | by Emma Quinn-Judge

More than one in six American employees provides care or assistance for an elderly or disabled family member or friend. Caregiving responsibilities cut across socioeconomic and demographic groups, although women and low-income individuals still assume a disproportionate share of such responsibilities. One in seven Americans is currently age 65 or older, but that number is projected to increase to one in five Americans by 2040. As the population ages, the number of employees with caregiving responsibilities is only likely to grow.

The Equal Employment Opportunity Commission (EEOC) recognizes that employees with caregiving responsibilities face discrimination in the workplace related to these responsibilities. For example, an employee may be prevented from taking leave to which she is entitled or punished when she exercises her right to such leave; an employee may be penalized for his association with a disabled employee; or an employee may be stereotyped as lazy or uncommitted to her job merely due to her caregiving responsibilities.

Are Universities’ Views of Sexual Harassment on a Collision Course with the First Amendment?

Published on: April 8, 2016 | by Naomi Shatz

As explained in Jacob Gersen and Jeannie Suk’s forthcoming article, The Sex Bureaucracy, the U.S. Department of Education’s Office for Civil Rights (“OCR”) guidance documents about Title IX have shaped college and university sexual harassment and sexual assault policies by threatening the withdrawal of federal funding if the schools do not adopt OCR’s recommendations. OCR has defined sexual harassment as “unwelcome conduct of a sexual nature,” but made clear that under Title IX schools only have an obligation to address such harassment when it rises to the level of creating a hostile environment, which it defines as harassment that “is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” This definition of sexual harassment provides the floor below which school’s policies may not fall, but nothing in Title IX or OCR guidance prevents schools from adopting even more expansive definitions of sexual harassment or standards under which they will investigate allegations of such harassment.

Recently, OCR has emphasized that it expects colleges and universities to investigate claims of sexual harassment well before they reach the threshold at which Title IX requires the school to address the harassment, i.e. before the harassment creates a hostile environment. CONTINUE READING ›

Massachusetts SJC’s Decision in Bulwer v. Mount Auburn Hospital Stops Erosion of Right to Jury Trial in Employment Cases

Published on: April 1, 2016 | by Ruth O'Meara-Costello

Among lawyers who represent employees in discrimination lawsuits, the most maligned rule of civil procedure is Rule 56, which governs summary judgment—a time-consuming, expensive, and frequently unfairly applied procedure in which judges decide cases on paper instead of allowing juries to hear the parties’ evidence. In Massachusetts, the Supreme Judicial Court’s recent decision in Bulwer v. Mount Auburn Hospital should help to discourage employers from filing motions for summary judgment, and help plaintiffs to get their cases before a jury.

Motions for summary judgment ask the court to enter judgment for a party prior to trial and without allowing a jury to hear the evidence. Either side can make such a motion, and in cases where the parties agree on the basic facts, summary judgment can be a useful tool for resolving cases that turn purely on a question of law without expending resources on a full trial. In the practice of employment law, though, the employment defense bar devoted to protecting companies from discrimination claims has successfully perverted summary judgment into a tool for taking the ultimate contested issue of fact—whether the employer chose to fire or otherwise take action against the plaintiff because of his or her race, gender, sexual orientation, disability, or age—away from the jury. Instead, employment defense lawyers ask judges to answer that question based on a paper record, depriving the plaintiff of the chance to tell his or her story. Judges, unfortunately, have been all too eager to accept the invitation to substitute their own judgment of the evidence for that of a jury, and summary judgment has become an important hurdle for many employment plaintiffs—one that can be difficult and costly to surmount.

Like the Cosby Case, Massachusetts SJC Decision in Commonwealth v. Celester Illustrates When to Invoke the Fifth Amendment

Published on: March 7, 2016 | by Ruth O'Meara-Costello

In a new case, Commonwealth v. Celester, the Massachusetts Supreme Judicial Court emphasizes how important it is for defendants to be informed of and advised regarding their right to remain silent, holding that it was ineffective for an attorney not to advise his client to invoke his Fifth Amendment right when questioned by police. The decision is legally significant in the scope that it gives to the right to effective advice of counsel, but it also illustrates what good criminal defense lawyers already know about the importance of the Fifth Amendment—a lesson that Bill Cosby would have benefited from when giving a deposition in 2005.

In most criminal cases, most defense lawyers advise their clients not to give statements to the police. This is common, often essential, advice that we give to the innocent as well as to the guilty; someone who will have to defend him or herself at trial is almost always better off not unnecessarily sharing information with prosecutors in advance. In criminal trials, the choices to invoke the Fifth Amendment and not answer questions from the police, or to remain silent at trial, cannot be held against a defendant, and so there is often little downside in taking the Fifth, particularly in interrogation by police.

Courts Are Starting to Permit Title IX Lawsuits by Accused Students to Go Forward

Published on: February 26, 2016 | by David Russcol

As we have covered before on this blog, courts have generally been inhospitable to Title IX claims by students accused of sexual misconduct on campus, often dismissing them in the early stages before the students have a chance to obtain evidence through discovery. The most common theory for a Title IX violation is the “erroneous outcome” theory outlined in Yusuf v. Vassar College: to state a claim under this theory, a student disciplined for sexual misconduct must make some showing that the disciplinary process was unfair, combined with “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.”

Unfortunately for plaintiffs, evidence of this sort of gender bias is frequently hard to come by. Even when there is a “smoking gun” document or email, it is often locked away within the university until and unless a court orders it revealed. (The Washington & Lee case, where the Title IX officer had expressed on a public website her view that a woman is sexually assaulted when she has sex and then regrets it, is a rare exception.) The requirement that a plaintiff come forward with particulars at the very beginning of the case fits awkwardly with the standard by which claims are judged when the school, almost invariably, files a motion to dismiss. Since 2007, and especially after the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, plaintiffs have had to make enough specific factual allegations at the beginning of a case to make their legal claims “plausible” in the eyes of the judge. I have discussed previously on the blog how this combination creates a Catch-22: an accused student usually cannot get access to critical evidence without discovery from the university, but the student’s lawsuit will get thrown out before discovery unless it identifies that evidence. Thus, by and large, the courthouse doors have been shut on this type of claim.