Department of Education and Sexual Assault/Harassment

On September 22, 2017, the Department of Education issued new guidance on Title IX. Given that the the person who received the majority of electoral college votes bragged about sexual assault, it is no surprise that the guidance appears to weaken interpretations of Title IX.

Before getting into the Dear Colleague Letter, it’s important to set the stage. When I hear people talk about Title IX and sexual assault in schools there seems to be a considerable amount of confusion about when Title IX comes into play.

Violating Codes of Conduct vs. Violations of Title IX

All schools, colleges, and universities have Codes of Conduct. These Codes of Conduct are supposed to have guidance for how to handle allegations of sexual harassment and sexual assault. They also include a variety of other components, they may include civility requirements, explicit prohibitions on plagiarism, dress codes, and attendance policies. The University of Washington Code of Conduct is captured in the WACs (Washington Administrative Code, the state version of the CFR). A sampling of the items included are: academic misconduct, acts of dishonest, alcohol violations, computer abuses, creating a public nuisance in neighboring communities, discriminatory harassment, harassment or bullying, hazing, indecent exposure, sexual assault, theft, and unauthorized recording. The Burden of Proof in “brief adjudicative proceedings” as well as “Full hearings” is the “Preponderance of evidence standard.”

As long as a school, university, or college has a (working) system where students can file complaints and those complaints are resolved in a timely fashion, Title IX likely will not come into play with regard to individual allegations of sexual assault.

Title IX is a ban on sex discrimination in education. This means that it is attempting to address the systemic issues. Title IX complaints are lodged when a educational institution appears to be failing to address the issues in a way that can lead to a situation where the educational institution knew or should have known that problems existed. (The ACLU-WA has a great guide that goes into more detail.) In an individual setting, a complaint is often filed when a person tries to pursue the educational institution’s complaint process and there are significant hurdles (the educational institution having unclear or contradictory methods of complaining, not providing a method of appeal, etc.) Title IX can also be implicated if there is a hostile environment that the school should have known existed. For example, if a significant number of complaints of sexual assault occur during football recruiting and the school does nothing to address student safety, the school could be liable for a Title IX violation. This means that in addition to many other claims students could file against the university, they could include an allegation of a Title IX violation, which allows for monetary damages. It also means, though in the history of Title IX it has never happened, that the Federal Government could rescind federal funding to the educational institution (the entire educational institution, not just the area where the discrimination occurred).

Understanding the Reason for the Recent Dear Colleague letter 

Sexual assault has long been an area where there is a misguided belief that people make false reports at substantially higher rates than other crimes and therefor anyone who claims a sexual assault happened must be looked at suspiciously. In addition, those accused of sexual assault (especially privileged white young men) should be given extra leniency so as to protect the harm that could befall them from a proper punishment. Proponents with this view point believe that anything involving sexual assault allegations should have to reach the highest burden of proof, the standard used in a criminal trial (beyond a reasonable doubt or as it’s labeled in a civil setting “clear and convincing”) even when not there is no deprivation of life or liberty at stake.

The new Q&A issued in connection with the Dear Colleague Letter rescinding the 2011 Dear Colleague letter is a nod towards heading in the direction of the heightened standard because it revokes the preponderance standard articulated in the 2011 Dear Colleague Letter.

Relevant Comparison of the Dear Colleague Letters 

The 2011 letter stated (Note the Department of Education appears to have removed it from the general summary, but it can be found on the archived site :

Title VII prohibits discrimination on the basis of sex.26 OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX.27 OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings.28 Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

(emphasis added)
Footnotes referenced:

26 See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (noting that under the “conventional rule of civil litigation,” the preponderance of the evidence standard generally applies in cases under Title VII); Price Waterhouse v. Hopkins, 490 U.S. 228, 252-55 (1989) (approving preponderance standard in Title VII sex discrimination case) (plurality opinion); id. at 260 (White, J., concurring in the judgment); id. at 261 (O’Connor, J., concurring in the judgment). The 2001 Guidance noted (on page vi) that “[w]hile Gebser and Davis made clear that Title VII agency principles do not apply in determining liability for money damages under Title IX, the Davis Court also indicated, through its specific references to Title VII caselaw, that Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX.” See also Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (“We look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX.”).

 

27 OCR’s Case Processing Manual is available on the Department’s Web site, at http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html.

 

28 The Title IX regulations adopt the procedural provisions applicable to Title VI of the Civil Rights Act of 1964. See 34 C.F.R. § 106.71 (“The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference.”). The Title VI regulations apply the Administrative Procedure Act to administrative hearings required prior to termination of Federal financial assistance and require that termination decisions be “supported by and in accordance with the reliable, probative and substantial evidence.” 5 U.S.C. § 556(d). The Supreme Court has interpreted “reliable, probative and substantial evidence” as a direction to use the preponderance standard. See Steadman v. SEC, 450 U.S. 91, 98-102 (1981).

The new regulations state:

The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.19

(Emphasis added).

Referenced footnote:

19 The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases. In a recent decision, a court concluded that a school denied “basic fairness” to a responding party by, among other things, applying a lower standard of evidence only in cases of alleged sexual misconduct. Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016) (“[T]he lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove—and thus more difficult to defend, both for guilty and innocent students alike. It retained the higher standard for virtually all other forms of student misconduct. The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.”). When a school applies special procedures in sexual misconduct cases, it suggests a discriminatory purpose and should be avoided. A postsecondary institution’s annual security report must describe the standard of evidence that will be used during any institutional disciplinary proceeding arising from an allegation of dating violence, domestic violence, sexual assault, or stalking. 34 C.F.R. § 668.46(k)(1)(ii).

Impact of the Dear Colleague letter

This particular Dear Colleague letter will likely have minimal impact. It doesn’t require schools to use a clear and convincing standard. In fact, it requires a consistent standard and educational institutions are unlikely to want to have a “clear and convincing” standard for all the discipline proceedings that come before them.

The real damage with the change in administration of the Department of Education is a regular problem that occurs are the shift of values when there is a Republican president. The President appoints people and outlines priorities that shift away from enforcement of sex discrimination. They do not diligently pursue Title IX complaints, at least not to the same extent as those appointed by Democratic presidents. If they take a Title IX complaint, they are far more likely to pursue a complaint that alleges the educational institution’s practices were unfair to the accused than the vastly greater number of complaints of the unresponsiveness of educational institutions towards targeted students. Knowing that the Office of Civil Rights is likely not going to pursue Title IX complaints often means people are less willing to file them (this is also a trend with the EEOC and sex discrimination claims in the workforce).

It seems odd that ensuring that students are not sexually assaulted is a partisan issue, but for some inexplicable reason Republican administrations actively work to weaken protections against sexual assault, sexual harassment and efforts to overcome sex discrimination as this recent Dear Colleague Letter demonstrates.

More concerning than this particular Dear Colleague letter, which allows educational institutions to use a clear and convincing standard if that’s the standard for all other violations of their codes of conduct, is that the Department of Education is exploring changing the regulations. Nevertheless, the regulations cannot rescind the law, nor can regulations overturn court decisions. While federal enforcement can be weakened administratively and that can have a big impact, Title IX is not going anywhere any time soon.

 

Teenage Sexting, Child Pornography & Harassment

The Washington State Supreme Court just issued a decision in a case that will be over-simplistically referred as to a teenage sexting case. The details of the case reveal the incredible complexity in addressing child pornography and teenage “selfies” and harassment.

Case

State v. Gray; Docket No. 93609-9; Opinion Author – Owens; joined by Fairhurst, Johnson, Madsen, Stephens, and Wiggens; Dissent Author – McCloud; joined by Gonzalez and Yu; Attorney for Petitioners – Kathleen Shea & Washington Appellate Project; Attorney for Respondents Gretchen Eileen Verhoef 

Amicus Curaie: ACLU, Juvenile Law Center, Columbia Legal Services, and TeamChild

Basic Facts

When Eric Gray was 17 years old, he sent an unsolicited picture of his erect penis to an adult woman and invited her to share it with her daughter. (this is a little confusing as the recipient was 22 and it is unclear how old her daughter would have been) Mr. Gray had previously been convicted of a separate offense because at the time of this case, he was already a registered sex offender. Mr. Gray had allegedly been harassing the woman he sent the picture to for a year with unsolicited and repeated phone calls. To further complicate matters, Mr. Gray has an Asperger’s diagnosis, it was not discussed much in the opinion, but Asperger’s is a condition that can impair an individuals understanding of societal norms.

The State dismissed the telephone harassment charge and did not charge  “two counts of misdemeanor indecent exposure stemming from an unrelated incident.” (This is a short sentence that creates the impression there were more complaints regarding his behavior, likely in person).

The Law 

The law at issue is RCW 9.68A.050, which prohibits developing or disseminating sexually explicit images of minors.

 

Appellate Court Opinion

The major question and concern is whether child pornography laws can extend to minors taking sexual selfies. The majority took a textual approach and said the statute was clear and had no exceptions for juveniles. The Majority concluded it could not create the exception in an unambiguous statute.

As noted above, a “person” is any natural person and a “minor” is merely a person who is not yet 18. RCW 9A.04.110(17); RCW 9.68A.011(5). Under this statute, there is nothing to indicate the “minor” cannot also be the “person.” Contrary to Gray’s arguments, we find that had the legislature intended to exclude the depicted minor from the definition of “person,” it would have done so as it has in other sections in this chapter. …Because the legislature has not excluded minors from the definition of “person” here, Gray was properly charged under this statute.

The Majority acknowledged the concerns of amici about the possible consequences for teens engaging in consensual sexting, but stated that those facts were not before the court:

…our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us. Gray’s actions fall within the statute’s plain meaning. Because he was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation.

The Majority also address the Dissent argument about a law not being able to be used to prosecute those who are protected by the law, i.e., not charging a woman who has been trafficked with prostitution – basically arguing that is not what happened in this case, the minor engaged in unwanted behavior when the minor sent the text. The majority noted that this issue not involve the manufacturing of pornography, i.e., a child who was trafficked for pornography is not being charged with the manufacturing of pornography that the child had no choice in creating. The Majority makes a distinction with this case in that Mr. Gray acted alone, in fact, his attention was unwanted.

First Amendment Argument

The Majority rejected the First Amendment argument stating that child pornography does not enjoy First Amendment Protections. Gray attempted to argue that because the Supreme Court has struck down a law that prohibited computer generated child pornography, because it did not involve criminal activity that his selfie should have First Amendment protection.

The majority disagreed:

We find that RCW 9.68A.050 is not overbroad. It regulates only sexually explicit images of actual children, which is speech outside the protections of the First Amendment. Because Gray transmitted such an image, his actions do not fall under First Amendment protection.

 

The Dissent 

The main argument of the dissent is:

…when the legislature enacts a statute designed for the protection of one class—here, children depicted in sexually explicit conduct—it shows the legislature’s intent to protect members of that class from criminal liability for their own depiction in such conduct. … Since the legislature enacted RCW 9.68A.050 to protect those children, it necessarily follows that those children who are depicted and hence exploited are exempt from prosecution under RCW 9.68A.050 for such depictions of themselves.

The dissent goes on to say the majority’s interpretation

punishes children who text sexually explicit depictions of their own bodies to adults far more harshly that it punishes adults who do the same thing. It punishes children who text such depictions of their own bodies to adults even more harshly than adults who text such sexually explicit photos to children. It even punishes the child who is groomed and led into taking such photos and forwarding them to the grooming adult!

(superfluous exclamation point in the original).

The dissent discussed Mr. Gray’s Asperger’s diagnosis and notes that he is a “prime example of someone who would benefit more from treatment and specialized services regarding appropriate social behavior than from incarceration or the social isolation of registering as a sex offender.” (This neglects to acknowledge that regardless of what happened in this case, he was a registered sex offender due to a prior adjudication- the details of what led him to have the initial sex offender registry requirement are not discussed in this case. )

The other points of the dissent were discussed above through discussing the Majority’s response to their arguments.

Additional thoughts on the case

There is a idiom in the law that bad facts make made law. In some ways, that may be a bit of what happened here. This is a case where it is hard to be sympathetic to the minor. He engaged in unwanted sexual conduct. He arguably put the adult woman, who did not want his attention, in a bad position because she had child pornography on her phone. What would have happened if she had not told the police and it somehow came out that she had child pornography? Even if she tried to delete it?

The Dissent focused on the instances where “better facts” may have created opportunities to create exceptions in the law, like grooming and the claim that photos sent in connection with grooming would result in the prosecution of the child. But the ideal facts weren’t before the court, instead the instant case involved a minor who sent unwanted photos as a part of a yearlong harassment of the recipient. This is a crucial difference that would seem to create a situation that does not trigger protecting the child as a possible victim.

In our government that seeks to be a balance of powers, this case is perhaps an important trigger for our state legislature to address this issue and to do so in a more informed way than can be done through case law can do.

Here’s a link to some 2015 research on what states have done regarding sexting. Some of the things this chart included where whether the sexting law addressed issues of minors – sending or receiving, penalty diversion, penalty informal, penalty misdemeanor, penalty felony, and interestingly whether a state has a revenge porn law. It also provides the summary of information about the state’s laws and links to find the statutes. Some interesting examples are:

New York
The two persons involved in sending and receiving the message must both be under twenty and must be within five years of age from each other. They will have to participate in an education reform program that involves a maximum of eight hours of instruction that provides information regarding the legal consequences and non-legal consequences of sexting, and the problems associated with technology and bullying.
http://assembly.state.ny.us/leg/?default_fld=&bn=A08170&term=2011&Summary=Y&Text=Y

 

North Dakota
It is a misdemeanor to create or possess a sexually expressive image without written consent of the individual. It is a misdemeanor to send sexually expressive images with the intent to harm the individual in the image who has a reasonable expectation of privacy; or after being told by the individual, parent or guardian does not consent to distribute the image.
http://www.legis.nd.gov/assembly/62-2011/documents/11-8225-02000.pdf

Interestingly most of the discussion on this chart seems to address a particular issue where something occurs in a nonconsenual manner, i.e., one child has in their possession a photo of another and forwards it on in some way.

The question facing legislatures would be whether to completely remove any criminal penalties when minors send photos to each other. This issue is complicated because consent can be a complicated issue. In 2015, there was sexting scandal in two Bothell junior high schools (Canyon Park and Skyview junior highs). Girls were pressured to send photos, and any who sent a photo were pressured to send more or their initial photo would be disseminated. There was a Degrassi story line that involved a cheer team raising money by sending photos that was incredibly plausible.

There are also pressures about what couples do. “Sexting” is common enough that it has its own Wikipedia entry, which says it was included in 2012 in the Merriam-Wesbster’s Collegiate Dictionary. This Wikipedia entry also says a 2009 study (which is ancient in our evolving world of technology) claims that 4% of teens ages 14-17 have sent sexually explicit photos of themselves. Apparently there’s even a thing called “joke sexting” which may be a form of nonconsensual sexually explicit photos.

Revenge porn is definitely an issue. “Revenge porn” is when you send a sext to one person, like a significant other, you break-up (or they’re just a creep) and they forward it on to friends or even to your friends, teachers, employers, etc. Basically the first photo was consensual, but the future uses are nonconsensual.

Bottom line, sexting isn’t a simple issue. To assume that sexting is primarily photos sent in consensual manner and therefore there should not be any consequences for minors engaging in sexting is short-sighted. That being said, I’m not a fan of criminalizing minors and some of the diversion-type programs that other states have seem far more appropriate than more severe felony or sexual offense charges that could put teens on sexual registries. Perhaps if the laws can come up with some rational and ethical guidelines, they will make enough sense to youth to help them act in responsible ways, taking into consideration that no law will likely stop youth from sending sexually explicit messages to each other.

Washington State Supreme Court Cases – week of 6/30/17

The Sate Supreme Court had four decision this week. The topics ranged from meal breaks, domestic violence orders, forfeiture of property without a conviction, and an appeal of a second degree murder conviction (also domestic violence related).

Jun. 29, 2017 – 93564-5 – Brady v. Autozone Stores, Inc.
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=935645MAJ

When a case is in federal court and there is a state law that is a part of the case that the federal courts feel has not been adequately resolved by the state courts, the federal court will turn to our court to get an answer (“certified questions”).

The first question was whether there could be strict liability for not providing a meal break. The court said no (and noted that neither party supported this position).

The second questions was about who carries the burden to prove that an employer did not permit an employee to take a break. The court held an employee can establish a prima facie case by providing they did not get a timely meal break and then the burden shifts to the employer to rebut.

Jun. 29, 2017 – 93645-5 – Rodriguez v. Zavala
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=936455MAJ

The issue in this case was about whether a parent could petition for a protection order for their child. The Supreme Court found the lower courts read the statute unnecessarily narrowly when it read the statute to preclude a parent from obtaining a protection order for their child. The Supreme Court found that the child should have been included in the protection order.

The Supreme Court also held that exposure to domstic violence is harmful under the Domestic Violence Protection Act. Referencing a prior decision, the court stated, “a child is psychologically harmed or placed in fear by observing violence against a family member.”

“Ample evidence supports the view that direct and indirect exposure to domestic violence is harmful….It strains common sense to think that L.Z. was not somehow exposed to domestic violence given the facts of this case. ”

Based on this, the Supreme Court found that the trial court abused its discretion in failing to grant the protection order.

Conclusion:

Zavala’s violent threats against L.Z. are “domestic violence” under the plain language ofRCW 26.50.010(3), and Rodriguez properly petitioned for a protection order on L.Z.’s behalf based on her reasonable fear for him. Accordingly, we reverse the Court of Appeals. We also conclude that exposure to domestic violence constitutes harm under the DVP A and qualifies as domestic violence under chapter 26.50 RCW. Because the trial court failed to consider the harm to L.Z. based on an incorrect reading of .010(3), it abused its discretion.

Jun. 29, 2017 – 93907-1 – City of Sunnyside v. Gonzalez
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=939071MAJ

Police are allowed to take property if it is connected to drug manufacturing or distribution (there is significant critique of this policy in discussion of criminal justice reform).For law nerd, RCW 69.50.505. The court noted the case is highly fact-specific. In discussing the law, “the court stated the statute generally does not contemplate forfeiture where the only violation is mere possession of a controlled substance; the violation usually must involve drug manufacturing or transactions.”

The “seizing law enforcement agency” (the City in this case) bears the burden “to establish, by a preponderance of the evidence, that the property is subject to forfeiture.” The court noted that there is a difference between the federal and state statutes.

Furthermore, the briefing from both parties appears to assume that forfeiture is allowed pursuant to RCW 69.50.505(1)(g) for personal property if the property is “traced as the proceeds of illegal drug activity.” Pet. for Review at 1 O; see also Answer in Opp ‘n to Pet. for Review at 6. While this assumption may be appropriate as applied to the federal forfeiture statute, 21 U.S.C. § 881(a)(6), it is inconsistent with the plain language of Washington’s statute, which allows forfeiture of personal property that was “acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter,” RCW 69.50.505(1)(g) (emphasis added).

 

CONCLUSION
Even where the question is limited to whether substantial evidence supports a finding by a mere preponderance of the evidence, appellate review must be sufficiently robust to ensure that an order of forfeiture is in fact supported by substantial evidence so as not to deprive people of significant property rights except as authorized by law. This is particularly important in the forfeiture context because an individual may lose valuable property even where no drug crime has actually been committed, and because the government has a strong financial incentive to seek forfeiture because the seizing law enforcement agency is entitled

to keep or sell most forfeited property. RCW 69.50.505(7).

 

Jun. 22, 2017 – 92816-9 – In re Pers. Restraint of Lui
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=928169MAJ

Petitioner Sione P. Lui challenges his conviction for the second degree murder of his fiancee, Elaina Boussiacos.  The Court of Appeals dismissed each claim as meritless and the Supreme Court affirmed.

The court rejected the claims of ineffective assistance of counsel and related prosecutorial misconduct claims. The court walked through the various claims and analyzed each one concluded there was no basis for the claim. The court rejected the Brady violation claim, the juror misconduct claim, and the newly discovered DNA evidence (there was blood the gearshift the jury new did not belong to the defendant and they later matched the blood).

Conclusion

We affirm the Court of Appeals’s denial of Lui’s claims and dismissal of his personal restraint petition. Lui is not entitled to a new trial due to ineffective assistance of counsel, prosecutorial misconduct, or newly discovered evidence. Nor is he entitled to a reference hearing to determine whether counsel was sleeping at trial or whether the State withheld exculpatory or impeachment Brady evidence, or to prove his juror misconduct claim.

13 Reasons Why is More About Bullying, Slut Shaming, and Rape Culture than Suicide

There is a Neflix show out there called 13 Reasons Why. Some people say this show is about suicide and feel that it is inappropriate (some schools are sending warning letters to parents about it). There are some great pieces about this and I encourage you to read them.

I come to show having survived the completed suicide of one of my best friends and I am publishing these thoughts on what would have been here 39th birthday. The night she killed herself she called me to see if I could hang out, but I was too worried about how I’d do in a law school class to go hang out – and I had no idea she was in so much pain. I would have skipped the bar exam itself if I had known that she was in so much pain. So it is not as if I come to 13 Reasons Why from a place of not knowing how devastating suicide is for those who survive.

The thing is, I don’t think 13 Reasons Why is about suicide. Yes, a girl does commit suicide and the tapes that she made explaining how she got to such a helpless point are the premise of the story, but her actual suicide is not the point of the show. What I think that this show gets so incredibly right, is how tough growing up can be, how kids so often do not talk about what’s impacting them, even to the best parents. I think this show talks honestly about those issues and does so better than anything I’ve seen before.

***Warning Spoiler Alerts***

In this series a young woman who is new to the school. A cute jock asks her out, and she has her first kiss. He takes a picture of her riding down a slide and there I think her skirt goes up and the guy’s “friend” sends the photo all around school, and a rumor starts that she is a slut.

Lesson One: There is a lot of slut shaming in our society and in our high schools. It can have an incredibly negative impact on girls. Also, it’s super scary to think moments that seem innocent or moments that you though were between the two of you can suddenly become wide spread. That’s why we know have laws about “Revenge Porn.”

She finds a few friends, but only a few. Her two closest friends basically ditch her (in part because they start dating each other, in part because they got more popular).

Lesson Two: High school can be achingly lonely. There’s even an app someone created now that is you can sit with us or something, but basically tries to tell people who feel lonely that there is a place where they may be welcome.

Then the geeky photographer at school stalks her, manages to get a picture of her and another friend (who happens to be female and very afraid she may be gay) experimenting with a kiss. This photo also gets widely circulated. While it isn’t completely clear who the girls are, a lot of people suspect she’s one of the girls. As an aside, the “good boy” who is the main narrator of this show flashes back to masturbating to this image – demonstrating a subtle and important point, even “good boys” get pulled into the hurtful drama and take advantage of it. Hannah (the girl who committed suicide) encourages everyone who reads the tape to throw a rock at the guy’s window. Instead the Clay (the “good boy”) takes a photo of this guy changing and shares it with the whole school. This kid, who was already widely unpopular, gets even more bullied and “pantsed” which the counselor at the school apparently doesn’t even understand the terminology, let alone acknowledge how harmful it is. Later, we also see that this kid is stockpiling weapons, with the implication being that he is planning on a school shooting.

Lesson Three: Vigilantism is not a good idea. I think we get some remorse from Clay about the impact that it had on this guy’s life, but I think he still feels perfectly justified in having done this because turnabout should be fair play right? Wrong. What the student did was absolutely wrong. But he’s also a student who is hurting and is widely unpopular and his only way to connect with people seems to be through photography. Vigilantism didn’t change what happened to Hannah and because actions have consequences, as the show is trying to show, what Clay did could end up being a large part of what tipped this kid over. Two wrongs, don’t make a right.

If there could be a true villain to the story, It is Bryce. Bryce is a super wealthy, super popular, super loved athlete. Basically a god at the school. And a serial rapist. He devalues women so much, he thinks of them as property and rapes his best friend’s girlfriend when she’s passed out drunk. Something Hannah witnesses and doesn’t do anything about, so she feels crappy about this. But then her boyfriend lies about what happens. Somehow she is was conscious enough to know something wrong happened, but not what happened and she starts drinking heavily – at school, skipping school, at home, always.

Then Bryce rapes Hannah in a hot tub. When Hannah tries to talk to her counselor about what happened he asks if she said no. As if the word “no” is the only way a person says “no.” Hannah tried to get away, tried to push him off, expressed a lack of consent and then went numb. He was much stronger and had her pinned down. This scene is powerful in that reminds me of how she committed suicide. While she is in the hot tub and he is raping her, we see her wrists being pinned down and scrapped against the side of the hot tub. This is the moment Hannah truly checks out and decides life isn’t worth living. So it’s interesting when she does the act, it is through cutting her wrists in a bathtub.

Lesson Four: Rape culture is a real thing. Jocks (and sometimes U.S. Presidents) think they should be immune from any kind of rape allegation because they are so popular any girl would want to have sex with them. When Clay is recording Bryce, trying to get a confession, there’s a line about how every girl at the high school wanted him. It’s pretty clear that he has likely raped far more than the two young women we know about.

Hannah makes one last ditch effort to try and get help before she kills herself – she turns to her high school guidance counselor. We see enough about his story to know he has a wife with young kids and his home life is likely distracting. While he’s meeting with Hannah his cell phone rings multiple times and this his direct phone line rings. I’m fairly certain if we got into the story there, something was happening at home that distracted him during the meeting with Hannah. But the reality is, Hannah was clearly feeling awful because of a rape he minimized and suggested was just behavior she now regretted. You couldn’t really get more warning signs than Hannah walked in there with and he didn’t do the basic things he should have done to plan for her safety.

Lesson Five: Schools perpetuate rape culture and would rather not rock the boat when a popular athlete is accused by a nobody girl. The school engages in a lot of idolized worship of their athletes and makes it clear they are the stars and the most important people at the school. There is a pretty widespread culture of sexual harassment at school and the school officials are oblivious to it. There’s a scene when Hannah’s mom goes into the bathroom and sees all sorts sexual messages that are also harassing, and the school had no idea. The school also appears to be oblivious to the sexual photos circulating during the school day. Schools are failing at keeping our students safe.

Perhaps one of the hardest things for parents watching 13 Reasons Why is understanding how little young adults confide in parents. Part of it is developmental hormones, lack of language to express what’s going on, being in a place where it seems like they are old enough to handle problems on their own. Not having any idea how their parents would react. But the parents depicted throughout much of this

Lesson Six: Our kids don’t talk about the things that are most upsetting to them. I believe part of the reason is not having the vocabulary. Emotional intelligence is hard. Part of it is also the normal development to adulthood and working on being your own person. Part of it is the fear of how what you say will be received. Will it be minimized? Will it be understood?

Conclusion

This is a show I’d watch with my 12 year old, and any child older than that. I’d use it as a tool to talk about the issues that happen in schools. I’d use it as an opening for difficult conversations. As for the issues of suicide, I’d use it for a reminder that she didn’t tell the people who cared about her most how much pain she was in. Her parents, her crush, they all would have supported her if they had known. We see how tortured the mom is by the fact she didn’t know about the pain her daughter was in and trying to learn and understand that pain. It’s important to turn to and be honest with those who we are closest with. Not to expect them to be able to take away the depression or the pain, but to help us access a network of resources and be a part of our mental health community.

For some great resources around suicide check out the American Foundation for Suicide Prevention: https://afsp.org/

U.S. Dept of Edu Fines Penn State re: Sexual Misconduct Incidents

The U.S. Department of Education issued a press release on November 3, 2016 that they have fined Penn State University $2.4 million for failure to comply with the Clery Act. As a point of reference,according to the report in 2014-2015, Penn State received $566,403,413 in federal dollars through the a variety of loan, grant, and work study programs, so the fine, while being an important statement, it is less than 1% of the entire federal funding for one school year (and the abuse occurred from 1998 to 2011).

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act is a federal consumer protection statute that provides students, parents, employees, prospective students and employees, and the public with important information about public safety issues on college campuses. Essentially it is an act that requires schools to report the most serious crimes against people or property so that students looking into attending a school and see how safe the school is.

The penalty covers 11 serious findings of Clery Act noncompliance related to the University’s handling of Sandusky’s crimes and the university’s longstanding failure to comply with federal requirements on campus safety and substance abuse.

The findings from the press release are:

Findings:

  • Finding #1:  Clery Act violations related to the Sandusky matter (proposed fine: $27,500).
  • Finding #2:  Lack of administrative capability as a result of the University’s substantial failures to comply with the Clery Act and the Drug-Free Schools and Communities Act throughout the review period, including insufficient training, support, and resources to ensure compliance (proposed fine: $27,500).
  • Finding #3:  Omitted and/or inadequate annual security report and annual fire safety report policy statements (proposed fine: $37,500).
  • Finding #4:  Failure to issue timely warnings in accordance with federal regulations.
  • Finding #5:  Failure to properly classify reported incidents and disclose crime statistics from 2008-2011 (proposed fine: $2,167,500).
  • Finding #6:  Failure to establish an adequate system for collecting crime statistics from all required sources (proposed fine: $27,500).
  • Finding #7:  Failure to maintain an accurate and complete daily crime log.
  • Finding #8:  Reporting discrepancies in crime statistics published in the annual security report and those reported to the department’s campus crime statistics database (proposed fine: $27,500).
  • Finding #9:   Failure to publish and distribute an annual security report in accordance with federal regulations (proposed fine: $27,500).
  • Finding #10: Failure to notify prospective students and employees of the availability of the annual security report and annual fire safety report (proposed fine: $27,500).
  • Finding #11: Failure to comply with the Drug-Free Schools and Communities Act (proposed fine: $27,500).

A complete report can be found here. According to the report, the charges against Sandusky included more than 50 felonies, including multiple counts of involuntary deviate sexual intercourse, aggravated indecent assault, and unlawful contact with minors as well as as charges for corruption of a minor and endangering the welfare of a minor. The report also noted, that two other people were charged, Timothy Curley and Gary Schultz for failing to to report allegations against Sandusky to law enforcement and CPS and perjury before the Grand Jury.

Another interesting pull-out from the report:

Data compiled by the University’s Office of Student Conduct showed that during the 2002 – 2003 academic year student-athletes represented 1.6% of the student body but were responsible for 5.16% of conduct code violations. The figures were similar in 20032004 where athletes were 1.5% of the student body but committed 3.05% of all violations. In 2004-2005, athletes were 1.82% of the student body and counted for 3.51% of all charges. Of particular concern, in 2003- 2004, student-athletes were charged with 9.38% of all physical assaults while only accounting for 1.5% of the student body and 17.78% of all such violations in 2004-2005 when they only represented 1.82% of all students. Athletes were also cited for sexual assault at a higher rate than the general population accounting for 50% of sexual assault charges in 2002-2003 and 20% of those offenses in 2004-2005. A similar pattern was observed for charges of disorderly conduct and alcohol-related offenses during this period. In most years through 2010-2011, the football team also had the most drug and alcohol citations of any Penn State sports program. 6

The report goes on and provides a detailed review of the culture and issues at Penn State and details on each Clery Act violation.

Washington State Supreme Court Case Re: School Negligence

The Washington State Supreme Court just issued a decision regarding school liability in a case where a 14 year female junior high student was raped by an 18 year male high school student who was also a registered sex offender. Approximately two years before, the male student, in the same school district, sexually assaulted a different junior high student. He was charged with indecent liberties and suspended for the rest of the school year. He was required to register as a level one sex offender and was not allowed contact with people two or more years younger than himself.

It is unclear to me whether the same principal was at the school when the original incident happened, but the principal at the time of second incident was notified by the Pierce County sheriff that the male student was registered sex offender. The record indicates that the principal did not inform the male student’s teachers, coaches, or relevant staff of the male student’s sex offender status. The evidence suggested that the principal did nothing to establish a safety plan and to help the male student avoid students two or more years younger than him.

The male student was allowed to participate in track and ran varsity for the Bethel High School varsity team. The high school and the junior high shared the track field. The male student was described as acting like a coach and mentor to the younger students on both schools’ teams. During practice a mutual friend introduced the targeted student and the aggressor. The very next day he invited her to lunch after school and she skipped track practice with the intention of going to Burger King for lunch, instead the male student took her to his home, under the pretense he had forgotten something, and then he raped the female student.

The female student told a friend and the friend told the school and the girl’s parent. The police were called and the male student was charged with third degree rape and plead guilty to second degree assault.

The trial court dismissed the case on summary judgment and the Supreme Court was addressing the questions: (1) Whether the school district’s responsibility to protect the student ended, and therefore its liability ended, when she left campus? And (2) Whether the alleged negligence, as a matter of law, could be the proximate cause of her injury?

A side note about proximate cause

Since the concept of “proximate cause” is central to the court’s analysis I want to elaborate on the issue for clarity for nonlawyers (the majority also did provided a quality description). This is a legal concept that involves two concepts – cause in fact, and legal cause. Cause in fact means that “but for” the A, B would not have happened. Legal cause is a policy determination about how far the consequences of a defendant’s acts should extend. There can be more than one proximate cause of an injury, and something else by a third party does not necessarily break the causal chain from the original negligence to final injury.

A couple of overly simplistic examples:

Proximate cause does not exist: D is texting and inadvertently lets her foot of the gas and rear ends E at a stop sign. D has a hummer and E has smart car, so there’s some damage, but everyone seems fine. A couple days later, E decides to go to E’s doctor because E has a sore neck that doesn’t seem to be going away. While coming back from the doctor, E is robbed. There is no proximate cause for D for the loss of money E sustained in the robbery because it is not a foreseeable consequence that someone could get robbed on the way back from a medical appointment.

Proximate cause exists: A shoots B and B gets in a car and drive to the hospital, and en route to the hospital gets hit by C and is B delayed in getting to the hospital by 25 minutes. A is still responsible for any injuries related to the gunshot, even if the delay possibly exacerbated the injury, because it is reasonably foreseeable that if you shoot someone, they may have a hard time getting to help. Proximate Cause Stops Existing: B gets fixed at the hospital and two weeks later is at a routine follow-up appointment and slips and falls at the doctor’s office. B breaks their arm in the fall. While on some level it is foreseeable that B would have follow-up care and that some people have accidents, as a policy the slip and fall is disconnected enough from the initial gun shot that as a legal matter we are likely to say that the A is not liable for injury related to slip and fall, even though, but for the initial gun shot, B would likely not have been at the doctor’s office.

Back to the School Discrimination Case

The issues in the school negligence case before the Washington State Supreme Court was about whether or not the fact that the incident occurred in the male students home was enough of another factor as to interrupt the school’s potential liability. In the dissent’s view, the school’s responsibility ended because a school cannot control the behavior of students in their homes. Fortunately that was the dissent and their view, that as a matter of law the school cannot be liable for its negligent acts if the injury occurs of school grounds or not at school activities. Instead the majority held that it was reasonably foreseeable and the school district may be liable for a foreseeable injury that is likely a proximate cause for the injury.

This decision doesn’t mean that a jury will find the school district was negligent. The school district will still have an opportunity to try to demonstrate that it was not essentially their fault that the 14 year old student was raped by an 18 year old student. Although, given that the then Superintendent of Public Instruction (OSPI) said that “the haphazard nature of Bethel’s approach to keeping its students safe from registered sex predators frankly boggles the imagination” and that the district “fell unconscionably below the accepted standard of care ‘to protect students from dangers that are known or should have been known,'” I don’t think the school district’s chance of success is very high.

This decision does say that a school district’s liability does not end at the schoolhouse doors (to adopt an expression about student rights). I expect that it will be a high threshold for school district liability, but a situation like this, where a school district has two types of knowledge, their own disciplinary history of the aggressor student and the report by the Sheriff’s office of the aggressor student’s sex offender registry status and the requirement not to be around students who were two years younger and that the day after he met this student at track practice he raped her make this a particularly compelling case. Even with the compelling facts, it was a narrow (5:4) decision.

Additional Case Details: 

N.L. v. Bethel Sch. Dist., Docket No. 91775-2, Counsel for Petitioner: Francis Stanley Floyd and John Armen Safarli at Floyd Pflueger & Ringer PS; Counsel for Respondent: Julie Anne Kays and Robert Connelly Jr at Connelly Law Offices.

Amicus briefs were filed by Gerald Moberg for Jerry Morberg & Associates on behalf of the Washington State School Directors Association, Association of Washington School Principals, and Washington Association of School Administrators. 

Amicus brief on Behalf of the Washington State Association for Justice Foundation was filed by Bryan Harnetiaux, Valerie Davis Mcomie, and Daniel Edward Huntingon (the court Supreme Court Information Sheet references a brief, but the brief was not found on Court website with the links to the briefs in the case).

Briefs in the case can be found on the Washington State Courts website under Supreme Court Petitions for Review

Turning the Bainbridge Island Alleged Teacher Abuse into a Learning Moment

The Bainbridge Island Police Department has arrested 26-year-old teacher Jessica Fuchs for illegal sexual conduct with a 16-year-old sophomore (based on the charges, the student was likely 16 when all incidents occurred). I blogged about this case here. Inside Bainbridge has several articles regarding the case and the arrest. Bainbridge Islander also has articles as does the Kitsap Sun.

According to Inside Bainbridge she was charged with Sexual Misconduct with a Minor in the 1st Degree, a class C felony (RCW 9A.44.093, makes it a crime for a teacher to have sex with a student who is at least 16 years old, when the teacher is at least 60 months older than the student, a Class C felony is a maximum of 5 years in prison); Communication with a Minor for Immoral Purposes, a gross misdemeanor (maximum of 364 days), and Tampering with a Witness, also a Class C felony.  If the student had been 15 when some of the incidents occurred other criminal laws would have also applied regarding rape of child or molestation of a child.

» Read more

Defamation and Tortious Interference Case

In the world of social media, a recent court of appeals case could be informative in the practice of family law and in issues around cyber bullying. The blogger in this case has become obsessed with the person who fired him. He has created a website with her name as included in the url. He has also directed urls very similar to the theatre to go to his website, where he has been blogging regularly (on average more once per month since 2011). In addition to the urls he also includes content that would make his website likely pop-up in a google/bing/whatever search. There can be no question, he is still actively trying to get people who might be looking into what is playing at the theatre to pay attention to his firing that occurred almost four years ago.

The court held that even though the theatre is a public entity, the primary issues in his blog were about his firing and how he thinks he should get some sort of big payout because he thinks his firing was unjust.

This round of appellate litigation focuses on the anti-SLAPP statute, which is a statute that protects speech that is a matter of public concern. The court does get to the heart of the claims about defamation and intentional defamation of business expectancy, i.e., doesn’t get into the heart of whether a person who goes to these extremes to create a website that focuses on being negative to another person can be required to take down the website based on a theory of defamation or tortious interference with business expectancy. The concurring opinion did go into a long discussion of defamation law.

The case, Johnson v. Ryan, No. 31837-1– Opinion Author – Lawrence Berrey; Concurring Judge: Siddoway; Dissenting Judge: Fearing;  Attorneys for Appellant – Robert Allan Dunn and Susan Nelson; Attorney for Respondent – Stacia Hofman; Appeal from Spokane Superior Court Docket No: 13-2-01362-7

Per the opinion in this case, James Ryan engaged in vitriolic internet blogging against Yvonne Johnson. She sued, he tried to assert an anti-Strategic Lawsuit Against Public Participation (SLAPP) defense, essentially that his speech was protected because it was a matter of public concern. The trial court agreed and dismissed Johnson’s claims, but the court of appeals disagreed, holding that Ryan’s blogging was primarily for a personal concern, not a public concern.

The reason why there was a question about personal vs. public concern was that Johnson was the executive director of the Spokane Civic Theatre.

Ryan was a former music director for the Theatre. He was hired and moved his family for a three-year term but within two months of his hiring his employment was terminated. The Theatre had received an anonymous email about Ryan’s nonmonogamous marriage and that Ryan used graphically nude photographs and text while engaging in online sex solicitations, including using his Theatre employee photograph and noting that he was employed by the Thetare in his ads. He also initiated some of his sexual solicitations while backstage on Theatre premises. The theatre claimed that connecting his “swinger lifestyle” with the theatre offended parts of the local community and reduced the Theatre’s donations.

Starting on October 18, 2010, Ryan began a public campaign to discredit Johnson for terminating his employment. He posted to his Facebook page, and then created a blog: thetyrannyofyvonne. At the time of writing this article, it is still up and Ryan has posted about it on his website. He also obtained websites similar to the theatre, but “.org” instead of “.com” which direct people to his blog.

On his blog he specifically makes statements about it being his hope that if Ms. Johnson were to look for work elsewhere that potential employers would see his website and not hire her, going so far as to invite potential employers to email contact him.

In response, Ms. Johnson filed a suit for intentional interference with business expectancy and defamation, seeking damages and injunctive relief. Ryan moved to get the matter reversed claiming all he was doing was providing a public forum for discussion and dissemination of commentary, complaints and general information related to the Theatre.

The trial court originally agreed with Ryan and ordered $10k in statutory and over $8k in reasonable attorney fees and costs.

Johnson appealed.

The Court of Appeals noted that the anti-SLAPP statute was designed to provide immunity from civil liability for claims based on good-faith communication with the government regarding any matter of public concern. The Washington Act is designed to prevent lawsuits brought primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances. The goal is to strike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern.

Public Forum: The Majority notes that courts have readily found that the internet is a public forum.

Public Concern:

The court discusses the California statute and notes that there is a difference between the California and Washington Statutes because Washington uses “public concern” and California uses “public interest.” The court noted that when this is happened, it court is bound to conclude the deviation was purposeful. Washington and the federal courts have a well-developed law a “public concern” within the context of defamation cases and the court turns to those cases for determining this case.

The court cited Davis for the proposition that speech is of a public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community.” In the employment setting the court cited White v. State, 131 Wn.2d 1, 929 P.2d 396 (1997), “Whether an employee’s speech addresses a matter of public concern is determined by the content, form and context of the statement as shown by the entire record.” and Tyner v. DSHS, 137 Wn. App. 545, 154 P.3d 920 (2007).  “was the employee acting as an aggrieved employee, attempting to rectify problems in the employee’s working environment, or was he or she acting as a concerned citizen bring a wrong to light?”

The court also noted that previously the court had found that speech that only tangentially implicates a public issues is not a matter of public concern. (Citing Dillon, 179 Wn. App. 72).

Applying these principles, the court finds that Ryan’s speech is a lengthy and tedious chronology of a private dispute between himself and Johnson, his former boss with the primary intent to establish his employer was wrong to fire him. The court says the focus is about how Ryan believes he was wrongfully terminated and his desire for serious money and even though a theatre that requires public participation and donations is involved, that is not enough to transform a private employment dispute into a matter of public concern and not protected under RCW 4.24.525.

This means that Johnson now gets to proceed with her case for defamation and tortious interference with business expectation.

Concurring Opinion

Siddowy wrote a concurring opinion to emphasize two matters (1) there is nothing in the anti-SLAPP statute that demonstrates legislative intent to make substantive changes to the law of defamation and (2) construing “public concern” as broadly as California’s “public interest” standard will change Washington’s defamation law in a way that is inconsistent with the legislature’s intent to strike a balance between the right to file a lawsuit and the right to participate in matters of public concern.

The opinion is that the First Amendment already establishes a high bar and the anti-SLAPP statute wasn’t about increasing the burden, but in making it easier for a defendant to get out of a lawsuit that was clearly going to fail, allowing a defendant to escape some of the expenses and inconvenience associated with litigation.

The concurring opinion also notes that there is a difference in public interest vs. public concern. Interest is just an issue where the public is interested and not actions of public concern, chiefly those pertaining to the hear to self-government.

Dissent

The dissent believes that Ryan’s comments about Johnson is speech of a public concern and because of that Johnson fails to present a prima facie case of liability. The dissent believes that the Spokane Civic Theatre is an institution of public concern. The Theatre published an article introducing Johnson to the community in 2005 and later in 2010 praising Johnson for helping the theatre thrive despite the economy. They noted that Johnson also maintained her own website promoting her career. The dissent also noted that in his termination letter Johnson said that Ryan’s position had to hold himself up to the high public standards charged to the representatives of the Theatre.

The dissent also takes issue with the public concern vs. public interest approach taken by the majority, finding the terms to be synonymous. A brief review of this discussion appears that he wanted to apply California case law (which is probably why the majority and concurring opinion discussed it as much as they did).

The dissent disagrees with the idea that the main theme of Ryan’s blog is to “coerce, through slander, a monetary settlement[.]” Instead the dissent believes that Ryan’s blog’s dominant theme is the mismanagement of the theatre. Although the dissent does agree that Ryan is obsessed with vengeance and the attacks are unfair and is attempting to get some financial settlement but that all of this does not exclude him from protection from the anti-SLAPP statute.

 

Update: On April 8, 2015, Mr. Ryan contacted me about this blog. He believes that the facts I described are not correct or that they should not be stated as facts and I should have the words “according to the court” placed before every fact. As this blog post is about the court opinion, I believe that it is clear that the facts represented are primarily according to the court and it is unnecessary to add such information.  Nevertheless, at the start of the court’s description, I did add “Per the opinion in this case[.]” It should be noted that out of curiosity, I did look at his blog, and the reference to how often he has blogged is my own reference. I based it solely on looking at the blog archive which shows a month and how many posts were made in that month. In reviewing that I notice the only months since he started his blog that he hasn’t blogged are in 2014, April, July and December; in 2012 September and December;  and in 2011 after he started his blog, September was the only month he didn’t blog. Thus, he has not blogged a total of six months, in about four years. He has regularly blogged two or three times in one month and as many as ten times in one month (July 2013). Based on that, I feel comfortable with my statement that he has blogged more than an average more than once per month.  

My writing about this case isn’t intended to be about the facts of this particular case. I don’t have all the facts. I doubt “facts” in this case exist in an undisputed manner and a judge will have to weigh the credibility of the witnesses and make a finding as to what facts are more probable than other facts. 

The purpose of this blog is not the facts of this individual story. The compelling issue is what are the possible resources exist when individual takes to the internet to attack another person or entity. Even when/if concerns are valid, can they be taken too far? If they are directed at individuals, including but not limited to, having the targeted person’s name in a URL, can a person be required to stop engaging in the behavior. At what point do behaviors cross a line from acceptable airing of a concern to harassment and cyber-bullying? In the world of the internet where do we draw lines limiting speech? 

A tangential issue was discussed on an episode of Reply All, a podcast aired an episode on April 1, 2015, #18 Silence and Respect that discussed a woman who had taken a photo in jest that was exploded over the internet and ended up costing her her job and what steps she could take.  Here it wasn’t an individual but the viral nature of the internet that interfered with her reputation and her ability to find work. 

 

Parent Guide as Bainbridge Island School District Deals with Teacher’s Inappropriate Conduct

On February 26, 2015, the Bainbridge Island School District sent out an email to the parents and community of Bainbridge Island School District to alert us of allegations of improper conduct of a Bainbridge Island High School teacher towards a student.

February 25, 2015
Dear Bainbridge High School Families,
Late afternoon Tuesday, Feb. 24, Bainbridge High School administrators learned of allegations of inappropriate conduct between a BHS teacher and student. Because the safety and well-being of our students is our top priority, we want to inform you of the steps we are taking at this time.
This morning, BHS administrators reported the allegations to law enforcement. While we are not authorized to provide specifics identifying either the student or the teacher, we can assure you that school and district administrators will fully cooperate with authorities on any investigation. We will also retain an independent investigator. The teacher is now on administrative leave pending the completion of the investigation.
The Bainbridge Island School District is taking the allegations very seriously. Because the incident involves members of our school community, any investigation may draw attention to our school. Situations of this nature can be upsetting to students and staff who hear about this at school, from friends or media. In the weeks ahead, our staff will pay additional attention to students for any signs of distress. Counselors will also be available to speak with students and listen to their feelings and their concerns.
We are committed to fully understanding the situation and working with authorities and the community until this matter is resolved. Thank you for your support and understanding.
Sincerely,
Mary Alice O’Neill
Principal

 

The email limits the information that it provides. From a legal standpoint limiting information provided is appropriate because the school district and the police must investigate the facts of the case. Limiting comment reduces the rumors and innuendo that are most assuredly going to follow. Rumor and innuendo are not inherently bad for a community as they are a method of community investigation, but they are not reliable for trying to figure out the facts surrounding an incident.

The vacuum of information leaves parents and community members searching for answers. This blog post is designed to provide a little understanding about what the process may look like.

First, the email is unclear as to what the conduct it, it simply says “inappropriate conduct.” That could be a wide variety of things, they could have been gambling, or the teacher could have slapped the student, but “inappropriate conduct” is usually code for sexual conduct. There is also a long history in education of teachers, especially coaches, behaving in sexually inappropriate ways towards students (see my November 14, 2014 blog post which links to the Seattle Times story). There is also a long history of media romanticizing student-teacher sexual relationships, one somewhat recent example was the Pretty Little Liars plot line of the student-teacher affair.

Second, it was referred to the police, which means the activity was criminal, lending support to the theory that it was sexual conduct.

The point of this blog post is to provide a information on the responsibilities of the school and the police, and to provide information for students and parents parents regarding their rights and ways to advocate for themselves when something like this happens to one of our children.

School District Responsibilities

When something happens in a school setting, whether in school, on a field trip, or by an employee of the school district, the school district is has a responsibility to take actions to protect students, and when, despite their efforts to protect students, something happens anyway, they have a responsibility to immediately get the student(s) safe, then to investigate, and then to make whatever structural changes necessary to reduce the possibility of a similar incident occurring in the future.

The school also need to make sure they monitor the atmosphere after-the-fact. It is common for the perpetrators of sexual assaults to be charismatic. It is likely that the teacher is well-liked. There is a possibility there could be back lash against the targeted student and a school has a duty to protect against this possibility.

While the school district has involved the police, they are not allowed to wait for the police to investigate before performing their own investigation. The email noted that the school district would be performing its own independent investigation.

Meanwhile, the school must take immediate action to increase the safety of the targeted student and all students. In this instance, the school has immediately put the teacher on administrative leave and that is and important first step, regardless of the outcome of the investigation. They have also noted that they are going to paying particular attention to the school climate and will have counselors available to talk to students.

If the incident that occurred is of a sexual nature then there are state and federal responsibilities that apply. The federal law is Title IX, which bans sex discrimination in schools, including sexual harassment and sexual assault. The state law is our state Sex Equality law. If it it isn’t a sexual incident but it is related to certain protected classes, there are also federal and state laws which create heightened responsibilities for the school, the state protections are broader and cover race, creed, color, national origin, honorably discharged veteran or military status, sexual orientation, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.

When an issue occurs that involves what is often referred to as “protected classes” a school must go beyond the specific incident and look at its climate, its policies, its procedures and determine if there is anything they can do to decrease the possibility of something happening in the future. If the school realizes that there is a culture or climate that contributed to the incident occurring they must take remedial action and work to improve the climate beyond simply disciplining the perpetrator of this particular incident. Essentially, a school district must turn it into a learning moment.

One important change BI should make is around the lack of transparency for the BI school district policy on sexual harassment and discrimination. While you can find their harassment, intimidation and bullying policy here, I have never been able to find their policies and procedures that are connected to protections against discrimination based on the protected classes. While the additional protected classes are relatively new (law passed in 2010), the Sex Equity law and associated responsibilities to have sexual harassment policies have been around since 1975 on the state level and since 1972 on the federal level. The state administrative regulations that provide school districts with some guidance are available here. These administrative regulations were recently get revised (in December 2014), but those changes relate more to when the matter gets appealed to the Office of the Superintendent), but the initial WACs came out in 1976. When the additional protected classes were added in 2010, OSPI simply tacked those unique issues onto the Sex Equity WACs, which means that schools have had plenty of time to have policies and procedures.

In addition to the WACs, OSPI issued Guidelines in February 2012. The WACs and Policies make it clear that each school district is supposed to have policies on sexual harassment and that these policies are supposed to be conspicuously posted throughout each school building, and provided to each employee, volunteer, and student and that a copy of the policy must appear in any publication of the school or school district setting forth rules, regulations, procedures, and standards of conduct for the school or school district.

Police Responsibilities

The police will have to perform an investigation. Their responsibility is limited to the specific criminal acts that may have occurred. They must determine whether there is probable cause for an arrest and the Prosecutor’s office will make a determination as to whether there is enough evidence to prove beyond a reasonable doubt that conduct violated a law. If they make this determination, then they will charge the perpetrator and the case will either settle or go trial.

Again, based on the presumption that this involves sexual conduct, the statutes that govern are under RCW 9A.44. The way our criminal law works is that there are degrees of a crime and they are classified as different levels of felony or misdemeanor and they are a different level of felony, so first degree is a felony A, which then means there is a higher sentencing range. There are also misdemeanors which carry a lower penalty the felonies.

Rape of a child and child molestation in the first degree require that the child is under 12, second degree is when the child is between the ages of 12 and 14, and third degree is when the child is between 14 and 16.

Since the student is in high school, there’s a good chance he or she is over 16. In that case, the law that the teacher may have violated would be the sexual misconduct with a minor. It’s a crime in the first degree for a school employee to have sexual intercourse with an enrolled student of the school who is at least sixteen years old and not more than 21 years old, if the employee is at least 60 months (5 years) older than the student. This is a Class C felony. If it is sexual contact as opposed to intercourse it is a second degree offense and a gross misdemeanor.

There are a variety of other laws that could apply, but those are the ones that would most likely apply.

 

Responsibilities of the Parents and the Young Adult/Child

Whenever a person has been a target of sexual violence, it is important that he or she and, when the person is a minor, their parents, advocate on their behalf. The process can be confusing and scary. Police, prosecutors, and the school do not represent the targeted students, even though there is overlap in concern. Parents and students need to get informed about the process, both with the school district and with the police.

One place that parents and students can turn is the Sexual Violence Law Center. This is a great resource to learn about what additional protections might exist for the targeted student, from protection orders, to understanding the confidentiality of records, to understanding rape shield laws (designed to prevent blaming the targeted student because of clothing choices or prior sexual relationships), this website is a great resource and a great resource of resources, including their Know Your Rights Guide (available in English, Spanish and Chinese)

Also, it is incredibly important to communicate in writing. Even if you have a call or in person meeting, follow up that call or meeting with an email confirming what you understood the content of the call or meeting and the next steps. This is important for you, because it will make sure you are clear on the process, but it is also important because written documentation is more likely to produce results partially because it creates a heightened fear of future liability. Hopefully the school district will take all the proper steps, but if they don’t and you follow-up with OSPI or file a civil suit, written documentation will be able to be evidence. Telling someone what someone else said is not typically admissible evidence because it’s hearsay. In addition, Washington State law provides that a “personal representative of the victim’s choice” may accompany him or her to the hospital and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings.

As a quick overview, the way the school hierarchy works is (1) responsible employee within the school, (2) school board, (3) OSPI. A report needs to be made to a responsible employee. Who the “responsible employees” are can be unclear, it is not necessarily just a teacher or even a counselor, but unquestionably, the compliance coordinator and Title IX officer are responsible employees. OSPI has a list on their website. For the Bainbridge Island School District, the compliance coordinator and Title IX Coordinators is Peter Bang-Knudsen, 206-780-1072, pbangknudsen@bisd303.org. OSPI’s website also provides a general overview about a complaint process here.

The general overview is that a parent/student can try to deal with the complaint through the school district. Since Bainbridge Island doesn’t have that information posted, it is hard to know what their procedure is, but they are supposed to have an internal appeal process. Once that decision is made, a student can appeal to OSPI. If it gets to OSPI, OSPI will perform its own investigation and issues its own findings. Please note there are some tight deadlines for appealing, 20 days within your final complaint to OSPI. 

An alternative administrative process is filing a complaint with the Office for Civil Rights U.S. Department of Education (OCR). OCR will pursue issues connected to race, color, national origin, sex, disability, and age. Their process for filing a complaint can be found here (and it is available in multiple languages).  Again, there are timelines, typically 180 days (about six months) from the discriminatory incident.

When the Department of Education gets involved they do an investigation and the investigation will typically result in a Resolution Agreement. An example of a resolution agreement can be found here (follow the link under the paragraph to see the resolution letter). The Resolution Agreement involves actions the school needs to take to resolve the structural deficiencies that created a culture and climate that allowed discrimination to occur.

When parents/students pursue resolution through the school, OSPI or the Department of Education, they are pursuing what are called administrative remedies. There is also a private right to sue encompassed in Title IX and the sex equity law, the lawsuits include a right to monetary damages if the school acted with deliberate indifference. A suit can also be filed for negligence on the school district’s part, which is an easier claim to establish than the “deliberate indifference” standard. Civil claims (a lawsuit) can also be made against the perpetrator.

*Note on language: You may have noticed that instead of “victim” or “survivor” I used “targeted student.” I use this language for a variety of reasons, including, but not limited to the reality that many people who have been the target of sexual violence do not like the word “victim” or even “survivor.” But perhaps more importantly, using the word “targeted student” more accurately conveys what happens. Many perpetrators are repeat offenders, they actively target/groom the person they want to attack, they do it consciously and one targeted student could easily be replaced by another. It also places the responsibility of the violence on the person committing the violence and not the person who is targeted by the violence. 

Rape Kit Testing – Digging through the backlog

Since at least 2009, we have been aware that police departments routinely do not process rape kits. In 2009, it was  a report noting that Los Angeles County had the largest known rape kit backlog of 12,669 untested rape kits. 

End the Backlog focuses on shining a light on the rape kit backlog. They note that the federal government estimated that hundreds of thousands of rape kits sit untested in police and crime storage facilities.

Of late, the backlog is getting more attention. Law & Order SVU even had an episode that addressed the backlog issue on September 29, 2014. The latest news is a January 4, 2015 report from the BBC, New Hope for Rape Kit Testing Advocates. This report demonstrates what is common knowledge to people who work with sexual assault, many rapists are repeat offenders. Here are some of the facts from the BBC article:

  • Detroit: More than 750 DNA matches were found in CODIS from about 2,000 rape kits.
  • Detroit: 188 serial rapists were identified from the processed kits – they’ve committed crimes in 27 other states.
  • Detroit: Indictments – 14 dismissed by court or prosecutor; 16 guilt by jury; 1 hung jury; 7 not guilty, 44 guilty plea accepted. 60 out of 91 resulted in a conviction or a guilty plea. 
  • Cleveland: After processing 4,300 kits, police have opened more than 231 people have been indited, a third of whom had at least one previous rape conviction.  Most of the remaining cases are still being investigated.
  • Colorado – out of 150 kits tested, they had 24 matches in CODIS.

If you are the victim of a sexual assault, you have to advocate for yourself. Quite frankly, we know from the massive backlog, from the experience of disbelief of those in authority and even friends and family, that we exist in a world were rape victims are not believed, or worse they are believed but pressured to be quiet because of the status of the perpetrator. The awareness of the rape testing backlog and the results from testing create an opportunity for a sea change in attitudes. The results from Detroit alone show that rape case, when proper investigation is done, can result in convictions or guilty pleas.

One great way to become your own best advocate is to empower yourself. Understand the issues. Check out End The Backlog’s resources for survivors. Check out the resources in Washington State. One great resource is Washington Coalition of Sexual Assault Programs. If you need to hire a private attorney to represent you either through the process or with your own case, JELS may be able to help, whether through representation or assistance in finding an attorney who can represent you.

 

High School teachers and coaches and sexual acts with students

A recent article in the Seattle Times, “Interlake High teacher charged in sex case with female student” involves an issue that Justice & Equality Legal Services seeks to address – sexual harassment, which includes sexual assault in the school setting. A teacher having sex with a student in the K-12 setting is considered a criminal act and so there are criminal penalties that exist.

In 2003, the Seattle Times did a series titled “Coaches who Prey, The Abuse of Girls and the System that Allows it.” The series Times found 159 coaches who were disciplined or fired because of sexual misconduct; yet 98 of them continued working with children. According to this series:

Even when school officials find wrongdoing, they often bow to pressure from the teachers union, handing out mild punishments or none at all.

Districts routinely keep investigations secret by failing to document them or by signing agreements with accused coaches promising not to tell. In fact, the Times found 29 coaches who were passed on to new school districts after being disciplined, pushed out or fired for sexual misconduct.

O’Hagan, Maurneen, and Christine Willmsen, “Misconduct often goes unpublished by districts.” The Seattle Times (December 15, 2003). 

The series prompted the 2004 state Legislature to require school districts to disclose information about sexual-misconduct allegations and forbid the districts from entering into agreements to conceal such information — a practice that had been all too common. “Tardy efforts at troubling coaches.” Seattle Times Editorial (July 12, 2006).

 

The investigative report of the Seattle Times did not create a sea change in the policies of school districts in Washington. An Oak Harbor Swim coach made 20/20 when he was convicted of rape in 2010. Over his 30-year career he molested at least a dozen girls.

Now there is the Interlake High School case.

At JELS, we believe that this can change, but it requires the diligence and a the same commitment we ask of our kids around not being bystanders to bullying. The Times 2003 series included an interesting list of “How Parents can spot trouble before it’s too late.”  The recommend be wary of full-body hugs, rides home alone, being aware of cards and gifts, sleepovers at the couches house, even babysitting can be used for grooming, long or repeated phone calls to and from the coach (in today’s age, that should include instant message, snapchats, burnotes, emails, etc.), Out-of-town trips where it is difficult for parents to come along, a child suddenly quitting or losing interest, and coaches who jump from team to team or district to district.

I would also take it a step further and note that if you see these things, whether or not is happening to your child, you have an ability to file a complaint. In fact, since sexual predators typically look for a target that has fewer safeguards, so a student-athlete who has a parent who has to work and misses most practices and/or games, would be an easier target than a student whose has a parent present at practices or games.  You can file a complaint. Title IX complaints specifically can be filed by community members.

If you are aware of allegations of sexual assault, for instance your child tells you that a friend was touched by a couch, contacting police is something else parents should feel empowered to do.

For some reason, with regard to sexual assault more than other issues, people worry about false reporting and the possibility of destroying someone’s reputation more than other offenses. Studies show false reporting is similar to other crimes, which is to say it is very low. In addition, there are protections that exist, police will have to do an investigation, schools will do an investigation. If they feel like there is not enough evidence no report gets filed.

The reality is that kids far more often than not, don’t tell adult figures when sexual assaults occur. There is self-blame, minimizing, shame, and fear, often fed by the perpetrator that when it is their word against the perpetrator that no one will believe the student over the coach. Or that even if they do, if the coach is well-liked in the community that people will chose not to believe the child.

This means, when you hear little things, and you wonder if it’s worth being concerned about, the answer is yes. Put the concern first and figure out if there is anything of substance behind the concern. Most coaches and teachers aren’t sexual predators. Most care passionately about students and would never want to see any harm come to the child. But those who are sexual predators have access to lots of children and are likely repeat offenders, or will be, especially when they realize that their behavior has minimal consequences.

Seattle Schools Under Investigation for Title IX sexual violence issues

A July 2014, article in Al Jazeera discussed the problem of rape in high school and school obligations. noting that high schools are even worse than colleges in dealing with sexual assault.

Last month the Department of Education’s Office of Civil Rights agreed, making Seattle Public Schools, which covers all of Seattle, one of 23 elementary and secondary school districts currently under federal investigation for Title IX sexual violence issues. The number of colleges under investigation recently reached 64.

The article also noted that the vast majority of high schools did not understand that Title IX applied to them. This is a well-known problem to those of us in the field. While schools are required to have a Title IX coordinator and they do at least have someone in name, because they submit that information to OSPI (Office of the Superintendent of Public Instruction). The reality is that many Title IX coordinators do not even know that they are the Title IX coordinator. Of those that are aware, many of them have little understanding of the important role their position plays in making sure our children are safe.

It is this ignorance that makes it so important for parents to have a knowledgeable advocate on their side who can push the school to comply with the laws and create a safe space for students.