Bill Cosby’s Crimes and the Impact of #MeToo on the American Legal System

The retrial of Bill Cosby, on charges of sexually assaulting Andrea Constand in 2004, ended yesterday with a guilty verdict. Cosby has been convicted of three felony counts of aggravated indecent assault: for penetration without consent, penetration while the victim was unconscious, and penetration after administering an intoxicant. He stands to be sentenced to as much as ten years for each conviction. The first prosecution of Cosby, last June, for the same crimes, ended in a mistrial, owing to a hung jury. Because the trial and the retrial divided neatly into pre- and post-#MeToo events, Cosby’s case promised to show, in real time, the legal impact of a young social movement. Anticipating the decision was like girding for a verdict on the movement itself.

Trial lawyers often say that cases are won or lost in jury selection. Judge Steven O’Neill, who also presided over the first Cosby trial, explicitly questioned the hundred and twenty potential Cosby jurors on whether they knew of the #MeToo movement and sexual-misconduct allegations in the entertainment industry—nearly all did—and, related, whether they could be impartial in assessing the trial evidence. The judge seemed to acknowledge that the effects of social shifts on ordinary sensibilities and common sense are features of the conscious design of our jury system. The twelve-person jury on the second trial was reportedly identical to that of the first in terms of racial and gender composition, but the second appeared to skew a bit younger, with more millennials in the mix—which was perhaps significant, given the much-noted generation gap in levels of support for #MeToo.

The prosecution and the defense typically battle over what, among the available evidence, should be shown to or kept from the jury. A #MeToo effect could perhaps be seen here, as well: in the second trial, the judge permitted the jury to hear much more evidence than he did in the first. Constand’s account of Cosby assaulting her after he gave her pills that immobilized her was consistent across the two trials. On retrial, the new jury heard testimony from five additional women, who told similar stories of Cosby drugging and then assaulting them in the nineteen-eighties, whereas the first jury heard from only one other victim. Dozens of women have come forward to accuse the entertainer of sexual assault, with the alleged incidents spanning a period of fifty years. Cosby has never been charged, and likely never will be, for these additional alleged crimes, because their statutes of limitations ran out before they came to light.

In 1991, William Kennedy Smith, President John F. Kennedy’s nephew,was acquitted on a rape charge, with the jury presumably swayed by Smith’s claim that the sex was consensual. The case was widely thought to have turned on an evidentiary ruling: the trial judge’s exclusion of accounts by three additional women who each accused Smith of raping or attempting to rape them in the past. The jury was not permitted to hear this evidence because of the legal principle that the accused in a criminal case is to be tried only for the crime charged, not for his character or other conduct; “prior bad acts” are generally supposed to be inadmissible as evidence.

 

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Federal Court Rules LGBT Discrimination in Violation of Title IX

Source: https://www.thedailybeast.com/federal-court-rules-lgbt-discrimination-in-violation-of-title-ix

The 2nd Circuit Court of Appeals decided on Monday that discrimination of sexual orientation falls under the Title IX protections from the Civil Rights Act of 1964, which prohibit discrimination on the basis of sex. The majority wrote that “sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” The case was heard in New York City by 13 judges, and was originally brought by Donald Zarda, who sued his workplace in 2010 for allegedly terminating him due to his sexual orientation. While anti-LGBT discrimination is not explicitly protected by the federal government, the courts interpretation presents a roadblock in the Trump administration’s efforts to curb LGBT protections via the courts.

 

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Title IX Applies to Private Schools

Source: https://www.aauw.org/2010/10/12/private-schools/

Title IX Applies to Private Schools

October 12, 2010

Caitlin Russo, a student at Greensburg Central Catholic High School in Pennsylvania, was being harassed by a teacher. She complained to the school’s administrators, but they ignored her and suggested she was out to ruin the teacher’s reputation. She also complained to the Diocese of Greensburg, which runs the high school, but they also ignored her. So Russo sued the school and the diocese for violating her rights under Title IX, the law that prohibits sex discrimination in educational institutions that receive federal funding.

Though the law has been famously exercised to enforce equal access to sports participation, Title IX doesn’t only apply to student athletics. The law prohibits gender discrimination in all educational activities, covering everything from sexual harassment to opportunities in math and science.

In court, the school’s lawyers disputed Russo’s claims to Title IX protection, arguing that the private, parochial high school and other schools run by the diocese were not bound by Title IX because they did not receive any federal funding.

However, the U.S. District Court disagreed. In a September 15 decision, the court ruled that the private high school must comply with Title IX because another school within the diocese took federal subsidies for a school lunch program. The decision set a precedent that if a private school accepts federal money, Title IX applies to that school and all other schools within the same organization.

This is a victory for women’s educational rights that will lay the groundwork for future enforcement in private schools. This decision should remind all schools that receive any federal funding that their students are protected under Title IX. If students attending those schools believe their rights have been violated, they have protection under the law.

Learn more about campus sexual harassment and what to do if you are facing sexual harassment through AAUW’s Legal Advocacy Fund and Legal Referral Network.

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TITLE IX V. FERPA: WHICH LAW TRUMPS FOLLOWING A SEXUAL HARASSMENT INVESTIGATION – BY: BETSEY HELFRICH

Source: http://www.mickesotoole.com/articles/title-ix-v-ferpa-which-law-trumps-following-a-sexual-harassment-investigation-by-betsey-helfrich/

Excerpt:

 

Sexual harassment of a student is a form of sex discrimination prohibited by Title IX.   Title IX protects students from sexual harassment at school and at school activities, including off-campus school sponsored trips.  Schools have an obligation to respond promptly and effectively to claims of sexual harassment.  Title IX regulations require schools to adopt grievance procedures which provide for the equitable resolution of sex discrimination complaints.  34 CFR 106.8(b).  As part of these procedures, schools generally conduct investigations to determine whether or not sexual harassment has occurred.  If after such investigation, a school determines that a student has sexually harassed another student, the school is responsible for taking immediate effective action to eliminate the hostile environment and prevent its recurrence.  34 CFR 106.31(b).   Steps should be taken to effectively and immediately end the harassment, which may include ordering the alleged harasser to stay away from the complainant or implementing a long-term suspension or possibly even expulsion for the harassing student.  However, this brings us back to the question – does the complainant have the right to know the outcome of your investigation and the consequence for the alleged harasser? Title IX guidance from the U.S. Department of Education says yes.

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Congress Passes Bill to Protect Young Athletes from Sexual Abuse

Source: HTTP://FEMINIST.ORG/BLOG/INDEX.PHP/2018/02/06/CONGRESS-PASSES-BILL-TO-PROTECT-YOUNG-ATHLETES-FROM-SEXUAL-ABUSE/

Last week, the House and Senate passed the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act that makes it mandatory for sports organizations to report the sexual abuse of athletes to law enforcement or social services within 24 hours. The bill is now waiting to be signed into law by the President.

The bill was co-authored by Senators Susan Collins and Dianne Feinstein and was introduced in March 2017, brought on by sexual abuse allegations against personnel involved with USA Gymnastics, USA swimming and USA taekwondo. In a press conference, Senator Collins said, “I believe that by moving this legislation forward, we have taken concrete action to end the thoroughly corrupt system that was exposed by these brave women.”

Aside from mandatory reporting, the bill also expands the statute of limitation so that the period for reporting begins only when a victim realizes they have been abused, ensures easier and safer ways to report abuse, and requires extensive training for people involved in sports that will teach them to follow strict standards for child abuse prevention and detection.

The bill was passed by the House and the Senate a week after former Michigan State and US Gymnastics team doctor, Larry Nassar, was sentenced in Ingham County, Michigan to 40-175 years in prison for sexually abusing girls who sought medical treatment. At Nassar’s sentencing hearing, 156 survivors made statements about their experiences and exposed the system that allows predators to prey on young girls. Nassar is accused of sexually assaulting over 200 women and girls.

On Monday, an Eaton County court sentenced Nassar to another 40 to 125 years in prison on three counts of criminal sexual conduct. That sentence will be served concurrently with the Ingham County sentence after Nassar serves a separate 60 year sentence in federal prison on child pornography convictions.

The survivors who have spoken out about the abuse they suffered under Nassar have sharply criticized Michigan State University, USA Gymnastics and the US Olympic Committee for failing to take any action with regard to accusations against Nassar. Since 1997, women and girls have reported being sexually assaulted by the former-doctor, yet none of the institutions that employed him ever took any notable action to investigate him or protect other athletes from his assaults.

Even Michigan State’s Title IX coordinator dismissed reports from students alleging Nassar had sexually assaulted them. After Nassar was reported to the FBI in July 2015, he was no longer allowed to treat patients at USA Gymnastics, but was permitted to continue sexually assaulting young women and girls for over a year at Michigan State.

 

 

Newswire: Susan Collins Press Releases 1/30/18; CNN 2/5/18

 

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