If you are the CEO or General Counsel of your company, you should be preparing for a new challenge. The gaining momentum of the #metoo movement means there will likely be an increase in sexual harassment complaints. Raghu and Suriani certainly think it's already happening (#METOOWHATNEXT: Strengthening workplace sexual harassment protection and accountability, nwlc.org, 2017.), and our clients are certainly calling us more often to investigate claims. To better prepare, here are some suggestions we urge you to consider.
Voir dire of experts as to credentials and experience needs to be viewed as only one aspect of the vetting process of forensic work product. Experts, as much as anyone else, are prone to conscious and unconscious sources of bias. This rather significant problem area in forensic reports is discussed by (Stuld and Simon, 2013) under the rubric of heuristic and cognitive biases. Heuristics addresses how people arrive at decisions or reach conclusions in complex family law, civil, or criminal matters. Errors in this area are of concern when experts focus or overly attend to only a part of the problem or afford overemphasis to certain factors and minimize the contribution of other factors. One can also see this problem in medicine. A patient may complain of pain in a particular body region whereas the provider focuses only another medical issue.
Defense counsel is frequently presented with the problem of a client protesting their innocence and accusers, perhaps multiple accusers, leveling allegations of sexual assault against the client. Of course, with defendants facing severe legal consequences, complaints need to be evaluated as to their reliability and validity.
Standard of care is a general expression of what constitutes care in professions such as medicine, nursing, education, or child care administration. In schools and other agencies responsible for the care and supervision of children, the professional standard of care is the ethical or legal responsibility of a professional to exercise the level of care, diligence, and skill that other professionals in the same discipline would apply in the same or similar circumstances. This, coupled with statutory requirements and case law, defines the care that an educational professional is responsible for providing to children which includes protection from child sexual abuse.
Title IX, the law that prohibits discrimination on the basis of gender in public education programs, is also relevant in application of professional standards within the context of private school sexual abuse and harassment and their response to alleged incidents. Every school that accepts federal funding for any program or service it provides must adhere to Title IX. Most public schools, including charter schools and specialized education service commissions, accept federal assistance and, therefore, must comply with Title IX. Compliance requirements include, among other things, the development of policies prohibiting sexual harassment and assault, prompt and thorough investigation of complaints, training of staff, and the assignment of a person who oversees implementation of the law.
Under Title IX, for a school to be held liable for denying an educational opportunity to a student who was sexually harassed or abused, the court must be convinced that the school had actual notice of prohibited behavior and that it acted deliberately indifferent to it. Often, it is a challenge to define what "actual notice" is and whether the school had such notice. If the school has no information on which to act to end harassment or abuse, it cannot be determined to be indifferent. In some of the cases we have worked on, however, there has been some level of notice that, if investigated, would have confirmed that harassment or abuse was taking place. Such notice could be a teacher hearing a rumor about a sexual relationship between another teacher and a student, a staff member watching a student speak in a sexually inappropriate way to another student, or the school receiving notice that that an off-campus sexual violence event is creating retaliation at school. Examples such as these may constitute actual notice, depending on the circumstances.
In forensic interviews, where there are allegations of child sexual abuse, it is imperative that interviewers incorporate the current Professional Standards of Care in order to obtain forensically sound information from the alleged child victim. Interviews that produce unreliable information present significant risk to both the alleged victim as well as perpetrator. Those falsely accused suffer irreparable damage; the risks are equally significant if a perpetrator is allowed to continue to offend, simply because the interviewer used techniques that undermined the forensic reliability and credibility of the child's statements.
Title IX of the Education Amendments of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any education program, including in colleges and universities, if those programs or activities associated with the institution receive federal funding. Under Title IX, sex discrimination includes sexual harassment, sexual battery, sexual assault, rape and other sexual violence at school, college or university campuses. Any behavior that disrupts a student's access to an educational opportunity or benefit constitutes a violation of Title IX. Recent media coverage has brought to light the controversy over the six-month sentence for a former Stanford University student for the rape of a student on campus. There has been outrage over the sentence, and that outrage might be justified, given schools' responsibilities in similar cases.
In 2011, the U.S. Department of Education Office for Civil Rights (OCR) issued a "Dear Colleague" letter to college and university administrators about implementation of Title IX of the Education Amendments of 1972 in regards to campus sexual assault cases. Title IX prohibits discrimination on the basis of sex in education programs or activities in schools that receive federal funding. The letter explains that schools are required to develop and distribute policies regarding sexual harassment, designate a Title IX coordinator to oversee the school's duties, train staff and students in sexual harassment and violence issues, and establish an investigation procedure and an adjudication process. The letter did not articulate specific procedural safeguards, rules for the examination of evidence, or guidelines for the conduct of adjudication or hearing processes for cases of campus sexual violence.
This article explores common situations regarding sexual harassment in the school setting. It also discusses exploitation of sexual power either by teachers or by students in an inappropriate relationship. Schools and its employees have a duty to train their students on their sexual harassment policies and to report any inappropriate behavior.