Harassment and Sexual Assault

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1 Protecting Students on Campus: Laws and Best Practices to Prevent Bullying, Stalking, Harassment and Sexual Assault Disclaimer: Not intended as legal advice or establishing an attorney-client relationship. October 26, 2010 Paul Lannon, Esq. Harry Potter, Esq. Holland & Knight, LLP Copyright 2010 Holland & Knight LLP All Rights Reserved

2 Massachusetts Anti-Bullying Law Not required of colleges and universities, but many good practices Massachusetts Hazing, Harassment and Stalking Laws Federal Safety and Harassment Laws

3 Bullying in the News Tyler Clementi Phoebe Prince

4 Elementary/Secondary Schools: Anti-Bullying or Related Laws

5 Expectations of students entering school Does your institution i i have an anti-bullying blli policy??(likl (Likely not) Students may have had anti-bullying instruction, depending on home state Students/parents t t might be more willing to file a lawsuit due to news of settlements Schools have responsibility to follow Massachusetts anti-bullying laws for any college/university-run elementary or secondary schools Need to specifically recognize harm of cyber-bullying! Students use non face-to-face methods to communicate For example, 69% of students state they have had arguments with others exclusively via text messages (mtvu/associated Press Survey)

6 Proposed Anti-Bullying i Legislation i at the College Level (Lautenberg -- New Jersey) Would require colleges and universities that receive federal funds to adopt a code of conduct that t prohibits bullying and harassment of students Have policies in place to deal with complaints and incidents of harassment Recognize cyber-bulling as a form of harassment Would create competitive grant program at the U.S. Department of Education to help colleges and universities establish anti-bullying programs

7 Massachusetts Anti-Bullying Law Massachusetts General Laws Chapter 71, Section 37O Effective date: May 3, 2010 Bullying is defined as: the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that: (i) causes physical or emotional harm to the victim or damage to the victims property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) creates a hostile environment at school for the victim; (iv) infringes on the rights of the victim at school; or (v) materially and substantially disrupts the education process or the orderly operation of a school. COLLEGES AND UNIVERSITIES ARE NOT REQUIRED TO COMPLY

8 Massachusetts Anti-Bullying Law Massachusetts is one of few states to include cyber-bullying in the definition of bullying Cyber-bullyingbullying is the bullying through the use of technology or any electronic communication, which shall include, but shall not be limited to, any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.

9 Anti-Bullying Law Requirements Plan Develop Bullying Intervention and Prevention Plan Instruction ti Age-appropriate instruction ti on bullying prevention Professional Development Students on IEPs Notice to students and parents/guardians Train school staff annually on the plan IEP team must consider and specifically address the skills and proficiencies needed to avoid and respond to bullying Annual written notice to students and parents/guardians, in age-appropriate terms, of relevant student-related sections of the plan Notice to staff Annual written notice to school staff Relevant sections of the plan relating to the duties of faculty and staff must be included in a school employee handbook Staff must be trained annually on the plan Website Reporting of Bullying Investigation and Follow-up Notification of Other Schools Post plan on website School staff must report immediately any instance of bullying or retaliation Prompt investigation of allegation and, upon determination, 1) notification of local law enforcement agency, if appropriate, 2) appropriate disciplinary action; and 3) notification of parents If bullying/retaliation involves students from other schools, notification of other schools

10 Massachusetts General Laws Chapter 265, Section 43 Effective date: May 3, 2010 Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking. (imprisonment, fine or both) Stalking can include non face-to-face actions (mail/electronic).

11 State Laws: Harassment Massachusetts General Laws Chapter 151C Massachusetts law prohibits sexual harassment in educational settings. Massachusetts General Laws Chapter 258E Effective Date: May 10, 2010 Allows individual suffering from harassment to obtain restraining orders against non-family and non-household members without paying filing fees. Harassment is defined as three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, i id i abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or 1) an act that by force, threat or duress causes another to involuntarily engage in sexual relations, or 2) conduct that constitutes one or more of the following crimes: indecent assault and battery on child under age 14; indecent assault and battery on mentally retarded person; indecent assault and battery on person fourteen or older; rape; rape of a child; rape and abuse of a child; assault with intent to commit rape; assault of child with intent to commit rape; enticement of child under age16; stalking; criminal harassment; and drugging persons for sexual intercourse.

12 Massachusetts General Laws Chapter 269, Section Enacted in 1985 Hazing defined in part as any conduct or method of initiation into any student organization, whether on public or private property, which willfully or recklessly endangers the physical or mental health of any student or other person.

13 Requirements of all public and private post-secondary institutions: Adopt anti-hazing i policies i as part of their disciplinary i policies; i and Distribute copies of the anti-hazing law to all students enrolled full-time; to all student groups, teams, and organizations that are part of or are recognized by the institution, or are permitted by the institution to use its name and facilities; and to all known unaffiliated student groups, teams, or organizations. Note that an institution meets these requirements if it can document that its student handbook emphasizes the anti-hazing law and that all students have received a copy of the handbook. Every year, post-secondary institutions must: Collect a signed acknowledgement from a contact person for each student organization regarding distribution of information and agreement to comply with the law, and Submit a report to the Mass. Board of Higher Education certifying that the school has complied with the law. The reports must be filed with the Department on or before October 1. By November 1, the Department must notify the Attorney General of any school that has not filed a report.

14 Massachusetts General Laws Chapter 265, Section 13L Enacted in 2002 Punishes whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act. If college official fails to take action, could face criminal charges

15 Federal Laws Also Provide Protection Against Harassment to Protected Classes Certain federal laws prohibit harassment of individuals in protected classes (e.g. disability, race/national origin, sex) ADA Title VI Laws to prevent sexual harassment

16 VAWA (42 U.S.C b) Grants to develop and strengthen th strategies t to combat sexual violence on campus Clery Act (20 U.S.C. 1092) Requires disclosure of campus crime statistics and institutional programs, Requires policies and procedures to prevent sexual offenses Information on sexual offenses are specifically required to be disclosed Title IX (20 U S C 1681 et seq ) Title IX (20 U.S.C et. seq.) Requires policies against sexual harassment Requires grievance procedures Requires response to allegations of sexual harassment

17 Grants for colleges/universities to combat sexual violence on campus (Campus Grant Program) Boston Globe reported that reports of sexual assault on campus rarely lead to severe sanctions 10 New England universities and colleges provided data as part of grant program. Of more than 240 alleged assaults between : 2008: Only four led to expulsions 24 suspensions 59 additional sanctions (counseling, community service, writing a letter of personal reflection, staying away from victim) (Boston Globe, February 25, 2010)

18 The U.S. Department of Education levied a $250,000 fine against Salem International University for violations of the Clery Act Failure to report campus crimes, including five forcible sex offenses and three robberies Failure to issue timely reports about threats on campus Failure to have adequate policy describing rights and options of alleged sexual assault victims

19 Title IX is not just to prevent discrimination in athletics Sexual harassment is a violation of Title IX Title IX prohibits discrimination based on a student s sex in colleges/universities receiving federal funds A college discriminates against a student when it is aware of a sexually hostile environment and condones, tolerates or allows that environment to exist. (OCR FAQs re. sexual harassment) To create a hostile environment, actions must be so severe, pervasive and persistent that they impact ability to participate in school activities

20 Adopt and publish a policy against sex discrimination and grievance procedures (Notice) Apply policy to complaints of harassment Provide for an adequate, reliable, and dimpartial i investigation i i of complaints, including the opportunity to present witnesses and other evidence Procedures have designated dand reasonably prompt timeframes Notice of the outcome of the complaint process is provided to the parties Assurance is provided that the institution will take steps to prevent recurrence of any harassment and to correct its discriminatory effects if appropriate (OCR Revised Sexual Harassment Guidance, 2001)

21 Responsibility of Institution Institution is responsible if aware of harassment, even if student does not report Informal and Formal Options MIT: Informal options include anonymous reports, mediation, third-party facilitation i Effective Investigation Presence of accused at all stages of a hearing may not allow a fair investigation Staff conducting investigations must be trained on sexual harassment issues Remedies Remedies must focus on accused AND victims Confidentiality FERPA does not prohibit informing accuser of outcome of investigation. However, cannot inform of specific sanctions (OCR Revised Sexual Harassment Guidance, 2001)

22 For harasser Disciplinary i and/or corrective action Counseling Escalating consequences if initial steps are not enough For victim Apology from harasser If harassment impacting learning, provide tutoring t Counseling Safeguards and monitoring (OCR Revised Sexual Harassment Guidance, 2001)

23 Paul Lannon (617) Harry Potter (617)

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