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DeVos Plans to Dismantle Standards for Campus Sexual Assault Investigations

Donald Trump's new Education Secretary Betsy DeVos announced plans to rescind a six-year-old policy issued by Barack Obama's administration that advised colleges and universities on how to handle sexual assault allegations on campus. "Washington has burdened schools with increasingly elaborate and confusing guidelines that even lawyers find difficult to understand and navigate," DeVos told a crowd at George Mason University. "That's why we must do better, because the current approach isn't working." But DeVos wasn't as clear about what the new approach would look like as she was about rebuking the old approach. So where does that leave victims, alleged abusers, and schools trying to meet their legal obligations? Out With the Old In 2011, Obama's Department of Education issued what is known as a "Dear Colleague" letter, addressing the requirements of colleges and universities under Title IX of the Education Amendments of 1972 in regards to sexual violence on campus. Schools must "take immediate and effective steps to end sexual harassment and sexual violence," including a prompt investigation of any incident the school knows of or reasonably should know of, and apply a "preponderance of evidence" standard to determinations based on sexual harassment allegations. According to DeVos, this system "has failed too many students." "Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved," she said, adding, "That's why we must do better, because the current approach isn't working." In With What Now? What the new approach will be, however, isn't immediately clear. DeVos announced plans to "launch a transparent notice-and-comment process" to formulate new guidance on sexual assault investigations, presumably to standardize procedural elements and protections across all schools. One of the issues that many, including the American Bar Association, have highlighted in prior critiques is the lack of due process protections for both victims and accusers in on-campus hearings, along with the lack of uniformity in schools' reporting, investigating, punishment, and appeals processes. "We can do a better job of making sure the handling of complaints is fair and accurate," DeVos promised, but how that job will be done remains to be seen. Related Resources: DeVos Announces Plan to Revamp Obama Administration Guidance on Campus Sex Assault Investigations (ABA Journal) Columbia Settles Title IX Lawsuit Filed by Student Accused of Rape (FindLaw's Decided) University May Raise Tuition to Fund Sexual Assault Investigations (FindLaw's Law and Daily Life) Are Schools Using Student Privacy Laws to Cover up Crimes? (FindLaw's Law and Daily Life)
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Defense Secretary Puts President Trump’s Transgender Ban on Hold

In the wake of President Donald Trump's proclamation that openly transgender individuals be discharged from the military, in addition to the lawsuits, there has been some pushback from an unexpected source: the Secretary of Defense, General James Mattis. After sources reported that the general was appalled by the president's proclamation, soon after, he came out with a plan that effectively puts the ban on hold. While socially, and politically, transgender rights are a polarizing and controversial issue, it may not be possible to read anything more than prudence into Mattis's actions. Making a sweeping change like this to the military requires careful planning and assessment. What's Mattis's Hold Up? The general, reportedly, has instituted the hold on implementing the newest ban in order to study the effects and strategically plan how to actually do it (and potentially even whether to do it at all). Although the president, in a series of Tweets, claimed to have met with his generals prior to implementing the ban, no general has corroborated this claim. As such, not only was the general caught off guard, but the new policy's effects had not been studied prior to the implementation. While it may be too soon for those on either side of this issue to celebrate, LGBT advocates are pleased that there is at least some relief from the abruptly announced policy that would have uprooted many people's lives. Constitutional Challenges and Civil Rights Laws The lawsuit by the ACLU that challenges the transgender military ban argues that there is no military basis for the ban. According to the ACLU's complaint, "The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly."The Trump administration also faces a lawsuit from Lambda Legal that challenges the constitutionality of the transgender ban. Lambda Legal's lawsuit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification."Although the new administration has taken a position that transgender individuals should not be protected under civil rights laws, there has been a steady trend in the law to protect transgender individuals. The number of states, and even federal courts, that have recognized transgender individuals as belonging to a protected class, and thus protected by civil rights laws, keeps growing. Related Resources: Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life) The Rise of Anti-Anti-Discrimination Laws (FindLaw's Law and Daily Life) California's Gender Neutral Bathroom Bill (FindLaw's Law and Daily Life) Here's the Latest on Trump Immigration Reform Efforts (FindLaw's Law and Daily Life)
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ACLU, Lambda Legal Sue Trump Over Transgender Military Ban

Over the course of three tweets last month, President Donald Trump expressed his intent to ban transgender people from serving in the military. The White House made that intent official on Friday, issuing a Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security "prohibit[ing] openly transgender individuals from accession into the United States military and authoriz[ing] the discharge of such individuals. And it didn't take long for the lawsuits to follow. Both the ACLU and Lambda Legal have sued Donald Trump and his Secretary of Defense James Mattis, claiming the ban is unconstitutional and "compromises the safety and security of our country." Animus Trump's memo reverses Obama-era guidance allowing transgender individuals to openly serve in the military and allowing defense funds to cover sex-reassignment surgery. The ban would remain in place "until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above." In the memo, Trumps says, "The Secretary of Defense ... may advise me at any time, in writing, that a change to this policy is warranted," but that recommendation for change must be something that "I find convincing." The ACLU claims there is no military basis for the ban: The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly. News reports indicate that the Secretary of Defense and other military officials were surprised by President Trump's announcement and that his actual motivations were purely political, reflecting a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender, with a goal of gaining votes for a spending bill that included money to build a border wall with Mexico. Amicus The claims may bear some truth. Mattis was reportedly caught off guard by Trump's tweets, and sources say he was "appalled." Lambda Legal's suit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification." This is not the first time Trump has been sued over an executive order or memo -- there are now at least three lawsuits regarding the transgender military ban alone -- and will likely not be the last. Related Resources: Find Civil Rights Lawyers Near You (FindLaw's Lawyer Directory) Military Transgender Ban to Begin Within 6 Months, Memo Says (The New York Times) Transgender Service Members Sue Trump Over Military Ban Tweets (FindLaw's Courtside) Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life)
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A Week In Review: Same Sex Marriage, Charleston, and Human Worth

Recently there have been a whirlwind of monumental shifts in our country,  and although this blog is focused on the very specific goal of highlighting and promoting women in the criminal defense field, I feel compelled to discuss these events. By far, the most powerful among them was the Supreme Court’s ruling in Obergefell vs. Hodges, and the related cases that held that same-sex marriage is a guaranteed Constitutional right.  At first glance this case appears to be about marriage, but in reality it sheds light on much deeper issues of human rights.  This case was about equality and human worth – as Frank Bruni, Op-Ed Columnist from the New York Times, so eloquently stated in Our Weddings Our Worth; “It was about worth. From the highest of this nation’s perches, in the most authoritative of this nation’s voices, a majority of justices told a minority of Americans that they’re normal and that they belong — fully, joyously and with cake.” This was not the only significant case ruling this week. The day before the same-sex marriage ruling, the Supreme Court upheld the Affordable Care Act.  Otherwise known as Obamacare, the Affordable Care Act provides healthcare to all Americans. This is yet another huge statement about how we strive to see worth and value in every citizen, by assuring them access to medical care. There was also the memorial for the horrific shooting in Charleston, and the video of President Obama delivering a powerful eulogy that moved our nation. Hopefully his words serve to heal some of the pain caused by the hatred and bigotry behind that senseless crime.  This event forces us to remember that prejudice and bigotry are alive and that we must continue fighting to assure that every person is treated equally and with value regardless of race, sex, or sexual orientation. Lastly, it would be negligent to not mention that the Supreme Court also issued a ruling on Friday relevant to criminal defense in Johnson v. United States.  The case determined that imposing an increased sentence under the Armed Career Criminal Act (ACCA) residual clause was a violation of due process due to the fact the clause was unconstitutionally vague. As criminal defense attorneys we, more than most, understand fighting and struggling for others to see the worth and value in every citizen.  Our clients are often society’s most hated and disregarded citizens.  At the core of what we do is the belief that a person is more than the worst thing that they have done in their life and that they have worth beyond a criminal act.  The theme that rings loud and clear this past week is a theme we appreciate and have to value.  When our nation demonstrates compassion and understanding in the way that it has this past week, we are all better for it. The post A Week In Review: Same Sex Marriage, Charleston, and Human Worth appeared first on Women Criminal Defense Attorneys.
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When Can You Get a Change of Venue for a Criminal Trial?

The Boston Herald reported today that the 1st U.S. Circuit Court of Appeals has given the judge in charge of accused Boston Marathon bomber Dzhokhar Tsarnaev's case until 5 p.m. tomorrow to rule on a change of venue request. This is apparently the third change of venue request Tsarnaev's attorneys have filed with Judge George A. O'Toole. The defense wants the trial conducted in a different state, claiming that Tsarnaev wouldn't be able to get a fair trial in Massachusetts. So when can a defendant move for a change of venue? Fairness and Impartiality A "venue" is the geographic location where a court proceeding is held. In Tsarnaev's case, that venue is the District of Massachusetts, a federal judicial district that encompasses the whole state. (Some states are divided into more judicial districts, depending on how populous the state is.) The Constitution affords a criminal defendant the right to a fair and impartial trial, which includes jurors who haven't already made up their minds about the defendant's guilt or innocence before ever seeing any evidence in court. If no impartial jurors -- or not very many -- can be found in the venue where the crime occurred, then the trial can be moved to a place where impartial jurors can be found. Tsarnaev's lawyers claimed that there's no way he could receive a fair trial in the same district where such a notorious crime occurred. The most recent motion for a change of venue, filed January 22, supported that claim with questionnaires completed by over 1,300 prospective jurors, 68 percent of whom already believe Tsarnaev is guilty, and 65 percent of whom claim a "connection or expressed allegiance to the people, places, and/or events at issue in the case." What Are the Rules for a Venue Change? The Federal Rules of Criminal Procedure give two reasons for moving a criminal trial to another district, including a district in another state. These are: If the defendant can't obtain a "fair and impartial" trial in the district; or For the convenience of the parties, victims, witnesses, or "in the interest of justice." When a venue change is granted because of a perceived lack of fairness and impartiality, it's often because the crime alleged was incredibly newsworthy. For example, the 2009 criminal trial against Johannes Mehserle, the Bay Area Rapid Transit police officer later convicted of involuntary manslaughter for killing Oscar Grant, an unarmed train rider, was moved from Oakland, California, to Los Angeles after a judge determined Mehserle couldn't get a fair trial in Oakland. Of course, moving a trial to a different place can be controversial. The trial of the LAPD officers accused of beating Rodney King in 1991 was moved from Los Angeles County to nearby Ventura County after a judge determined the officers couldn't get a fair trial. Ventura County, however, was predominantly white, leading to speculation that the officers wouldn't have been acquitted in a more racially mixed county. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw) Making the Case for a Change of Venue in Tsarnaev Trial (The Boston Globe) Dzhokhar Tsarnaev Criminal Complaint Filed in Federal (Not Military) Court (FindLaw's Courtside) Boston Bombing Anniversary: A Legal Update (FindLaw's Blotter)
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