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Blog and Media Roundup - Thursday, December 21, 2017; News Roundup
Topic Started: Dec 21 2017, 04:44 AM (62 Views)
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http://www.tulsaworld.com/opinion/opinionfeatured/hadley-heath-manning-metoo-could-unintentionally-victimize-women/article_473f8eb0-2cc7-5ea4-a9a6-ed6ec42b8ed3.html


Hadley Heath Manning: #MeToo could unintentionally victimize women

By Hadley Heath Manning
12/20/17


This fall the #MeToo movement sought to highlight the ubiquity of sexual mistreatment by encouraging victims, mostly women, to speak up. Some women shared harrowing accounts of violent assault. Others recounted workplace harassment or unfairness. Still others, perhaps unready to share details of their experiences, simply posted the hashtag “MeToo” on social media.

No victim of sexual assault or harassment should suffer in silence. Violations of this kind should never be tolerated, and we can celebrate that the proverbial opening of the floodgates might help victims find solidarity and cope with their experiences, and ultimately, increased attention to this issue could spark needed change.

However, the #MeToo movement comes with real risks, and women and men alike should take them seriously. Rather than a movement that paints these terrible interactions as commonplace, we need a different focus that fosters positive relationships between the sexes and condemns bad individual actions rather than society as a whole.

The hashtag-ization of sexual misconduct may support unfair narratives that depict all men as potential predators, or all women as potential accusers. This threatens to drive a wedge between men and women, both inside and outside of the workplace.

As Sheryl Sandberg wrote in a lengthy Facebook post, men may be inclined to respond to #MeToo by playing it overly safe: They may not want to offer mentorships to junior women staffers, for fear that an awkward interaction could lead to accusations of harassment. This could potentially have serious effects, given how in many traditionally male-dominated industries, entry-level women have few options for same-sex mentors.

It is often “soft” networking interactions, like lunch, coffee or happy hour, where co-workers develop social capital. Will #MeToo cause a de facto sexual segregation to the detriment of women? This has implications not just for the workplace, but for the romantic realm as well.

Another shortcoming of #MeToo: Lumping together all varying degrees of bad interactions — from violent assault to off-putting jokes — risks watering down the most heinous of crimes. When sexual misconduct is everywhere, it’s nowhere. We do not want anyone to shrug off sexual misconduct or see it as an unfixable problem.

Misrepresenting the prevalence or nature of inappropriate behavior can harm victims both past and future, as our current conversations shape cultural expectations for men. We should be clear that the expectations for men in our culture are high, not low: Virtue is expected. Misdeeds will be shamed.

The pendulum of social justice can swing too far. If we’ve failed to believe victims in the past, we could overcorrect and fail to honor due process for the accused in the future. Accusations of sexual assault or harassment should be taken seriously — seriously enough to be investigated and litigated.

Many accusations are true, but sadly, we’ve seen high-profile stories of assault turn out to be false (for example, the Duke lacrosse case in 2006 and the Rolling Stone “Jackie” article about University of Virginia Phi Kappa Psi fraternity in 2015). False accusations not only unfairly defame the accused but also cast a shadow of doubt on all victims. This is terribly wrong, but it is a reminder to soberly assess the facts in each case.

The #MeToo campaign carries yet one more risk, a political one: It could become co-opted by a left-leaning agenda that seeks to paint all women as victims in society. The goal of this political strategy is to confound the real abuse of individual women victims with other phenomena, from “rape culture” even to issues like the gender wage gap or a lack of government-mandated maternity leave. Those who are truly interested in combating sexual mistreatment should guard against the politicization of their movement and the blurring of these lines.

Margaret Thatcher said, “There is no such thing as society. There are men and women, and there are families.” The focus on so-called rape culture risks moving responsibility away from individuals onto a faceless “society.” We should resist this, instead taking and placing specific individual responsibility for words and actions. In other words, it is not rape culture that is to blame, but the rapist.

As we give victims of sexual mistreatment the respect and platform they deserve, we should keep in mind the needed balance that also honors the rights of the accused. We should invite all — men, women, liberals and conservatives — to work toward a healthier future, without painting an overly dark picture of the present.

Hadley Heath Manning is policy director at Independent Women’s Forum. She wrote this for InsideSources.com.
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https://sports.yahoo.com/case-report-shows-systematic-failure-michigan-state-led-larry-nassar-terror-010033574.html

Case report shows systematic failure at Michigan State led to further Larry Nassar terror
Dan Wetzel Columnist
Yahoo Sports Dec 20, 2017, 7:00 PM


The need for a single, powerful law enforcement agency to fully investigate all aspects of Larry Nassar’s reign of terror is reaffirmed with each new detail in this sick, sordid scandal.

The Department of Justice. The FBI. A state attorney general’s office that’s truly committed, the way Pennsylvania was in not just convicting former Penn State football coach Jerry Sandusky on 45 counts of molestation, but jailing his administrative enablers also.

So far everything has been patch-work, slow and inefficient. Nassar, 54, is serving 60 years after being sentenced this month on federal child pornography charges. He still faces additional state prison time after pleading guilty to sexual assault. And in all likelihood, he will never see the outside of a prison again for a sexual abuse scandal that on scale is exponentially greater than Sandusky.

The fog of confusion, however, will only increase until there are true investigations into Michigan State, where he worked, the United States Olympic Committee and USA Gymnastics, where he volunteered and, Twistars Gymnastics Club, the Lansing-area operation with which he associated.

Wednesday brought word that in 2016, USA Gymnastics paid gold medal winner McKayla Maroney a reported $1.25 million to not publicly mention that she was abused by Nassar. It is a vomit-inducing revelation about the USAG, an organization that grew rich off the talents of young female athletes. Anyone with even cursory knowledge of it should resign immediately.

The news came not via law enforcement, though, but a civil suit filed in Los Angeles. Maroney previously chose to break the non-disclosure and detail Nassar’s attacks on social media and in a court-filed victim impact statement. The suit argues such agreements are illegal in California, where Maroney lived. Her attorney explained she made the deal only because she was, at the time, suicidal due to the trauma.

“She couldn’t function,” attorney John Manly told ESPN. “She couldn’t work. [The USGA was] willing to sacrifice the health and well-being of one of the most famous gymnasts in the world because they didn’t want the world to know they were protecting a pedophile doctor.”

The civil suit continues a trend in this vast and terrible story. The truth has come not from official investigative channels, none of which stopped Nassar. Every report, review and administrator failed the victims, either via incompetence, disorganization or, perhaps, worse.

The first alleged complaint about Nassar came in 1997, when a 16-year-old gymnast says she told MSU’s head gymnastics coach. Yet Nassar wasn’t busted until 2016, thanks to the investigative journalism of the Indianapolis Star which wrote about USA Gymnastics’ failure to report complaints of sexual assault. That story led two gymnasts to contact the paper about Nassar. After publication of that subsequent story, the floodgates opened, with some 125-woman contacting a police tip line.

Then he was finally fired. Soon, child porn was uncovered on Nassar’s computer and he gave up the fight.

Prior to that, everything was an exercise in institutional failure. Multiple alleged reports to MSU coaches and trainers went nowhere. One police investigation turned up nothing. Strange conduct by Nassar, from seeing patients at his home to joking that his Facebook page was taken down because he had too many young girls as friends, were suspicions that escaped true action.

This week, a 19-page report was made public detailing interviews conducted by MSU police, with an FBI agent in tow, of Michigan State officials. It shows a brutal lacking of leadership, common sense and communication.
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https://www.newyorker.com/news/news-desk/the-transformation-of-sexual-harassment-law-will-be-double-faced

The Transformation of Sexual-Harassment Law Will Be Double-Faced

By Jeannie Suk Gersen

December 20, 2017

To glimpse the future of Title VII enforcement, we should look at the recent history of Title IX.

Earlier this month, when a majority of Senate Democrats demanded Al Franken’s resignation after multiple allegations of unwanted kissing and groping, Bernie Sanders called for a “cultural revolution” to combat sexual harassment. The reckoning would affect “not only high-profile men,” Sanders said, but also harassers “in restaurants, in offices all over this country where you have bosses that are not famous.”

Putting aside the unfortunate evocation of the Chinese Cultural Revolution, Sanders’s declaration posed a useful question: How will the current avalanche of sexual-harassment allegations toppling prominent men in media and government roll down to more mundane workplaces? As employers and employees across the country try to apply lessons from #MeToo into quotidian employment contexts, legal norms that govern workplace sexual harassment may also be poised to undergo epochal transformations.

For more than three decades, we have understood sexual harassment to be a form of sex discrimination prohibited under Title VII, the federal anti-discrimination law that governs most employers in this country. Under that law, an employee who is sexually harassed by a colleague may sue the employer and receive damages. For this purpose, the Supreme Court defines sexual harassment as unwelcome physical or verbal conduct of a sexual nature that may take one of two forms. The first is “quid pro quo,” in which submission to the conduct is made a condition of, say, a promotion or continued employment. The second, which is more common, is “hostile environment,” in which the conduct is so “severe or pervasive” that a reasonable person would experience it as creating an abusive workplace.

The legal definition of sexual harassment is more stringent than its use in ordinary parlance and public discourse. The requirement that the harassing conduct be “severe or pervasive” to be legally actionable as a hostile environment has meant, for example, that one incident of groping or commenting about someone’s breasts would not necessarily be deemed unlawful sexual harassment if an employer were sued over it. But what strikes a reasonable person as “severe or pervasive” has been evolving, particularly in the seismic cultural breakthroughs of #MeToo. It also makes sense for employers to use broader definitions of sexual harassment that enable them to address workplace misconduct before it becomes severe enough to constitute a hostile environment for legal purposes.

Amid the abject public apologies and semi-confessions by prominent men, some of the accused have chafed at the script and contested the allegations against them. Among them is Harold Ford, Jr., the former congressman who was fired from Morgan Stanley, this month, after allegations of sexual misconduct; he vowed to sue his employer for improper termination. Most employees are what is known as “at will,” meaning that they may legally be fired at any time for any reason, or for no reason at all. But under Title VII even at-will employees cannot be fired for a discriminatory reason, including their gender. Along with the expected uptick in firings for sexual harassment, we could see an increase in wrongful-termination claims by men arguing that their firing was discriminatory against males, in violation of Title VII, even if the decision was driven by the desire to eradicate discrimination against females.

The recent trajectory of Title IX, the federal law that prohibits schools from discriminating on the basis of sex, may be instructive, especially because courts’ and agencies’ interpretation of Title IX has drawn heavily from Title VII case law. In this decade, Title IX has stood in the public mind mainly as protecting students from sexual assault and harassment. But our courts have also heard scores of cases filed by male students against colleges and universities that expelled them for sexual misconduct, and therefore Title IX has also come to stand for the idea that schools must give accused students a fair process. This evolution in Title IX’s meaning came about because courts perceived many of the expulsion procedures as unfair. Courts chose to read Title IX’s ban on sex discrimination to demand fair treatment of the accused, despite the considerable leeway that schools were supposed to have over student discipline. In a 2016 case, a male student disciplined for sexual misconduct sued Columbia University under Title IX, alleging that the investigative process was unfair; the Second Circuit Court of Appeals held that an institution’s motivation “to favor the accusing female over the accused male,” in order to shield itself from lawsuits or criticism for not protecting women from sexual assault, could be evidence in itself of unlawful sex discrimination against males.

A few short years ago, it seemed implausible that the meaning of Title IX would shape-shift to allow successful sex-discrimination claims by men accused of rape. But, as employers strive to assimilate the logic of #MeToo into how they deal with allegations of workplace sexual harassment, a perception that employers might favor accusers over the accused may raise similar questions about sex discrimination against males. If the campus cases are at all predictive, we can expect to see stories of employees being expelled from their workplace within hours of the accusation; not told the nature of what is alleged, what policy the conduct violates, or who is alleging it; and refused the time or opportunity to respond to allegations, with the employer making little attempt to gather the facts, or deciding with no regard for the weight of the evidence. And, echoing their successful student counterparts over the past several years, the men will claim in court that the pressure to implement a “zero tolerance” policy against harassment led employers to act without sufficient investigation or proper process, motivated by the employees’ male gender.

The contours of this kind of discrimination argument were anticipated in past Title VII cases. For example, in Sassaman v. Gamache, a 2009 case in the Second Circuit, a male employee was pressured to resign because of allegations of sexual harassment. He claimed that the employer failed to properly investigate the charge against him, and that his supervisor remarked on men’s propensity to sexually harass women. The court held that these alleged facts were sufficient to permit a jury to infer discriminatory intent based on sex stereotyping. Although the court did not hold that insufficient investigation alone would be enough, it ruled that, along with evidence that the employer credited the alleged victim’s story over the accused’s based on the idea that men tend to harass women, the insufficient investigation did support an inference of sex discrimination prohibited by Title VII. This may mean that an employer that, for example, professes generally to believe women who report sexual harassment over men accused of it may be setting itself up for Title VII liability.

The coming transformation of sexual-harassment law will be double-faced. We will see alleged victims’ stories of being harassed at work taken more seriously, and our legal concepts of sexual harassment will become broader in response to the extraordinary moment we are living through. At the same time, lawsuits brought by those fired for sexual harassment will focus attention on whether the processes that employers use to investigate allegations are fair.

Among the imperatives of #MeToo is that employers, and, indeed, all institutions, must take care to implement orderly processes in which reports of harassment are fairly and impartially investigated, and yield results that inspire confidence—to the benefit of victims as well as the accused.

Jeannie Suk Gersen is a contributing writer for newyorker.com, and a professor at Harvard Law School.
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https://chicago.suntimes.com/news/gymnast-mckayla-maroney-says-settlement-covered-up-sex-abuse/

Gymnast McKayla Maroney says settlement covered up sex abuse
Chicago News 12/20/2017, 02:05pm


LOS ANGELES — Olympic gold medalist McKayla Maroney says the group that trains U.S. Olympic gymnasts forced her to sign a confidential settlement to keep allegations of sexual abuse by the team’s doctor secret.

Maroney filed a lawsuit Wednesday in Los Angeles against the U.S. Olympic Committee and USA Gymnastics. The suit also seeks damages from Michigan State University, where the team’s doctor, Larry Nassar, worked for decades.

Nassar is accused of molesting at least 125 girls and young women while he worked for USA Gymnastics and Michigan State. He pleaded guilty in November to multiple charges of sexual assault and will face at least 25 years in prison.

Nassar, 54, admitted to molesting seven girls, mostly under the guise of treatment at his Lansing-area home and a campus clinic, between 1998 and 2015.

Maroney’s lawsuit alleges that the settlement was illegal and “for the purpose of silencing a known victim of Nassar.” Maroney says she accepted the settlement in December 2016 after “years of psychological trauma” and sexual abuse. The terms weren’t disclosed in court papers.

USA Gymnastics didn’t immediately comment on Maroney’s lawsuit.

Nassar, who lost his physician’s license in April, admitted at his plea hearing in November that his conduct had no legitimate medical purpose and that he did not have the girls’ consent. The 125 girls and young women who have filed reports of abuse with campus police will be able to speak at his Jan. 12 sentencing.

The plea deal in Ingham County, Michigan, calls for a minimum prison sentence of 25 years, but the judge could set the minimum sentence as high as 40 years.

Besides Maroney, Olympic gymnasts Aly Raisman and Gabby Douglas also are among the women who have publicly said they were among Nassar’s victims.

The criminal cases against Nassar followed reports last year in The Indianapolis Star about how USA Gymnastics, which trains Olympians, mishandled complaints about sexual misconduct involving the doctor and coaches. Women and girls said the stories inspired them to step forward with detailed allegations of abuse.

Many of the accusers have sued Michigan State, USA Gymnastics and the U.S. Olympic Committee.

Victim Rachael Denhollander said officials kept Nassar in power for decades after ignoring repeated reports of sexual assaults and brushing off the victims as being unable to tell the difference between a medical exam and a sexual violation.

John Manly, an attorney for 105 accusers, said in November the three institutions “miserably failed children,” and he likened what happened with Nassar to the child sex abuse scandal at Penn State University.

He criticized an internal review at Michigan State and called for an investigation of university officials by Michigan Attorney General Bill Schuette, whose office is prosecuting Nassar.

Women’s gymnastics coach Kathie Klages resigned earlier this year, but others remain on the job.
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https://www.washingtonpost.com/news/grade-point/wp/2017/12/20/what-theyre-not-talking-about-with-title-ix-that-really-matters/?utm_term=.db55e0610fcf


What they’re not talking about with Title IX that really matters
By Adam Goldstein December 20 at 11:11 AM

Adam Goldstein, a legal fellow at the Foundation for Individual Rights in Education, argues that despite all the attention paid to the ways colleges are required to handle claims of sexual assault, very little is known about what the actual impact is.
Adam Goldstein (Photo courtesy of FIRE).

With all the attention devoted to the Department of Education’s Title IX policy recently, it is surprising that very little thought has gone into how privacy law has prevented us from measuring the effect of policy changes.

Meaningful reform of Title IX is going to require us to reform the student privacy law — specifically, the Family Educational Rights and Privacy Act.

Title IX is a federal law that prohibits sex discrimination in schools receiving federal funding. One obligation imposed on schools under Title IX is to have a process for determining responsibility in cases of alleged sexual harassment, including sexual violence.

In 2011, the Department of Education issued a “Dear Colleague” letter (that’s the Department’s euphemism for sub-regulatory guidance) that purported to require, among other things, that schools use a “preponderance of the evidence” standard (that is, the lowest standard of proof used in civil cases) to determine responsibility in sexual misconduct claims.

Civil libertarians opposed the change for both rulemaking and due process reasons. Others, concerned primarily with the needs of survivors, praised the change for lowering the bar required to punish accused students.

The letter remained controversial until Education Secretary Betsy DeVos withdrew the “Dear Colleague” letter in September, permitting schools to use higher or lower standards of proof.

From the moment that announcement was made, protesters have accused DeVos of harming students with her policies.

One major problem with this accusation is that, at present, we have little data on how well campus adjudications are handling the problem of sexual harassment and assault, and therefore, no metric to measure changes.

We don’t know how many hearings are held every year; how many of those hearings find the accused responsible; how many appeals there are; how frequently the hearings are before a panel, as opposed to a single investigator (an individual who questions witnesses and writes a report without a hearing); for panels, how many require unanimous findings; how the definitions of offenses vary from place to place; or how many cases are overturned on appeal.

And we don’t know these numbers for either the pre-2011 process or the post-2011 process.

How do we know how much we’re helping students if we aren’t even looking at the outcomes?

And yet, the primary obstacle to tracking these outcomes isn’t Title IX itself, the Department’s guidance, or advocates on any side.

It’s the student-privacy law.

That law, known as FERPA, was enacted in 1974, when the memory of Richard Nixon’s “plumbers” attempting to discredit the president’s opponents with private information from stolen files was fresh in the country’s mind. The law was envisioned as a method of preventing government agents from seeing private educational records.

After passing and being amended a year later, it prohibited an educational institution receiving federal funding from disclosing any record — private or otherwise — that makes a student identifiable without the consent of the student or his or her guardian.

Here’s the problem: What “makes a student identifiable” includes so much information that schools almost always err on the side of nondisclosure.

One university refused to report a string of sexual assaults to police, because, it argued, that would violate that student-privacy law. Another would not release information on how its athletic staff allegedly mishandled sex offenses. And a third fought to avoid disclosing complaints of sexual assault against a professor.

All of these records describe what would be, if true, criminal conduct — and yet, all are being withheld under a misguided and arguably disingenuous reading of a law intended to protect student privacy.

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These schools are not alone. In a 2014 survey of 110 campuses by the Columbus Dispatch and the Student Press Law Center, 22 schools cited that federal student-privacy law in a refusal to disclose basic campus crime information, even though the requested information was explicitly exempt on the face of the law. (The same survey found that in any given year, most schools report no sexual assaults on campus under the Clery Act’s crime reporting obligations, so the Clery Act isn’t redeeming the secrecy created by the student-privacy law.)

We can, and probably will, argue about the best practices for Title IX hearings on college campuses for years to come.

But until we reform the student-privacy law to make it easier to obtain reliable information about these practices under state open-records laws, we’re just guessing — and we’re not even checking to see if we guessed correctly.
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