Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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• Required Continuing Assistance for Survivors: 1. Colleges must inform survivors of the option to change academic and living situations, if requested and reasonably available, and provide assistance with that transition. 2. Colleges must notify students of existing counseling and mental health services for students, both on and off campus. Refer to the section above on “Formal Disciplinary Action” for minimum federal requirements for disciplinary proceedings. If a school does not comply with a portion of the Clery Act, including the Campus Assault Victim’s Bill of Rights, students can enforce their rights by filing complaints with the U.S. Department of Education. As with FERPA, students do not have the right to sue a school for violating these laws, but instead must rely on administrative action by the government. If a school is found to have committed a violation, it can be liable for civil penalties up to $27,500 per violation, and suspension from participating in federal student aid programs. Sexual Harassment: Title IX In the same way Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace, sexual harassment is prohibited in the educational setting by Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681). Like Title VII, Title IX prohibits sex discrimination, and courts have interpreted sexual harassment to be a form of sex discrimination. Importantly, Title IX applies to all schools receiving any federal funding, which includes most private schools as well as public institutions. In the educational setting, sexual harassment can take the form of teacher-student sexual violence or student-student sexual violence. As between teachers and students, a quid pro quo agreement for sexual favors is also sexual harassment. In addition, as in the employment context, the school can be held liable for sexual harassment under Title IX for creating a “hostile environment.” A hostile environment exists in a couple general situations: • The school was aware of an incidence of sexual violence, and the school’s response was unreasonable under the circumstances. • The school was aware of a substantial risk of violence and failed to prevent that violence from occurring. If a survivor believes the school or a school official may have violated any of the terms of Title IX described above, she or he can consult an attorney about the possibility of a civil lawsuit. This section provides only general guidelines and cannot be used as legal advice in any particular case. Like the other federal laws discussed in this chapter, Title IX allows students to seek relief through an administrative action by the U.S. Department of Education. To do so, students should file complaints with the Department’s Office of Civil Rights (“OCR”). However, unlike the other laws, students also have the option to file lawsuits against their schools independently. Students need attorney representation for a personal lawsuit, but because administrative action by the government can take a fairly long time, such a lawsuit might be preferable. Significantly, students can sue schools under Title IX even if they have not filed a complaint with OCR first. 120
However, survivors considering civil lawsuits under Title IX—or any other civil law—should be aware of how the lawsuit will affect their privacy. Civil litigation always has significant privacy implications. Survivors pursuing Title IX claims have been ordered to turn over private medical records and even personal diary entries to defendant schools (see, e.g., Simpson v. University of Colorado, Civil Action No. 02-RB-2390). Remedies for Elementary and Secondary School Students Informal Measures As in the higher education context, an advocate may be able to greatly help a high school or elementary student simply by requesting accommodations from the school. If specific policies are not in place already, schools still may be willing to take some important measures for the survivor’s safety and wellbeing. Some commonly useful accommodations include: • Transferring the perpetrator or survivor to a different class within the same school to minimize further contact between the two • If the perpetrator is a teacher or student assistant, removing the person from class pending a full investigation • Adjusting the survivor’s schedule or arranging specialized study (without penalty to the student) to avoid contact with the perpetrator • Home schooling the survivor ADVOCACY ACTION: No measure will be appropriate for every child survivor. As an advocate, listen carefully to identify even the smallest measures that could make the child’s life at school easier, and take whatever action possible to achieve it. An adjustment to a student’s high school schedule may seem insignificant compared with a criminal conviction, so it may be tempting to neglect such small accommodations. However, those small things often have significant impacts on a child’s life, so it is very important to always follow through on them. Finally, no matter what accommodations or safety measures are appropriate for a student victim, there are a couple other general questions to consider. First, will the child need a guardian ad litem appointed to protect her or his interests? If the child’s parents were involved in abuse or are otherwise absent or hostile to the child, a family court might need to appoint someone else to represent the child’s interests. If you believe a child has been abused or neglected, always inform police and the Department of Family Health Services. Relatedly, consider whether anyone at the school may have violated Texas’s mandatory reporting laws. (p. 36, Mandatory Reporting) Recall that under Texas law, an immediate report to police or Child Protective Services is required if a person suspects in good faith that a child has been physically or mentally harmed by abuse or neglect (Tex. Fam. Code § 26.101). In addition, there are special provisions requiring teachers and other professionals who work with children to report suspected abuse within 48 hours. In addition to informal requests and accommodations, state and federal law also provide some protections for elementary and secondary students. 121
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Sexual Assault Legal Advocacy Manua
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Table of Contents: 05 Manual Prefac
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6 PART ONE: THE CRIMINAL JUSTICE PR
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i. Basic Procedure: Jurisdiction an
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ii. Substantive Law: The Texas Pena
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Defenses Defenses to Prosecution So
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iii. Sexual Assault and Related Off
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Indecency with a child, Tex. Penal
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Indecent exposure, Tex. Penal Code
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Possession or promotion of child po
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Prostitution, Tex. Penal Code § 43
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Crime Victims’ Rights Introductio
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Attorney Representation Enforcing c
Page 31:
• The right to a private waiting
Page 35 and 36:
The Criminal Investigation Introduc
Page 37 and 38:
In addition, survivors can complete
Page 39 and 40:
Legal Advocacy for Child Survivors
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iv. Medical Forensic Examinations W
Page 43 and 44:
Not only are survivors entitled to
Page 45:
The Role of the Legal Advocate in t
Page 48 and 49:
i. The Charging Process and Prosecu
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The victim (or the victim’s guard
Page 52 and 53:
ACP is available to victims of sexu
Page 54 and 55:
v. The Right to HIV/STI Testing Sur
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If a survivor fails to include some
Page 58 and 59:
ADVOCACY ACTION: The survivor has t
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ix. The Trial Preparation Thorough
Page 62 and 63:
Preparing for Pretrial Litigation B
Page 64 and 65:
x. Verdicts and Sentencing Criminal
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Under community supervision, the de
Page 68 and 69:
xi. Appeals If the prosecutor succe
Page 71 and 72: Sex Offender Monitoring and Treatme
Page 73 and 74: What Does Registration Entail? Regi
Page 75 and 76: Restrictions on Internet Usage for
Page 77 and 78: In addition, regardless of level of
Page 79 and 80: ii. Civil Commitment The idea behin
Page 81 and 82: What Does Civil Commitment Entail?
Page 83: Bottom Line: The Role of the Legal
Page 86 and 87: i. Rights of Crime Victims’ in Ju
Page 88 and 89: ii. Pre-Adjudication Detention As n
Page 90 and 91: Informal Proceedings The consequenc
Page 92 and 93: The biggest difference between a ju
Page 94 and 95: The Process If the prosecutor wants
Page 96 and 97: 94 PART TWO: CIVIL LEGAL REMEDIES F
Page 98 and 99: General Civil Issues Almost every s
Page 100 and 101: Safety Sexual Assault Protective Or
Page 102 and 103: No-Contact Orders as Conditions of
Page 104 and 105: If the survivor incurs any of the a
Page 106 and 107: There are separate and slightly dif
Page 108 and 109: Protections for Sexual Assault Surv
Page 110 and 111: • Eviction of Perpetrator: Public
Page 112 and 113: Initial Strategies The first two so
Page 114 and 115: Title VII of the Civil Rights Act o
Page 116 and 117: Americans with Disabilities Act The
Page 118 and 119: Ripple Effects of Sexual Assault: E
Page 120 and 121: Formal Disciplinary Action A formal
Page 124 and 125: Texas Law: Protective Orders and St
Page 126 and 127: Legal Remedies for Survivors of Sex
Page 128 and 129: VAWA Self-Petitions For certain sur
Page 130 and 131: Crime Reporting Mandatory Reporting
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Page 134: 6200 La Calma, Suite 110, Austin, T
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Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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