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Posts Tagged ‘assault’

Harassment and ugliness

Classy legal argument of the week: a female employee of a real estate firm claiming sexual harassment could not have been harassed, because she is ugly (h/t Trippe Fried):

A 23-year-old lesbian says the Brooklyn real estate office she once worked in is a den of deviants where raunchy sexcapades were the norm.

But the bosses she’s suing say she’s too ugly to harass.

Priscilla Agosto ran a gauntlet of sexual humilition – verbal and physical – in her 14 miserable months at People’s Choice Realty, her suit against its three bosses says.

No less than seven male employees made lewd advances at her – even after she complained to the bosses, she said in papers filed in Brooklyn Supreme Court.

Her male co-workers exposed themselves, rubbed up against her and even asked for oral sex, she alleges.

And they even offered $500 to watch her have sex with her girlfriend, she said.

“I hope and pray that by sharing my story, anyone who finds themselves in a similar situation will have the courage to speak up,” said Agosto.

Odelia Berlianshik, the owner of the Williamsburg firm, denied the charges – and launched a shocking attack on Agosto’s appearance.

“Who would touch her? She’s an ugly girl anyway,” she said of the former secretary. “She made up a story because she didn’t want to work.”

As defense arguments go, it’s not the worst one ever. It’s close, though. It does not appear that an lawyer made these arguments on behalf of the employer. This is just the owner spouting off a defense.
Photo by Stephen Pierzchala

I'll see your ugly and raise you Sam (Photo by Stephen Pierzchala, used under a Creative Commons license)

The prevailing theory of defense in a sexual harassment case is to go on the offensive and attack the plaintiff/accuser’s character in one way or another: the plaintiff is crazy, over-emotional, slutty, mean, and so on. At the same time, I imagine it would be difficult to defend such accusations without turning it back on the accuser in some way. The only other way to defend the case would be to challenge the specific circumstances of the alleged incidents of harassment or demonstrate the good character of the accused. The burden of proof is on the plaintiff, though, so it is not necessarily the responsibility of the defendant to disprove the allegations, but rather to show that it is more likely than not that it did not happen the way the plaintiff says it did. Demonstrating reasons why the plaintiff is wrong (i.e. somehow bad), as opposed to why the defendant is right (i.e. good), is more likely to resonate with the finder of fact in a case (a judge or jury). Plus, it’s probably easier to do. The accusers puts her/himself out there for scrutiny by bringing a suit. Right or wrong (I go with wrong), it is easier to attack the character and narrative that has already been put out than to offer a completely new one by focusing on the defendant.
That of course, is a technical and legalistic way of explaining a rather jackass-ish argument in the case described above. There must be better arguments against her allegations than that.
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In a civilized society, people should not have to be told not to do this

Soooooooo…..interesting news on Above the Law this week. I’m not entirely sure why I feel compelled to comment on this. I do like a little controversy now and then, though, so here goes. Seems there have been two–yes, two–legal matters recently relating to men surreptitiously making, uh, DNA deposits intended for consumption by unwitting women. Two hardly makes for a national trend, but still, ew.

If you are easily offended or have recently eaten, you should probably just stop reading now.

Also, this is a family-friendly blog (okay, not really), so I reserve the right to redact quotes and use euphemisms instead of medically-correct terms.

In a California case, an employee of Northwestern Mutual Investment Services complained of  Michael Kevin Lallana after she inadvertently ingested his, uh, you know, which he intentionally put into her water bottle at work. He was charged with and convicted of two counts of misdemeanor battery. Why two counts? Because he did it twice. She figured out what was amiss the second time, and the story of how she did that goes on another blog.

The judge ordered him to pay restitution for “for loss of wages, therapy and medical expenses, including the money she paid to have the tainted water tested” to the tune of $27,410.80. It begs the question of why he did it. For starters, he pleaded not guilty and claimed he did not know such behavior would be frowned upon by his employer or by the law. His statement, in what may be the greatest evidence of the sexual dysfunction of our society, was that “her lips had touched it…It was the closest I could ever get to someone as good looking as that without tampering with my marriage or hurting anyone.” Again, ew.

Setting aside the implicit insult to his wife, his lack of understanding of what it means to “hurt” someone, and any particular opinion of the good-lookingness of his victim, it’s worth noting that, at $13,705.40 per “contribution,” he could have found a less expensive way to find an attractive woman (but then he probably knows that that would be illegal, and might hurt someone.)

If you’re too grossed out to continue, here is an escape route to Nyan Cat.

I will now continue writing this post with the Nyan Cat song playing in the background. I can’t guarantee my sanity.

Moving on to New York, a woman has sued Planet Sushi for “physiological and psychological injuries” after eating some sushi with, uh, you know where this is going.

The case just survived a motion to dismiss filed by the restaurant’s attorneys, arguing spoliation of evidence (apparently the incident occurred in 2008, lab testing to confirm, uh, you know, was inconclusive, and the samples were not retained.)

This case may be more difficult than the California case, particularly without clear lab results and no remaining samples. The question will come up as to what formed the basis for plaintiff’s suspicions, and that question will lead to all sorts of sophomoric places (i.e. how did she know what she was tasting so quickly?) There is also no specific tortfeasor here, and no specific motive like the ridiculous creepy one offered by the guy in California. This will not be a proud moment in American jurisprudence. Entertaining, perhaps, but definitely not proud.

I’m not sure if I will post on this again. I’m also not sure I’ll ever eat sushi again.

The Nyan Cat song was playing for 27 minutes, 18 seconds as I wrote this. I’m off to wash my ears now.

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Tips on avoiding sexual assault

On the theme of an earlier post, I came across a useful guide for avoiding sexual assault in daily life.

Sexual assault prevention tips

My personal favorite:

If you are in an elevator and someone else gets in, DON’T ASSAULT THEM!

I know this was probably originally intended to be funny (and it is, in a way), but it’s also pretty dang sad that this even needs to be said out loud. Alas. Now go forth and behave yourself.

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Why people stay in dangerous relationships

Holly at The Pervocracy (a blog dealing with gender and sexuality issues from an unconventional perpsective, so I’ll go ahead and call this NSFW for language and maybe subject matter) has worked as a paramedic and therefore spent a good deal of time in emergency rooms. From that, she has heard just about every excuse people make when they come into the hospital with injuries caused by a family member. “I fell down the stairs” is only the most famous one. It is far too easy in such situations, for someone who does not know the people involved, to conclude that weakness or stupidity could be the only reasons why someone might stay in an abusive relationship. That is simply not true, and it is especially important for lawyers and people embroiled in the family law system to understand why people may choose to stay with an abuser. Holly has made a list of many of those reasons.

To be clear, any gender in any sort of relationship can be an abuser (Holly mixes up the genders in her examples for that very reason). Abuse can be man-to-woman, woman-to-man, man-to-man, woman-to-woman, person-to-polyamorous-partners, etc. And “abuse” doesn’t just mean hitting, shoving, or breaking bones. It could include yelling, belittling, controlling, or anything else that would make one partner perpetually subordinate to another.

It is worth reading the whole post. She ends her post with a plea to her readers, and I pass that same plea on to you.

Usually I end these “long-list” posts with a cheery little “add your own!”, and while that invitation remains open (sadly, I’m sure there are tons that I missed), I’m going to add something to this one:

If any of these sound like you–even if they sound like you in a “yeah, but” sort of way–even if your partner never laid a finger on you physically, it was just some yelling–even if you’re a man and she’s a woman and it doesn’t work like that–even if you swear your situation isn’t abuse because–call this number:

1−800−799−SAFE(7233)
TTY: 1−800−787−3224

It’s the National Domestic Violence Hotline and they will talk to you. They are not going to call the cops on your partner (or you). They are not going to tell you that you have to leave your relationship. Calling them is not a commitment of any kind–you can always call them and decide to stay in your relationship after all. All they’re going to do is talk to you, give you an outside perspective from people who are trained to recognize and deal with abusive situations, and help you find resources for getting out of your situation if you decide that you want them.

There is much that lawyers and the family court system can do, but there is only so much. There are tools out there, if you are in an abusive situation, to help you help yourself. Please read Holly’s list if you think there’s even a chance you are in a bad situation, and please stay safe out there.

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Strauss-Kahn, Anthony, Jones: the system worked, whether we like the outcome or not

For those living under rocks or in soundproof chambers, here’s a review of a few legal events of the past few weeks (trigger warning for sexual assault issues):

Here we have three cases that strike incredibly sensitive nerves. One involves the murder of a child, and two involve rape. In all cases, the alleged aggressor seems to have prevailed. But the results of these legal proceedings do not mean that DSK’s accuser was not raped, that Casey Anthony is not a murderer, or that Jamie Leigh Jones was not raped and imprisoned in a shipping container. Prosecutors in New York may no longer feel that they could win a prosecution against DSK with the evidence they have, making it not worth the colossal expense of continuing the case. Florida prosecutors did not prove beyond a reasonable doubt that Casey Anthony murdered her daughter. A jury did not find a preponderance of evidence to support Jamie Leigh Jones’ case. In the last two cases, these were the conclusions of lawfully empaneled juries. We may not like the results. The results may make us sick to our stomachs. What is important, though, is that the system appears to have worked the way it is supposed to.

True, the victims did not get “justice” in these cases, but that is not the point of judicial proceedings. Alan Dershowitz wrote in response to the Anthony trial:

‘This case [is] about seeking justice for Caylee . . .” So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Even if it is “likely” or “probable” that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

If we try to go outside of the system of trial by jury, we become no better than an angry mob. A proposal of sorts has already appeared based on frustration over the Anthony verdict:

[Senate Minority Leader Mitch] McConnell drew a lesson Sunday from that case in connection with the debate in Washington over whether to try suspected terrorists in federal courts.

“These are not American citizens. We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court,” McConnell told “Fox News Sunday.” “I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.”

McConnell is only correct if the whole purpose of a trial is to secure a conviction. I don’t particularly want to get into the issue of terrorism trials here, but the apoplectic reactions to the combined acquittal/conviction of Ahmed Ghailani for the 1998 U.S. embassy bombings certainly show that for many, there is no point to having a trial if a conviction is not guaranteed.

In a civil case like Jamie Leigh Jones’, “justice” is more of a clear goal. Rather than proof “beyond a reasonable doubt,” a civil claimant need only show a “preponderance of the evidence,” meaning a 51% or more likelihood that their claims are true. Again, failure to convince a jury does not automatically mean the claims are false. It means that the evidence is lacking to allow for a legal remedy or punishment.

It is the responsibility of the plaintiff and the plaintiff’s attorney in a civil matter, and of the prosecutor in a criminal matter, to meet these burdens of proof. It is the responsibility of the judge to make sure the jury only hears relevant, probative evidence that does not unfairly prejudice one party or the other. The system is not perfect, but again, it is preferable to an angry mob.

There is no requirement that we like the outcomes of these cases. There is also no guarantee of justice in this world. There is, however, a system that has been in place for centuries that is imperfect, often inefficient, frequently infuriating, and the best protection we all have against even greater injustices than the occasional acquittal or dismissal. That is our system of trial by jury. To quote Voltaire, “It is better to risk sparing a guilty person than to condemn an innocent one.”

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Kicking the dog

A few weeks ago, Zeta and I went downtown to join in an organized dog walk put on by a local animal welfare group. About a dozen people, with over a dozen dogs, took to the trail around Lady Bird Lake in the late morning heat. Zeta loved it–I must admit I don’t get her out of the house as often as I should, but then we are having a ridiculous heat wave in Austin right now.

Zeta really doesn’t enter into this story, as she remained oblivious to the finer points of human interaction. This is more about human behavior. One man brought his two dogs with him on a split leash. The dogs were certainly rambunctious, and it seemed like they were not too accustomed to being out among other dogs. They would sometimes quickly lunge at other dogs, but I could not tell for sure if they were doing this with any aggression or if it was just an attempt to play. I know my dog, when she is leashed, can make some sudden movements out of sheer excitement. The man generally kept the dogs under control. I was concerned at times about the way he seemed to be disciplining them–there was a lot of yelling, and the occasional sudden move toward one dog or the other, as if to threaten something. I didn’t say anything, as I hadn’t seen anything specifically objectionable.

Near the end of the walk, that changed. I was on one end of the group and this man was at the other. Out of the corner of my eye I saw his leg start to move, and I heard a sound like a field goal kick, followed by a whimper. A sense of shock delayed my reaction, but others standing closer to the man were quick to inform him, firmly yet as politely as possible, that kicking his dog would only make the problems worse. The man’s reaction was somewhere between defiant and apologetic. I do not think, based on my limited observations, that these dogs are being routinely abused, but nothing excuses the kick that I saw.

I think the people who were there did the best they could with the situation. It would not do any good to attack this guy, verbally or physically, and all anyone could do is inform him that what he did was wrong. This got me wondering, though, what any of us could have done if we suspected these dogs were being routinely abused. Of course the man could be charged with animal cruelty and could face fines and jail time, but what would happen to the dogs? Specifically, can one individual step in and rescue a dog or dogs from an abusive situation?

Yes and no, as it turns out.

This is addressed in Chapter 821, Subchapter B of the Texas Health and Safety Code. According to the statute itself, a “peace officer or an officer who has responsibility for animal control in a county or municipality” who thinks an animal is being abused “may apply…for a warrant to seize the animal.” If the officer can show probable cause, the judge or magistrate may order the animal taken into custody. The animal gets impounded, and a hearing must be held within 10 days to determine whether cruel treatment has occurred.

A private citizen does not have the power to petition a court on behalf of an animal believed to be abused. Furthermore, if a judge orders a warrant for the animal, the animal gets impounded, which typically means the animal goes to a public shelter or a private shelter contracted to the city or county. It’s far from ideal, but hopefully it would be better than staying in the abusive environment.

The animal’s owner can present evidence at the hearing. If the owner has a conviction or finding of animal cruelty in a criminal case involving this animal, that is automatically admitted as evidence of abuse. The owner’s statements at this hearing cannot be used against the owner in a criminal prosecution for animal cruelty, so the owner can freely present evidence and testify without Fifth Amendment concerns. The statute does not say what the burden of proof is for the hearing, but since it is a civil matter it is probably a preponderance of the evidence standard.

If the court finds that no abuse has occurred, the animal is returned to the owner. If the court finds that abuse has occurred, it gets complicated.

If the court finds that the animal’s owner has cruelly treated the animal, the owner shall be divested of ownership of the animal, and the court shall:

(1)  order a public sale of the animal by auction;

(2)  order the animal given to a nonprofit animal shelter, pound, or society for the protection of animals; or

(3)  order the animal humanely destroyed if the court decides that the best interests of the animal or that the public health and safety would be served by doing so.

This is a tough thing to wrap one’s head around. On the one hand, these laws recognize and protect the rights of animals to be free from abuse and pain. The statute that criminalizes abuse of “nonlivestock animals” defines “cruel manner” as “a manner that causes or permits unjustified or unwarranted pain or suffering.” The statute that protects cruelly-treated animals allows for the prompt removal of an animal from an abusive situation. This is analogous to the statute allowing the state to take possession of children when there is an immediate danger to the child’s health or safety. On the other hand, these laws treat animals as personal property to be sold once the owner’s rights have been terminated by the court.

We don’t have to solve the property question right now, though. An animal has value sufficient to warrant legal intervention if abuse can be shown to have occurred. It requires the involvement of a police or animal control officer, which may or may not be easily available depending on where you live. Of course, I can only speak to the laws in Texas, but I suspect other states may have similar procedures.

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Update on the cheerleader case

A few weeks ago I wrote about a case in Texas involving a cheerleader, a sexual assault case, and a First Amendment claim.  I have since come across the actual court opinion from the Fifth Circuit (PDF), and it is worth a read.  However horrifying the facts of the case may be, I have to agree that nothing constituted a First Amendment violation.  This story seems to have mostly passed out of public awareness, but it seemed worth a brief follow-up. Since I last wrote about it, the “loser pays” bill in Texas has been the talk of the town. I hope this girl can find some other path to justice.

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Texas cheerleading and the lack of easy answers

Texas cheerleading is something of a religion unto itself. It also has a peculiar history of scandal and other legal oddities (I’m looking at you, Wanda Holloway).  The latest news, involving a cheerleader known only as H.S. (or M.S., depending on where you look), should not be lumped into the strange history of Texas cheerleading, though, as it involves some thorny questions that still have my head spinning.

In short, in 2008 a cheerleader was sexually assaulted by a basketball player, who plead guilty to misdemeanor assault but never went to jail.  A few months later, she refused to cheer for him during a free throw, and was expelled from the cheerleading squad.  Her family then sued the school, alleging violation of her First Amendment rights.  The courts disagreed, and the Supreme Court has declined to hear the appeal.  She is now stuck with a $45,000 tab for the school’s legal fees.

I can’t possibly go into an in-depth analysis of this with the little information that I have.  I was initially content to tweet a few links about it yesterday, but a response that I received to a tweet got me thinking about the situation:

Truth be told, at the time I wasn’t sure why I retweeted the story–it just seemed important. Upon reflection, I think it is all of the reasons stated in the reply.  It is (I certainly hope) impossible not to feel sympathy for H.S. in this case.  The sympathy is certainly pouring out all over the internet, as well as outrage.  Not knowing all of the facts makes it especially frustrating–how did it get to a point that she was apparently forced to decide at court side whether or not to cheer for this guy?  There appears to be no question that he is guilty.  On the one hand, why would she want to put herself in the position of having to maybe cheer for him, but on the other, much bigger hand, why would the burden be on her in the first place??? I don’t know why he isn’t in jail, and I won’t speculate.  I also don’t know why, a few months after pleading guilty to assault, he was still playing basketball.  That may be a discussion for another day.

Bottom line, it seems wrong that this situation even happened.  How did these two people end up back in these same roles after what happened between them?  It is very easy to feel the greatest sympathy for her, for making a seemingly simple and rational decision and being punished for it.

Then we come to the lawsuit itself, and my sympathy becomes, uh, conflicted.  I just don’t see any sort of First Amendment claim here.  The courts concluded, to put it briefly, that in her role as cheerleader she was a spokesperson for the school, and her job was to perform or say what the school wanted.  That makes sense (in the absence of the emotion of this particular case).  At least in theory she had other options besides a federal constitutional lawsuit.

That brings us to the outcome–the case was dismissed, and she must pay attorney’s fees as a result of filing a frivolous claim.  I cannot honestly say that the claim was not frivolous, but I cannot say that the court’s order is just.  This illustrates a point that is often lost on many people, lawyers included: just because an action is legal (or not illegal) does not mean it is proper, and just because a form of relief is available, does not mean it is just.

Perhaps the cheerleader was wrong, in the context of her job as cheerleader, to refuse to cheer.  Perhaps the school was justified, in the context of a cheerleader who refused to follow procedures, to kick her off the team.  It seems so tidy on paper, but what on earth were they thinking?

The lawsuit, from a legal perspective, was also wrong (in that it made a claim not supported by the law).  A common remedy for someone subjected to a frivolous claim is to have their opponent pick up the legal bill.  But again, is that really justice in this case?  I can’t say the court was wrong–they applied the law, as far as I can tell.  I also can’t say the court was right.  Everyone was right, and everyone was wrong in this case.  And I couldn’t say that in 140 characters.

UPDATED: Here.

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