Articles Posted in Sex Offenses

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My previous post on this subject discussed new regulations proposed by U.S. Education Secretary Betsy Devos, for use by colleges and universities that investigate allegations of sexual abuse, sexual assault or sexual harassment by students. Under the proposal, fewer allegations would be considered “sexual harassment”, and colleges and universities would be responsible for investigating only incidents that are related to campus programs and activities, that were reported to school authorities. Importantly, schools would be allowed to apply a higher legal standard when weighing evidence, than the lower standard of “preponderance of the evidence” that was encouraged by the Obama administration. I thoroughly endorse this change, as the correct evidentiary standard to apply when considering such serious criminal allegations, is, as anyone who has ever watched a crime show on TV or read a legal thriller is aware, “Beyond a Reasonable Doubt.”  Keeping that higher standard of evidence is critical when such serious accusations of sex crimes are leveled at a student.

Another major change in the proposed federal regulations, allows defense attorneys representing accused students, to cross-examine accusers and witnesses. As a Boston sex crimes defense attorney, I was stunned that the Obama administration would ever suggest the elimination of this central procedural safeguard. How anyone could ever claim to argue that any investigative process could ever reflect due process, or be substantively fair in any way without allowing the accuser to be cross-examined, is beyond me. This procedural right is central to any investigative or adjudicative process to ferret out the truth of any given criminal charges, and that this fundamental right was ever abandoned, was an outrage.  Shamefully, but not surprisingly, the association representing university presidents, the American Council on Education, has issued statements actually criticizing the restoration of this fundamental procedural safeguard when investigating or prosecuting accusations of criminal conduct. One excerpt of their comments: “[Restoring the process of cross-examination] goes too far in incorporating legal concepts into a school disciplinary setting. This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing. We are not courts. I’m not sure we should try to act like courts.” Continue reading

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U.S. Secretary of Education Betsy Devos earlier today released a long-awaited series of formal proposals for how colleges and universities respond to accusations of “sexual assault” and conduct investigations into such incidents. The proposed revisions would update “guidance recommendations” previously put in place buy the Obama administration, and predictably, Democrats and “#MeToo activists”, howled their opposition, claiming the proposal would allow, perhaps even encourage, sexual assailants to prey on college campuses everywhere as well as allow schools to evade civil liability.

This is no surprise, as these “women’s rights activists” will never cease at their un-reasoned exercises in hyperbole and extremism, when ever anyone has the audacity to disagree with their imbalanced ideas of legal due process and, even, basic fair play. The proposed regulations originate from a 1972 federal law called Title IX, which was initially passed to prevent sex discrimination at colleges and universities that receive federal funding. Most of the law’s focus is on universities, but it also applies to and any other schools that receive federal monies.   The Obama administration had previously issued “guidance” to schools, which wildly favored accusers and nearly stripped accused students of almost any meaningful legal protections provided by the U.S. constitution.  Obama’s Education Department was able to accomplish this end-run around procedure, because their recommendations to schools were made outside the normally-required formal rule-making process.  The result?  Those “guidance recommendations” threw out almost any meaningful substantive and procedural legal rights for anyone accused of sexual assault — and furthermore, under the Obama “guidelines” – the definition of “sexual assault” was broadened so wide as to subject almost anyone to such an accusation.  Predictably, before reading any further, left-leaning feminist activists will interpret this post to be “anti-women” – or, to employ the prevailing lexicon they so favor, “misogynist”.  Not, neither this post, not any of my opinions, are “anti-women”:  They are pro-due process; they are pro-fairness; they are in favor of determining the truth in any given circumstance – not conducting a kangaroo court to satisfy the loudest protect group of the moment.

Employing the Obama administration’s “guidelines” (vs. formal rules), allowed Obama’s Education Department to essentially manufacture new proceedings that had no basis in any relevant statute or Supreme Court opinion.  Again, these “guidelines” – which despite being called “guidelines”, almost every campus in America adopted given the fact that over 95% of them are bastions of liberal thought, were the ultimate in an end-run around appropriate federal protocol. They were the product of militant feminist “activists”, who never cease in their proclamations of victim-hood and “oppression” – even in an era when women occupy, justifiably and with good reason, some of the most powerful positions in the country – in law, in government, in commerce & business, in medicine, in academia, and more.  These activists simply never cease their drumbeat of trying to convince people that every woman, everywhere, is oppressed, abused economically, and sexually pursued and harassed, wherever they go.  Odd – I don’t see that in any of the women I know, of a variety of ages, professions and backgrounds – and I’ve asked many women I know for their opinions on this subject.  Yet we’re told by militant feminists that this conduct is ubiquitous; omnipresent; everywhere, universal; constant.  Really?  As a Massachusetts criminal defense attorney who is in the courts every day, this sounds more to me like the dying breaths of once-active organizations like the National Organization for Women, which given all the advancements made in women’s interests, are now largely irrelevant, but to avoid a natural death, continue to declare otherwise through such dramatic claims of “oppression, everywhere”

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Today’s post concerns Massachusetts sex assault accusations and charges – and I want to be very judicious and careful in what I’m going to say here. Sex assault and rape charges are very serious, and should therefore should not be dismissed lightly. As part of this reality, more than a few people can sometimes ask me, “Why do you defend people who are accused of sex assaults?” My answer is usually easy:  “Because they may be innocent, and they are entitled to a legal defense.”

Before going any further, I’m going to say something very sincerely, and I want my readers to know that I mean it 100 per cent: I have all the sympathy, and indeed, empathy, for anyone who advances a credible, believable claim of sexual abuse, indecent assault & battery, or rape by another person.  Man or woman. Young or old.  Of any background whatsoever.  But when such accusations are made, and the accused’s life, liberty and welfare are on the line, such accusations must be supported by persuasive, compelling testimony.   Just because someone is accused of sexual assault or rape, does not automatically mean that they are guilty of having done so.  Over many years in my career as a Massachusetts sex crimes defense attorney, I can’t (and obviously never would, due to attorney-client privilege issues), tell you of how many clients I have defended who have been accused of some type of sex offense – and yet they were entirely innocent of those crimes. Continue reading

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In my previous two posts on this topic, I discussed how seemingly every day, more and more accusations of sexual “assault” are being leveled at people in public life (as well as private.) Many of these events are reported to be years, if not decades, old, and reflect highly questionable allegations.  Worse, it has been observed by more than one responsible journalist that if anyone dares to question the veracity of an accuser, or seeks to merely provide context to these accusations, that person is savagely attacked in the public square: Pilloried for having the audacity to inject perspective into this latest “debate” within a society that is addicted to controversy – the “Rage of the Day” or Crisis du Jour.”

Exhibit ‘A’ on this point: Actor Matt Damon. Damon had the utter audacity to opine in a recent interview that there are major differences between touching someone’s buttocks, and rape or attempted rape. Obviously, he was not speaking as an attorney because he isn’t one – and to me as a Massachusetts sex charges attorney, that made his comments all the more valuable, because he was commenting from a common-sense perspective. Damon wasn’t speaking from political correctness – and that what is made his comments so important. He noted how, prior to this current, frenzied climate of accusations of sexual assault, reason and probity would have otherwise prevailed – reason and probity that are now all but gone. He urged a return to healthy skepticism and careful investigation of such accusations, while not losing sight of needed context. Continue reading

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In my previous post on this important subject, I talked about the literal explosion recently, in accusations and allegations of “sexual assault” being made against a wide variety of individuals – against the famous and anonymous alike.  I’m writing about this because I’ve been receiving a considerable number of phone calls recently – from both men and women alike – worried that they, too, might be accused of “sexual assault” – for the most minor of events.  For things that, frankly, strain belief that someone would make such a serious allegation.

This explosion of “sexual assault” allegations have followed the ‘shocking’ news that a physically unattractive Hollywood producer – Harvey Weinstein – had a “casting couch,” and pressured certain actresses for sex if they wanted to appear in his films.  To begin with, to my knowledge, the actions that Weinstein are reported to have engaged in – pressuring actresses to socialize with him and/or have sex with him if they wanted to see their careers advance in the film industry – can indeed be classified as boorish and tasteless.  If the allegations are true, Weinstein can indeed be called a social loser for having to resort to economic and career pressure to obtain sex.  But such suggestions by do not legally constitute “sexual assault.”  Far less do they constitute “rape.” Continue reading

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A rape victim who was impregnated as a result of a rape that took place when she was 14 is fighting in court to keep her convicted rapist from being awarded visitation rights to the daughter she gave birth to nine months after the assault.

The victim was in 8th grade when an individual named Jamie Melendez had sexual intercourse with her several times in 2009. At the time of these sexual assaults, Melendez was 19 and met the victim through a friend of her older sister’s.   The victim testified that Melendez visited her at her home several times when he knew she was alone, and testified that Melendez pressured her into intercourse with him on four separate occasions.  Violence did not appear to be present in any of these rapes – they were statutory rapes, which take place even if the victim consented, any time an alleged victim is under a certain age (16 in Massachusetts.)  The victim became pregnant following one of the attacks and gave birth to a girl in 2010.  Melendez had been arrested in 2009 and initially denied paternity, but DNA evidence proved him to be the father.  Eventually Melendez pled guilty to charges of statutory rape in 2011 – however, he avoided jail as the trial judge ordered  a lengthy probation sentence instead – 16 years- reasoning that allowing  Melendez to work and hold down a job would enable him to pay the victim child support.  After Melendez’s 2011 sentencing, the case was transferred to the Massachusetts Probate and Family court – which the victim now argues should never have been done.  As a Massachusetts criminal defense attorney, I think she’s probably right. Continue reading

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In my previous post on this subject, I wrote of how the only sex crime prosecution to date against Bill Cosby, may be ultimately derailed.

The reason has to do with an agreement that the previous Montgomery County District Attorney, Bruce Castor, made with Cosby’s attorneys, over ten years ago.  Then agreement promised not to prosecute Mr. Cosby for what is essentially the crime of indecent assault & battery in connection with allegations made by a woman named Andrea Constand.  Mr. Castor says that he agreed not to prosecute Mr. Cosby, in order to increase Ms. Constand’s chances of prevailing in a civil suit against Mr. Cosby for damages relating to the alleged incident. Continue reading

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Up until very recently, it looked as though Bill Cosby’s legal luck had run out; that the celebrity actor was finally going to face prosecution for at least one allegation of rape and sexual assault.  That case stems out of Pennsylvania, and involves an alleged victim named Andrea Constand, who told police in 2005 that Cosby drugged her and then sexually assaulted her at his home in  Pennsylvania in 2004.   At that time, the former Montgomery County District Attorney, a man named Bruce Castor Castor, determined that there was not enough evidence to charge Cosby, but stated in a press release that  all parties to this matter that he will reconsider this decision should the need arise.”

Fast forward ten years, and just last month, December 2015, Cosby was legally charged for the first time, even though almost 50 women have come forward claiming that over decades of time, Cosby drugged, then sexually abused and /or raped them.  The specific crime that Cosby was charged with in Pennsylavnia in December was indecent aggravated assault, involving Andrea Constand’s 2005 allegations against Cosby.   So it looked as though the law had finally caught up with the entertainer.  But some interesting events over just the last few days may imperil that case being prosecuted. Continue reading

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I don’t usually weigh in on cases outside Massachusetts, but the St. Paul’s Prep School rape trial in New Hampshire merits a few observations.

First, in the event that some people might think that, as a Boston Massachusetts sex crimes attorney, I’m going to dismiss all the allegations that have been made in this case, they’d be wrong. (At least one of those charges is likely statutory rape, since the alleged victim was 15 at the time of the alleged sexual encounter, which the defendant claims was consensual.) I think it’s fairly clear that, notwithstanding the press statements issued by administrators at this school denying that any kind of culture exists at the school that would promote sexual misconduct bewteen students, such a culture has existed. This culture, part of which appears exemplified by the “senior salute” ritual testified about in this trial, should be investigated by New Hampshire state authorities extensively – with the more important goal being the identification, firing, and prosecution of any and all school administrative personnel – teachers or otherwise – who knew of this culture and allowed it to continue. In my view as a Massachusetts rape defense lawyer, there are obvious parallels to the catholic clergy sex abuse scandals roiling the nation (and first uncovered in Boston.) I find any such professional school staffers, if it can be shown that they knew of this culture and allowed it to continue, to be equal in guilt to the bishops who knew what certain sexually abusive priests were doing, yet turned a blind eye to it.

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In my previous post on this subject, I wrote of how colleges and universities across the United States are rapidly disassembling the way that accusations of college campus rape and college campus sexual assault are handled – and of how, in the process, many accused students’ legal and constitutional rights are being trampled in the process.

While there are many examples of this disturbing trend across the country, making Exhibit “A” is the story of John Doe v. Amherst College: A shocking story of how a male student was railroaded out of one of the country’s most “esteemed” universities, based on the shallowest of claims and weakest of evidence offered.

This suit raises disturbing questions about whether colleges and universities conducting their own internal “investigations,” do so within the rules of law. These questions haven’t come out of nowhere – they’re prompted at least in part by the pressure that federal regulators have exerted upon colleges and universities to use a less stringent standard of evidence to “convict” an accused student, than that which has been used in courts across Massachusetts and the entire country for hundreds of years. As anyone who has ever read a legal thriller or watched the same kind of movie, in order to legally convict an accused of a crime (any crime, never mind one so serious as sexual assault or rape – a jury or judge must find that the accused is guilty to a standard of “Beyond a Reasonable Doubt.”

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