The Pendulum Swings- Actions And Reactions Concerning Sexual Misconduct In Our Schools And Against Our Children

Posted On Friday, January 16, 2015
By: Kevin E. Raphael

The NFL ads have it right – it is difficult to discuss abuse, sexual or domestic.  Thanks to White House leadership and leaders within the Senate, we as a country have been talking about this abuse more frequently and the barriers are falling.  Legislatures at Federal and State levels have been acting to protect children, by filling gaps in laws, and to moderate reactions to sexual misconduct on our college campuses. 

California has enacted a yes means yes statute, which can be read here. Now, sexual interactions on college campuses have legislative guidance, all in an effort to avoid misunderstandings, facilitate open dialogue, and to prevent those who are impaired – by drugs, alcohol or other means – from being victimized.  While the ultimate wisdom of legislating the most primal of human interactions is debatable, it is a first step toward protecting college students.  As the law is put through its paces, expect the pendulum to swing and the law to be modified so it is less oppressive and difficult to enforce.  In the interim, California institutions of higher education now have a standard for consent that is uniform across the state. 

Pennsylvania has recently amended its mandatory reporting statute, effective December 31, 2004.  This law  now requires healthcare providers – including psychiatrists and psychologists –  to report to state authorities when they receive information from a patient fourteen years or older with a patient engaged in physical or sexual abuse of a minor.  The moral imperative to protect children and to strip abusers of protection from statutory privilege trumps a patient’s right to confidentiality in treatment, confidentiality that in the other contexts has been trumpeted as the foundation of effective mental health treatment.  Healthcare providers – particularly mental health providers – will need to adjust to this change.  It’s debatable whether the pendulum will swing back to modify this important protective action.

At the federal level, the last few years have focused on ensuring that sexual misconduct, sexual harassment, and other covered Title IX conduct is report and investigated, and that the victim is empowered to pursue justice as the victim sees fit.  The pendulum has begun to swing back now, with the Department of Education and Congress balancing the need to protect the victim with the due process rights of the accused. Recent regulations promulgated pursuant to the Campus SAVE Act mandate a certain level of due process for the accused respondent:  notice, fair hearings, and the right to an advisor/attorney of choice, now must be built into the disciplinary process on college campuses. 

The judicial system may also lead to further reaction as suits recently filed by accused respondents, alleging colleges’ failures to provide due process in Title IX investigations, are litigated through the Courts.  Judicial precedent may lead to further due process to respondents, or may spark additional revisions by legislative and regulatory bodies concerning such processes.

The fundamental beauty of our legal system is the ability to react to existing weaknesses and existing failures to protect our citizens; equally important is our system’s ability to moderate legislative and judicial reactions, so that the actions to protect citizens do not in turn strip others of their legal protections.  The pendulum swings on.