January 11, 2018
This past year, particularly in recent months, the #MeToo movement, which spread across the nation and went viral around October of 2017, culminated in countless individuals speaking out about experiences with sexual harassment, assault, and other forms of misconduct, and the hashtag is recognized for breaking a history of silence on these issues. See, e.g., Samantha Schmidt, “#MeToo: Harvey Weinstein case moves thousands to tell their own stories of abuse, break silence." The Washington Post Oct. 16, 2017.
Sexual misconduct allegations are becoming a focal point in civil litigation, and attention has been brought to the fact that Congress settled a number of such lawsuits against legislators, using taxpayer funds and without disclosing any of the facts or identities of the individuals involved. See, e.g., Michelle He Yee Lee & Kimberly Kindy, “On Capitol Hill, pressure grows for more transparency in harassment cases,” The Washington Post, Nov. 27, 2017. This article examines civil sexual misconduct cases and the role expert witnesses play in helping to determine their outcomes.
The fall of 2017, in particular, has been rife with sexual misconduct (a broad term, including any sexual act that is legally actionable) accusations against a number of public figures, from entertainers and Hollywood moguls to politicians and prominent members of the media. In fact, an Associated Press poll shows that sexual misconduct allegations stories were the top news topic in 2017. *See, e.g.,*David Crary, “AP Poll: Sexual misconduct allegations voted top news story,” ABC News, Dec. 21, 2017, at" (last visited Dec. 27, 2017).
The types of civil lawsuits in which an individual can file a complaint and potentially recover from sexual misconduct are myriad. Acts that can incur civil liability include everything from sexual harassment to sexual assault. While many forms of misconduct are covered by criminal law, civil remedies also exist for these actions. In fact, not only can individuals be sued in civil court, but so can those who, arguably, bore some responsibility for the behavior, such as witnesses, third parties who encouraged the acts, or even particular venues. See, e.g., Nacht Law PC, “Does a Victim of Sexual Assault Have a Case For a Civil Lawsuit?”, Jul. 11, 2016, at https://www.nachtlaw.com/blog/2016/07/does-a-victim-of-sexual-assault-have-a-case-for-a-civil-lawsuit.shtml (last visited Dec. 27, 2017). In other words, regardless of the severity or degree of an accusation, civil litigation can and does play a role in cases of this nature. It provides a remedy to prospective victims and should be thoroughly understood by attorneys on both sides.
In evaluating the civil side of the #MeToo movement and the cases it pertains to, it is vital to examine the role expert witnesses play in the legal equation, and, in particular, what role different courts allow them to play. As a general rule, there are a host of experts in the field of sexual misconduct litigation, from forensic experts to psychologists, but there are more nuances (and more experts) than one might first realize, and each of them may prove to be invaluable, especially where legal gaps exist and jurisdictions have diverse approaches to these matters.
There are also times when different types of sexual misconduct may fall into more than one legal category, with the possibility of crossover. For example, a sexual assault allegation may be a potential violation of both a federal education law and a state one. Additionally, some conduct may violate more than one type of law: it may be considered both employment discrimination and an intentional tort, for instance.
The following list represents a few of the ways in which plaintiffs may be able to recover in civil sexual misconduct cases:
(1). Personal Injury Actions: In Illinois, New York, California, and other states, many sexual misconduct cases can be filed as personal injury lawsuits, often rooted in various tort theories. See, e.g. Donald W. Fohrnman & Associates, Ltd. “Sexual Harassment Victims Have A Right To Compensation,” Feb. 26, 2015, at http://chicagolegalnet.com/blog/sexual-harassment-victims-right-compensation/ (last visited Dec. 27, 2017) (discussing using personal injury law to recover damages in sexual harassment cases in Illinois); See, e.g., Napoli Shkolnik PLLC, “Personal Injury: Sexual Assault,” 2017, at https://www.napolilaw.com/personal-injury/sexual-assault/ (last visited Dec. 27, 2017) (addressing approaching sexual assault cases in New York, via personal injury litigation); See, e.g., Tom Reinecke, “Protecting the Rights of Sexual Abuse Victims,” The Reinecke Law Firm, 2017, at http://www.fightingforjustice.com/sexual-abuse-lawyer.php (last visited Dec. 27, 2017) (mentioning various legal remedies for sexual misconduct in California, including personal injury suits); See ,e.g., Nolo, “Can the Victim of a Sexual Assault File a Civil Lawsuit?”, 2017, at http://www.alllaw.com/articles/nolo/personal-injury/victim-sexual-assault-file-civil-lawsuit.html (last visited Dec. 27, 2017) (noting that generally, personal injury law can be used as a tool to recover in sexual misconduct cases).
In personal injury lawsuits pertaining to sexual misconduct, there are many types of experts that can help to persuade fact-finders that specific claims are valid. These include: general personal injury experts, specialists in damages (based both on individual circumstances and the type(s) and degree(s) of misconduct alleged), sexual misconduct experts of varying forms (including experts on harassment, abuse, assault, and retaliation, and related charges), causation experts, and experts who can address the questions that arise where a venue or third party involvement is an issue.
(2). Employment Discrimination Litigation: In claims involving sexual misconduct in the workplace, both state and federal government laws may be involved. According to the Equal Employment Opportunity Commission (EEOC), the federal government’s agency that acts on behalf of potential victims in the workplace, “sexual harassment” is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex… .[H]arassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision.” EEOC, “Sexual Harassment,” at https://www.eeoc.gov/laws/types/sexual_harassment.cfm (no date given, last visited Dec. 27, 2017). In California, sexual harassment is defined by the Department of Fair Employment and Housing as:
Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters.
Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual.
Physical conduct: touching, assault, impeding or blocking movements.
Offering employment benefits in exchange for sexual favors.
Making or threatening retaliatory action after receiving a negative response to sexual advances.
California Department of Fair Employment & Housing, “Sexual Harassment: FAQs: What is Sexual Harassment?”, State of California, 2017, available at https://www.dfeh.ca.gov/resources/frequently-asked-questions/employment-faqs/sexual-harassment-faqs/ (last visited Dec. 26, 2017).
With respect to sexual harassment or other misconduct in employment, expert witnesses are invaluable to assist attorneys on both sides. Such experts possess specialized skills such as understanding and interpreting federal, state, and/or other laws and policies; determining what type of conduct is implicated by applicable laws in specific cases; addressing sexual misconduct when alleged by a group or class; assessing the definition of a given act (quid pro quo, hostile work environment, retaliation, etc.); and more.
In addition, employment discrimination experts can help courts determine what, if any, damages are appropriate. Damages for sexual misconduct in the workplace vary and may include back pay, reinstatement, front pay, and other forms of compensation. Expert witnesses in this field are not only able to address what forms of compensation may be called for but can also provide courts with specific amounts to award and explain the rationale for such figures.
Moreover, Title VII provides for additional remedies to parties who prevail in such litigation, such as requiring defendants who are found liable to participate in retraining, both for individuals and entire businesses; monitoring offending employers for periods of time that may span a number of years to ensure that such conduct does not recur; and taking other proactive preventative measures, such as setting up scholarship funds for an oppressed class or mandating that a certain percentage of supervisory-level positions be held by a class that a particular employer has been proved to discriminate against. See, e.g., EEOC, “Remedies For Employment Discrimination,” no date given, at https://www.eeoc.gov/employees/remedies.cfm (last visited Dec. 27, 2017).
Because sexual harassment claims are categorized as “sex discrimination” (regardless of a party’s gender identity) claims under Title VII, the remedies available in such cases involving employment may be fairly broad, including attempts to prevent a traditionally disenfranchised class from further oppression of the nature alleged or ways to make a prevailing party “whole.” See e.g., id., See also Workplace Fairness.org, “Sexual Harassment: Legal Standards,” 2017, at https://www.workplacefairness.org/sexual-harassment-legal-rights (last visited Dec. 26, 2017) (defining “sexual harassment as “sex discrimination” under Title VII and addressing the broad spectrum of remedies that may be available to prevailing parties).
Some states have additional remedies and broader definitions of sexual harassment and/or other misconduct, and experts in such states’ employment laws will be of great assistance to attorneys. Some states are largely dependent on case law, rather than statute, for such guidance, so experts on these matters will prove indispensable.
(3). Educational Misconduct: As in employment cases, the federal government, via Title IX of the Education Amendments of 1972, treats sexual misconduct as part of “sex discrimination” in cases involving the educational sector. See, e.g., U.S. Department of Education Office of Civil Rights, “Title IX and Sex Discrimination,” Apr. 2015, at https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html (last visited Dec. 26, 2017). Under Title IX, sexual misconduct is discussed and defined in many ways, including “harassment,” “sexual violence,” and “assault,” with a set of federal standards for the education sector. See, e.g., U.S. Department of Education Office of Civil Rights, “Q & A on Campus Sexual Misconduct,” Sep. 2017, at https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (last visited Dec. 26, 2017).
A complicating factor for litigators in this area is that new federal “guidance” was issued in late September of 2017, which allowed educational institutions to adopt tougher evidentiary standards for accusers of sexual assault. See, e.g., Associated Press, “DeVos’ Change to Title IX Guidance on Sex Assault Investigations Prompts Suit,” Oct. 20, 2017, at https://www.nbcnews.com/news/us-news/devos-change-title-ix-guidance-sex-assault-investigations-prompts-suit-n812521 (last visited Dec. 26, 2017). The new changes are currently the subject of litigation, and the plaintiffs argue that “the new guidance is discriminatory and violates state and federal civil rights laws.” Id. To date, the change is in place and has not yet been adjudged by a court. Title IX also defines other forms of sexual misconduct and provides guidance to educational institutions as to remedies available to prevailing parties. See, e.g., U.S. Department of Education Office of Civil Rights, “Q & A on Campus Sexual Misconduct,” supra.
In cases involving sexual misconduct in education, expert witnesses in the field clearly play an important role. This is particularly the case given that Title IX, which is implemented by the Office of Civil Rights (OCR) in the Department of Education, has been attacked from both sides: it has been critiqued for forcing sexual assault accusers to conform to unreasonable evidentiary standards; on the other hand, opponents have complained that Title IX’s standard for sexual assault is too low and harms defendants. See, e.g., Kathryn Joyce, “The Takedown of Title IX,” The New York Times Magazine, Dec. 5, 2017 (noting disparities between 2011 guidelines for campuses dealing with sexual misconduct cases, versus the 2017 change that allows schools to raise the evidentiary standard and even attack a school’s OCR officers, by requiring them to disclose if they, themselves, are survivors of sexual misconduct). It is unclear whether the September 2017 guidelines will affect actions for sexual misconduct aside from assault, such as harassment, violence, and other acts addressed by Title IX. See, e.g., Department of Education Office of Civil Rights, “Know Your Rights: Title IX Prohibits Sexual Harassment1 and Sexual Violence Where You Go to School,” Apr. 2, 2011, at https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-rights-201104.html (last visited Dec. 26, 2017).
(4). General Issues: Regardless of where an alleged act of sexual misconduct occurs, myriad experts are needed on both sides. Questions have arisen regarding who should be considered an expert with respect to different sexual misconduct allegations, as well as whether a given type of expert testimony should be admissible. For instance, in 2015, a University of Chicago law review author conducted a lengthy dissection of what types of individuals should be considered qualified, under Federal Rule of Evidence (FRE) 702, as expert witnesses in sexual harassment suits. See Jayesh Shah, “Limiting Expert Testimony about Sexual Harassment Policies,” University of Chicago Legal Forum, Vol. 1999, Iss. 1, Art. 15, available at https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1278&context=uclf (last visited Dec. 26, 2017).
One Title IX analyst voiced a separate issue in her coverage of educational sexual misconduct cases, when she noted that some schools’ OCR sexual assault experts were often asked potentially inappropriate questions about their sexual histories, which seemed an unacceptable (though often utilized) attack on such experts’ knowledge and testimony in cases they supervised. See Kathryn Joyce, supra.
Mental health professionals are often called upon to testify in sexual misconduct lawsuits of every type, and their testimony as experts is in frequent dispute, depending on what they wish to testify about. If such testimony demonstrates certain factors, such as the gravity of the misconduct and its impact, its admissibility may depend upon an individual judge’s discretion. Some courts see such evidence, especially if it pertains to a specific accuser, as valid and essential to understand how life-altering sexual misconduct can be. In other cases, such testimony has been excluded, considered too general or even so subjective that the testifying professionals are not permitted to provide evidence about anything beyond what an individual self-reported.
In addition, an accuser’s past sexual history may be at issue, based upon where a case is tried and what, if any, “rape shield” laws exist. The federal government prohibited evidence of an accuser’s sexual past to be used in criminal sexual misconduct cases when it passed the Violence Against Women Act (VAWA) in 1994. See, e.g., Connecticut Coalition Against Domestic Violence, “Violence Against Women Act,” 2013, at http://www.ctcadv.org/information-about-domestic-violence/violence-against-women-act/ (last visited Dec. 26, 2017). In federal court, FRE 412 precludes inquiries into an accuser’s sexual history in both civil and criminal cases alleging sexual misconduct. See FRE 412.
However, the states have different policies on this issue, and in state court, the law may not offer the protections in civil cases that they do in criminal ones. Even among criminal matters, laws vary from state to state. See, e.g., National District Attorneys Association, “Rape Shield Statutes As of March 2011,” no date given, at http://www.ndaa.org/pdf/NCPCA%20Rape%20Shield%202011.pdf (last visited Dec. 26, 2017) (listing each state’s “rape shield” policies, or lack thereof).
Expert testimony on “rape shield” protections in civil cases is drastically needed to assist fact finders in determining what is relevant and admissible about accusers. Absent plain statutory or judicial guidance on a plaintiff’s sexual history, clothing, and other matters in civil sexual misconduct suits; experts must fill in the gap and explain to courts whether such evidence is appropriate and/or relevant. While there appears to be a consensus among mental health experts who specialize in sexual trauma and have dealt with numerous misconduct cases, there is not a uniform legal standard to let courts know if and when evidence of this nature should ever be admitted.
Certainly, statistics, government agencies, and mental health experts have demonstrated that many myths exist about sexual misconduct and how survivors behave after being subjected to it. See, e.g., Rape Abuse Incest National Network (RAINN), “Effects of Sexual Violence,” 2017, at https://www.rainn.org/effects-sexual-violence (last visited Dec. 27, 2017); See also Shaila Dewan, “She Didn’t Fight Back: 5 (Misguided) Reasons People Doubt Sexual Misconduct Victims,” The New York Times, Nov. 30, 2017; See also Connecticut Alliance to End Sexual Violence, “National Statistics on Sexual Violence: Myth Vs. Fact,” 2017, at https://endsexualviolencect.org/resources/get-the-facts/national-statistics-on-sexual-violence/ (last visited Dec. 27, 2017); See also Georgetown Law (citing the US Department of Justice Violence Against Women page/remarks/guidelines by directors and leaders), “Myths and Facts about Sexual Violence,” Nov. 10, 2015, at https://www.law.georgetown.edu/campus-life/advising-counseling/personal-counseling/sarvl/general-information.cfm (last visited Dec. 27, 2016). However, attorneys cannot take for granted that a given judge or jury knows and understands common misconceptions, absent the testimony of those witnesses who specialize in such matters.
Sexual misconduct cases represent a diverse, complex array of individual experiences and legal rules, and representing parties in civil suits can be made more difficult for attorneys when there is no clear rule regarding what issues are admissible. Accordingly, expert witnesses, who have specialized knowledge about the different types of sexual misconduct and the interpretation of such acts in the civil context, are invaluable resources for attorneys in these cases.
As the number one focus of 2017 news stories, sexual misconduct allegations are at our nation’s forefront, and as the #MeToo movement gains momentum, civil litigators should be aware of the legal rules that guide these cases. Perhaps most importantly, this year has shown us a number of sexual misconduct opinions that are on a collision course. In November 2017, over 200 national security employees came forward in an open letter to express that such misconduct is pervasive in many sectors of society and the number of survivors of sexual misconduct is underrepresented. See Alanna Vagianos, “Over 200 Women In U.S. National Security Sign Open Letter About Sexual Misconduct” Huffington Post, Nov. 26, 2017, at https://www.huffingtonpost.com/entry/over-200-women-in-us-national-security-write-open-letter-about-sexual-assault-and-harassment_us_5a1dbbb7e4b04abdc61462cc (last visited Dec. 26, 2017).
As more and more people come forward, judges and juries will be determining the facts and legal rules in the cases that arise. Often, technology outpaces the law and legislatures struggle to play catch-up, with courts left to fill the gaps. #MeToo represents a national outcry; and courts, legislatures, and society will need to adapt to new situations and information.
Expert witnesses, who are often most intimately acquainted with such cases, will be critical in sexual misconduct cases in the years to come, and until more uniform approaches exist, they may hold the key to how far the #MeToo movement goes in courts across the country.