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Sex-based discrimination is prohibited in education programs and activities that receive federal financial assistance pursuant to Title IX of the Education Amendments of 1972.  Discrimination based on sex includes sexual harassment, sexual violence, and gender based harassment.  Although the focus of Title IX has generally been on post-secondary education, Title IX also applies to public schools and school districts.

Following regulatory guidance during the Obama administration and increased pressure from the media and the public to address sexual harassment and sexual violence, many colleges and universities changed their investigatory and disciplinary policies and procedures.  Unfortunately, some of these changes came at the expense of the accused students’ rights.  Although the current administration has withdrawn the guidance that lowered the standard of proof and discouraged cross-examination in student sexual misconduct investigations, colleges and universities still fail to ensure accused students receive due process.

Recently, the United States Department of Education announced a new enforcement initiative to address sexual harassment, sexual assault, sexual misconduct, and sexual violence incidents in K-12 public schools.  According to the press release, the new initiative will “strengthen the ability of schools to respond to all incidents of sexual harassment and assault.” The new initiative will include compliance reviews of schools and school districts, which will involve the review of policies, procedures, and practices for addressing complaints.  The initiative will also involve public awareness, data quality reviews to ensure incidents are being accurately recorded and reported through Civil Rights Data Collection, and the collection of additional data.

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Sadly, suspicions or allegations of abuse sometimes arise in Washington custody cases.  Although there may be circumstances where a party makes an allegation in an attempt to affect the custody case, some parents have sincere concerns about their children.  A father recently challenged an order that he pay the mother’s attorney fees related to his motion to modify the parenting plan after he sought a protective order against the mother.

The father claimed he noticed injuries on the child after he picked her up from the mother’s home in June 2017.  He said he asked her about them, and she said words in her native language that translated to “Ouwie,” “Hit,” and “Mama.”  He took the child to the doctor and the doctor reported finding bruising with small abrasions on her feet and linear areas of bruising on her upper inner forearm.  The doctor contacted CPS.

The father claimed he noticed more bruising after picking the child up a few days later.  He took her back to the doctor and a nurse practitioner examined her and noted she had bruising on her right periorbital area and healing bruising and abrasions on the top of her feet.  The nurse practitioner called CPS, and they recommended calling the police and seeking a protective order.  The nurse practitioner called the father and recommended he seek a protective order and not return the child to the mother.

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The Fifth Amendment to the U.S. Constitution provides the right to be free from self-incrimination. The police must advise suspects of their rights when they are subject to a custodial interrogation by a state agent.  If they fail to give the Miranda warning, then the statements made during the custodial interrogation are presumed to be involuntary and are to be excluded from evidence.  A juvenile defendant in a Washington criminal case recently challenged his conviction on the grounds the court erred in admitting the statement he made to the chief of police in the principal’s office.

The fourteen-year-old defendant had been talking about video games with some classmates in one of their middle school classes.  The other students said the defendant said something like “he was going to shoot the school.” One student said he did not really take the statement seriously because the defendant said that sort of thing “all the time” and he thought the defendant was joking.

The other student also said the defendant had previously made similar statements he had not taken seriously.  This time, however, he was concerned and told the teacher.  He said the defendant did not make the statement to anyone individually, but muttered it to himself.  He said he was afraid the defendant would hurt someone.

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The Washington Constitution provides that a person accused of a crime has a right to notice of “the nature and cause of the accusation against him.” An information in a Washington criminal case must set out all essential elements of the crime along with the facts that support them.  If the information does not include this information, it is deficient.  The information must also include any enhanced penalties the prosecution intends to seek.  When the adequacy of an information is challenged, the court looks at the charging document, and does not consider the evidence presented at trial or jury findings.

A defendant recently challenged a sentencing enhancement after her conviction of four counts of delivering a controlled substances.  She argued that the information did not give her adequate notice of the enhancement.  The charges arose from two controlled drug buys by a confidential informant.  The information, amended multiple times, alleged four counts of delivery of a controlled substance.  The first and third information included aggravating circumstances with each count that alleged the defendant violated RCW 69.50.401 by engaging in the prohibited activity “within one thousand feet of a school bus route…”

The defendant was convicted of four counts of delivering a controlled substance, which the jury found occurred, “within one thousand feet of a school bus route stop.”  She received a 24-month enhanced sentence due to those findings.

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Many recent Title IX cases filed by students accused of sexual assault or sexual misconduct have focused on procedural issues, such as denial of an opportunity to cross-examine the accuser.  In some cases, however, the pressures to address allegations and support alleged victims may result in gender bias against accused male students during investigations and in the outcomes of those investigations.

Recently, a federal court in Virginia considered a university’s motion to dismiss part of a former student’s claims against it. In March 2017, the plaintiff engaged in sexual intercourse with a female student, identified in the court’s opinion as Jane Roe. She reported the incident as sexual assault, but the plaintiff alleged the encounter was consensual. He alleged they agreed to meet and walked to his house.  He alleged they had sex and fell asleep, and Jane Roe left in the morning.

According to the opinion, Jane Roe later texted the plaintiff and asked what time they had sex.  He answered that he “honestly had no idea.”  Jane Roe met with the Title IX Coordinator and said she had not consented because she fell asleep and did not remember having intercourse.  She filed a Title IX complaint.

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In a Washington negligence case, the plaintiff must prove the defendant breached a duty of care and that the breach was the proximate cause of the plaintiff’s injury.  Generally, there is not a duty for one person to prevent someone else from causing injury to another person, but there may be a duty if there is a special relationship.  School districts, due to the custodial relationship with their students, may have a duty to take reasonable steps to prevent a reasonably foreseeable harm to their students.

In a recent case, a personal representative sued a school district after a high school student was killed in an accident off campus.  A physical education teacher took the class for a walk off campus.  The school had policies requiring teachers to get parental or guardian permission before taking students off campus for an excursion or field trip.  The teacher did not follow those policies, but the defendants argued they were not applicable to the walk off campus.  The teacher claimed the principal had approved him taking the class off campus, but there was conflicting information regarding exactly what the principal knew.

The teacher did not get any additional adult supervision.  He walked with the students on the sidewalk beyond the school safety zone.  The speed limit was up to 40 miles per hour.  Some of the students were up to 200 meters away from the teacher at times.  The appeals court’s opinion stated students were “explicitly granted permission” to cross the street outside the designated crosswalks.

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Under Washington rules of criminal procedure, a court may dismiss a criminal prosecution due to arbitrary action or governmental misconduct if the accused rights have been prejudiced and his or her right to a fair trial has been materially affected.  CrRLJ 8.3(b) and CrR 8.3(b). Washington case law has held that mismanagement may be sufficient and the misconduct does not have to be evil or dishonest.   In a recent case, a Washington appeals court considered whether the court’s actions were within the scope of “governmental misconduct” that would support dismissal under CrRLJ 8.3(b).

The court continued the defendant’s arraignment on fourth degree assault and third degree malicious mischief charges after ordering he be provided an interpreter.  There were 14 additional pretrial hearings in the next 15 months, but the interpreter failed to appear at 10 of them. The interpreter appeared by phone “ineffectively,” according to the appeals court, twice.  Two times the interpreter actually appeared in person.  The defendant moved to dismiss the charges pursuant to CrRLJ 8.3(b).  After the interpreter failed to appear at yet another hearing, the trial court dismissed the charges with prejudice.  The trial court found the failure to provide an interpreter “seriously interfered with” the defendant’s right to representation.

The state appealed, and the superior court affirmed the dismissal.  The state then sought discretionary review by the Court of Appeals.  The appeals court granted the review to address the issue of whether CrRLJ 8.3(b) can apply to mismanagement by court administration.

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When a Washington civil protection order is in place, any contact with the protected party could result in a charge for a violation of the order.  In a recent case, a defendant challenged his conviction for violation of a no contact order, claiming the state did not prove he knowingly violated the order because the protected party told him she had dropped it.

The defendant was stopped for driving with a broken taillight.  The officer discovered the vehicle belonged to the passenger and that she was the protected party in a no-contact order against the defendant.  The officer arrested the defendant.

The defendant told the officer he knew about the no-contact order, but the protected party said she had taken care of it or was having it dropped. The protected party also told the officer she intended to drop the no-contact order.

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The public often hears about due process violations in schools and universities after an accused student files a Title IX claim in federal court.  It is important to remember, though, that there may be an internal appeals process as well as an opportunity to appeal to Washington state court when a student faces disciplinary action as the result of a Title IX investigation.  As an example, a state appeals court recently vacated a state superior court’s judgment upholding a student’s expulsion based on a sexual misconduct allegation.

The case arose after a female student reported an alleged sexual assault to the police department.  No criminal charges were brought.  Five months after the incident, the female student filed a report with the university police department.

The Dean of Students Office notified the respondent its investigation found “it was more likely than not [the respondent] engaged in non-consensual sexual activity” with a woman he knew was incapacitated.  The respondent was found responsible for violating the sections of the Code of Conduct relating to furnishing alcohol to an underage person (§ F(15)) and sexual misconduct (§ F(23)). The Dean of Students Office ordered the respondent expelled.  The respondent asked for a hearing.

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A trial court in a Washington divorce generally has broad discretion in the disposition of property and debts.  Once the court enters the dissolution decree, though, it generally may not modify the property division unless there are conditions justifying the reopening of a judgment.  The court may, however, correct clerical errors pursuant to CR 60(a). The court may not correct judicial errors, which involve “errors of substance.”

In a recent case, a husband challenged a court order that he argued changed the distribution of debt after he had moved for clarification of the original decree.

In his divorce petition, the husband had requested the debts be split equally and paid from the proceeds of the real property the parties owned together.  The trial court awarded the husband the landscaping business along with its premises, equipment, and debt.  The court awarded the wife $38,000 in spousal maintenance. The “Petitioner’s Debt” section of the decree stated the husband pay the 16 listed debts.  Next to a mortgage debt and accounts in the husband’s name, the court wrote 100%.  The court did not write any percentage next to two items on the list.  The rest of the items had 50% written by them.

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