It was alleged to have happened in 1999, which just happens to be 20 years ago. Meredith Watson’s attorney wrote a statement alleging two rapes, one by an unnamed Duke basketball player, the other by now-Lt. Governor Justin Fairfax. According to the lawyer’s statement, they happened at Duke University. They happened 20 years ago.

But Watson graduated from Duke long ago. Other than being the site of these two-decade old allegations, Duke has nothing to do with this, but that’s not going to stop it from pretending it’s relevant.

Duke’s interest in an allegation from 1999 goes well beyond sports. The university and its administrators had reporting obligations under both Title IX and the Clery Act. These are federal laws designed to prevent and deter sexual harassment, violence and discrimination on college campuses. While potential civil liability and government fines under these laws have likely passed due to the impracticality of enforcement two decades later and the expiration of relevant statutes of limitation, the university will nonetheless want to self-assess its compliance.

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There’s a possibility that a group of Assistant United States Attorneys plan to hop on their chopped hogs and take to the road, their rep ties flapping in the wind. And should they do so while wearing the colors of the Mongols Motorcycle Club, the enforcement of trademark against them might raise a hoary issue.

In 2008, the government filed RICO, or racketeering, charges against certain members of the Mongols Motorcycle Club. In the process, the Justice Department also sought forfeiture of the club’s trademark in its logo, a distinctive design that combined words and images to signify membership in the group.

After members were indicted, the Justice Department obtained a pretrial order authorizing confiscation of items bearing the Mongols’ logo.

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There is a certain amusement about the “free the nipple” movement, as women challenge the criminalization of baring their breasts in public. A victory was scored in Colorado. The New Hampshire Supreme Court has just handed the nipple a defeat. The law at issue expressly criminalized the public display of female breasts.

Callanan testified that Pierro was arrested for violating Laconia City Ordinance § 180-2 (the ordinance), which states, in relevant part, that “it shall be unlawful for any person to knowingly or intentionally, in a public place: . . . [a]ppear in a state of nudity.” “Nudity” is defined as “[t]he showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple.” Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180-4 (1998).

Unequal protection? The court wasn’t biting. Continue reading →

The following is a guest post, at my “request,” from Guy Hamilton-Smith.

Michigan’s Attorney General has entered the cultural and legal conflagration of how we reckon with sexual violence in our society with a remarkable (and compelling) argument: Michigan’s sex offender registries are not effective at stopping sexual violence.

It’s a remarkable argument. Safety and accountability have been the ostensible watchwords in our ongoing collective discussion of sexual violence, but strong (and understandable) emotion has tended to override those concerns and diverted discourse into negative-feedback loops of ever more brutal consequences for anyone who would even be perceived to stand in the way of that punitive impulse. Just ask Aaron Perksy. Continue reading →

Each story has its own variations, each of which give rise to significant issues of their own, but share a few primary things in common. They involve men who were not alleged to have committed any crime, provided you’re not of the misguided view that failure to comply with the unlawful demands of police for identification is close enough. And they were caught on video.*

The first comes from Broward County, where Deputy James Cady demands that Allen Floyd, holding his child, show identification.

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Decades ago, my parents sold my childhood home in New Jersey. Between contract and closing, they held a garage sale to shed their burden of packing their history, and mine. There were many things on the front lawn I wanted to keep, but Dr. SJ and I were just starting out in our lives as grown-ups, and had no place to put them. She was adamant that I had to let it go.

I’ve had regrets. I regretted not taking my father’s World War II uniforms, for example. HIs field jacket. His Eisenhower jacket. His boots and caps. And then there were the fish plates. My great grandmother, Grandma Oliner, left them to my mother, a complete set of antique fish plates. Each plate bore the painted image of a different fish. It’s not that I cared or knew much about fish. I was not a big fish guy, whether to catch them or eat them. But the plates were magnificent.

Yet, Dr. SJ insisted that we leave them behind, to be bought by any random person with loose change in their pocket. After all, where we would put them? What would we do with them?  Continue reading →

When Virginia Lt. Gov. justin Fairfax was accused by Vanessa Tyson of forcing her to engage in oral sex, it was close enough to the edge of possible doubt that by the “weighing of the equitites” one could entertain the possibility that it didn’t happen.

After all, Fairfax was a black Democratic pol, about to replace ol’ Frank “Blackface” Northam, and suddenly, out of nowhere, boom, an accusation of sex assault appears where it was never raised before. That it wasnt corroborated has no legal consequence, but it allows us to escape the sense that it wasn’t of recent creation, whether in whole or in “realization.”

Why it wasn’t raised before, if it happened, is a mystery. When he ran for office, no one came forward. Why Tyson chose not to go to the police if it happened can be rationalized away with the usual excuses, but still raises doubts. The choice to do nothing could mean that she perceived it as consensual at the time, and only by a change in her perspective did it morph into an assault in retrospect. Continue reading →

The Senate Judiciary Committee has sent the nomination of William Barr to the full Senate for confirmation, which should come as no surprise to anyone. He’s a horrible choice for many reasons to those of us who favor the constitutional rights of the accused and challenge mass incarceration as the cure for whatever ails society. But that he possesses the qualifications to serve as Attorney General, even if he’s the worst possible choice, isn’t in serious dispute.

Or is it?

During Barr’s Senate confirmation hearings in January, Barr was asked whether he believed race and racism plays any role in the American criminal legal system. This should have been a softball question for the nominee. The evidence that racism has been a prevalent, pernicious and profound force within our system of justice is well known and well-documented. Continue reading →

We aren’t a religious nation by law, but a lot of facts tend to make us one. Prayer is offered before Congress. Our currency says so. For some, this brings comfort, and there’s nothing wrong with that. For others, it strikes at the First Amendment, which not only promises us the right to believe in the religion of our choice, but to not believe. The Establishment Clause precludes the government from siding with religion, or any particular religion.

Then there’s Alabama. It’s not bad enough that he was executed last night, but they wouldn’t let him have his choice of spiritual adviser at his side. A stay was sought at the Eleventh Circuit and granted. After all, they can always execute him later. But the Supreme Court lifted the stay and now Ray is dead.

On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

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At Minding the Campus, KC Johnson considers a proposal propounded by the Harvard Three.

Few academics have more credibility on Title IX issues than Harvard Law professors Jeannie Suk Gersen, Nancy Gertner, and Janet Halley. The Suk/Gertner/Halley comment criticized the proposed regulations on definitional questions, but strongly endorsed the need for the government to mandate a fair process for both sides.

Like KC, the Harvard Three have established their cred on the issue, risking censure for their failure to adhere to the Title IX orthodoxy. So what did they have to say about cross-examination at Title IX hearings? Continue reading →