Immediate Past President Joey McCutchen

Green Miss You Heart Shaped Photo Collage (4)

Joey H. McCutchen, II, a trial lawyer, currently serves as the President of the Arkansas Trial Lawyers Association (ATLA).  He has been an ATLA member for over 20 years and has served on the ATLA Board of Governors since 2003. He received ATLA’s 2013 Citizen Merit award which is given to an attorney who seeks to foster greater public understanding of the rights and liberties that ATLA seeks to preserve, or further the public’s knowledge in regard to the prevention of injury.

In 2017, Joey was the recipient of the ATLA Roxanne Wilson Advocacy Award that is given to those ATLA members whose love of the law, the legal profession and advancement of advocacy is reflective of those same qualities of the late Roxanne Wilson, for whom the award is named.

Joey is the founder of the Transparency in Government Group of Western Arkansas.  The group was established in 2015, and is a leading advocate for transparency in government entities by providing educational seminars with keynote speakers open to the public. The mission of the Transparency in Government Group of Western Arkansas is to ensure maximum transparency and openness in governmental affairs involving taxpayer monies. As an example, objectives of the group are to encourage the public to learn how to legitimately question governmental officials, encourage the public to become familiar with the respective procedures to access information from governmental agencies, and encourage timely notification and disclosure of all public meetings and open disclosure of any decisions reached during those meetings Joey has been instrumental in bringing litigation to uphold the public and media’s right to know governmental business and has fought against efforts to eliminate important sunshine laws in the Arkansas Freedom of Information Act.

More than 27 years ago, Joey established the law office of Joey McCutchen, later, McCutchen & Sexton – The Law Firm in Fort Smith, founded on two unbending principles:  first, the law firm would only represent injured consumers and would never represent insurance companies or big business; and second, that every case is taken and prepared as if it is going to go to trial.  Joey also fights against all efforts of big business to take away the constitutional rights of the injured, the elderly, and our most vulnerable—the children.

Joey is a nationally recognized faculty member and instructor for the Keenan Ball Trial Lawyer College teaching trial strategy nationwide since 2009.

His community service includes serving on numerous Boards, the Fort Smith Boys & Girls Club Alumni & Friends Association and previously on the Board of the Fellowship of Christian Athletes, but more importantly, spearheading numerous safety campaigns under the firm’s Project Safety campaign, including “Take 25” Child Safety Project, Distracted Driving programs to students and the annual Child Seat Safety Project.   He has been selected to the Fort Smith Boys & Girls Club Hall of Fame for his sustained mentoring with the youth of the community.  He was instrumental in starting the ATLA Docket “Goods Works” column and has been featured in the same publication.  For more than 25 years, he has chaired Continuing Legal Education seminars to educate Arkansas trial lawyers about personal injury cases.  Joey has raised his family to believe that respect of others is one of their most important duties.  Unfortunately, he lost his beloved wife, Tara, in 2017 who devoted most of her adult life to helping students to better themselves and is a devoted father to his daughters Elizabeth and Victoria.

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Secretary-Treasurer Carter Stein

Green Miss You Heart Shaped Photo Collage (3)

Carter C. Stein, Esquire, earned his J.D. from the University of Arkansas at Little Rock William H. Bowen School of Law in 2003. He earned a B.A. in History from the University Of Arkansas in 2000.  Carter joined McMath Woods P.A. in April 2010. His practice areas include injury and wrongful death cases and insurance disputes. He is a member of The American Association for Justice, Arkansas Bar Association, and Pulaski County Bar Association. Carter has been a member of the ATLA Board of Governors since 2008 and was named the 2010 Outstanding Member of the ATLA Young Lawyers Division. He and his wife, Emily, have two sons, Bowman and Charlie.

Vice President Alan Lane

Green Miss You Heart Shaped Photo Collage (2)

Alan L. Lane,  J.D., was raised in San Diego, California and graduated from Coronado High School in 1987. In 1993, he received his Bachelor’s Degree in Economics and Finance from Arkansas Tech University and then attended the University of Arkansas to receive his MBA in 1996. From there, Alan worked in the transportation industry for J.B. Hunt Transport and Trism, Inc. specializing in sales and management of private fleets for customers in the hazardous materials and explosive industries. Alan earned his J.D. in 2003 from the University Of Arkansas School Of Law and is licensed to practice law in Arkansas, the U.S. District Courts in Eastern & Western Districts of Arkansas, and the U.S. Court of Appeals 8th Circuit. Alan is AV rated with Martindale-Hubbell and a partner in the Odom Law Firm, P.A. where he focuses his practice primarily in the areas of commercial litigation, personal injury, construction site injury, and hospital negligence.  In addition to being an executive officer in the Arkansas Trial Lawyers Association, Alan is a member of the Arkansas Bar Association (House of Delegates), the Washington County Bar Association (Past President), American Association of Justice (AAJ), and the American Board of Trial Advocates (ABOTA). Alan’s wife, Terri Lane, is the Executive Director of the Northwest Arkansas Land Trust. Alan and Terri have two daughters, Eliza and Ivy.

 

 

President-Elect Bryce Brewer

Anthony Bryce Brewer, Esquire, was born in Jonesboro and graduated from Jonesboro High School in 1992. In 1996, he received his Bachelor’s Degree in Agriculture with an emphasis on agri-business.  From there, Bryce earned his J.D. in 2000 from the UALR William H. Bowen School of Law and is licensed to practice law in Arkansas and Tennessee, as well as in the U.S. Federal Courts. He focuses his practice primarily on personal injury, nursing home negligence, social security disability, family law, and criminal defense. He is a member of the Pi Kappa Alpha fraternity, the Arkansas Trial Lawyers Association, the American Association for Justice and the Pulaski County and Arkansas Bar Associations. He and his wife, Beth, hGreen Miss You Heart Shaped Photo Collage (5)ave two children.

President Jesse Gibson

Green Miss You Heart Shaped Photo Collage

Jesse Gibson, Esquire, was raised in Lead Hill, Arkansas, and graduated from Lead Hill High School in 1992.  In 1996, he earned his B.S. in Business Administration, cum laude, from the University Of Arkansas. He earned his J.D., with honors, in 1999 from the UALR William H. Bowen School of Law.  Jesse was also a member of the UALR Law Review. He is licensed to practice in Arkansas, as well as U.S. Federal Courts. After obtaining his law license, Jesse worked for Dover Dixon Horne, in Little Rock, until 2002, when he founded the Gibson Law Firm, PLLC.  He is focused primarily on consumer protection, personal injury, medical negligence, and general civil litigation. Jesse was named the Outstanding Young Trial Lawyer in 2005 by the Arkansas Trial Lawyers Association. He is a member of Kappa Alpha Order, the Arkansas Trial Lawyers Association, the Pulaski County Bar Association, and the Arkansas Bar Association, where he serves on the House of Delegates.  He also serves as the Chairman of the Little Rock Parks and Recreation Committee. Jesse and his wife, Amanda, have two children, Jack and Jude. They live in Little Rock and attend Pulaski Heights Methodist Church.

#SpeakerSpotlight: Saturday’s Annual Convention Speakers

Don't Panic, It's Organic.

ATLA’s 2018 Annual Convention is April 26 – 28, is just a few weeks away. For the ATLA family, Convention is a wonderful time to cultivate friendships and grow as attorneys. As the anticipation around Convention builds, so does the excitement about our featured speakers!
Join us at ATLA’s Annual Convention to hear innovative, trailblazing speakers including: Jim Mitchell All Things Voir Dire, Jenny Greene presenting Trial Lawyer Inc: How We Protect Our Profession as a Brand with Our Everyday Actions, Rhonda Davis answering all your questions about Medicare Set Asides, and Breean Walas asking Who Needs A Vacation? Click here to register.

Jim Mitchell has extensive experience in representing clients seeking to recover damages in significant personal injury and wrongful death cases. He formed Payne Mitchell Law Group with Andy in 2007. Jim’s practice areas include product liability, medical malpractice, general negligence, nursing home negligence and class actions. Over the course of his 25+ years as a trial lawyer, he has handled all types of catastrophic injury and death cases and tried dozens to jury verdict. He achieved a landmark $38 million verdict against GM for a defective airbag case — the first of its kind in the country. Jim has proved that he is willing to take a case to court to bring justice to injured victims and has helped hundreds of families in serious cases over the last 25 years.

 Jenny Greene graduated from Rhodes College in Memphis, TN with a B.A. in History and a B.A. in Political Science. She graduated from the University of Arkansas at Little Rock School of Law in 2003. She also studied at Tulane University Law School. Her practice focuses on multi-district litigation, high-asset divorces, and personal injury matters.  She is special counsel to Scott, Hair, Vicknair & Checki, LLC. She is active in Louisiana Association of Justice, AAJ and numerous civic and non-profit organizations.  Ms. Greene is an alumnus of the AAJ Leadership Academy and the Institute of Politics at Loyola University.

Rhonda Davis pursues cases in personal injury, medical malpractice, legal malpractice, and nursing home litigation. Rhonda has offices in Akron, OH and Marked Tree, AR. Raised on a small farm in Bono, AR, she graduated from Arkansas State University. She received a Rotary International Graduate Scholarship to Macquarie University Law School, Sydney, Australia and graduated from University of Mississippi Law School. Rhonda served as an Assistant Attorney General in Tennessee’s Antitrust Division, prosecuting bidriggers and pricefixers.

Breean Walas, Esquire, has a B.A. in American Studies from Cornell University, where she was a four-year starter on the women’s basketball team. She graduated from the University of Cincinnati College of Law in 2005 and that same year moved to North Little Rock to clerk for Associate Justice Donald Corbin of the Arkansas Supreme Court. Breean founded Walas Law Firm, PLLC. As an ATLA member, Breean serves on many Committees and is a past recipient of the ATLA President’s Award.  She also is a member of the Order of the Barristers as well as the Arkansas Bar Association, National LGBT Bar Association, and Public Justice Foundation .

 

#SpeakerSpotlight: Friday’s Annual Convention Speakers

Don't Panic, It's Organic. (1)
ATLA’s 2018 Annual Convention is April 26 – 28, is less than a month away. For the ATLA family, Convention is a wonderful time to cultivate friendships and grow as attorneys. As the anticipation around Convention builds, so does the excitement about our featured speakers!  Click here to register today!
Join us at ATLA’s Annual Convention to hear innovative, trailblazing speakers including: AAJ  Parliamentarian Tad Thomas sharing Legal Technology for 2018 & Beyond, Morgan & Morgan’s Keenan Nix with Cross Examination: Mastering the Art of Deposition Taking, Special Needs Planning from Forge’s Peter Wayne, and Medivest’s Craig Pawley presenting Liability Medicare Set Asides & Professional Administration.

Tad Thomas is the founding partner of Thomas Law Offices in Louisville, KY.  His firm practices solely in the areas of civil litigation with a focus on medical device and pharmaceutical products liability, motor vehicle, trucking and motorcycle collisions and nursing home neglect and abuse.  He is very active in AAJ serving as Parliamentarian on Executive Committee and many other committees, sections and litigation groups.  He is a cum laude graduate of Salmon P. Chase College of Law at Northern Kentucky University and undergraduate degree from Georgetown College.

Keenan R.S. Nix is a partner of the trial law firm of Morgan & Morgan.  He graduated from the Wharton School of Business and The University of Pennsylvania School of Law. In 2016, Keenan led the trial team that won an $11 million dollar verdict against Papa John’s Pizza for brain damaging his client for life in a head on collision and refusing to accept responsibility for the wreck. That verdict was named one of the top 10 verdicts in the country for 2016.  His trial practice focuses on catastrophic injury, wrongful death, and business tort litigation. He was inducted into the Gate City Bar Association Hall of Fame in 2018.

Peter Wayne serves as an administrative and business development officer for the Forge Companies, while also serving as counsel to Advocacy Trust. He originally served as a settlement planner and attorney for Forge Consulting, then returned to the Forge after gaining experience at Wyatt, Tarrant & Combs, LLP and Stock Yards Bank & Trust Company.  Peter serves on the Board of Directors for Louisville Public Media the Louisville Bar Association as Secretary.He is also an advisory board member to Life Plan of Kentucky.

Craig Pawley is currently the Director of Sales for Medivest Allocation Services and Medivest Benefit Advisors. As an expert in this field, Craig has presented numerous training sessions on Medicaid Set Aside, Professional Admin, and SCHIP compliance to claims organizations, trial lawyer associations insurance carriers, attorneys, third-party administrators, and self-insured companies. Craig has worked in the MSP Compliance field since 2005 and has fostered the completion of over 4500 MSA allocations..

 

#SpeakerSpotlight: Thursday’s Annual Convention Speakers

ATLA’s 2018 Annual Convention is April 26 – 28, a month away. For the ATLA family, Convention is a wonderful time to cultivate friendships and grow as attorneys. As the anticipation around Convention builds, so does the excitement about our featured speakers! Join us at ATLA’s Annual Convention to hear innovative, trailblazing speakers including: Mark Lanier discussing “New Ways to Win at Trial,” Ken Connor with “Winning Your Case In Jury Selection,” Andy Payne “A Profitable PI Practice: Ideas on Case Acquisition, Evaluation and Profitability” and a Legislative Update from Chad Gallagher, Isaac Wright and Bob Edwards.

Fall is here!

Mark Lanier is an attorney, author, teacher, pastor and expert story teller. Since he founded The Lanier Law Firm in 1990, Mark has earned international recognition as one of the top trial attorneys in the United States, with firm offices in Houston, New York and Los Angeles supporting his work for clients across the country. Chairmen, company presidents and senior executives from major corporations and universities often call on him for his respected business views on national and international issues. An accomplished author, Mark recently published the books, Christianity on Trial and Psalms for Living: Daily Prayers, Wisdom, and Guidance.  Mark and ,his wife, Becky, have five children.

Kenneth L. Connor, a founding member of Connor & Connor, LLC, has been an active trial lawyer since 1972. Ken received his B.A. and his Juris Doctorate from Florida State University. Licensed to practice law in fourteen states and the District of Columbia, Ken has tried cases from Florida to California. Ken resides in Aiken, SC.

Andy Payne is the founding partner of Payne Mitchell Law Group. He is double Board Certified-Personal Injury Trial Law by the Texas Board of Legal Specialization and Civil Trial Law by the National Board of Trial Advocacy. He graduated at the top of his class from Baylor Law School, where he served as Editor of the Baylor Law Review. He is active member of  Dallas Trial Lawyers Association, the TX Bar Foundation and Dallas Bar Foundation, TX Trial Lawyers Association and AAJ Leaders Forum. He has served on the TX Bar Association and Dallas Bar Association Board of Directors.

 

Chad Gallagher, an Ouachita Baptist University graduate, became the youngest mayor in the nation in 1998.  He served as a policy adviser Gov. Huckabee for city, county and local affairs, oversaw the legislative war room, appointments to boards and commissions and intergovernmental affairs. His experience in the political world has made him well versed and nimble in public relations, strategic development, messaging and crisis control. In 2007, Chad launched Legacy Consulting. Through this venue he’s worked with leaders in the private and public sector both at every level.

Isaac Wright is a communications operative and strategist in campaigns and public affairs. He has appeared on CNN, Fox News Channel and countless other television and radio stations as a political commentator. As Communications Director in the Office of Governor Mike Beebe, he was the youngest in the country at that time. He has been described by columnists as “closed captioning for the candidate” and “overseer of the message. ”Specifically, his rapid response work was described in one news account as “stealing another candidate’s sunshine.”

Bob Edwards received his B.A. in Biology from Hendrix College . He earned his JD from the Bowen School of Law in 1998. He was an integral part of the successful team that worked to elect Attorney General Mark Pryor. He served as the Chief of Staff for Pryor. Before opening his own firm in 2013, Bob was with Wilkes & McHugh. His practice is focused primarily on nursing home and tractor-trailer litigation. He’s a member of ATLA, AR Bar Association, American Bar Association, and AAJ.

Register today by clicking here!

 

#ATLAFam Reunion-2018 Annual Convention

Ice Cream Party (1)
It’s an #ATLAFam Reunion! Feel the family love and join us at ATLA’s Annual Convention 2018: #ATLAFam! Reminisce about yesteryear with your ride or dies and welcome new members into the fold. While we’re enjoying relationships old & new, our speakers will lead us forward to learn the latest legal trends and trial methods to ensure you win your cases.  Register today by clicking here.
The networking, learning, and celebration at ATLA Convention is unmatched – don’t miss it! Check out the agenda below:
Thursday, April 26, 2018
9:30-11:30 ATLA Board of Governors Meeting
11:00 Registration Opens
11:30-12:00 Lunch Break
12:00 Convention Welcome & Opening
12:15-1:15 Legislative Update
Panel of Experts
1:15-2:15 Winning Your Case in Jury Selection
Ken Connor, Esquire
2:15-3:15 A Profitable PI Practice: Ideas on Case Acquisition, Evaluation and Profitability
Andy Payne, Esquire
3:15-3:30 Ice Cream Social
3:30-5:30 New Ways to Win at Trial
Mark Lanier, Esquire
5:30 Adjournment
5:30-6:30 Opening Night Reception
6:30 Elite Member Dinner
5:30-8:00 Hospitality Suite Open
Friday, April 27, 2018                        
7:30 Registration Opens/ Breakfast
7:45 Opening Announcements
8:00-9:00 Legal Technology Tools for 2018 and Beyond
Tad Thomas, Esquire
9:00-10:00 Cross Examination: Mastering the Art of Deposition Taking
Keenan Nix, Esquire
10:00-10:10 Break
10:10-11:10 Special Needs Planning
Peter Wayne, FORGE
11:10-12:10 Liability Medicare Set Asides and Professional Administration
Craig Pawley, Medivest
12:30 Awards Luncheon
2:00 Business Meeting & Officer Elections
2:30 IMPACT Meeting
3:00 New Lawyers Network Meeting
3:00-7:00 Hospitality Suite Open
7:30-10:00 Party for Incoming President, Jesse Gibson
Saturday, April 28, 2018
7:30 Registration Opens/ Breakfast
7:45 Opening Announcements
8:00-9:00 Who Needs a Vacation? The Ethics of a Balanced Life*
Breean Walas, Esquire
9:00-10:00 Voir Dire
Jim Mitchell, Esquire
10:00-10:10 Break
10:10-11:10 Medicare Set Asides
Rhonda Davis, Esquire
11:10-12:10 “Trial Lawyer, Inc.” How We Protect Our Profession as a Brand with Our Everyday Actions*
Jenny Greene, Esquire
12:10 CLE Adjournment
*Ethics Hour
Convention will be held at the Best Western Inn of the Ozarks, located at 207 West Van Buren in Eureka Springs, Arkansas. Book your room today by calling 479-253-9768 and asking for the ATLA room block.
Register today by clicking here See you there!
Invite a friend to ATLA Convention by sharing our Facebook event with your friends and colleagues!

POLICY RESPONSES TO SEXUAL HARASSMENT, ASSAULT, and RAPE

This article originally appeared in the Winter 2018 ATLA Docket.

POLICY RESPONSES TO SEXUAL HARASSMENT, ASSAULT, and RAPE

By Ross Noland[1]

Introduction

Harvey Weinstein. Roger Ailes. Bill O’Reilly. Kevin Spacey. Louis C.K. Glen Thrush. Roy Moore. Russell Simmons. Brett Ratner. Al Franken. Matt Lauer. George H.W. Bush. Charlie Rose. Those accused of sexual harassment, assault, and rape in the past in the past few months know no societal or political bounds. Trusted names and faces are accused of committing terrible acts. Victims will expose more assailants before this article is published. Our nightly news and social-media feeds highlight the scope and severity of a sexual harassment, coercion, and violence epidemic. A recent ABC News-Washington Post poll revealed that more than half of all American women report being the target of “unwanted and inappropriate sexual advances,” with more than 30% of those respondents identifying men in positions of power and influence over their careers as the culprits.[2] 95% of those alleged assailants are unpunished.[3]

Sexual harassment and assault in the workplace and public spaces is illegal. Federal Courts interpret Title VII of the Civil Rights Act’s prohibition against employer discrimination based on sex to include sexual harassment.[4] Aggrieved employees may file a complaint with the Equal Employment Opportunity Commission (EEOC) alleging an employer sought either a quid pro quo of sexual favors for favorable employment decisions, or created a hostile work environment through unwanted and offensive sexual harassment.[5] The Arkansas Supreme Court interprets the Arkansas Civil Rights Act to similarly prohibit sexual harassment.[6] Arkansas also criminalizes sexual assault, establishing the crime of sexual assault in the first through fourth degrees, with punishments ranging from a Class A to a Class D felony.[7]

The purpose of this article is not to review the current law, but rather to suggest how Arkansas policy makers may engage in proactive work to improve state law as it pertains to sexual harassment, assault, and rape. This includes legislation needed to create sexual harassment prevention and reporting training, establish a state agency for processing employment discrimination claims, closing the aggravated residential burglary sexual assault loophole, and providing rape shield protection in civil cases.

Train Government Employees to Prevent Sexual Harassment

State government is the largest employer in Arkansas.[8] Requiring sexual harassment reporting and prevention policies in agencies, courts, and commissions will set an example for private employers and individuals alike. An ideal place to begin implementing such rules is our chief policy making body: the Arkansas Legislature.

State legislatures throughout the country are grappling with allegations of rampant sexual harassment by their members. Staffers, lobbyists, and legislators themselves state a toxic culture of sexual harassment exists in Texas,[9] California,[10] Illinois,[11] Massachusetts,[12] and Florida[13] and other states. Arkansas should act now to root out any such behavior, and proactively prevent it through sexual harassment reporting and prevention training and enforcement.

The Texas House of representatives acted quickly to revise its Policy and Procedures Manual in the wake of scandal in their state house.[14] The new policy require new hires receive sexual harassment prevention training within 30 days of beginning employment, and every two years afterwards, while making reporting avenues clear and available.[15] Several state legislatures, including Colorado[16] and California,[17] have robust rules in place either through policy or statute. A review of these rules and others provides several tenets of what a thorough sexual harassment reporting and prevention policy in the workplace (be it the legislature or a private company) must contain:

  • Mandatory sexual harassment reporting and prevention training within thirty days of hiring.
  • Clear definitions and examples of what constitutes sexual harassment which closely track the EEOC definition.[18]
  • Readily available and defined points of contact for receiving complaints.
  • Investigation and documentation timeframes and policies.
  • Cast a wide net on who is subject to the rules, such as requiring lobbyists and state agency government affairs officers to comply with training programs as a condition of their registration or employment.
  • Employment, whistleblower, and mental health safeguards and protections for victims, including information on criminal civil justice options.
  • Penalties for engaging in sexual harassment.

Additionally, sexual harassment reporting and prevention policy is best adopted through laws and regulations, as opposed to relying on best practices and employee handbooks or manuals, to encourage uniformity in practice and availability to the public.

Arkansas has not attracted the national attention and reporting of sexual harassment in the state house that many of its sister states have, but one sitting representative, Vivian Flowers, related publicly that she experienced sexual harassment as an employee of the House in years past.[19] Rep. Flowers states “grown men put their hands on me.”[20] The article also quotes Rep. Greg Leding as stating he witnesses acts “all the time” that make him uncomfortable.[21] The time for the Arkansas Legislature to act to implement a viable sexual harassment policy is now, before more people are harmed and harassing behavior is exposed in the media without a competent policy response in place.

Establish a Fair Employment Practice Agency in Arkansas

Arkansas is one of only three states[22] without a state agency designated as a Fair Employment Practice Agency (FEPA) by the EEOC. This lack of a state agency, such as the “Arkansas Commission on Civil Rights,” or the “Arkansas Equal Rights Commission,” has several impacts on the ability of sexual harassment victims to pursue claims.

The most practical limitation created by Arkansas’s lack of a FEPA is the applicable statute of limitations. Title VII of the Civil Rights Act generally requires a complainant to file within one-hundred and eighty days of the sexual harassment or other unlawful employment action.[23] As plaintiff’s attorneys, we know it is difficult to find a client, engage them, investigate the case, and file a complaint in a truncated one-hundred and eighty day period. However, when a state has a FEPA designated agency, the time limitation for filing a complaint is extended to three-hundred days.[24] A second practical impact is the availability of resources and reporting avenues for Arkansas residents. A FEPA designated agency would allow more Arkansans to seek, in a timely manner, investigation into unfair employment practices.

The United States Commission on Civil Rights prepared a 2015 report examining Arkansas’s lack of a FEPA.[25] The report, while discussing comments made by the director of the EEOC’s Little Rock District Office, characterized the situation as a “sub-standard level of protection in comparison to most other states.” Arkansas can do better, and eliminate itself from at least one list we share with Alabama and Mississippi, by providing those suffering employment discrimination, including sexual harassment, an avenue to justice sponsored by its state government through a FEPA compliant agency.

 Close the Residential Burglary Sexual Assault Loophole: Inskeep v. Arkansas

 In April 2014, Nathan Inskeep followed a Marmaduke woman home from the grocery store and entered her home uninvited while naked from the waist down and masturbating.[26] He chased her through her home while she attempted to fight him off.[27] Her infant daughter, who she was holding during the ordeal, suffered minor injuries.[28] Inskeep fled when the woman’s husband awoke and chased him out of the house, and the police soon apprehended him.[29] A Greene County jury later convicted him of aggravated residential burglary. The conviction would not, however, stand.

On March 2, 2016, the Arkansas Court of Appeals issued an opinion finding insufficient evidence that Inskeep “intended to cause serious physical injury,” when he attempted to sexually assault the woman.[30] Intent to cause serious physical injury is a requirement to establish aggravated residential burglary, and thus receive a higher sentence.[31] The Arkansas Supreme Court denied a petition review on May 5, 2016.[32] As a result, intent to commit sexual assault is not enough, under Arkansas law, to constitute aggravated residential burglary without additional proof of the attacker’s intent to cause serious physical injury. The Court cut Mr. Inskeep’s sentence in half, finding him guilty of a lesser offense.

Media outlets reported that public response to the decision was adverse, quoting Second Judicial District Prosecuting Attorney Scott Ellington as saying that “from all the calls and messages that I received, the public is outraged by this decision to reduce this charge considering the facts that were made.”[33] The public, as a whole, is not responsible for statutory language allowing a sexual assault to escape heightened sentencing. Its elected officials are.

The legislative solution to this loophole is simple: amend Arkansas’s aggravated residential burglary statute to include the “intent to commit sexual assault” as an additional aggravating factor. This is a straightforward legislative action which will show Arkansas does not tolerate sexual assault.

Civil Rape Shield

Statistics vary according to source, but on average, only one in three sexual assaults are reported to police.[34] Barriers to reporting, and in turn pursuing justice, are many, but common ones include shame or embarrassment, confidentiality concerns, and fear of not being believed.[35] Many states, including Arkansas, partially address this issue on the criminal side of the justice system by enacting rape shield laws.[36]

Arkansas law prohibits the introduction of evidence of specific instances of the victim’s prior sexual conduct when a criminal sexual offense is at issue in the case.[37] This protection is not extended to civil cases in Arkansas for victims seeking monetary or other civil relief. Thus, Arkansas does not honor the “important purpose of rape shield laws” in civil cases, as it offers no means of encouraging reporting “by preventing embarrassment and the prevention of reliance on misconceived notions about sexual misconduct.”[38]

In federal court, evidence to prove either a victim engaged in other sexual behavior, or a victim’s sexual predisposition, is generally not admissible in civil or criminal proceedings.[39] No such protection exists in Arkansas Rules of Evidence. Several states do follow the federal example.[40] Arkansas can empower rape victims to seek civil justice by doing the same and either creating a rule of evidence or statute to establish a civil rape shield law. Doing so will break one of the barriers to reporting rape and assault, and provide a clearer path to civil, as well as criminal, justice for victims.

Conclusion

The policy changes discussed here certainly will not solve the sexual harassment, assault, and rape epidemic. Change in the law, and individual behavior, is often incremental despite the glaring need for radical change. Taking the actions defined here will move Arkansas in the right direction, with the understanding we must do more.

[1] The author owns Noland Law Firm, P.A., where he practices environmental law and litigation. He holds a J.D. from the University of Arkansas, and an LL.M. from George Washington University. Ross is a candidate for Arkansas House of Representatives, District 33.

[2] Langer, Gary, Unwanted sexual advances not just a Hollywood, Weinstein story, poll finds, ABC News, October 17, 2017: http://abcnews.go.com/Politics/unwanted-sexual-advances-hollywood-weinstein-story-poll/story?id=50521721.

[3] Id.

[4] 42 U.S.C. § 2000e-2(a); Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986).

[5] 29 C.F.R. §§ 1604.11(a)(2) and (3).

[6] Ark. Code Ann. § 16-123-101 et seq.; Island v. Buena Vista Resort, 352 Ark. 548 (2003).

[7] Ark. Code Ann. §§ 5-14-124 through 127.

[8] Arkansas’ Largest Employers-2014, Arkansas Economic Development Commission, Oct. 2014: http://www.arkansasedc.com/sites/default/files/content/users/lcogbill/arkansas_largest_employers_2014_october_2014_esd_1st_qtr_14.pdf.

[9] Ura, Alex, et al., At the Texas Capitol, victims of sexual harassment must fend for themselves, Texas Tribune, November 13, 2017: https://www.texastribune.org/2017/11/13/texas-capitol-victims-sexual-harassment-must-fend-themselves/.

[10] Steinmetz, Katy, Its Not Just Congress. Sexual Harassment Plagues California Legislature Too, Tim Magazine, November 27, 2017: http://time.com/5035689/sexual-harassment-california-legislature-misconduct/.

[11] Stevens, Heidi, Open Letter Alleges Rampant Sexual Harassment in Illinois Politics, Chicago Tribune, October 24, 2017, http://www.chicagotribune.com/lifestyles/stevens/ct-life-stevens-tuesday-illinois-politics-sex-harassment-1024-story.html.

[12] Abraham, Yvonne, Women Describe Climate of Harassment at Massachusetts State House, Boston Globe, October 27, 2017: https://www.bostonglobe.com/metro/2017/10/27/the-stories-sexual-harassment-beacon-hill-are-overwhelming/0a4T5VADqH9ffipiXfpwGO/story.html.

[13] Caputo, Marc, et al., Six Women Accuse Florida Senate Budget Chair Latvala of Groping, Sexual Harassment, Politico, November 3, 2017: https://www.politico.com/states/florida/story/2017/11/03/six-women-accuse-florida-senate-budget-chair-of-groping-sexual-harassment-115479.

[14] Sadasivam, Naveena, Committee Approves New Sexual Harassment Policy for Texas House,Texas Observer, December 1, 2017: https://www.texasobserver.org/committee-approves-new-sexual-harassment-policy-texas-house/.

[15] Texas House Policy and Procedures Manual Draft Sexual Harassment Policy 2017: https://www.documentcloud.org/documents/4318554-Draft-House-Sexual-Harassment-Policy-11-30.html.

[16] Colorado General Assembly, Workplace Harassment Policy Statement: https://leg.colorado.gov/sites/default/files/workplace-harassment-policy.pdf.

[17] Cal. Govt. Code § 12950.1.

[18] EEOC Definition of Sexual Harassment: https://www.eeoc.gov/laws/types/sexual_harassment.cfm.

[19] Turnure, Jessi, Arkansas Lawmaker Speaks up About Sexual Harassment at State Capitol, arkansasmatters.com, November 16, 2017: http://www.arkansasmatters.com/news/local-news/arkansas-lawmaker-speaks-up-about-sexual-harassment-at-state-capitol/858845399.

[20] Id.

[21] Id.

[22] 29 C.F.R. §1601.74; Alabama, Mississippi, and Arkansas show no listed certified agency.

[23] 42 U.S.C. § 2000e-5(e)(1).

[24] Id.

[25] Guarding Civil Rights in Arkansas: The Need for a State Civil Rights Agency, Arkansas Advisory Committee to the United States Commission on Civil Rights, January 2015: http://www.usccr.gov/pubs/Arkansas_GuardingCivilRights.pdf.

[26] Inskeep v. State of Arkansas, 2016 Ark. App. 135, 1-2.

[27] Id.

[28] Id.

[29] Id., at 2-3.

[30] Id. at 1.

[31] Ark. Code Ann. § 5-39-204(a)(2).

[32] Arkansas Supreme Court Proceedings as of May 5, 2016, Per Curiam Orders: http://opinions.aoc.arkansas.gov/weblink8/0/doc/354768/Electronic.aspx.

[33] Update: Judge’s Decision Upheld, KAIT, May 12th, 2016: http://www.kait8.com/story/31382207/update-prosecutor-upset-with-cut-sentence-of-half-naked-burglar.

[34] See eg. Rennison, C.M., Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992–2000, US. Department of Justice, Bureau of Justice Statistics, August 2002.

[35] See eg. Sable, Marjorie, et al., Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students, Journal of American College Health, 2006.

[36] Rape Shield Laws as of March 2011, National District Attorney’s Association: http://www.ndaa.org/pdf/NCPCA%20Rape%20Shield%202011.pdf.

[37] Ark. Code Ann. § 16-42-101(b).

[38] Hines, Patrick, Bracing the Armor: Extending Rape Shield Protections to Civil Proceedings, 89 Notre Dame L. Rev. 879, 880 (2013): http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1071&context=ndlr.

[39] FRE 412(a).

[40] See eg. Ky. R. Evid. 412; Haw R. Evid. 412(d).