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).

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