The Center for Law & Public Policy on Sexual Violence RIGHTS AND REMEDIES: MEETING THE CIVIL LEGAL NEEDS OF SEXUAL VIOLENCE SURVIVORS A project of The National Crime Victim Law Institute @ Lewis & Clark Law School Jessica E. Mindlin, Esq. Liani Jean Heh Reeves, Esq. CENTER FOR L AW & P UBLIC P OLICY ON SEXUAL VIOLENCE National Crime Victim Law Institute at Lewis & Clark Law School 10015 SW Terwilliger Boulevard Portland, OR 97219 www.ncvli.org Copyright © 2005 National Crime Victim Law Institute. This project was supported by Grant No. 2003-WT-BX-KO13 awarded by the Office on Violence Against Women, U.S. Department of Justice. Points of view in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. 2 ACKNOWLEDGEMENTS In 2003, the Center for Law and Public Policy Against Sexual Violence (CLPPS), a project of the National Crime Victim Law Institute (NCVLI) at Lewis & Clark Law School in Portland, Oregon, received a grant from the Office on Violence Against Women (OVW) to assist sexual assault and dual (domestic violence and sexual assault) coalition staff attorneys across the United States. Under the auspices of the OVW grant, the Sexual Assault Coalition Technical Assistance Project (SACTAP) was launched. The OVW grant also funded the development of legal resources for coalitions working on difficult systemic advocacy issues in the civil and criminal justice systems. This guide, Rights and Remedies: Meeting the Civil Legal Needs of Sexual Violence Survivors, is the result of the collaboration of many individuals and organizations that have lent their time and expertise to this project. This guide is best utilized in conjunction with its companion manual, A Criminal Justice Guide: Legal Remedies for Adult Victims of Sexual Violence, which addresses victims’ rights and remedies in the criminal arena. Jessica Mindlin and Liani Jean Heh Reeves are grateful to the many individuals who have contributed to the writing, editing, and production of this guide: Valenda Applegarth, Greater Boston Legal Services; James A. Ferguson and Marnie Shiels of the National Crime Victim Bar Association; Ryan Hagemann, Secretary of the Oregon State Board of Higher Education; Ed Johnson of the Oregon Law Center; Joyce Noche of Legal Momentum; and Robin Runge of the American Bar Association. The SACTAP Advisory Board for their input at all stages of the development process: Kari Robinson of the Alaska Network Against Domestic and Sexual Violence; Lyn Schollett of the Illinois Coalition Against Sexual Assault; Eva Shiffrin of the Wisconsin Coalition Against Sexual Assault; Mary Lee Perry of the Kentucky Association of Sexual Assault Programs; and Sarah Deer of the Tribal Law & Policy Institute. Current and former Lewis & Clark law students Amy Arnett; Stacey Borgman; Carolyn Bys; Caroline Kincaid; Jodee Leroux; Monica Patel; and Nate Pliska. NCVLI Administrative Assistant Julie Hawkins. 3 A Word on Language For simplicity, the terms “victim” and “survivor” are used interchangeably throughout this guide, and a victim or survivor is generally referred to in the feminine form. We recognize that both women and men are victims of sexual violence. According to the Bureau of Justice Statistics, however, “[m]ost rapes and sexual assaults are committed against females. Female victims accounted for 94% of all completed rapes, 91% of all attempted rapes, and 89% of all completed and attempted sexual assaults.” BJS, 1992- 2000, http://www.ojp.usdoj.gov/bjs/pub/pdf/rsarp00.pdf (last referenced August 30, 2005). Disclaimer This guide is current as of September 2005. The guide is intended as a toolkit to provide the attorneys served under the SACTAP project with a framework and checklist of issues to include when creating their own, state-specific, civil legal remedies guide. Nothing herein constitutes legal advice, and each coalition attorney must look to his or her own state or tribal law to create a comprehensive guide. While many individuals and organizations generously contributed to this guide, the authors and the National Crime Victim Law Institute alone are responsible for any errors. 4 CONTENTS INTRODUCTION 17 CHAPTER ONE: SAFETY AND PROTECTION 20 I. Personal Safety 20 A. Practical Considerations 21 B. Civil Protection Orders 22 1. Sexual Assault Protective Orders 23 2. Domestic Violence Protective Orders 25 3. Orders that Protect Elderly, Disabled, or Other Especially 28 Vulnerable Populations 4. Stalking Orders 29 5. General Civil Protection/Anti-Harassment Orders 29 II. Full Faith and Credit 30 A. An Overview of Full Faith And Credit 30 B. Federal Definition of a Protection Order 31 C. Orders Entitled to Full Faith and Credit 32 D. Enforcement of A Protection Order 34 E. Tribal Jurisdiction 36 III. Gun Disposition 36 A. Subject to Qualifying Protective Order 37 B. Convicted of Misdemeanor Crime of Domestic Violence 38 5 IV. Identity Change 40 A. Before Pursuing an Identity Change 41 1. Practical Considerations 41 2. Documents and Records 42 3. Ways a Perpetrator Can Locate a Survivor 43 B. Changing an Identity (A Two-Phase Process) 45 1. Name Change 45 a. Assuming a New Name by Use 45 b. Formal Name Change by Court Order 45 2. Social Security Number Change 46 3. Impediments to Name Change: Pending Civil 47 and Criminal Matters C. Living with a New Identity 48 1. Federal and State Agencies Relevant to the Survivor 48 a. Child Support and Collection Enforcement 48 b. Welfare and Temporary Assistance to Needy 49 Families (TANF) c. Supplementary Security Income and 49 Social Security Income and Social Security Death Index (SSI and SSDI) d. Public Housing Programs 49 e. Immigration 49 2. Resources 49 6 CHAPTER TWO: SAFE HOUSING 50 I. Practical Considerations 50 II. Victim’s Tenancy Rights 52 A. Terminating the Lease 52 1. Under Specific Statutory Provisions for Victims 52 2. Under Traditional Landlord Tenant Law 53 B. Protections for Victims Who Want to Remain or Apply 54 for Tenancy 1. Avoiding Eviction and Discrimination 54 a. Under Specific Statutory Provisions for Victims 54 b. Under Traditional State or Federal Law 55 2. Victim’s Ability to Change Locks and Landlord’s Duties 56 3. Relocation in Public/Section 8/Federally Subsidized 57 Housing C. Sexual Harassment 57 1. Federal Law 57 2. State and Local Laws 58 III. Affordable Housing and Sexual Violence Survivors 59 IV. Resources 59 CHAPTER THREE: EMPLOYMENT 61 I. Background and Overview 62 A. At Will Employment 63 B. Survivors of Sexual Violence and Employment 63 7 II. Safety at Work 65 A. Safety Planning 65 B. Workplace Protection Orders 66 III. Obtaining Leave from Work 67 A. Family Leave and Medical Act 67 B. State Leave Laws and Sexual Violence 69 IV. Application of Anti-Discrimination Statutes 71 A. Title VII 71 B. Americans with Disabilities Act 72 C. State and Local Laws 73 V. Remedies 74 A. Workers’ Compensation 74 B. Occupational Safety and Health Laws and Tort Actions 74 C. Wrongful Termination in Violation of Public Policy and Tort Action 74 D. Whistleblower Statutes 75 VI. Additional Sources of Compensation 75 A. Unemployment Insurance 75 B. Crime Victims’ Compensation 77 VII. Checklists, Sample Materials, Resources 78 CHAPTER FOUR: EDUCATIONAL SETTINGS 79 I. Rights of the Victim in Elementary and Secondary Schools 79 A. Duties of Schools Under Federal Law 79 8 1. No Child Left Behind Act of 2001 79 2. Title IX 80 B. Remedies 81 C. Specific Considerations for Minor Students 81 II. Rights of the Victim in Institutions of Higher Education 81 A. Jeanne Clery Act and Campus Victim’s Bill of Rights 82 1. Jeanne Clery Disclosure Security Policy and 82 Campus Crime Statistics Act 2. Campus Assault Victim’s Bill of Rights 84 3. Remedies for Non-Compliance 85 B. Family Education Right to Privacy Act (FERPA) 86 1. Provisions of FERPA 86 2. Remedies for Non-Compliance 87 C. Campus Sex Crimes Prevention Act 87 1. Wetterling Act 87 2. Jeanne Clery Act 87 3. FERPA 88 D. Foley Amendment 88 E. Title IX 88 1. Title IX Obligations 89 2. Protections from Sexual Violence 90 9 3. School Liability Under Title IX 90 a. Teacher-Student Sexual Violence 90 b. Student-Student Sexual Violence 91 c. Failure to Adequately Respond 91 d. Failure to Prevent Violence 91 e. Off-Campus Sexual Violence 91 f. Privacy Implications 91 4. Remedies for Non-Compliance 92 F. General Duty of Care 92 G. Americans with Disabilities Act (ADA) 93 H. Public Records Laws 93 III. Responding to Sexual Violence on Campus 93 A. Survivor Checklist 93 B. Requesting Special Accommodation 94 CHAPTER FIVE: TORT LIABILITY 95 I. Pros and Cons of Litigation 96 II. Potential Plaintiffs 97 A. Victim 97 B. Guardian on Behalf of Victim 97 C. Victim’s Family 97 D. Class Action 98 10 III. Potential Torts 98 A. Victim Claims 99 1. Intentional Torts 99 2. Negligent Torts 100 3. Federal Claims 102 B. Third Party Claims 102 IV. Potential Defendants and Theories of Liability 104 A. Individual Tortfeasors 104 1. Assailant 104 2. Accomplice 104 B. Third Party/Vicarious Liability 105 1. Vicarious Liability 105 2. Theories of Liability 105 V. Remedies 112 A. Compensatory Damages 112 1. Generally 112 2. Present Value and Inflation 113 B. Punitive Damages 113 1. Generally 113 2. Calculating Punitive Damages 113 3. Procedure 114 C. Attorney Fees 114 11 D. Creative Remedies 114 E. Collateral Source Rule 115 F. Restitution Awards 115 VI. Practical Considerations 115 A. Statutes of Limitations 115 1. Generally 115 2. Tolling 116 3. Child Sexual Abuse 117 4. Statutes of Ultimate Repose 118 B. Claims Against Public Agencies 119 1. Generally 119 2. Federal Tort Claims Act 119 3.