• Copyright © 2012 - 2018 - Mary Kay Elloian, M.B.A., J.D., Esq.
    The Legal Edition® is a Registered Trademark of Mary Kay Elloian, Esq. All Rights Reserved.

Weinstein Not Only Sexual Offender–Court Rulings Cause Needless Harm to Women & Children Victims

November 15, 2017 –  Harvey Weinstein has put a face on a problem that has existed for centuries. Men taking advantage of women because they can. Yet, most thought that in the culture of the western world, this behavior was seen more aberrant or unusual than normal gentry would admit–the Weinsteins, the Cosby’s and a trove of others–including “Judge” Roy Moore–now in the spotlight, have cast this  anachronistic misconception into the trash-bin of history.

Not only is it disturbing enough that men think so little of themselves and to others to show off their wares to unwitting women, they seem to do so with an air of impunity and defiance. Yet, money, power and arrogance are no match for state sponsored approval of such behaviors inflicted on children.

In the course of the day of school students across America, predators lurking in the classrooms, on the bus, and in the hallways have made the most vulnerable in society less safe–with the help of lawmakers and the courts.

As an example, we turn to the issue of Tort Immunity. While those who advocate for tort reform have no interest in protecting those who have been harmed, a peek into the federal and state versions can give one a glimpse of what is really protected.

While there is a Federal Version – the Federal Tort Claims Act – yet even though many education cases may be heard in Federal Court because of a perceived federal law violation–generally, it is  a state’s Tort Claims Act or a State Claims Act that comes into play; such as where incidents of alleged sexual assault are said to occur–on school premises, or a school bus, or at school related events–state law is applied–and along with it, a shroud of tort immunity.

Each state has their own “brand” of sovereign immunity–qualifiers for those who allege injury by someone working for the state, a municipality, or even a school. The grant of immunity usually is a broad swath of protection with a number of caveats and exceptions–sometimes the exceptions and the judicial interpretations swallow the rule and make them meaningless for those who claim injury.

For instance, in the state of Massachusetts,  the Mass. Tort Claims Act-has been judicially interpreted to protect schools and school officials from liability–much of which appears absurd to the onlooker, and most certainly to those who assert harm.

For example, in some of the cases of the most egregious or flagrant events pertaining to sexual assault, this is how one federal district who heard the cases have interpreted the state law, and how many young school-aged victims have fared:

• In the case of Booker v. City of Boston, heard in Federal District Court, in the District of Massachusetts in 2001 – the court held the city’s failure to protect student from sexual molestation by special education teacher was held barred under Section 10(j)) of ch. 258 of the Mass. Tort Claims Act;

• In the case of Doe v. Old Rochester Regional School District, in 1999 – the court held the school’s failure to protect student from physical and sexual assault by teacher and coach held barred under Section 10(j));

• In the case of Canty v. Old Rochester Regional School District, again in 1999 – the court held the school district was  immune under Section 10(j) for rape of high school student by coach;

• In the case of Doe v. Dubeck, in 2006 – the court held the school immune under Section 10(j) for failure to protect special needs student from physical and emotional abuse by instructor;

• In the case of Doe v. D’Agostino, in 2005 – the court held the school immune under Section 10(j) for sexual assault of fifth-grade student by teacher;

• In the case of Doe v. Bradshaw,  in 2013 – the court held the school immune under Section 10(j) for hiring soccer coach who sexually assaulted student, but not for retaining coach following reports of prior sexual misconduct;

Not to forget to mention cases heard in state court:

• In the case of Ernest v. Town of Bellingham, – 2006 – the court held the school immune under Section
10(j) for sexual assault of female kindergarten student by twelve-year-old male student on school bus; and

• In the case of Reguera v. Leduc, – 2005 – education collaborative held immune under Section 10(j) for sexual assault of special needs student in wheelchair by driver of handicapped van.

And this is just in one state! Multiply it by 50 and this is how we get to Harvey Weinstein.

So why is this happening? Victims for too long feared coming forward for fear of not being believed, for being revictimized by the old-boys system of justice–those in power, with connections, and with money. Because of this inequity of power, victims are often told to “suck up their pain” and move on. But now, the victims are speaking out in a grassroots movement never seen before. It’s the “me too” movement. Whether it started with the revelations with the Catholic church scandal of abuse of children coming to the forefront–or the election of Donald Trump–one thing we know for certain. Had it not been for Trump’s own lascivious remarks, we may not be now having this discussion. If anything, his lewd behavior has put a spotlight on how men in power treat women–and how often women who were victimized remained silent. Not any more.

So to make America Great Again—we need to make it “Respectable Again.” Stop bullying those who are weaker, stop enabling those who are stronger–those who use the current laws and their power to their advantage. Start lobbing lawmakers who stand for respectability–and reject those who don’t. Stand with those who vow to make laws that will protect women and children from abuse. Whether it be gun violence or acts of physical aggression, a nation cannot stand united if it is already so divided.  Advocate for all the “me too’s” — to protect all women and children from selfish acts of violence, sexual harassment, and oppression by getting involved. #MeToo