New York State moves to protect survivors of cyber sexual abuse

This legislation will go a long way to help survivors like our client Nathaly pursue justice against abusive partners who seek to humiliate, harass, and coerce their victims. 

Today, landmark legislation was unanimously passed in the New York State Legislature to criminalize the non-consensual dissemination of sexually explicit images and videos, commonly known as “revenge porn” or “cyber sexual abuse.” This legislation will go a long way to help survivors like our client Nathaly pursue justice against abusive partners who seek to humiliate, harass, and coerce their victims.

When Nathaly first ran into Sanctuary staff attorney Lindsey Song at the Bronx Family Court House, she was anxious and distraught. A former boyfriend she had dated as a teenager had recently sent her a link to a porn website with a video of the two of them having sex – a video she did not know even existed. The link included her full name, where she was from, and her father’s phone number. This was in 2017, before she helped New York City pass a law criminalizing cyber sexual abuse and before any legal remedies existed for victims like herself.

Today, thanks to Nathaly’s courageous advocacy in partnership with Sanctuary and the work of Assembly Member Edward Braunstein, Senator Monica Martinez, and numerous advocates and other survivors, New York joined 42 other states that have passed legislation to protect victims of cyber sexual abuse and recognized the terrible magnitude of harm that it inflicts upon victims.

Watch Nathaly’s speech from our annual benefit last year >

At Sanctuary, we see the devastating damage that cyber sexual abuse causes its victims. Survivors are often forced to change their names and flee the state to escape the horror of having their most intimate photos go viral; others have been threatened with sexual and physical violence when their photos have been posted, and many have lost their jobs, families, or communities as a result of this abuse.

Should this legislation be signed into law, it will be a crime to share an explicit image without a person’s consent when done so with the intention of causing emotional, financial, or physical harm. In addition to criminal relief, survivors will also be able to seek justice and protection through both Family and Criminal Courts, as well as secure injunctive relief if a website refuses to take action in removing the videos or images in question.

In late 2017, Nathaly and Sanctuary helped pass New York City’s cyber sexual abuse bill which is being used every day. Today we celebrate their work and the work of others in the passage of a New York State bill which will provide many more survivors like Nathaly with the legal recourse to seek relief from the flood of online harassment that they have long been denied. We hope that the Governor will act quickly to sign this measure into law.

Sanctuary ED Speaks at “Protect Our Courts” Rally, Urges Bill Passage

Sanctuary Executive Director, Hon. Judy H. Kluger, recently joined advocates for the introduction of State legislation that would limit I.C.E.’s ability to make arrests in and around New York courthouses. Read her remarks.

According to a recent report by the Immigrant Defense Project, I.C.E. arrests inside and around New York courthouses increased by 1700% between 2016 and 2018. Threats of arrest and deportation have deterred an untold number of gender violence survivors from reporting abuse, seeking services, or serving as witnesses in cases.

Sanctuary’s Executive Director, Hon. Judy H. Kluger spoke at a press conference celebrating the introduction of the Protect Our Courts Act — a bill that would make it unlawful for I.C.E. to make a civil arrest while a person is going to, attending, or leaving court unless the officer presents a valid judicial warrant or court order. Read her remarks below:

Thank you, Assemblywoman Solages and State Senator Hoylman, for reintroducing the Protect Our Courts Act.   In the toxic national environment where important legal safeguards for victims of gender violence are being dismantled, New York State has an unprecedented opportunity to strengthen the laws and systems that protect thousands of survivors of domestic violence and sex trafficking who live here.

At Sanctuary for Families, 75% of the gender violence survivors we serve are immigrants who rely on the courts for orders of protection, child custody and support. Some are witnesses in criminal cases against their abusers.

The threat of being arrested by ICE in a courthouse forces immigrant victims of gender violence to make the tough choice between their safety and the chance of deportation.  This spreads fear, not justice, and discourages many of our clients from seeking the protections they rightfully deserve.

Recently, one of our clients, originally from Mexico, became terrified of appearing in Bronx Family Court – where she had filed for custody and visitation of her children and two violations of an order of protection against her abusive ex-partner.

She had seen a flyer on the subway warning that ICE agents may be in the courthouse.  First, she had feared her abuser.  Now she feared ICE detaining her in the very place where she was supposed to find safety.

The deputy director of our legal center ended up going with her to every court date.  Because our client testified, her ex-partner received eight weeks in prison. If we had not been able to go with her, she never would have appeared in court, and he would never have been brought to justice.

We cannot let distrust in law enforcement and in our judicial system become the norm. We urge the New York State legislature and Governor Cuomo to make sure the Protect Our Courts Act becomes law in this session and restore the sanctity of our courtrooms as a place where justice can be sought by all without fear.

We also urge the Office of the Court Administration to move forward a rule that would require a federal warrant for immigration agents to arrest undocumented immigrants in state courthouses, adding another layer of protection to our judicial system.

As a former judge, I know the importance of courts as safe havens for all who seek its remedies.  The fair administration of justice depends on it. The threat of ICE interference undermines it.

Read more about what was said here.

Sanctuary’s Comments on the Proposed Title IX Rule

The Proposed Rule makes survivors of sexual misconduct even more disadvantaged in seeking relief for the harm they have suffered than any other category of complainants in school disciplinary proceedings. Sanctuary urges the Department to withdraw the Proposed Rule in its entirety.

On November 16, 2018, Secretary of Education Betsy DeVos proposed several changes to Title IX regulations introduced under the Obama administration. The proposal has been open for public comment over a 60-day period that ends on January 30, 2019.

Sanctuary for Families appreciates this opportunity to submit comments to the Department of Education. We thank Gibson Dunn for drafting Sanctuary’s official comments on the notice of proposed rulemaking regarding sexual misconduct in educational programs. 

Background

During the past decade, rates of sexual violence have skyrocketed on college campuses across the country. More than one in five women undergraduates experience an attempted or completed sexual assault during college. The epidemic of sexual violence against women on campus led to widespread calls for more robust and fair procedures to govern how schools address complaints of sexual assault and sexual harassment on campus.  In 2011, the Department of Education issued guidance, known as the “Dear Colleague Letter,” that required schools to address sexual violence on campus and to implement procedures that would place the complainant and the accused on equal footing in Title IX proceedings.  The Dear Colleague Letter, which was implemented by colleges and universities across the country, was widely praised as striking the right balance between protecting the accused and facilitating the reporting and fair evaluation of complaints of sexual assault and sexual harassment on campus.

The Department rescinded the Dear Colleague Letter on September 22, 2017 and announced that it would engage in notice-and-comment rulemaking to draft new Title IX regulations.  On November 29, 2018, the Department issued the Proposed Rule[1], which sets forth an extensive set of restrictions and requirements for schools in responding to complaints of sexual misconduct. The Department says that the Proposed Rule is intended to “promote the purpose of Title IX” by requiring schools to address sexual misconduct and to ensure that investigations of sexual misconduct are “fair and impartial” and that “due process protections are in place for individuals accused of sexual harassment.”

Our Comments on the Proposed Rule

The Proposed Rule is nothing short of a wholesale effort to eviscerate Title IX as a mechanism to address sexual misconduct on campus. The Department’s arguments to the contrary are not credible.  The Proposed Rule singles out sexual misconduct—the one type of misconduct on campus that disproportionately impacts females students—and rigs Title IX proceedings in favor of the accused by creating barriers to reporting, limiting what sexual misconduct schools can address, and requiring schools to adopt procedures that put complainants at a significant disadvantage and all but guarantee that the accused prevail. The Proposed Rule would also conflict with and consequently preempt existing state laws that seek to do the opposite: require schools to address sexual misconduct on campus and protect survivors. In short, the Proposed Rule makes survivors of sexual misconduct even more disadvantaged in seeking relief for the harm they have suffered than any other category of complainants in school disciplinary proceedings.

First, the Proposed Rule represents a dramatic departure from prior guidance and existing civil rights laws by limiting the circumstances under which schools may address complaints of sexual misconduct.  Under the Proposed Rule, a school may only address sexual misconduct under Title IX if it meets a narrow definition of “sexual harassment,” occurs within defined geographic areas, and is reported to the correct school employee.  If all of these conditions are not met, then schools are allowed—and in many cases, required—to ignore the report, no matter how serious the sexual misconduct.  By narrowing the definition of “sexual harassment” and limiting the circumstances in which a school may respond to complaints of sexual misconduct pursuant to Title IX, the Proposed Rule enables perpetrators to engage in sexual assault and sexual harassment with impunity.

Second, for the narrow range of sexual misconduct that schools can address, the Proposed Rule mandates that schools implement procedures that favor the accused and that will discourage reporting of sexual misconduct on campus.  This is particularly troubling, given that sexual misconduct on campus is already widely under-reported.  The Proposed Rule requires survivors to satisfy a heightened evidentiary burden while providing significant advantages to the accused—most notably, a presumption of no misconduct, the ability to subject the complainant to cross-examination by an advisor of his choice, and more expansive appeal rights than those provided to the complainant.  Although the Proposed Rule states that such procedures are necessary to ensure that Title IX proceedings are “fair and impartial,” these procedures, in fact, only rig the proceedings in favor of the accused and subject survivors to re-traumatizing investigatory processes and heightened and unnecessary procedural hurdles.

Third, the Proposed Rule would preempt state laws that provide greater protections for survivors.  The Proposed Rule’s broad restrictions on the types of sexual misconduct complaints that schools may address and requirement that schools implement procedures that favor the accused would preempt state laws that currently mandate schools to address a wider range of sexual misconduct on campus and to implement procedures in disciplinary proceedings that place the complainant and accused on equal footing.  As a result, the Proposed Rule serves to not only prohibit schools from using Title IX to address many complaints of sexual misconduct but also guarantees that state laws protecting students from campus sexual violence cannot be enforced.

Taken together, these provisions, if enacted, will fundamentally impair the rights of survivors in favor of protecting the accused.  On its face, the Proposal seeks primarily to protect the reputation and interests of the accused—by shielding a broad range of sexual misconduct from the reach of Title IX, all but guaranteeing that the accused prevail in Title IX proceedings, and preempting state laws that provide protections to survivors.  What is clearly not of concern in the Proposal is the growing epidemic of sexual violence on campus.  The Proposed Rule also ignores the long-lasting, pernicious effects of sexual violence on student survivors:  survivors commonly struggle with depression, posttraumatic stress disorder, and anxiety attacks, and frequently face trauma-induced educational problems, such as declines in academic performance, loss of scholarship funds, delayed degree completion, and transferring schools.

The Proposed Rule—and its slavish protection of the interests of the accused—is premised on a myth that men on campus are the victims of a wave of false reports filed by women.  The data disproves this myth.  Studies of false reporting of sexual assault cases generally place the rate between 2% and 10%. The reality is that there is an epidemic of sexual violence on campus and incidents of sexual misconduct in schools are widely under-reported.  If enacted, the Proposed Rule would allow this very real epidemic to worsen, putting even more women on campus at risk of being sexually assaulted, and would undermine the abilities of schools to take effective action to address sexual violence on campus and hold perpetrators accountable. Sanctuary urges the Department to withdraw the Proposed Rule in its entirety.

 


   [1]   The Proposed Rule refers to “sexual harassment,” which it defines as “an employee of the [school] conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity; or sexual assault.”  Because the Proposed Rule’s definition of “sexual harassment” also includes sexual assault, Sanctuary will use the term “sexual misconduct” in these comments to encompass both sexual harassment and sexual assault.

 

 

Our Statement: The “Remain in Mexico” Policy Leaves Survivors More Vulnerable to Violence

The rollout of this cruel policy is further endangering the lives of countless gender violence survivors, among others, who have fled violence in their countries of origin and is causing chaos within our overburdened and broken immigration system.

Lori Adams is the Director of the Immigration Intervention Project at Sanctuary for Families.

Sanctuary for Families urges Congress to intervene to stop the Trump Administration from implementing its “Remain in Mexico” policy. The rollout of this cruel policy is further endangering the lives of countless gender violence survivors, among others, who have fled violence in their countries of origin and is causing chaos within our dysfunctional immigration system.

According to the plan, which DHS began to implement on January 25th, most refugees who reach the U.S.-Mexico border seeking protection in the United States will be required to stay in Mexico while they wait for their first hearing in a U.S. immigration court. 

The Impact

Department of Homeland Security (DHS) Secretary Kirstjen M. Nielsen calls this a  “humanitarian approach” to address the crisis at the border, but there can be no doubt that the most vulnerable families will suffer under these new protocols. Refugees from Honduras, El Salvador, and Guatemala often face violence and persecution so severe that it leaves them with no choice but to embark on a treacherous journey through Mexico to the U.S. Many of them are women and children fleeing gender-based harm. By requiring these families who have already proven “credible fear” to remain in Mexico while they await their immigration court date, we are putting families at risk of further violence.

The stated policy includes an exception for Mexican nationals, unaccompanied children, and refugees who can demonstrate that they are more likely than not to face persecution or torture in Mexico. In practice, however, it will be nearly impossible for migrants who have only been in Mexico for a short time to articulate a greater-than-50% likelihood of persecution or torture, simply due to the fact that such a determination requires knowledge of conditions throughout the country.

Chaos in the Courts

According to DHS, the “Remain in Mexico” policy will be implemented first at the San Ysidro port of entry which connects Tijuana, Mexico to San Diego, CA. Rolling out this new policy at one of the busiest land border crossings in the world would be a logistical nightmare under normal circumstances but the Trump Administration’s decision to do so following the conclusion of the longest government shutdown in our country’s history is certain to cause chaos. Immigration courts across the country have been closed for the last month, including the non-detained court in San Diego. The result in San Diego is a backlog that has ballooned to over 800,000 pending immigration cases.

Beyond the case backlog, the “Remain in Mexico” policy will only add to the chaos at the Tijuana-San Ysidro border itself. Refugees will likely miss their court dates in the United States due solely to the logistical hurdles of transporting them across an international border and getting them to a courthouse in the United States in time for their hearings.

Congress Must Act

There is a crisis in the U.S. immigration system, but it is not the crisis that the Trump Administration has described in the context of his administration’s recent border proposals. Congress should demand an immediate halt to the “Remain in Mexico” policy and the “Migrant Protection Protocols” that followed. These policies violate our international and domestic law obligations to protect those who flee to our border seeking protection. The United States must return to the rule of law to ensure that we remain a safe haven for survivors of gender-based harm and others who flee to the U.S. for protection because they have no other options.

Sanctuary is Taking Action

Sanctuary for Families is a leading provider of immigration legal services for survivors of gender-based harm. We are based in New York City where many refugees, survivors of trafficking and other vulnerable immigrants, receive our life-saving services every day.  Over the next two weeks, we will be sending two delegations of immigration attorneys to Tijuana where they will provide legal and humanitarian assistance to migrants, including survivors of gender-based harm, who will be disproportionally impacted by this new policy.

Follow us on Facebook, Twitter, and Instagram to receive updates from the border, and please consider donating if you would like to provide financial support to sustain this life-saving work.

Thank you for your support for Sanctuary for Families, and for the immigrant survivors of violence who rely on our services.