Boston Lawyer Blog

Sex, Violence, and Consent in Massachusetts

Published on: October 28, 2021 | by Ruth O'Meara-Costello

In many contexts, rules and codes of conduct have moved from evaluating the lawfulness or permissibility of sex based upon the presence or absence of force to instead evaluating whether the sex happened with or without consent. This is particularly true on college campuses, almost all of which have a definition of consent—usually affirmative or effective consent—that sex must meet in order to be allowed under campus policies. Many people—and particularly college-age students who have been trained on affirmative consent policies—think almost exclusively in terms of consent when considering whether sex is lawful or permissible. CONTINUE READING ›

Lin v. GGIT Systems: Chapter 151B May Require Accommodations for High-Risk Employees During the COVID-19 Pandemic

Published on: October 19, 2021 | by Zalkind Duncan & Bernstein LLP

By Mackenzie Bouverat, Law Student Intern

As states begin to lift restrictions designed to prevent the spread of the coronavirus, some employers have begun to require that their employees return to some form of in-person work, whether full-time or hybrid. Yet even for the fully vaccinated, the risk of infection is not eliminated. And for employees with disabilities, the possibility of contracting COVID-19 may present a grave risk. CONTINUE READING ›

The Fine Line Between “Plain View” and Privacy Invasion: Commonwealth v. Yusuf

Published on: September 20, 2021 | by Jenna A. Agatep

The use of body-worn cameras by the Boston Police Department has sparked controversy since its pilot program in 2016 and its official implementation in 2019. While the City and the Police Department have marked this move as an effort to be more transparent with the community, citizens claim that such a goal of transparency cannot be achieved within a broken system. Boston Police Department has equipped more than 1,000 officers over the city with body cameras, yet there have been minimal compliance checks and investigations into the misuse of these cameras and footage. Instead, there are a handful of loopholes that permit officers to use the footage at their discretion, putting civilians’ lives at risk for privacy invasion. To further complicate the limitations police officers have in using their body-worn camera footage, the official Body Worn Camera Policy of the Boston Police Department contains ambiguous and few rules regarding the improper use of footage. In Sec. 4.2 of Rule 405, the department enumerates five improper uses of body-worn camera footage; none of which emphasizes a civilian’s privacy nor prohibits the use of the footage for other cases than the one from which the footage originated.

Advice for Parents of Incoming College Students: What You and Your Child Need to Know About Sexual Assault and Harassment

Published on: August 13, 2021 | by Monica Shah

August is upon us and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. Two years ago the U.S. Department of Education (DOE) issued regulations related to sexual misconduct on campus (for a summary see our blog posts here); and here in Massachusetts a new law went into effect last year, changing how schools are required to handle sexual misconduct cases. It is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure that may arise from sexual behavior.

Title IX and Sexual Assault on College Campuses: Back to School Edition

Published on: August 13, 2021 | by Naomi Shatz

Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent students—both those who have experienced sexual assault or misconduct and those accused of sexual misconduct—in campus proceedings at colleges and universities around the country. Here is some information that all students should know before heading back to campus. CONTINUE READING ›

Supreme Judicial Court Holds That the Parental-Child Privilege Does not Preclude Parents from Testifying as Defense Witnesses in Criminal Cases Brought Against Their Minor Children

Published on: July 22, 2021 | by David Russcol

As part of the criminal justice reform bill in 2018, the Massachusetts legislature passed a statute creating a limited parent-child privilege so that minor children who may be in legal trouble can seek advice from their parents without having to worry that their parents could be witnesses against them in a criminal case. Similar protections exist for spouses, who cannot be compelled to testify against one another. Although the statute does not protect adult children who speak with their parents, it fills an important gap for juveniles, particularly since they have a right to speak with an “interested adult” before being interrogated by police. CONTINUE READING ›

SCOTUS Holds Police Cannot Search Homes and Seize Firearms Under the Community Caretaking Exception to the Fourth Amendment

Published on: July 7, 2021 | by Zalkind Duncan & Bernstein LLP

A recent Supreme Court case has reaffirmed the rights of individuals against unreasonable government searches and seizures after the First Circuit attempted to expand an exception to the Fourth Amendment. Last year, in Caniglia v. Strom, the First Circuit Court of Appeals (which includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) identified a new exception to the Fourth Amendment protection against unreasonable searches and seizures in the home. In the case, police searched a house and seized the owner’s firearms without a warrant and claimed they were allowed to do so because their intent was to protect against “[t]hreats to individual and community safety.” The First Circuit agreed, finding that the search fell under the “community caretaking exception” to the Fourth Amendment’s warrant requirement. In May, the Supreme Court unanimously rejected the First Circuit’s attempt to expand the “community caretaking exception” in a victory for civil liberties and the rights of individuals against unreasonable government intrusions.

Public School Teachers and Social Media: the Protections and Limitations of the Right to Free Speech

Published on: June 22, 2021 | by Caroline Davis

The convergence of widespread social media use, and recent national social movements and events—including the current war in Israel and Palestine, the MeToo movement, the Black Lives Matter movement, and the COVID-19 pandemic—has led to a growing number of public school teachers and other government employees being disciplined for statements they make on their private social media. Here in Massachusetts, a teacher was fired after posting a diatribe against people living in poverty and the conversation about privilege. In Ohio, a teacher was fired after making a social media post criticizing police brutality against students. There has been significant attention paid to public university professors across the country, with institutions taking differing views of whether they can terminate professors for their online speech. In Texas, Collin College fired three professors for making political comments on social media and criticizing their institutions’ handlings of the COVID-19 pandemic. In Indiana, the University of Indiana said it could not fire a professor who wrote posts denigrating women and LGBTQ people. We have been hearing from more public school teachers in Massachusetts and other states who are being harassed, doxxed, investigated, and sometimes disciplined for their private social media posts about political and social issues. CONTINUE READING ›

Text is not Talking: Supreme Judicial Court Holds that Individuals have no Reasonable Expectation of Privacy in Sent Text Messages

Published on: June 3, 2021 | by Ana Muñoz

Text messages have replaced the old-fashioned phone call: Since 2014, Americans under 50 reported preferring text messages to talking on the phone. American adults under 45 send and receive an average of 85 texts per day. Many people, then, treat texts like talking. But even though the government might need a warrant to intercept your phone call, as of this week, in Massachusetts, the government can read and use your texts that they obtain from someone else’s phone.

Massachusetts Should Join Other States in Banning Discrimination Based on Natural Hairstyles

Published on: May 20, 2021 | by Naomi Shatz

This is Part 2 in a series. You can read Part 1 here.

I previously detailed how existing anti-discrimination law is insufficient to protect employees and students who wear their hair in natural or protective styles from discrimination. A national campaign called the CROWN Act, has built an impressive coalition of organizations in support of legislation to remedy this problem. In the last two years, eleven states and a handful of cities and counties have passed this type of legislation. Massachusetts Representative Ayanna Pressley introduced a federal CROWN Act in Congress in December of 2019. CONTINUE READING ›