- Professor Jeannie Suk, Harvard Law
- Professor Andrew Crespo, Harvard Law
Sexual assault on campus is a serious issue—so serious that it is difficult for some to speak plainly about it. As a result, disagreements abound—even about issues as fundamental as the definition of sexual assault. This panel will discuss the nature and extent of sexual assault on campus. It will examine the Department of Education’s “Dear Colleague” letter of April 4, 2011 on sexual violence, the numerous investigations that it has opened in colleges and universities around the country, and the effect they are having on campus. It will also discuss the new "Only Yes Means Yes," laws recently adopted in California and being considered around the country. Among the questions that will be addressed are: How dangerous are our college campuses? From where does the U.S. Department of Education derive the authority to address this issue? Is due process being accorded to those who are accused of sexual assault?
The Federalist Society's Civil Rights Practice Group presented this panel on "Sexual Assult on Campus" on Friday, November 14, during the 2014 National Lawyers Convention.
On April 23, 2014, the Supreme Court decided Paroline v. United States, a case involving the efforts of “Amy,” a victim of child pornography, to collect the full amount of damages owed to her. In a 5-4 decision, the Court held that Amy could not collect the full $3.4 million in damages from one man convicted of possessing two images of her, because defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. University of Utah Professor Paul G. Cassell, who argued for Amy at the Supreme Court, discussed the impact of the decision, as well as current Congressional efforts to ensure that victims of child pornography are not forced into a lifetime of litigation to extract damages from those involved in their abuse. He was joined by John G. Malcolm, Chairman of the Federalist Society’s Criminal Law & Procedure Practice Group.
Doyle R. Paroline pled guilty to possession of 150-300 images of child pornography. Included among those files on his computer were two photographs of Amy Unknown, a victim of child pornography. He was sentenced to 24 months of incarceration followed by release under supervision. Under a federal statute that mandates full restitution to victims of child pornography by those convicted of creating, distributing or possessing such material, the Government and Amy sought restitution in the amount of nearly $3.4 million. The district court denied restitution and held that the statute required the Government to prove that Paroline’s possession of the images was the proximate cause of the injuries for which restitution was sought. The U.S. Court of Appeals for the Fifth Circuit reversed and held that Paroline was responsible for restitution for all the victim’s losses even if his criminal acts occurred after the victim’s losses. On Wednesday, January 22, the Supreme Court heard oral arguments in Paroline v. United States. Two questions are presented to the Court: 1) In determining restitution in child pornography cases , is the award of restitution limited to losses proximately caused by the defendant’s criminal actions or may a defendant be required to pay restitution for all losses, regardless of whether his criminal acts proximately caused the loss? and 2) Is the Government correct in its argument that authorizing $3.4 million in restitution against a defendant to a victim of child pornography who has never had contact with the defendant may violate the Eighth Amendment ban on excessive fines in the absence of a proximate cause requirement in the setting of the amount of restitution assessed against that defendant? Our expert attended oral arguments and offered his impressions to a live Teleforum audience.
On April 17, 2013, the Supreme Court heard oral argument in United States v. Kebodeaux. The case involves the constitutionality of certain provisions of the Sex Offender Registration and Notification Act (SORNA) of 2006, which created both a direct federal requirement for sex offenders to register and a federal penalty for failing to register. The case considers whether a federal court of appeals erred in 1) operating on the premise that Kebodeaux was not under a federal registration obligation until SORNA was enacted, and 2) concluding that Congress lacked the power under Article I of the Constitution to apply SORNA’s registration requirement and penalty to a former sex offender like Kebodeaux, who was no longer in government custody or on supervised release.
To discuss the case, we have Randy Barnett, who is the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center.