SIRAC ANALYSIS
Summary
The populous state is facing a serious problem of sexual harassment of the female students by the faculty and fellow male students. In this context, it is instructive to appreciate the fact that the female students have been placed at a weaker position since their detractors are at a better position and privileged than they are. In some cases, the female students have no options but to conform given the high stakes. For instance, cases of compromised results, poor assessment and poor progress in the delivery of the education sort after face the students. The victims have to make a choice between succumbing to sexual harassment by their detractors of losing out on the opportunity to excel in school work. In addition, the weak systems in the schools offer little to no arbitration and or resolution of the problems facing the students. This has occasioned a situation where the students have to survive within the unfriendly zones of learning.
Issue
The issue is the sexual harassment cases. The legal questions raised is whether the conduct of the male faculty and students amount to sexual harassment as envisioned by the law. In addition, it is emotive and useful to ask whether the existing body of law is adequate to solve the concerns raised by the harassment cases. Indeed, some of the issues falling within the domain of sexual harassment can be seen in the nature of cases sampled. These include the following: student A who was repeatedly harassed by her violin instructor to the point of withdrawal from the course, student B who was offered an A in her sociology classes in return for sexual favours but declined only to get a D, student C who has failed to receive her feedback in the honors program after declining consistent invites to parties and drinks by her professor and graduate assistant, student D who was consistently harassed by her male classmate but denied the opportunity to charge and student E who had to make do with the frequent professor’s use of demeaning and sexualising use of women in the classwork. All these cases among others inform the fact that sexual harassment does occur and lead to the need for the solution of the issue at hand.
Rules
Sexual harassment in schools is governed by a number of laws that exist in form of statute and the Constitution of the United States of America. Some of the statutes that need to be considered include Title VII, Title IX and the Equal Employment Opportunities Commission laws. According to Title VII, it is illegal to discriminate based on sex. On the other hand, Title IX dictates that females shall not be denied benefits accruing from education related activities based on their sex. The Equal Employment Opportunities Commission which is a brainchild of Title VII suffices for purposes of ensuring non-discrimination at the workplace. This laws and provisions are equally applicable in the college environment. In addition, the United States Constitution expressly forbids discrimination under the Bill of Rights granted by the Tenth Amendment.
Analysis
The situation existing in the state point to fundamental infringement of rights. In addition, it amounts to discrimination contrary to the provisions of the Constitution under the Tenth Amendment, Title IX and Title VII and the Equal Employment Opportunities Commission laws against sexual harassment. It is noteworthy that the rule of law is being floated. The absence of action on the sampled cases point to the fact that the law is not current and that the state needs to develop their jurisprudence and criminal justice system to be more responsive to the plight of the female students pursuing education in these public and private institutions. It is this paper’s contention that the implementation of the law in this state should assume a proactive rather than a reactive approach and endeavour to address the sexual harassment cases.
Conclusion
The sexual harassment cases are clear affronts to the law. The onus remains with the criminal justice system to develop mechanisms that would be applicable in tackling the sexual harassment cases. Sexual harassment occurs against the provisions of the laws and is an affront to human rights. The state senate needs to act towards the solution of the case.
Answers
Are there existing federal or state statutes or common law principles prohibiting the type of harassment cases?
Federal and state statutes exist that prohibit the sexual harassment cases. Some of the statutes at the federal level include Title VII, the Discrimination Act, the Equal Employment Opportunities Act and the Title IX. Title VII prohibits discrimination based on the sex of an individual. This can be related to the cases presented to the committees. For example, student C fails to receive her feedback in the honors program essentially because she elected to decline the party invites. The consistent discrimination accrues purely because of her sexuality. The Discrimination Act expressly prohibits any forms of discrimination on any basis sex included. It acts as a rejoinder to the provisions of the Tenth Amendment which grants the Bill of Rights. The attendant discrimination seen in say the case of student E is contrary to the provisions of this statute.
Presence of effective means
It is the contention of this paper that no effective means suffice for the enforcement of the statutes and principles. This can be seen in the body of case laws that in many cases place the burden on the victim to prove beyond doubt occurrence of sexual harassment. In addition, the courts have consistently found innocent defendants in cases of sexual harassment. In Hayut v. SUNY and others, the District Court ruled in favour of the defendants despite the incessant sexual harassment events that had transpired. The appellate court did not cure the injustice by finding only Professor Young liable. This case demonstrates the inability of the courts to develop mechanisms that can protect the victims. In addition, cases of a sexual nature in many cases occur in the private confinement. It is hence difficult to discharge the burden of proof and meet the evidence threshold required. In most cases, the offenders often find ways of covering their tracks so that little to no evidence is left to the disposal of the prosecution. These factors among others have reduced the statutes to mere writings on pieces of paper. There is need for the criminal justice system to be improved to enhance the enforcement of the statute to the advantage of the victims of sexual harassment.
Covering private and public institutions
On redrafting the sexual harassment legislatures, it is the contention of this paper that private and public institutions should be covered the same way. This arises from the fact that the law ought to apply equally and that no special factors govern private or public institutions that would exclude one of them from any of the applications of the legislations. Indeed, the nature of sexual harassment crime is against an individual merely because they are human and hence entitled to human rights. These rights apply equally and no special application should be applied for different institutions. The long and short of it is that the law is applicable to man in the same way and no special entity need to twist the law to suit its circumstances. The sexual harassment legislation should consequently assume a general and uniform character.
Legislation coverage
The legislation need to be precise and specific. Good laws need often have the characteristic of being specific and detailed. It is consequently an indication of good law for the legislation to cover all envisioned cases of sexual harassment. To this end, it would be essential for the legislation to cover elements of student to student, faculty to student and staff to student sexual harassment cases. This level of specificity would go deep in warning any potential offender in the said categories of the adverse consequences attendant of their actions. It would equally clear the air on the silence of the law on some of the categories. For instance, the silence of the law may be capitalized to protect student offenders. This would be clearly legislated against if the legislation specifically tackle the student to student harassment cases. However, given the different levels of offenders, it is the paper recommendation that the penalties be different. For instance, the penalty imposed on the faculty to student offenders should be higher than the penalty imposed on the student to student offender. This is in line with the fact that for the faculty a higher threshold of professionalism and adherence to ethical practises is expected and conferred on them by virtue of their positions as compared to a simple student. In that breadth, it is costly, embarrassing and unethical for faculty to commit sexual harassment on female students as compared to the fellow student. In addition, it is these category of offenders who often have the more opportunities to commit sexual harassment as compared to say student offenders. This is because in most cases, the faculty is positioned at a better place and with a lot of control on the potential victim. In addition, the legislation need to be of currency and entertain both forms of harassment. In that vein, it should cover both the male-female harassment as well as the male-male harassment. This would be in appreciation of the modern societal setup that has a higher number of gays who unfortunately have been empowered into expressing their sexualities in public. It is expected that the empowered gays would equally commit sexual harassment if and when the opportunity presents itself. The law should be tailored to capture their illegality and not wait for the worst to happen.
Substantive and procedural requirements
The legislation needs to be effective in the administration of justice. In that context, it would be essential for the legislation as a matter of substantive law to require that the victim only proves on a balance of probability a case of sexual harassment. In addition, the burden of proof needs to be transferred onto the offender as the nature of sexual offences have the tendency of lacking sufficient evidence on the part of the victim. The offender in most cases is often in a privileged position hence the burden should be offset by him.
Enforcement mechanisms, penalties and remedies
The criminal justice system must be reformed to be able to address the enforcement challenges. The structure of reporting and persecution’s collection of evidence needs to be enhanced so as to be reactive and able to in a timely manner respond to the demands by the victims. In addition, law enforcements officers need to be given ample time and resources to enable full pursuit and investigation of the cases. The penalties need to be punitive. Some of the proposed penalties include the cancelation of the professional certificate of practise for faculty, loss of employment for staff and compulsory community corrections for student offenders.
References
Amsterdam, A. G., & Bruner, J. S. (2009). Minding the Law.
Becker, G. S. (2010). The Economics of Discrimination. Chicago: University of Chicago Press.
Government Archives. (n.d.). The Constitution of the United States of America. Washington D.C.: Government Archives .
Klug , F., & Wildbore, H. (2011). Equality, Dignity and Discrimination under Human Rights Law; selected cases. Centre for the Study of Human Rights Journal, 1-31. Retrieved April 14, 2013
Miller, R. L., & Jentz, G. A. (2009). Fundamentals of Business Law: Excerpted Cases. New York: Cengage Learning.
Neumayer, E. (2007). Qualified ratification: explaining reservations to international human rights treaties. Journal of Legal Studies,, 397-430.
O’Flaherty, M., & Fisher, J. (2008). Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising theYogyakarta Principles. Human Rights Law Review , 207-248. doi::10.1093/hrlr/ngn009
Swain, P. A., & Rice, S. (2009). In the Shadow of the Law. Sydney: Federation Press.
