While the #MeToo movement has had a substantial social impact, bringing the prevalence of sexual assault, abuse, and harassment in the entertainment industry to the public’s attention, and providing a forum for victims to discuss their experiences, this movement has also had an impact on the legal system.
From statute of limitations and spoliation issues in criminal cases on one side, to defamation and wrongful termination lawsuits on the other, the movement has raised awareness of important legal issues concerning sexual assault, abuse, and harassment, and of making accusations of such misconduct. Victims have also sought justice outside of the system by making public allegations in an attempt to get claims investigated, shame perpetrators, and pressure them to step down from their professional positions, resulting in collective confusion concerning due process. Consequently, changes in state laws, particularly those related to workplace conduct, are underway.
For example, a few states, including Washington and California, have changed their laws to restrict the use of nondisclosure agreements to cover up sexual assault and harassment in the workplace. In addition, the #MeToo movement has pushed some states to mandate the use of rape kits and to increase funding to clear their backlogs of rape kits. Some states have extended statutes of limitations in civil suits brought against alleged perpetrators of sexual misconduct and have also considered extending statutes of limitations in prosecuting sex crimes.
Not only has the #MeToo movement impacted the legal system, but it has shone the spotlight on the prevalence of sexual harassment in the legal profession. Though the #MeToo movement arose largely as a result of allegations made by celebrities regarding sexual assault, abuse, and harassment in the entertainment industry, similar allegations have arisen out of the legal profession, such as those lodged against retired Judge Alex Kozinski and now-Justice Brett Kavanaugh.
Unfortunately, sexually related misconduct is no stranger to the legal profession. According to a recent report issued by the Center for WorkLife Law at the University of California’s Hastings College of the Law in San Francisco on behalf of the ABA Commission on Women in the Profession and the Minority Corporate Counsel Association, one quarter of female lawyers said that they had encountered some form of unwelcome sexual advances or harassment at work, and seventy percent said they had endured sexist comments, stories, and jokes.
Although the statistics are more than troubling, how we respond to them is of grave importance. In Colorado, the legal profession may soon see an explicit rule addressing sexual harassment in the workplace. The Rules of Professional Conduct Standing Committee recently proposed an amendment to Rule 8.4 of the Colorado Rules of Professional Conduct to expressly address sexual harassment in the legal profession. The proposed amendment would render any conduct that a “lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities” professional misconduct. The comment to the proposed amendment further explains,
Sexual harassment may include, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome. The substantive law of employment discrimination, including anti-harassment statutes, regulations, and case law, may guide, but does not limit, application of paragraph (i). ‘Professional activities’ are not limited to those that occur in a client-lawyer relationship.
While this proposed amendment shows a commitment to addressing the problem of sexual harassment in the workplace, having a rule on the books is only the first step. We all have to ensure that it is enforced if we want to effect change. As women in the legal profession, it should come as no surprise that we have our work cut out for us, but it is important work, and we have the opportunity to make the legal profession better for everyone.
According to the Colorado Supreme Court’s website, written public comments on the proposed amendment should be submitted to Cheryl Stevens, Clerk of the Supreme Court, either by mail to 2 East 14th Avenue, Denver, CO 80203, or by email to email@example.com by 5:00 pm on May 15, 2019.
Nicole Jones is currently an Appellate Law Clerk for the Honorable Diana L. Terry at the Colorado Court of Appeals. She is the Editor in Chief of the “Tales from the Trenches” column and a member of the Colorado Women’s Bar Association Publications Committee. Any views or opinions reflected in this publication do not reflect the position of the Colorado Court of Appeals or the Colorado Judicial Department.