Seattle Attorneys Blog

Court Dismisses Title IX Case Filed by Female Student Accused of Sexual Assault

April 28, 2021 | by Blair & Kim, PLLC

A federal court has dismissed a female plaintiff’s claims against a university in an unusual Title IX case. According to the court’s opinion, a male student, “John Doe,” first alleged the plaintiff, “Jane Doe,” committed sexual assault against him. The plaintiff subsequently alleged he had committed sexual assault against her. Following an investigation and hearing addressing both complaints, the university found the plaintiff sexually assaulted John Doe by having sexual intercourse with him when he was too intoxicated to consent. The university also found that John Doe committed sexual assault against the plaintiff when he choked her during the encounter and that he committed “Sexual Verbal Abuse.” Both students were suspended for a semester.

Jane Doe filed suit against the university, alleging in relevant part that the university’s disciplinary process violated Title IX and its decision was motivated by gender bias. She argued procedural flaws and evidentiary weaknesses led to an erroneous result. She further alleged that these procedural issues were motivated by her gender. The plaintiff also alleged several other claims, including breach of contract and negligence.

The court noted that, as a private university, the defendant did not have the same due process requirements as a public institution.

When a plaintiff alleges discrimination based on erroneous outcome, she must allege facts that raise an “articulable doubt” on the outcome’s accuracy as well “circumstances suggesting that gender bias was a motivating factor” in that outcome. Articulable doubt can be shown through procedural flaws, “inconsistencies or errors in the findings,” or insufficiency or unreliability of the evidence. To show gender bias, the plaintiff must show that she was wrongfully found guilty at least partly due to her gender.

Washington Child Support Modification

April 19, 2021 | by Blair & Kim, PLLC

A Washington child support order may be modified in certain circumstances. A court may order modification of child support if there has been a substantial change of circumstances since the current order was entered. A court may also order a modification at least one year after the current order was entered without a finding of a substantial change in circumstances if it finds the existing order results in an economic hardship on either parent or on the child. Additionally, after two years from entry of the existing order, adjustment, or modification, the court may adjust the order based on changes in the parents’ income without a finding of a substantial change in circumstances. RCW 26.09.170.

A father recently appealed a denial of his petition for modification of his child support obligation. The parents divorced in 2016. The court ordered the father to pay $1,167 in child support each month based on $10,000 per month in imputed income. The trial court found he had provided insufficient information regarding his income. At the time of the divorce, the father traveled internationally, lived in Dubai, and gave expensive gifts. The appeals court noted the child support order reflected a conclusion by the trial court that the father was hiding assets.

The father petitioned for modification after nearly three years. He claimed his income had decreased significantly and the child support was now a hardship.

Washington Anti-Harassment Protection Order Against a Minor

April 8, 2021 | by Blair & Kim, PLLC

Parents in Washington want to do what they can to protect their children from harassment. A parent may petition on their child’s behalf for an anti-harassment protection order. A parent’s ability to seek a protection order against another child, however, is more limited. In such cases, the other child must have been “adjudicated of” or investigated for an offense against the protected child. RCW 10.14.040(7). A high school student recently challenged a protection order issued against her on the grounds it was not permitted under RCW 10.14.040(7).

Two high school students were involved in some sort of conflict. The appeals court’s opinion identified the two minor students by the initials A.R.S. and K.G.T. According to the court’s opinion, A.R.S. repeatedly threatened to assault K.G.T.

They met in the bathroom to resolve their differences. A.R.S. shoved K.G.T. A teacher intervened and stopped the incident. The assistant principal subsequently addressed it as a disciplinary issue and suspended K.G.T. for one day and A.R.S. for three.

President Issues Executive Order on Title IX

March 26, 2021 | by Blair & Kim, PLLC

President Biden issued an executive order requiring the review of regulations, guidance and other documents related to Title IX investigations. The order proclaims a policy of the administration that students be guaranteed freedom from sex-based discrimination, including sexual harassment, in the educational environment.

The executive order requires the Secretary of Education and the Attorney General to review all current regulations and other agency actions within 100 days from order’s date, March 8, 2021. Upon completion of the review for consistency with the policy stated in the order, the Secretary must report the findings to the Office of Management and Budget Director. The order specifically requires the Secretary to review the Final Rule published on May 19, 2020, and all agency actions taken under it for consistency with the policy stated in the order, Title IX, and other applicable law. The order further requires the Secretary to review any current guidance and issue any needed new guidance regarding implementing the Final Rule to be consistent with the law and the policy stated in the order, “[a]s soon as practicable.” The order also directs the Secretary to consider “suspending, revising, or rescinding” agency actions that are not consistent with the policy as soon as practicable.

The order directs the Secretary to consider actions to enforce the policy and legal prohibitions against sexual harassment to the extent allowed by law. The order further instructs the Secretary to consider enforcement actions accounting for intersectionality. Finally, the order instructs the Secretary to consider actions to ensure “fair and equitable” procedures in schools.

Committed Intimate Relationships in Washington Divorce Cases

March 20, 2021 | by Blair & Kim, PLLC

Washington, unlike some states, recognizes “committed intimate relationships.” Courts may consider a number of factors, including the parties’ intent, the length and purpose of the relationship, whether the parties continuously lived together, and whether the parties pooled their resources. When a couple acquires property during a committed intimate relationship, it is presumed to be community property. The date a committed intimate relationship began can therefore be very significant in a property distribution during a Washington divorce. A husband recently challenged a court’s finding he and the wife were in a committed intimate relationship when a house was purchased.

The parties started dating in 2008 and the wife moved in with the husband in April 2009. The husband paid the rent and bills, and the wife helped with food and other things. She also had furniture and two vehicles. They maintained separate finances.

They bought a house together in March 2010. The wife said they saved money because she knew the builder and her husband helped them. She testified they decided to put the title and loan in the husband’s name because they weren’t married yet. She said the husband told her they would refinance after they got married. The husband paid the mortgage, and the wife said he “was adamant that [the mortgage payments] come from his sole, own checking account.”

Washington Teen Convicted Based on Evidence Found by Mother

March 11, 2021 | by Blair & Kim, PLLC

The Fourth Amendment to the U.S. Constitution protects individuals from warrantless searches by the government, but does not generally apply to the actions of a private person. It can apply, however, if the private person is acting as a government agent. Courts consider whether the government knew of and agreed to the person’s conduct and whether the person’s intent was to help law enforcement. In a recent Washington case, a teenage defendant appealed her possession conviction after the juvenile court admitted evidence her mother found in a search conducted in the presence of a deputy.

According to the appeals court’s unpublished opinion, the mother reported her teen daughter had snuck out and came home intoxicated. The girl was asleep in bed when the deputy responded, and he did not think she looked intoxicated. The mother told him the girl had packed her backpack to run away. The deputy told the mother she could take the backpack and cellphone from her daughter. The mother emptied the contents of the backpack, including a small container that appeared to contain marijuana. The mother told the deputy she wanted her daughter charged. The state charged the girl with possession of 40 grams or less of marijuana while under 21 years of age.

The defendant moved to suppress the marijuana, arguing it was found in an unlawful warrantless search.

Washington Convictions for Violation of Multiple No Contact Orders Based on a Single Act

March 4, 2021 | by Blair & Kim, PLLC

The Fifth Amendment to the U.S. Constitution and the Washington Constitution both protect individuals from being charged multiple times for the same offense. Generally, in a Washington criminal case, a defendant may only be charged with multiple counts of the same crime if each is based on a separate criminal act.

A defendant recently challenged his convictions for violation of a court order, arguing that multiple convictions for violation of separate no-contact orders violated double jeopardy principles when the charges were all based on the same act.

There were three no-contact orders entered against the defendant protecting the same person. After the defendant contacted that person, he was arrested and charged with violation of a court order.

Title IX Investigations in Washington During Pending Criminal Cases

February 25, 2021 | by Blair & Kim, PLLC

Allegations of Title IX violations against a student in Washington can have complicated investigations. According to an article from the Associated Press, a professional football player recently filed a Title IX suit against the university he previously attended arising from an investigation and disciplinary action.

According to the plaintiff’s complaint in a previous lawsuit against the university, he was subject to simultaneous university and criminal investigations. In his complaint, he argued that the simultaneous investigations required him to choose between his right against self-incrimination and participating in the Title IX process. The complaint also alleged the plaintiff’s attorney notified the university’s Title IX Coordinator that the police department had exculpatory information that was critical to the Title IX investigation. The plaintiff alleged that, after the criminal charges were filed, his attorney asked to postpone his interview with the Title IX Coordinator until after the criminal matter was resolved. The complaint stated the university responded that it had not been able to obtain information from the district attorney’s office prior to resolution of the criminal proceedings and would not delay the conclusion of the Title IX process. The university’s Title IX Coordinator ultimately issued a final report. In his first lawsuit, the plaintiff sought damages and a stay on the disciplinary proceedings until the criminal matter was resolved. The plaintiff voluntarily dismissed that lawsuit in March 2019, but according to news reports, his attorneys expressed an intention to refile after the criminal case concluded.

According to news reports, the plaintiff was suspended from the football team in August of 2018 and subsequently expelled from the university. A jury acquitted him of the criminal charges in August 2019. He was reinstated to the university in August and was subsequently allowed to play football. In a statement about the reinstatement posted on its website, the university stated that it “obtained information following the criminal proceeding that was not provided to the university during the student conduct process.”

Non-Custodial Parent Must Show Current Washington Custody Schedule is Impractical to Modify Based on Their Own Relocation

February 17, 2021 | by Blair & Kim, PLLC

Washington family law includes a strong presumption in favor of continuity and against modification of a parenting plan. RCW 26.09.260. A parent seeking modification of a residential schedule must show there is adequate cause before a full hearing. In a recent case, a mother challenged a denial of adequate cause to modify the residential schedule following her move to the town where her children lived with their father.

According to the appeals court’s opinion, the mother “fled” to Alabama with her two daughters and “hid them from” their father when they separated. The father filed for divorce, was awarded custody, and ultimately brought the children back to Washington. The mother moved to Spokane.

The parenting plan from 2013 indicated the children’s primary residence was in Moses Lake with their father. The mother had the children on alternating weekends, with some additional time in the summer, plus certain holidays and school breaks.

Washington Appeals Court Reverses Conviction Due to Improper Identification Testimony

February 10, 2021 | by Blair & Kim, PLLC

Identification of the defendant as the person who committed the allegedly criminal act is an important part of a Washington criminal case. When there is video of the incident, however, the jury may be able to make the identification without the assistance of opinion testimony from a witness. Identification from a video constitutes opinion testimony. A lay witness may provide opinion testimony only if it is rationally based on the witness’s own perception, helpful in understanding the testimony or determining a fact at issue, and not based on specialized knowledge. ER 701. Washington courts have held that witness identification of a defendant in a surveillance photograph may invade the province of the jury, but the testimony may be admissible in certain circumstances. A lay witness may testify about the identity of a person in a surveillance photo if the witness is more likely to correctly identify them from the photo than the jury is. This may occur when the defendant has had multiple contacts with the witness and the video is unclear or the defendant’s appearance has changed since the video was taken.

A defendant recently successfully challenged a conviction after a police officer provided identification testimony.

According to the appeals court’s opinion, the defendant went into a grocery store with a woman and a child. The woman was caught on security footage putting items in her purse, but the defendant and the child were not visible in the video at the time. A loss prevention employee saw the woman’s actions on video surveillance. The woman paid for some items, but not those she put in her purse. The group left the store together.