New and Noteworthy
Become a member of NCVLI’s membership association, the National Alliance of Victims’ Rights Attorneys (NAVRA), to receive timely email updates of New & Noteworthy court opinions and to access a comprehensive database of victims’ rights related case summaries. Visit www.navra.org to learn more.
State v. Gerhardt, 385 P.3d 1049 (Or. 2016)
Defendant was convicted after pleading guilty to strangling his wife. The trial court ordered him to pay $1,880 in restitution for attorney fees the victim incurred to enforce a “no contact” order that the trial court had entered while defendant was in jail and to obtain a protective order under the Family Abuse Prevention Act. The court of appeals reversed, concluding that the attorney fees were not caused by the crime that defendant was convicted of but rather by defendant’s post-crime conduct of violating the “no contact” order and continuing to harass the victim. The state appealed, and the Oregon Supreme Court reversed. First, the court determined that defendant did not preserve the causation or foreseeability arguments for appeal. Second, the court concluded that even if these arguments had been preserved, defendant has since conceded that his crime was a but-for cause of the victim’s attorney fees and that those fees were a reasonably foreseeable consequence of the crime. For these reasons, the court affirmed the restitution order.
Doe v. Amherst College, No. C16-1296JLR (W.D. Wash. Nov. 16, 2016) (order granting motion to quash)
Following a campus sexual assault misconduct hearing at Amherst College, a student (Doe), was expelled after being found responsible for sexually assaulting another student (the victim). Doe filed a civil suit in the District of Massachusetts asserting ten claims against the College, including violations of Title IX, breach of contract, and defamation. As part of the lawsuit, Doe served a subpoena on the victim—a non-party—to testify at a deposition and to produce certain documents. The subpoena did not specify the scope of the deposition and requested 13 categories of documents, including “all documents and communications concerning the issue of sexual misconduct, sexual assault, rape, or rape culture, including but not limited to, all emails, text messages, posts on social media, articles, and blogs.” The victim moved to quash the subpoena. The United States District Court for the Western District of Washington found that an in-person deposition of boundless scope would impose a substantial burden on the victim. The court reasoned that it would “force [the victim] to relive a night in which she asserts [Doe] sexually assaulted her[,]” and that “[i]t takes no leap of logic to reason that a live deposition would impose emotion and psychological harm upon [the victim].” The court concluded that the heavy burden was not justified in this case where the subjects of litigation were the processes and policies involved in sexual assault misconduct hearings. The court further noted that the majority of the topics to be covered in the deposition were not relevant to the claims and any arguably relevant information was available from other sources, such as the College and its administrators. In addressing the subpoena’s request for documents, the court explained that as with the deposition request, it appeared to be an attempt to relitigate the merits of the sexual assault charge and was not relevant to the claims in the civil suit. In addition, all arguably relevant materials could be obtained from other sources and it had not been shown that Doe could get this information only from the victim. Because of the hardship to the victim, the marginal relevance of the requests for production, and the availability from other sources, the court granted the victim’s motion to quash the subpoena in its entirety. The court noted that because it was quashing the deposition and requests for production as unduly burdensome, it was unnecessary to consider whether the requests were precluded under Federal Rule of Evidence 412.