Ethical Considerations for the Duty to Warn/Protect

October 2020 | Jordan Tirone, Staff Writer/Editor

A healthcare provider must maintain confidentiality when it comes to protecting information about their client. Laws like the Health Insurance Portability and Accountability Act (HIPAA) make sure of this.[1] Additionally, the Hippocratic Oath sworn by doctors mentions a need to respect the privacy of their patients. However, what are the limits of confidentiality? Does a therapist have a duty to warn of impending danger from a patient to a third party? The therapy of a patient creates the ability for the therapist to potentially foresee dangers that threaten others. But, by warning others, a physician or therapist breaks the confidentiality of the patient and breaches the Hippocratic Oath.

The duty to warn and the duty to protect are provisions put in place to define healthcare negligence within the scenarios previously mentioned. While most states have statutory provisions regarding the duty to warn in place, Nevada was one of the last states to create legislation on the matter.[2] These provisions are helpful for professionals to define due diligence and to avoid liability falling on them by clarifying what level of risk outweighs patient-client confidentiality. The California Supreme Court brought attention to the duty to warn in the case Tarasoff v. The Regents of the University of California.[3]

In 1969, Prosenjit Poddar killed Tatiana Tarasoff. Poddar was a student at the University of California at Berkeley. He made advances to a fellow student, Tatiana Tarasoff, who rejected these advances. It was revealed that Poddar’s psychologist knew of his intentions to kill. Poddar told his psychologist that he had purchased a gun and was thinking of killing Tatiana Tarasoff. The psychologist reached out to campus police, who detailed Poddar. Poddar persuaded campus police to release him. The psychologist also reached out to their supervisor but was told to take no further action. Neither the psychologist, supervisor, nor police did not warn Tatiana Tarasoff, or her family, of the danger. Two months later, Tatiana Tarasoff was killed after coming home from abroad. The plaintiffs, Tatiana’s parents, argued that the defendant committed negligence by failing to warn Tatiana or others that could inform her of her danger.[4]

In the State of California, it is understood that a person does not have a duty to control the conduct of another person, but there are two exceptions to this. One exception of interest to Tarasoff v. The Regents of the University of California is if there is a special relationship between the defendants and the injured party. This comes from a case called Wright v. Arcade School District, where a young boy was hit by a car on his way to school, at an intersection the school knew was problematic. The argument here was that the school has a special relationship with the child and, thus, must protect the boy.[5] Does a therapist have a special relationship with a potential victim, as the school district did to the child, to protect the victim from foreseeable danger? This is a question that came up in the Tarasoff case.

It is also understood that confidentiality is important for effective psychiatric treatment.[6] The promise that everything discussed will remain between the client and the healthcare provider is essential for three reasons. The first reason is that a lack of confidentiality may be a deterrent from seeking treatment. If there is an understanding that confidentiality is not kept, an individual may not seek help. Second, the concept of full disclosure requires confidentiality. If there is a lack of understand that what will be discussed in therapy resides in confidentiality, then patients may not share their innermost thoughts. Lastly, successful treatment cannot be achieved without confidentiality. This is because without confidentiality, trust in the client-therapist relationship may be undermined. It is understood that trust in a healthcare provider is instrumental to successful therapeutic intervention.[7] 

Another problem is how one defines negligence in this scenario. Where is the line between a healthcare provider maintaining confidentiality or being negligent? It is difficult to define whether a person is being truthful about what they say. A therapist will have to go through a risk assessment to judge whether or not a threat meets the need to protect or warn a potential victim. However, these risk assessments are notoriously unreliable.[8]    

The question remains: should the need for a duty to warn and protect be placed on the therapist, degrading the ability to provide successful treatment? Or should they protect potential victims from threats, even though they cannot fully predict a person’s actions? An individual who is inclined to make and follow through with threats is clearly in need of counseling. However, they may not be inclined to seek help, share these thoughts, or finish therapy if they know their therapist must act in a way that is intrinsically against them. 

It is necessary for these statutes, the duty to warn and the duty to protect, to be in place. There is an ethical obligation to protect an innocent person from harm that greatly outweighs the ethical obligation to remain confidential. It should be recognized that there is a need for confidentiality and trust within a therapeutic relationship, but it is more important to protect others from harm inflicted by a client. Trust can still be built within the therapeutic relationship, even with this disclosure. If an individual understands the provider’s obligation to breach confidentiality upfront, trust and the therapeutic intervention can overcome the obligation to successfully treat the patient.

It was only recently that Nevada adopted these necessary statutes. In 2015, a bill was placed in front of the Nevada State Senate (NV SB15) which subsequently passed. This bill required mental healthcare providers to warn a person if threats to harm them were explicitly made to the provider.[9] However, many sources say Nevada lacks legislation on the matter still, despite it being put into law as a revised statute.[10] The National Conference of State Legislatures,[11] as well as the Database of State Tarasoff Laws, remain unchanged.[12] The literature needs to be updated to reflect these changes. Vagueness in this area can lead to unintended malpractice or harm to innocent persons. 

There are limits to level of confidentiality required by a healthcare provider. These were unfortunately created retroactively after the Tarasoff case. A gap was highlighted in the laws across the country and in the code of conduct of healthcare professionals. Tarasoff Laws, statutes that define a duty to protect and warn, allow for the whole of the healthcare system to set the standard for requiring these duties, and to not allow for variation in confidentiality practices. This allows clients to know they can still trust their therapist, and subsequently receive optimal treatment; in addition to creating clarity around standard practice and conduct in potentially dangerous situations.

---

Sources

1. Office for Civil Rights. “Summary of the HIPAA Privacy Rule,” HHS.gov (US Department of Health and Human Services, July 26, 2013).

2. Nevada Revised Statutes. “NRS 629.550.” NRS: CHAPTER 629 - HEALING ARTS GENERALLY, 2020.

3. Harvard Health. “The Duty to Protect.” Harvard Health, January 2006.

4. “Tarasoff v. Regents of University of California,” P.2d 551, 551, no. Docket No. SF 23042 (1976): 334.

5. “Wright v. Arcade School Dist.,” Cal.App.2d 230, 230, no. Civ. No. 10743 (1964): 272.

6. “In Re Lifschutz,” P.2d 467, 467, no. Docket No. Crim. 14131 (1970): 557.

7. Ibid.

8. Wand, Timothy. 2011. “Investigating the Evidence for the Effectiveness of Risk Assessment in Mental Health Care.” Issues in Mental Health Nursing 33 (1): 2–7. doi:10.3109/01612840.2011.616984.

9. The Senate Committee on Health and Human Services. “MINUTES OF THE SENATE COMMITTEE ON HEALTH AND HUMAN SERVICES.” Nevada Legislature, February 4, 2015.

10. Nevada Revised Statutes. “NRS 629.550.” NRS: CHAPTER 629 - HEALING ARTS GENERALLY, 2020.

11. Alise Garcia Karmen Hanson, “Mental Health Professionals’ Duty to Warn,” National Conference of State Legislatures, October 12, 2018.

12. Griffin Sims Edwards, “Database of State Tarasoff Laws,” SSRN, February 15, 2010.

An Insight into Hate Crime Legislation

October 2020 | Iris Diaz, Staff Writer/Editor

In 1998 at a local bar, a young Wyoming college student named Mathew Sheapard was approached by two men who pretended to be gay.[1] The two men offered Mathew a ride home, and drove him to a rural area.[2] They then proceeded to tie him up to a fence along the country road, and beat him to the point of crushing his skull.[3] Similarly, James Byrd Jr. was approached by three men who took him to a remote area where he was beaten severely and then tied by the ankles of a pickup truck where he was dragged for miles till his death.[4] These heinous murders where both not convicted as hate crimes, due to hate crime laws being nonexistent in the states Byrd and Shepard were murdered in. Also during the time the federal hate crime protections did not encompass “violent acts based on the victim’s sexual orientation and only covered racial violence against those engaged in a federally protected activity, such as voting or attending school.”

The Title I of the Civil Rights Act of 1968, was the first hate crime law, which defined the behavior of a hate crime as “to use, or threaten to use, force to willfully interfere with any person because of race, color, religion, or national origin and because the person is participating in a federally protected activity, such as public education, employment, jury service, travel, or the enjoyment of public accommodations, or helping another person to do so.”[5] In 2009 the “Mathew Shepard and James Byrd Jr. Hate Crimes Prevention Act” was passed, which extended the “federal hate crime prohibitions” to include hate crimes motivated by the victim’s gender identity, actual or perceived sexual orientation, and disability of the individual.[6] Even though the behavior of a hate crime has been defined, each state reserves the right to construct its own definition of a hate crime, choose to implement hate crime laws or not, and what parts of an individual's identity they will protect. This discretion does not allow for universal hate crime law implementation, which means these crimes can slip through the cracks and damage society. Thus, hate crime laws in states should be implemented and improved. 

In the United States, some states have implemented hate crime laws, while others have not. Arkansas, Wyoming, and South Carolina are the only three states who are without hate crime legislation.[7] Of the states that have implemented hate crime laws, many laws do not protect every aspect of an individual's identity. People have been and still are being terrorized for their religion, sexuality, gender, disability, race, political views, etc. Moreover, since every state has the ability to establish its own hate crime laws, states can decide what kinds of hate crimes they protect. For example, South Carolina only criminalizes crimes related to religious worship or political affiliation.[8] Another example of this would be Oklahoma; this state only considers hate crimes as those that include race, religion, or ethnicity. Situations like these emphasize that hate crime laws have gaps that make them less successful in providing the best protection for the people.

Hate crimes can easily be mistaken to be hate incidents. The foundation of classifying a criminal case as a hate crime are hate incidents; however, hate incidents alone without a crime are not identified as a hate crime.[9] Hate incidents involve pejorative speech, discriminatory speech, and humiliating behavior. This includes racial slurs, name-calling, threatening, etc. Hateful speech in itself is not punishable, due to the First Amendment that gives the right to freedom speech. However, the hate incidents that occur will aid an individual who wants to classify a crime as a hate crime. For example, if murder has been commited against an individual for their sexual orientation, the prosecutor will have to find hate incidents that occured prior to the murder to be able to classify the murder case a hate crime. These hate incidents can include incidents where the offender was perhaps threatening or using discriminatory speech towards the victim. Hate crimes have been around for thousands of years, but they have never been directly addressed until some laws were passed. 

Despite the gaps, various state and federal legislations on hate crimes have been passed. These legislations have helped the community and have produced penalties towards crimes motivated by hate. One of these acts was the Violence Against Women Act of 1994. This act was the first law that addressed domestic violence and rape, and it included “federal civil remedy for victims of gender-based violent crimes.”[10] The Church Arson Prevention Act of 1996 aided prosecution that racially motivated “desecration of houses of worship” and arson.[11] In 1994, the Hate Crimes Sentencing Enhancement Act stated that if a federal crime involved a hate-influenced attack, then the prison term for the perpetrator would be lengthened by a third as punishment.[12] All of these acts have taken steps toward combating hate crimes; nonetheless, there are many issues with current hate crime laws. 

In the United States, many states fail to report hate crimes even though they have implemented hate crime laws. In 2017, the Federal Bureau of Investigation (FBI) reported having “more than 7,100 hate crime incidents” for that year, hate crime incidents here referring to actual hate crimes.[13] However, a hate crimes survey conducted in 2017 by the Bureau of Justices Statistics estimated that 250,000 hate crimes occur per year.[14] This disparity exists because the system of reporting hate crimes operates by the “local police sending hate crime data to state agencies, who then submit the data to the FBI.”[15] Police departments at times do not investigate and track hate crimes, and victims of these crimes have come forward saying that police sometimes lack the knowledge to make a police report regarding a hate crime or even refuse to make one.[16] This problem can be partially attributed to the fact that only a dozen states require the police academies to include hate crime training.[17] Therefore, police are not able to execute effectively when tracking hate crimes. 

Moreover, hate crimes are difficult to prosecute. It involves a long complicated process that can take years, specifically because of the burden of proof for these cases. Benjamin Wagner, former U.S. Attorney for California’s Eastern District, explained that in order to prosecute, “you need to prove not just the incident, but the state of mind of the defendant...that what they intended was hate-motivated”, which includes critically examining the defendants background. The high burden of proof and lengthy probing process results in grim prospects for hate crime prosecutions. In a study directed by ProPublica, a newsroom non-profit organization, it was “found that of the nearly 1,000 hate crime cases reported to police in Texas from 2010 to 2015, fewer than 10 were successfully prosecuted.”[18]

Opponents of the implementation and enforcement of hate crime laws argue that hate crime laws violate an individual's constitutional rights. Under the First Amendment, the people are granted the right to freedom of speech. Critics argue this because, through the investigation of a hate crime, the prosecutor must find evidence that proves a hateful motive to commit the crime. Thus, any evidence they use against a defendant will violate their constitutional right to freedom of speech. However, the Supreme Court through the Wisconsin and Mitchell case established that “evidentiary use of speech to establish the elements of a crime or to prove motive or intent" is permitted.[19] Through this statement, the Supreme Court has expressed that an individual is granted the right to freedom of speech up until a crime is committed based on fostered beliefs. Once they commit a crime, “they surrender their First Amendment rights.”[20]

Along with this, critics also argue that prison time will not eradicate the fostered prejudices of a criminal. In fact, it has been pointed out by some social psychologists that by punishing these individuals, an illusion is being created that the problem is being dealt with. In reality, though, the problem lies in an individual’s thoughts and beliefs, which will not be miraculously changed in prison.[21] However, this problem can be solved by improving hate crime laws. In the improvement of these laws, meetings can be scheduled for those participating in these crimes. These meetings will educate hate crime participants about diversity and reasons as to why they should respect and accept everyone.

Overall, hate crime laws are essential to protect the community. States who have yet to pass hate crime laws and those who need to expand on their laws should do so immediately. By incorporating these laws, victims of hate crimes will feel much safer. Advocates of hate crime legislation claim that the implementation of these laws sends the message of zero tolerance for discrimination.[22] Additionally, the states who have hate crime laws should also strengthen their laws by providing police officers the training needed to adequately track and investigate hate crimes. These laws should also incorporate meetings in jail for hate crime perpetrators, so they can become educated about diversity and understand why they should accept and respect all people. Through the inclusion of these meetings, the participants will be faced with a constructive opportunity to change their ideologies and behavior. Not only should these meetings be incorporated in jail, but also within the community, such as in jobs and schools. Finally, people of the community who want to see a change should take initiative by nurturing future generations with positive outlooks on diversity. Teaching kids to be appreciative and respectful towards others’ cultures will help keep the future generations from fostering prejudicial thoughts and engaging in hateful behavior.

---

Sources

1. Courtesy of Eric S. Dreiband and Courtesy of Katharine T. Sullivan, “Commemorating the Fourth Anniversary of the Shepard-Byrd Hate Crime Prevention Act,” April 7, 2017.

2. Ibid.

3. Ibid.

4. Ibid.

5. “Hate Crime Laws.” The United States Department of Justice, March 7, 2019.

6. Ibid.

7. “STATE-BY-STATE HATE CRIME LAWS.” Washington: National Association for the Advancement of Colored People, 2017.

8. Ibid.

9. Vera Institute of Justice. “Bias Crime Assessment: A Tool and Guidelines for Law Enforcement and Concerned Communities.” National Criminal Justice Reference Service, August 2018.

10. “BRIA 10 3 a Should Hate Be Outlawed?” Constitutional Rights Foundation. Accessed September 23, 2020.

11. Ibid.

12. Ibid.

13. Glickhouse, Rachel. “5 Things You Need to Know About Hate Crimes in America.” ProPublica, March 22, 2019.

14. Ibid.

15. Ibid.

16. Ibid.

17. Ibid.

18. Schwencke, Ken. “Why America Fails at Gathering Hate Crime Statistics.” ProPublica, December 4, 2017.

19. “Do Hate-Crime Laws Restrict First Amendment Rights?” 2020.

20. Ibid.

21. Ibid.

22. Ibid.

The Possibility of Defunding the Police

August 2020 | Oskar Perez, Staff Writer/Editor

On May 25, 2020, the world witnessed the murder of George Floyd by a police officer. The world wanted justice, but the police did nothing. Soon, people took to the streets all across the country demanding justice for Floyd. However, when the government finally decided to act, their actions felt underwhelming. The people deserved more. Floyd deserved more. Now the narrative has changed, and people want a change in how policing is structured altogether. This change ushers the possibility of defunding the police, which aims to move funds away from the police and into the community.[1] There are many arguments about whether defunding the police can prove to be beneficial; however, the main concern is who would take on the responsibility – the state or the Federal government – toward reforming the police. To defund the police, citizens cannot rely on the Federal government to set a national standard. Instead, they should advocate for the needs of their communities to local and state government officials, since the source of funding mostly comes from communities. Likewise, it would be unconstitutional for the Federal government to set a national standard on policing.

The majority of police funding is sourced from state and local governments with the Federal government contributing a very small amount for policing. However, there is variation between state to state and county to county due to the services each government provides and the needs of the community. For instance, in 2017 Clark County, Nevada spent 15 percent of its budget on police while Las Vegas spent less than 2 percent. But in Cook County, Illinois only 2 percent of its budget was spent on police while Chicago city spent 20 percent of its budget.[2] Since the majority of police funding is apportioned by states and local governments, this is significant enough to make them responsible for police defunding -- not the Federal government. Only the state and local government will know what to budget. As Richard C. Auxier from Urban Institute explains, “what a government spends on police (or any other service) depends in large part on a complex set of demographic, economic, and fiscal conditions in those jurisdictions.”[3] Auxier explains how one state might spend more on policing since the cost of living varies from state to state. For instance, the state of New York might pay their officers more compared in Kentucky, since the cost of living is higher in New York. 

To defund the police, activists and policymakers need to understand where the money goes and if the budget should be allocated elsewhere to benefit the community. This is essentially the first step to defund the police, “reducing police spending can free up millions of dollars for other services,”[4] ones that help communities to grow and thrive. These community investments would reduce police officers acting out of their job description and training since these services would include job training, counseling, and violence-prevention programs. Investment in such services would bring in skilled professionals who are trained to support people who have a mental health episode.[5] At the end of the day, it would be up to the state and local governments to allocate the correct amount of funds to police departments and to services that nourish communities. Activists and policymakers need to understand where funds can be used beneficially if they wish to defund the police. 

Ultimately, it would be unconstitutional for the Federal government to set a national standard on policing. The 10th amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people,” further holding state and local governments accountable for police defunding. For example, the 2001 No Child Left Behind Act attempted to establish new Federal oversight and set standards for education; however, right away the act proved to be flawed.[6] Not only was the Federal oversight unconstitutional, but the flaws within the act were apparent when the standards did not consider the differences between student populations. This same reasoning can be applied to police standards if there were Federal oversight on policing; the act would fail to consider the differences between police populations. Again, only state and local governments would be able to understand what communities need and where funding will prove to be beneficial. 

There are critics against the notion that state and local governments are responsible for defunding or abolishing the police. For instance, Congress can distribute funds as grants to state and local governments for their implementation of policy, which is how the Federal government can regulate and standardize law enforcement.[7] This counters the responsibility of state and local government on police defunding since the Federal government can also have a responsibility for defunding the police through existing funding programs. The Federal government can appropriate funds to police departments who participate in data collection. For example, grants require specific data from law enforcement agencies to qualify. The data collection will give the Federal government analysis of police use of force, which could incentivize police departments to adopt national standards since law enforcement agencies would want to comply with the data to receive funding. This could ensure law enforcement agencies adopt practices and standards that prevent the abuse of power and ensure compliance with civil rights requirements.[8] Federal funding could shift the burden away from state and local governments when budgeting and it could indirectly control police standards by incentivizing police departments to adopt practices and national standards, which is still constitutional. Even though this strategy to set a national standard is constitutional, it still proves to be flawed. Again, there is a complex difference of demographic, economic, and fiscal conditions from state to state and county to county; therefore, a national standard will benefit certain communities, but it might hinder others. 

This paper is not an argument of why the police should be defunded, but on who should defund the police. Since it would be unconstitutional for the Federal government to set a national standard on policing and the source of funding mostly comes from communities, defunding the police should be done through the state and local governments. The state and local governments hold the power to defund the police with the Constitution, funding, and community differences. But citizens also have a responsibility. Instead of criticizing the Federal government for a lack of action, citizens could lobby their state and local government for change, and help local officials understand what would benefit their community. Most importantly, citizens should realize how the future is in their hands to change the current landscape of police brutality in the United States, and that it is possible to defund the police.

---

Sources

1. Annie Lowrey. Defund the Police (Boston: The Atlantic, 2020).

2. Richard C. Auxier. What Police Spending Data Can (and Cannot) Explain amid Calls to Defund the Police (Washington, D.C.: Urban Institute, 2020).

3. Ibid.

4. Ibid.

5. Paige Fernandez. Defunding the Police Will Actually Make Us Safer (New York: American Civil Liberties Union, 2020).

6.  Brendan Pelsue. When it Comes to Education, the Federal Government is in Charge of ... Um, What? (Cambridge: Harvard Ed News, 2017).

7. Ibid.

8. Charles Ramsey and Laurie Robinson. Final Report of the President’s Task Force on 21st Century Policing (Washington, D.C: Office of Community Oriented Policing Services, 2015).

Vanessa Guillen - Break the Chain of Silence by Removing the Chain of Command

August 2020 | Natalie Hsaio, Staff Writer/Editor

Garnering national attention, Specialist Vanessa Guillen’s disappearance have sparked conversation about the military’s protocol for handling cases of sexual assault and harassment. From trending hashtags to national marches and petitions demanding a change in policy, the feedback is clear: there must be change. To better explore and understand the effect of the situation, we will first go over the basic facts of Guillen’s disappearance, look into how sexual assault/harassment is handled in the military, and explore the possible new changes for reform.

In a statement from the United States Army Criminal Investigation Command, Specialist Guillen “was last seen on the morning of April 22 in the parking lot of her Regimental Engineer Squadron Headquarters, 3rd Cavalry Regiment on Fort Hood, Texas, and had not been heard from since that date.”[1] On July 6th, 2020, it was confirmed that the remains of Specialist Guillen were identified near the Leon River in Belton, Texas.[2] Her family reported that Vanessa had been confiding in her family and friends about being sexually harassed.[3] However, Vanessa did not formally make a report; which raises some questions. Why did she choose to not file a report? If there was a formal report filed, would it have prevented the tragic situation from happening? The loss and tragedy of Vanessa Guillen have called into question the protocol of reporting cases of sexual assault/harassment in the military. 

Vanessa is not alone. Her story is not an anomaly. In the annual report from the Department of Defense (DOD), an estimate of 20,500 service members have experienced some sort of sexual contact or assault in 2018, an increase from 14,900 members in 2016.[4] In the same report, 43% of women who filed a report said that the whole experience of filing a report was negative. As a response to aid victims to find support, the DOD has implemented two different reporting structures: restricted and unrestricted reporting. With unrestricted reporting, there is the ability to provide legal and medical support to the victim. An official investigation of the crime will take place once the victim makes a report through the chain of the command system, and a healthcare provider will conduct a Sexual Assault Forensic Examination (SAFE). Restricted reporting, on the other hand, allows victims of sexual assault/harassment to report to a commander who then helps the victim receive medical assistant, treatment, and counseling without the involvement of the law. With restricted reporting, the assailant will not be punished, and the victim may come into contact with the assailant once again.[5]

Even with different reporting options, many still do not make reports. The chain of command system works by having an individual report to their commander in the hierarchy, who is then in charge of handling the report and situation.[6] The chain of command system is described as “a personnel organization system that connects all military personnel together according to a specific level of achievement, or rank. The chain of command is an organizational structure through which orders are passed from the top down.”[7] A recent report from the 2019 U.S. Army Reserve Annual Report on Sexual Assault stated that, “the sustained high rate in the number of reports may be a positive indicator of victim confidence in their chain of command, victim advocacy and response services, Army criminal investigation offices, and appropriate accountability for offenders.”[8] Although there has been an increase in reports, and the report does suggest that the Chain of Command system is functional, it is still not enough. Although there is an increase in faith in the Chain of Command system, the system itself is corrupt. The power that the commander has is crucial. With the commander being in charge of handling an investigation and case, this could often leave the victim feeling powerless and scared to take action. Sarah Plummer, a victim of sexual assault from the Marine Corps, states, “having someone within your direct chain of command handling the case, it just doesn`t make sense. It`s like your brother raping you and having your dad decide the case.”[9] 

The fear of retaliation and the lack of trust in the military system prevents reporting. Like Vanessa Guillen, many others are uncomfortable with coming forward and taking justice for themselves because of this system. It is not the victim’s fault, but rather, a problem with the barriers set in place when reporting. Thankfully, there are strides being made to help amend this flawed system. Congresswoman Jackie Speier introduced two amendments in late July addressing the changes to be made taken into account by the disappearance and murder of Vanessa Guillen. Speier plans to remove “sexual harassment and assault prosecutions from the chain of command and making sexual harassment punishable as a specific offense within the Uniform Code of Military Justice,” by requiring the DOD to “establish a confidential reporting process for sexual harassment, with those reports being included in the DOD’s Catch a Serial Offender program; and require the U.S. Government Accountability Office to report on the military’s procedures to respond to missing servicemembers.”[10] The removal of the chain of command will allow individuals to have a safer experience while reporting a traumatic event. 

The battle for justice is being fought but is not yet won. With the media’s attention, the culture of abuse within the military is being exposed to the forefront. New amendments, movements, and marches have been proposed and revealed. With trending hashtags like #Iamvanessaguillen, many women and men alike in the military system have been given a voice to share their stories. But despite these hopeful steps into the future, there is still much to be done. The message echoed by people across the nation is demanding for answers and change. The chain of command reporting structure steals away the voice and power of our servicemen/women. Amendments have been introduced, politicians have been speaking out, and the message is loud and clear: we must break the chain of silence.

---

Sources

1. “Pfc. Vanessa Guillen Investigation Update,” Fort Hood Press Center (United States Army Criminal Investigation Command, July 1, 2020).

2. “Remains Positively Identified as Spc Vanessa Guillen,” Fort Hood Press Center (Fort Hood Press Center, July 6, 2020).

3. Johnny Diaz and Maria Cramer, “What We Know About the Disappearance of Vanessa Guillen,” The New York Times (The New York Times, July 2, 2020).

4. “Department of Defense Annual Report on Sexual Assault in the Military,” Department of Defense Annual Report on Sexual Assault in the Military § (2018).

5. “Reporting Options,” sexualassault.army.mil (SHARP), accessed July 25, 2020.

6.  U.S Department of Veterans Affairs. Chain of Command & Authority, n.d.

7. Danielle Christenson, “BSU Honors Program Theses and Projects,” BSU Honors Program Theses and Projects (2014), p. 13.

8. “Active Component and U.S. Army Reserve Annual Report on Sexual Assault” (Department of Defense, 2019).

9. Sarah Plummer, “Military Justice Improvement Act: Quotes You Should Read: Kirsten Gillibrand: U.S. Senator for New York,” Kirsten Gillibrand | U.S. Senator for New York, accessed July 25, 2020.

10. “Chair Speier's Amendments to Address Military Sexual Assault and Harassment and Missing Persons Cases in Honor of SPC Vanessa Guillén Pass in FY21 NDAA,” Protect Our Defenders, July 22, 2020.

DACA: Paving the Way for Comprehensive Immigration Reform

August 2020 | Vanessa Aponte, Associate Editor

Amid mass protesting for the rights of one marginalized group, there was a huge legal victory for another. On June 18, 2020, the U.S. Supreme Court upheld the Deferred Action for Childhood Arrivals (DACA) program in a 5-4 decision.[1] This decision blocked the Trump administration’s attempt to rescind the program, meaning that the hundreds of thousands of DACA recipients across the country are now safe from deportation. However, this ruling did not support DACA so much as it chastised the Trump administration’s rescission of the program. Since the Court did not rule about the merits of DACA, President Trump will likely attempt to rescind it again, leaving DACA recipients in legal limbo. The whole ordeal has DACA advocates calling for comprehensive immigration reform that provides a pathway to citizenship not just for Dreamers, but for all undocumented immigrants. 

DACA is an immigration policy that indefinitely delays the deportation of immigrants who are unlawfully present in the United States because they were brought into the country as children. President Obama created DACA in 2012 to provide temporary relief to these immigrants as long as they meet certain qualifications.[2] The program delays their deportation for a period of two years, giving them a “lawfully present” status and allowing them to obtain a work permit and a driver’s license. While DACA protection only lasts for two years, it can be renewed by the applicant every time it ends if they still meet the criteria. Since its creation, DACA has shielded about 800,000 immigrants who entered the country as children, protecting them from deportation and giving them the opportunity to build a life for themselves in America.

Throughout President Trump’s campaign, he repeatedly expressed his goal to rescind DACA. He fulfilled that promise in September of 2017, but this decision was met with various lawsuits that brought DACA all the way to the Supreme Court. Regarding the rescission, Trump claimed that the program was unconstitutional. The reason for this assertion was because after creating DACA, President Obama also attempted to implement a similar program called “DAPA” to protect parents of U.S. citizens and lawful permanent residents from deportation in the same manner that DACA recipients are protected. This case went to the Supreme Court as well, and the ruling decided that the Obama administration’s creation of DAPA violated the Administrative Procedure Act (APA), which “governs the process by which federal agencies develop and issue regulations.”[3] Because of this case, the Trump administration insisted that DACA shared the same legal flaws that DAPA did: that it did not adhere to the APA when it was enacted. While President Trump and his administration cite concerns of legality, DACA advocates assert that the rescission decision was made with discriminatory intent. Throughout his campaign and presidency, Trump has repeatedly insulted Mexican immigrants, calling them “criminals,” “animals,” and “rapists.”[4] This kind of rhetoric raises concerns about whether rescinding DACA had anything to do with its legality or lack thereof, or if the motivation behind such incendiary comments were inherently racist in nature. 

Despite the arguments over DACA’s alleged unconstitutionality and Trump’s potential discriminatory intentions, the Supreme Court ruling weighed in on neither. Rather, they focused on “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action,” which the Court claims it did not.[5] When DACA was rescinded, there was not enough sufficient reasoning as to why the program was now considered unlawful. The overall lack of explanation rendered the rescission “arbitrary and capricious” and, ironically, in violation of the APA.[6] As far as potential racial bias, Chief Justice Roberts disregarded those claims, stating that Trump’s comments against Mexican immigrants are not relevant since he was not a primary actor in the DACA rescission. However, in Justice Sotomayor’s concurring opinion, she agreed with the majority except for the dismissal of Trump’s racially motivated bias behind the DACA rescission. She thought that the plurality prematurely dismissed the plaintiffs’ challenge under the Equal Protection Clause of the Fifth Amendment, as she felt their complaints had merit. Regardless, the plurality disregarded Trump’s remarks as insignificant, and the Court ruled against the procedural aspect of the rescission, not against the intent. 

Although this is a victory for Dreamers all across the country, it may be short-lived. DACA recipients are safe for now, but President Trump is already rolling back DACA protections despite this recent Court decision. It seems likely that if he is re-elected, Trump will get the opportunity to repeal the program in a manner that follows the APA, so no one can challenge him on procedural grounds. Because of this looming possibility, immigration advocates know that this fight is far from over. DACA recipients and all other immigrants will not be completely safe until there is a pathway to permanent citizenship. Creating that pathway will require bipartisan congressional support on comprehensive immigration reform, which can replace the temporary shield with permanent protection. The House of Representatives has already passed the DREAM and Promise Act of 2019, which would provide a path for immigrants with temporary status to obtain citizenship. However, the Senate has not put it to a vote, and the White House issued a veto threat against the proposed DREAM Act.[7]

The partisan politics are playing with people’s lives, ignoring the detriments of deporting DACA recipients. The exclusion of DACA recipients from the labor force could “result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year.”[8] In addition, an estimated 125,200 DACA recipients are essential workers in healthcare, retail, manufacturing, etc., with an additional 76,600 working in restaurants and other food services.[9] Locally, over 12,000 Nevada immigrants are DACA recipients, and they make up over a quarter of the whole labor force and about two-fifths of the hotel and food services industry.[10] It is abundantly clear that these immigrants are valuable members of their communities, their states, and their country, especially during these uncertain times. Dreamers are an integral part of Nevada and make beneficial contributions to their local communities, something that would not be possible without DACA. 

This program protects so many people who have worked hard, who have established their lives here, who have made America their home. Immigrants are the backbone of this country, and they deserve some empathy. Stripping away the protections that allow them to work, study, and live in peace, especially given their contributions to the pandemic response efforts, would be unbelievably cruel. Although the Supreme Court did not weigh in on the merits of DACA, there is no amount of explanation that could justify upending the lives of hundreds of thousands of people. Truthfully, the only way that this administration or any other could reasonably justify rescinding DACA would be if they implemented a pathway to permanent citizenship for undocumented immigrants in its place.

---

Sources

1. Department of Homeland Security v. Regents of Univ. of Cal., 18-587 (U.S. 2020).

2. Secretary Janet Napolitano to David V. Aguilar, Director Alejandro Mayorkas, Director John Morton, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 2012, p. 1.

3. “Summary of the Administrative Procedure Act.” EPA. United States Environmental Protection Agency, n.d.

4. Alan Gomez and Gregory Korte, “Trump Ramps up Rhetoric on Undocumented Immigrants: 'These Aren't People. These Are Animals.'” USA Today, May 2018.

5. Department of Homeland Security v. Regents of Univ. of Cal., 18-587, p. 29 (U.S. 2020).

6. Ibid., p. 26.

7. Camilo Montoya-Galvez, “House Passes Latest DREAM Act, Hoping to Place Millions of Immigrants on Path to Citizenship,” CBS News, June 2019.

8. Department of Homeland Security v. Regents of Univ. of Cal., 18-587, p. 25, (U.S. 2020).

9. Daniela Alulema, “DACA Recipients are Essential Workers and Part of the Front-line Responses to the COVID-19 Pandemic, as Supreme Court Decision Looms,” The Center for Migration Studies, March 2020.

10. “Immigrants in Nevada,” American Immigration Council, July 2020, p.1-2.