By Caitlin Reed, Esq. 

Awareness ribbons overwhelm me.  I feel guilty just writing that, but it's true. This month's color is turquoise, for sexual assault awareness month.  I wish everyone knew that.  I wish everyone knew the statistics (according to the CDC, 1 in 3 women and 1 in 5 men are sexually assaulted in the U.S.).  I wish everyone heard those statistics and immediately realized that those only represent reported incidents of sexual assault.  (The term "sexual assault" includes but is not limited to rape.) It's overwhelming to think of how many go unreported.  And for good reason. Our society tends not to take rape and sexual assault seriously.  Earlier this week, Boston University's student-run newspaper thought that it would be fun to have a rape satire-themed April Fools' Day edition. Some members of the BU community, a campus where sexual assaults have been rather rampant this year, thought nothing of mocking date rape drugs, gang rapes, etc.  You can read more about it here.

I wish that attitude was unique to the young BU students who wrote and published their paper on April 1st (coincidentally the first day of Sexual Assault Awareness Month).  However, it's not.  That casual and victim-blaming attitude pervades all ages, classes, careers (a whole other blog could be devoted to military sexual assaults), and, most relevant to this blog, all stages of the legal system.  On the off chance that a victim does step forward and tell the police that she or he was sexually assaulted, there's a good chance the rape kit will never be tested.  A couple weeks ago, the Boston Globe had an article about the rape kit backlog.  The most important line from the article: "According to some estimates, between 180,000 and 400,000 rape kits remain untested nationwide, despite DNA technology that can swiftly link  rapists to crime." (For full article, go here.)  

And then there are the questions the victim will likely be subjected to, such as "What were you wearing?" and "Were you drinking?" and "Did you leave your drink unattended?" Questions that reinforce the idea that the victim is at fault and could have prevented the rape by wearing different clothes, not drinking, etc.  Given these realities, along with the extremely low conviction rates (some victims' rights sites say it's about 25% for rape, as opposed to 79% percent for murder) it's no surprise many victims do not pursue their own cases.

However, there are options.  Our first recommendation would be to contact one of many incredible sexual assault organizations so you can feel heard and hopefully find an advocate to help you navigate the cumbersome legal system if you choose to do so.  Most (hopefully all) college campuses have resources for sexual assault victims, and there are a number of national organizations who do amazing work and can help link you to local resources if you don't know of any where you live (see list of national organizations below).  

Legally speaking, there are options other than traditional prosecution that can offer more immediate protection (and would still leave room for you to pursue prosecution).  In Massachusetts, you can get a restraining order (see last week's blog) or a harassment/stalking order out against someone who has assaulted you.  These are very state-specific, and a lot of states only offer these legal remedies to people who have some pre-existing relationship with their perpertrator (family member, significant other, etc.).  MA is a little different in that there are at least temporary legal remedies even if your assailant was a stranger. (There are limits to this, and we will discuss those in detail in next week's blog.)  We aren't naive.  A restraining order is just a piece of paper.  So is a stalking/harassment order. They both require your attendance in court with the person you're accusing of assault.  However, if someone violates a restraining order or a stalking/harassment order, they can be prosecuted for that, separate from the incident that led to the restraining order or stalking/harassment order.  It's an imperfect system, but it's something.

 Non-Exhaustive List of Organizations:

National: 

Rape, Abuse, and Incest National Network 

National Sexual Violence Resource Center 

Boston:

Boston Area Rape Crisis Center

The Network/La Red

Gay Men's Domestic Violence Project 

By Susannah Furnish, Esq.  

If you are considering seeking a restraining order against someone, you are eligible for this protection if you have suffered abuse. These restraining orders offer protection from abuse by a spouse, former spouse, blood relative, former household member, the parent of your child or children, or anyone you have had a significant dating or engagement relationship with. 

Any person who has been abused or threatened with imminent serious physical harm can file a complaint. If you are interested in seeking a restraining order you can file in the Superior Court, the Family and Probate Court, or the Boston Municipal Court where you lived when the abuse occurred, or where you have moved in order to escape the abuse.

Although there are sometimes differences from the typical process for getting a restraining order, the usual process is that once you file for a restraining order, you will have a hearing that day. The perpetrator does not have to be there in order to get a temporary restraining order, but in order to get a restraining order extended, you will need to go back in about 2 weeks. At this later hearing, both you and the person you are seeking a restraining order against have the right to be present. The judge will hear from both of you, if you are both there, and will determine whether or not to extend the order up to one year. After a year, you can come back in to get it extended again if you feel like you still need the protection of restraining order.

For more information about how to get help seeking a restraining order, please contact us to set up a consultation or to discuss legal services available. Even if you cannot afford an attorney, we would be happy to assist you in finding resources to help you go forward in your pursuit of a restraining order.

By Caitlin Reed, Esq.

Michael from Trinidad.  Henry from Venezuela.  David from Costa Rica.  There has been a lot of “good” news lately in the LGBT immigration world.  These men were all spared deportation due to their same-sex marriages to U.S. citizens.  Yay!  Maybe.  They were spared deportation for now.  Not forever.  They still cannot apply for green cards because of their marriages.  They still do not know what will happen with their cases in a year.  They just get to stay in the U.S. with their same-sex partner a little longer.  Maybe indefinitely.  Maybe not.

A question that comes up all the time from LGBT immigrants is: will marrying my same-sex partner help me stay?  The answer is still very unclear.  As with many legal questions, the most honest answer I can give you is: it depends. 

So what does it depend on? 

Luck.

Honestly, that’s what it all boils down to in immigration cases.  Under Obama’s administration, prosecutors have the power to decide whether or not to pursue a case.  The administration issued a “prosecutorial discretion” memo in 2011 with a list of factors to determine whether or not a case was worth pursuing.  In essence, the memo is a road map for prosecutors who need help prioritizing their immigration cases. These factors include: criminal history, length of time in the U.S., someone’s legal status, military service, education, etc. (If you want to read the whole prosecutorial discretion memo, you can do so here.)

The memo basically tells immigration officials to back off when it comes to non-threatening immigrants.  (Can you see how subjective this could become?)  What it does not do is make the cases against these low priority immigrants disappear.  It does not grant them any sort of legal status based on their marriage.  It does not prevent prosecutors from choosing to pursue these cases.  And make no mistake – if they choose to pursue the case, the harm can be significant.  You could be deported.  Not only that, but you could be banned from the U.S. for ten years.  If you are in this country on a visitor’s visa, then get married, the government may accuse you of committing fraud on your visa application.  They may say you had “immigrant intent” (the intent to stay) when you applied for the visa.  Visitor visas require you to show that you have every intention of leaving the U.S. when the visa expires.  If you get (gay) married while here, the marriage could be interpreted as an intent to immigrate here despite what you claimed on your visa application.  Said differently, it could easily be interpreted as fraud, which the government doesn’t take lightly. (The same logic does not apply to heterosexual couples because their marriages are recognized by the federal government.)

So what’s my point?  My point is that we can’t get comfortable.  DOMA (the Defense of Marriage Act) is still the law.  DOMA still prevents federal recognition of marriage, and until that changes, if it ever changes, same-sex bi-national couples have to be very careful.  Don’t forget, it’s an election year.  The Supreme Court could go either way.  Don’t be lulled into complacency because some couples have had some luck.  Be sure to talk to an immigration lawyer well-versed in the unique challenges facing same-sex couples before you head to City Hall (or PTown) to get married. 

Below are links to articles about the above-mentioned men who were spared deportation:

Michael from Trinidad

Henry from Venezuela

David from Costa Rica

Also check out these information pieces for binational couples considering marriage from GLAD and Immigration Equality

By Susannah Furnish, Esq.

A question that frequently comes up for people who are planning for their future by drafting a will is how to ensure that their wishes regarding their remains are followed after their death. Although it may be unpleasant to think about what will happen to your remains after you pass away, it is helpful to know what planning tools are at your disposal. Massachusetts has a couple of unusual regulations that everyone planning for their funeral, and their remains, should be aware of.

A will can be an important tool for making sure that your plans for your loved ones are carried out after your death. However, even if you include directions in your will for your funeral, burial, embalming, or cremation, those directions are not enough to ensure that your wishes are followed. In order to make definite plans about how your loved ones should handle your remains, you should ensure that you have a pre-need contract in place with a funeral home. This contract, created with a licensed funeral establishment, helps to clearly define for those you leave behind your exact wishes relating to your remains. These contracts can also help you clarify for yourself what you would like those plans to be.

For more information about pre-need contracts, you can view the Massachusetts Guidelines at:  http://www.mass.gov/ocabr/licensee/dpl-boards/em/regulations/rules-and-regs/239-cmr-400.html

Please contact us for a consultation about wills and pre-need contracts.