Specializing in the representation of crime victims, women and children.

Impact Litigation

By Wendy Murphy    Oct. 27, 2014

 

Wendy has filed numerous briefs in state and federal court and with federal agencies on many topics, including:  autonomy theory in rape law; repeal of the “Fresh Complaint” doctrine; reform of rape-shield statutes; jury selection and jury instructions to prevent gender-bias in rape trials; “prior false complaint” evidence; drug and alcohol-facilitated sexual assault; constitutional privacy rights in mental health and medical treatment files; women’s civil rights; military rape trials; admissibility of “grooming” evidence in child sex abuse cases; standing doctrine as applied to victims of violence in criminal cases; due process and equal protection for third-parties in criminal trials; the scientific reliability of traumatic and recovered memories; “Parental Alienation” evidence and biases against protective mothers in family court; the constitutional rights of children as victims in child abuse trials; the withdrawal of consent in rape law; parental rights when rape causes the birth of a child; the rights of disabled crime victims to reasonable accommodations during criminal trials; free speech rights of crime victims; federal jurisdiction over state court proceedings including abstention, preemption, mootness and ripeness; Title IX and Title VIIl; The Clery Act; HIPAA; the “vulnerable victim” standard in federal sentencing law; retroactivity doctrine; voluntary intoxication and diminished capacity; competency and capacity to testify; mistake defenses in rape law; corroboration rules and the definition of consent in rape law; grandparents visitation rights; judicial bias and linguistics and burdens of proof; anti-SLAPP laws on behalf of crime victims; the right of crime victims to a speedy trial, and other provisions of “Victims’ Rights” statutes; testimonial privileges and confidentiality statutes.

Wendy has also drafted model legislation on numerous criminal justice issues including the criminalization of rape without force; forbidding consent defenses in rape cases when serious bodily injury occurs or is threatened; parity of privilege statutes such that the rape counseling privilege is on par with the priest-penitent privilege; protecting child victims from intimidation tactics.

Wendy planned and brought the first test case in the nation using anti-SLAPP laws to win the dismissal of a retaliatory lawsuit against a domestic violence victim who was sued by her batterer for reporting his crimes to police, and testifying against him in court.

She has filed numerous test cases, since 1992, to improve constitutional and common law privacy rights for victims of violence regarding mental and medical health records, past sexual conduct and forced physical and mental examinations.

She planned and brought the first federal test case in the aftermath of the United States Supreme Court’s decision in Jaffee v. Redmond, to establish that the federal common law privilege of confidentiality for licensed social workers extends also to nonlicensed volunteer rape crisis counselors.

She was the first attorney to write and submit an amicus brief on the admissibility of “grooming” evidence in a child rape case to explain a pattern of offender behavior that inhibited the child’s ability to report the violence to authorities.

She planned and brought the first test case in the nation to establish that crime victims have a right to be heard in criminal proceedings and may directly address the court, with their own private attorney, to advance their rights under victims’ “Bill of Rights” laws.

She filed and won a first-ever lawsuit against a criminal defense attorney for abuse of process when he unlawfully subpoenaed the records of a rape victim’s therapist.

She represented a therapist who successfully resisted a subpoena for a victim’s treatment records in a military rape trial. The court martial judge issued an arrest warrant but the therapist prevailed by demonstrating that the military has no authority over the privileged files of a civilian witness.

She wrote the winning brief in a landmark California case establishing that if a woman initially agrees to sex, but changes her mind before the act is complete, and the actor continues, the crime of rape has been committed.

She planned and brought the first test case using Title IX and civil rights injunction laws to force a public school to provide special protection for a female student who received an internet death threat. School administrators, who refused to provide protection for the girl, were ordered by the court to restrain the freedom of the offending student and to take specific steps to ensure the victim’s safety.

She used Title IX to initiate first-ever legal action at the Department of Education against Harvard after the college instituted a new policy requiring sexual assault victims to produce “sufficient independent corroboration” before a rape allegation would be accepted for resolution under the school’s disciplinary proceedings.  The case forced Harvard to rescind the policy.

She won a groundbreaking case before the Massachusetts Supreme Judicial Court which established that an abusive parent loses their legal presumption of parental “fitness” in grandparent visitation cases, making it much easier for a protective grandparent to participate in the child’s life even over the objection of the abusive parent.

She was qualified as an expert witness in an Alaska case involving the constitutionality of certain victims’ rights laws.  Wendy testified about victims’ typical difficulties with the criminal justice system and general inability to understand criminal proceedings, the meaning and consequences of certain actions and their rights in general as individuals and as participants in the criminal justice process.

She represented Nebraska rape victim Tory Bowen, in state and federal litigation, after Bowen was ordered by a state court judge not to use the words “victim”, “rape”, “sexual assault nurse examiner” or “sexual assault kit” during her trial testimony.  A federal court ultimately ruled that the state judge’s order was reminiscent of the types of judicial decisions rendered in countries where women wear “burkas”.

She wrote the winning brief in an appellate case involving rape and intoxication.  A lower court had ruled the jury could not consider the victim’s intoxication on the issue of consent unless she was so drunk, she was “wholly insensible” or “utterly senseless.”  Wendy argued in favor of a fairer standard that would allow a jury to decide whether the victim was simply “too intoxicated” to consent.

She prevailed against Ohio State University and the University of Virginia in Title IX matters where the universities had adopted a policy of requiring sexual assault victims involved in campus judicial proceedings s to prove their claims by “clear and convincing” evidence.  Wendy’s complaints with the Department of Education’s Office for Civil Rights led both schools to retract the standard in favor of the lesser “preponderance of evidence” rule.

Wendy represented a victim of sexual harassment in a pending case of first impression involving the question:  does a university have a duty to takes steps to prevent sexual harassment that occurs in cyberspace, at websites such as “JuicyCampus.com”?  This case against Hofstra University led to the immediate shut down of JuicyCampus.com and other similar sites that were facilitating sexual harassment on campuses nationwide.  It also led to new federal guidance to ensure that schools take effective steps to redress cyber-harassment when the effects of the harassment are felt on campus.

She represented a child rape victim who, at the behest of her attacker (who confessed) was ordered by a judge to submit to a penetrating vaginal examination, to determine the condition of her hymen.  After the order was affirmed by the state’s highest court, Wendy filed an action with the United States Supreme Court and West Virginia federal court.  A class action against the Supreme Court of Appeals for the State of West Virginia is being prepared.

Wendy filed an appeal on a matter of first impression involving the question: can a group of private plaintiffs who experience targeted violence based on gender, use a civil rights statute to obtain equitable remedies on behalf of women as a class, where the statute at issue primarily authorizes only state officials to obtain such remedies, but otherwise allows private persons to file state law-based civil rights lawsuits against individual private actors?

She won a landmark ruling involving the rights of disabled crime victims after a sexual assault victim with expressive aphasia was declared incompetent to testify on the grounds that she could not narrater her testimony.  Wendy’s appeal under the Americans with Disabilities Act overturned the competency ruling and led to a first-in-the-nation ruling by the Massachusetts Supreme Judicial Court that set guidelines to ensure that all disabled crime victims obtain necessary testimonial accommodations to enable their full and equal participation in criminal proceedings.

She successfully filed complaints with the Office for Civil Rights at the Department of Education against Harvard Law School, Princeton University and the University of Virginia, which cases led to federal investigations of those schools’ handling of sexual assault complaints under Title IX and led to the issuance of the DOE’s April 2011 “Dear Colleague Letter” which provided unprecedented clarity and guidance regarding the obligation of schools to respond to reports of sexual violence on campus with “promptness, equity and effectiveness.”

She currently represents a victim who at age 14 became pregnant with a child conceived by rape when she was attacked by a 20 year-old man she knew from a church youth group.  The rapist sought visitation rights with the child after being convicted of rape and being ordered by the criminal court judge to go to family court with his victim for sixteen years, rather than jail.  The victim is fighting to avoid being forced to attend family court with her attacker.

She currently represents Kelly Rutherford, an actress whose high profile divorce case led to her American citizen children being deported from the United States at ages 2 and 5, by a family court judge in California, and ordered to live with their father in a foreign country.

She currently represents a high school student who nearly took her own life in school after relentless sexual harassment/bullying by students and others who taunted and threatened her because of her status as a rape victim. Wendy obtained a civi rights restraining order under Title IX and other civil rights laws to require the school to take proactive steps to prevent the victim from harassment, but the judge later vacated the order on the grounds that it was just typical high school stuff.  The case follows a similar case in Massachusetts involving another high school student, Phoebe Prince, who successfully took her own life years earlier, in part because the school failed to address Ms. Prince’s bullying as a civil rights matter.  The new case is currently on appeal and is a case of first impression in Massachusetts.

Back to top of page.