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Indiana law professors support changes to judicial conduct rules

October 30, 2018

Although they concede that more needs to be done, two Indiana law professors are applauding the recommendations on how to handle sexual harassment complaints made against the federal judiciary. 

The legal scholars, Indiana University Maurer School of Law professor Charles Geyh and Indiana University Robert H. McKinney School of Law professor Jennifer Drobac, offered their comments as part of the public hearing held Tuesday in Washington, D.C., to consider the proposed changes to the Code of Conduct for U.S. Judges and the Rules for Judicial-Conduct and Judicial-Disability Proceedings.

These changes are based on recommendations made by the Federal Judiciary Workplace Conduct Working Group, which was formed at the request of Chief Justice John Roberts. In his 2017 year-end report, Roberts stated the judicial branch is not immune from the problem of sexual harassment.

The hearing was convened jointly by the Judicial Conference committees on Code of Conduct and Judicial Conduct and Disability. Senior Judge Sarah Evans Barker of the Southern Indiana District Court and Judge Joel Flaum of the 7th Circuit Court of Appeals are members of the Judicial Conduct and Disability committee.

Geyh testified at the hearing. Drobac had a scheduling conflict and provided her comments in a letter.

Both Geyh and Drobac described the proposed rule changes as a “terrific start” and a “promising response” to the problem of sexual misconduct. While Drobac wrote she agreed with others that the potential new rules may not go far enough and may not completely address the issue, she nevertheless endorsed the changes.

“I am not ordinarily known for my patience but I would rather see reasonable, even if arguably inadequate, first steps than no change because of unproductive and unnecessary wrangling over the efficacy of every proposed change,” she wrote.

Geyh told the committees that sexual harassment and gender bias are chronic problems. The issues range from insensitive remarks to abusively exploiting one’s position, he said.

Geyh advised the committees to include a clear definition of unacceptable conduct in the new rules and give examples to avoid any squabbles or misunderstandings. In addition, he recommended that the changes provide definitions for gender bias and prejudice.

The IU Maurer professor also pointed out the conundrum that confidentiality can pose. He said he understood the need for confidentiality, but also noted a complaint might necessitate that action be taken that would make the situation public.

Worried that some individuals might not come forward if the matter could not be kept private, Geyh suggested the rules provide for a safe place where a complainant could talk to someone informally. The incident or situation could be assessed, and questions could be answered without the requirement that the allegation be passed up the chain of command.

Drobac pointed to a special report by CNN in January 2018, which discovered that courthouse employees and others with complaints against judges rarely use the judiciary’s misconduct system or get no relief when they do.

“At the worst, judicial bodies ratify and condone sex-based misconduct and predation through their negligence and deliberate inaction,” Drobac wrote in her letter. “In this post-#MeToo rea, the judiciary is being called upon to provide strong leadership for interpersonal safety, gender equity, professionalism, justice and due process, and simply courtesy.”

The committees will accept comments on the proposed changes until Nov. 13, 2018.

Any individual, including anyone representing a group or organization, may submit a comment by emailing CodeandConductRules@ao.uscourts.gov. The top of the email should include the name of the individual submitting the comments, whether the person is commenting on behalf of an entity and on which documents (the Code, JC&D rules or both) the individual is providing comments.

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